Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 1 of 4

1 Thomas E. Perez

2

Assistant Attorney General Dennis K. Burke

3

United States Attorney Roy L. Austin, Jr. (IL Bar #6228785)

4

Matthew Colangelo (NY Bar #4228797) Jonathan Smith (DC Bar #396578)

5

Avner Shapiro (DC Bar #452475) Peter S. Gray (DC Bar #940031)

6

Laurie A. Gelman (VA Bar #47743) Amin Aminfar (NC Bar #36589)

7

Sergio Perez (CA Bar #274798) U.S. Department of Justice, Civil Rights Division

8

950 Pennsylvania Avenue, N.W. Washington, DC 20530

9

(ph) 202-514-6225 / (fax) 202-514-4883, (email) amin.aminfar@usdoj.gov

10 Michael M. Walker (AZ Bar #20315)

11

Assistant U.S. Attorney Two Renaissance Square

12

40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408

13

(ph) 602-514-7500 / (fax) 602-514-7760, (email) michael.walker4@usdoj.gov

14 Attorneys for the United States

15

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18

19 United States of America,

20

Plaintiff,

21

v.

22 Maricopa County, Arizona; Maricopa

23

County Sheriff’s Office; and Joseph M. Arpaio, in his official capacity as Sheriff of

24 Maricopa County, Arizona,

25

Defendants.

No. 2:10-cv-01878-GMS JOINT MOTION TO REMOVE CASE TO THE INACTIVE DOCKET AND STAY PROCEEDINGS

26

27

28

1

Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 2 of 4

1

In an effort to resolve this action purs uant to agreement and to avoid protracted

2 litigation, Plaintiff, the United States of Am erica, and Defendants, Sheriff Joseph M.

3 Arpaio and Maricopa County Sheriff’s Offi ce, pursuant to the terms of the Agreement

4 attached as Exhibit A, respect fully move this Court for an order removing this case to

5 the Court’s inactive docket and staying a ny proceedings on the parties’ pending

6 Motions for Summary Judgment (Dkt. 18, 40, 43, and related filings) for sixty (60)

7 days or until further order of the Court. After the sixty (60) calendar days and subjec t

8 to substantial compliance with the terms of the Agreement, either Plaintiff will file a

9 Motion to Dismiss the United States’ Fi rst Amended Complain t without prejudice

10 pursuant to Fed. R. Civ. P. 41(a)(2) or a defenda nt could exercise its rights under the

11 Agreement and move for dismissal.

12

For the foregoing reasons and due to the parties’ Agreem ent, the parties

13 respectfully move this Court for an order removing this case to the inactive docket and

14 staying further proceedings on the parties' respective Motions for Summary Judgment.

15

16 Dated: June 2, 2011

Respectfully submitted,

17 Jones, Skelton & Hochuli, P.L.C.

United States Department of Justice Civil Rights Division

18 /s/ Joseph J. Popolizio

19

William R. Jones, Jr. John T. Masterson

20

Joseph J. Popolizio 2901 North Central Avenue, Suite 800

21

Phoenix, Arizona 85012 Attorneys for nam ed

Defendants

22

Maricopa County Sheriff’s Office and Joseph M. Arpaio

23

24

25

26

27

28

Thomas E. Perez Assistant Attorney General Dennis K. Burke United States Attorney /s/ Amin Aminfar Roy L. Austin, Jr. Matthew Colangelo Jonathan Smith Avner Shapiro Peter S. Gray Laurie A. Gelman Amin Aminfar Sergio Perez U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (ph) 202-514-6255 / (fax) 202-514-4883 (email) amin.aminfar@usdoj.gov

2

Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 3 of 4

1

Michael M. Walker

2

Assistant U.S. Attorney Two Renaissance Square

3

40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408

4

(ph) 602-514-7500 / (fax) 602-514-7760 (email) michael.walker4@usdoj.gov

5

Attorneys for the United States

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 4 of 4

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on June 2, 2011 , I electronically transmitted the attached

4 document to the Clerk’s Office using the CM /ECF System for filing and transmittal o f

5 a Notice of Electronic Filing to the following CM/ECF registrants:

6

7

Thomas K. Irvine

Polsinelli Shughart PC

8

3636 N. Central Avenue, Suite 1200

9

Phoenix, AZ 85012

10

Cynthia Renee Estrella

11

Polsinelli Shughart PC

1 E. Washington Street, Suite 1200

12

Phoenix, AZ 85004

13

William R. Jones, Jr.

14

Jones Skelton & Hochuli PLC

15

2901 N. Central Avenue, Suite 800

Phoenix, AZ 85012

16

17

John T. Masterson

Jones Skelton & Hochuli PLC

18

2901 N. Central Avenue, Suite 800

19

Phoenix, AZ 85012

20

Joseph John Popolizio

21

Jones Skelton & Hochuli PLC

2901 N. Central Avenue, Suite 800

22

Phoenix, AZ 85012

23

24

Attorneys for Defendants

25

/s/ Amin Aminfar

26

Amin Aminfar

27

28

4

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 1 of 17

UNITED STATES DISTRICT COURT
 DISTRICT OF ARIZONA


United States of America,
Plaintiff,
v.
Maricopa County, Arizona; Maricopa County Sheriff’s Office; and Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona,

No. 2:10-cv-01878-PHX-GMS

Defendants.

AGREEMENT
I. INTRODUCTION
1. The parties to this Agreement, the United States of America, represented by the United States Department of Justice (“DOJ”), and Joseph M. Arpaio, the Sheriff of Maricopa County, Arizona, represented by Jones, Skelton & Hochuli, P.L.C., agree on the terms and conditions set forth below (the “Agreement”).
2. The Sheriff of Maricopa County, Joseph M. Arpaio, is the elected official responsible for the operation of the Maricopa County Sheriff’s Office (“MCSO”). The Sheriff shall make reasonable efforts to ensure that employees of MCSO take all reasonable actions necessary to comply with the provisions of this Agreement.
3. On March 10, 2009, the United States informed MCSO that it was initiating an investigation under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7 (“Title VI”), and other statutes. Among the matters under investigation was alleged national origin discrimination in MCSO’s police practices and jail operations. Title VI, its implementing regulations, and related assurance agreements, require MCSO to provide the United States with access to pertinent sources of information, thereby enabling the United States to determine whether MCSO is in fact complying with Title VI mandates.
4. On March 25, 2009, the United States submitted its First Request for Documents and Information, consisting of 51 requests for documents and information. Shortly
2554236. 11

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 2 of 17
thereafter, the United States informed MCSO that its investigation would involve document review, tours of MCSO detention facilities, and interviews with MCSO staff and jail inmates. 5. On September 2, 2010, the United States filed this action against Sheriff Joseph M. Arpaio, in his official capacity, MCSO and Maricopa County.
6. Pursuant to DOJ’s requests, DOJ has completed and MCSO has allowed, requested tours of Maricopa County Jail facilities, as well as interviews of MCSO staff, detention officers, posse members, and command staff, including two interviews of Sheriff Joseph Arpaio. DOJ has also conducted interviews of inmates in the Maricopa County Jails. In addition, MCSO has produced documentation in response to each of DOJ’s March 25, 2009, document requests, and is compiling additional documents to satisfy additional requests.
7. Taking into consideration the cooperation the United States has received from MCSO, and MCSO’s expressed commitment to continuing cooperation, the United States has concluded that it can obtain any additional information it needs to complete its investigation without resorting to costly and protracted litigation.
8. Because MCSO's cooperation with the United States’ investigation obviates the need for any further litigation, the parties agree to resolve this matter pursuant to this Agreement. Within twenty-four hours of signing this Agreement, the parties will file this Agreement in the United States District Court for the District of Arizona, together with a motion to remove the action from the Court's active docket to its inactive docket and to further stay any proceedings on the parties’ pending motions for summary judgment. The parties further agree that this case will remain on the Court’s inactive docket for 60 calendar days, after which time, subject to substantial compliance with the terms of this Agreement, the DOJ will file a motion to dismiss the United States’ Complaint without prejudice pursuant to Fed. R. Civ. P. 41(a)(2).
9. It is the explicit intention of the parties to this Agreement that this Agreement is binding on the Sheriff’s successors, should the Agreement exceed the length of Sheriff Arpaio’s term as Sheriff.
2554236. 12

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 3 of 17
II. DEFINITIONS
10. “Discriminatory policing” shall refer to law enforcement policies and/or practices by law enforcement agencies that unlawfully discriminate against an individual due to his or her national origin, race, or color.
11. “Sheriff” shall refer to the Maricopa County Sheriff and his or her deputies, employees (sworn and unsworn), and successors in office.
12. “Personnel” and “MCSO personnel” shall both refer to all persons employed by MCSO in any capacity, including the Maricopa County Sheriff, command staff, sworn staff, unsworn staff, administrative staff, and volunteers, including posse members.
13. “Documents” and “MCSO documents” shall refer to any documents or records, whether electronic or paper, in whole or in part, in the possession of MCSO, subject to DOJ's understanding that certain documents may be subject to privacy, privilege, and/or other protections under federal and/or state laws.
14. “Effective date” shall mean the date this Agreement is signed by all the parties.
15. Throughout this Agreement, the term “substantial compliance” is used when discussing compliance under this Agreement. “Substantial compliance” shall mean that MCSO has achieved compliance with most or all components of the relevant provisions of the Agreement.
III. SUBSTANTIVE PROVISIONS
A. Access to Documents
16. MCSO shall comply with the access requirements of Title VI.
17. MCSO shall comply with all reasonable, relevant and necessary requests for documents, subject to privacy, privilege and other protections under federal and/or state laws, in their original format unless DOJ reasonably requests otherwise. Hard copy reproduction of any documentation that MCSO provides in electronic format shall occur at DOJ’s expense.
18. MCSO shall identify the software program and version required to read documents provided in electronic form, and provide any explanatory information reasonably necessary to understand the organizational scheme of the information provided.
19. MCSO shall notify DOJ within a reasonable time period but no more than 20 calendar days after receiving a request from DOJ of any inability to provide documents to DOJ outside of their original electronic formats.
2554236. 13

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 4 of 17
20. MCSO shall, if requested by DOJ, identify the source for the response to each document request, including integral MCSO staff member(s) or volunteer(s), assisting with, compiling, and/or providing the response and any electronic or database sources utilized to provide a partial or complete response, subject to DOJ’s understanding that the Sheriff may have limited ability to compel volunteers, posse members and employees to comply with any of the DOJ's requests arising under this Agreement. DOJ shall have the reasonable opportunity to communicate with said integral MCSO staff member(s) or volunteer(s), in order to better understand documents produced by MCSO, upon reasonable notice, during business hours and in the presence of counsel.
21. MCSO shall notify DOJ within a reasonable time period but no more than 20 calendar days of the effective date if a requested document does not exist.
22. MCSO shall provide DOJ with the following documents and information detailed in ¶¶ 23 to 38 of this Agreement within 45 calendar days of the effective date, unless otherwise noted.
a) General Policies and Procedures
23. All after Action Reports produced by Operations Command following large-scale law enforcement operations, often referred to as “crime suppression operations” and “workplace and workplace identity fraud enforcement operations” from July 2008 to the date of production.
b) Detention Facilities
24. MCSO’s current contract with the AT&T language line service and invoices documenting usage of the service from July 1, 2008, to the date of production.
25. A Spanish language copy of the Inmate Visitation form, which shall note its original date of formulation, currently being used in its detention facilities.
26. A Spanish language copy of the Disciplinary Action Report Appeal, which shall note its original date of formulation, currently being used in its detention facilities.
27. Representative samples of Online Journal entries for the Durango and Estrella detention facilities, including a month of entries for every three month period between January 1, 2008, and the date of production.
28. Attendance lists for all ESL classes offered at the Durango and Estrella detention facilities between July 2008 and the date of production. Unless ordered to do so by a court of competent jurisdiction, under no circumstances will the parties to this Agreement disclose or circulate these attendance lists, or the names or any identifying information of any individual on these lists, to anyone other than their respective
2554236. 14

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 5 of 17
attorneys, representatives and experts involved in this action for the purposes of this action and the related investigations.
c) Computer Aided Dispatch
29. Computer Aided Dispatch (“CAD”) Database for 2005 through 2010, as follows:
a. The produced database should contain every table and all fields from the source CAD database maintained by MCSO. If the fields or their variables have changed between years or in any other manner, MCSO shall provide a written explanation of the change to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
b. The produced database shall be accompanied by an explanation describing in detail the meaning of the various tables and fields in the database and the meaning of the values that may be used for each field. This explanation should also include who is responsible for inputting data into each field, i.e., the officer, the dispatcher, some other individual or whether the fields are completed automatically by the CAD software. Further, the explanation should identify any field that is routinely left blank as a matter of practice or policy. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
c. The produced database should be accompanied by a complete and unfiltered Premise Information file, along with an explanation of the function of the Premise Information file. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
d. The produced database should be identical to the source CAD database, filtered only according to the years requested. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
30. The names of MCSO personnel who are most familiar with the sources of information described in ¶29, specifically, all fields of the CAD database, including those that are presently unused and how all fields are populated, including fields listed as inaccurate. These personnel shall be made reasonably available for questions concerning the CAD database. Such MCSO personnel will provide any information requested pursuant to this paragraph to the extent possible and subject to
2554236. 15

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 6 of 17
limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
31. The names of MCSO training personnel, including Field Training Officers, who are most involved in training MCSO personnel concerning the use of the CAD system.
32. The list of all MCSO personnel categories who make use of the CAD system, including:
a. Names of MCSO dispatchers who use the CAD system. b. Names of the software specialists knowledgeable about the Mobile Data. c. Terminals used by MCSO personnel to interact with the CAD system.
33. MCSO shall make the personnel described in ¶¶ 30 to 32 of this Agreement available for interviews in a manner consistent with previously agreed-upon terms as detailed in the January 14, 2011, and January 20, 2011 letter exchanges between the parties. Such MCSO personnel will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
34. All policies, procedures, training manuals, and standard operating procedures regarding use of the sources of information described in ¶29. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
d) Oversight and Accountability
35. All use of force forms completed and submitted by MCSO law enforcement officers from September 2008 through March 2009.
36. All documents relating to Internal Affairs investigations concerning allegations of excessive use of force and/or discriminatory policing by MCSO personnel initiated from 2008 to the date of production.
37. All current or former MCSO personnel recommended for corrective action, discipline, suspension, or termination, as a result of excessive use of force and/or discriminatory policing, including whether discipline or corrective action was imposed and the nature and duration of any discipline or corrective action imposed, from January 1, 2007, to the present.
B. Access to Personnel
38. MCSO shall continue to provide DOJ with reasonable access to MCSO personnel in a manner consistent with previously agreed-upon terms as detailed in the January 14,
2554236. 16

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 7 of 17
2011/January 20, 2011, letter exchange between the parties, and DOJ will, in light of the access to MCSO personnel that DOJ has received, make reasonable efforts to limit further access to those MCSO personnel necessary to conduct its Title VI assessment. The January 14, 2011/ January 20, 2011, letter exchange is included in this Agreement as Appendix A.
IV. IMPLEMENTATION AND COMPLIANCE
39. Substantial compliance with this Agreement will be based on the entirety of the Agreement.
40. This Agreement shall be binding on all successors, assignees, employees, of MCSO, subject to DOJ's understanding that the Sheriff may have limited ability to compel volunteers, posse members and employees to comply with any of the DOJ's requests arising under this Agreement.
41. In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
42. Each party to this Agreement shall bear the cost of their fees and expenses incurred in connection with this Agreement and any litigation directly related to this action (United States v. Maricopa County, et al., No. 2:10-cv-01878).
43. DOJ shall notify MCSO of any material instance(s) in which it maintains that MCSO is not in substantial compliance with this agreement and has failed to carry out the requirements of this Agreement by providing a written Notice of Non-Compliance.
44. In the event that DOJ provides MCSO with a Notice of Non-Compliance, MCSO agrees to reasonably attempt to resolve the issues set forth by DOJ in its Notice Of Non-Compliance within 15 days following its receipt of a Notice Of NonCompliance.
45. If the parties cannot reach an agreement within the 15 calendar days following the receipt of a Notice of Non-Compliance, the parties agree to enter into mediation under the direction of a magistrate judge or any other neutral party appointed by the Court and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. These negotiations will last for a maximum of 10 business days from their inception.
46. If DOJ and MCSO fail to reach an agreement at the conclusion of mediation, DOJ is not limited in any fashion in pursuing its law enforcement obligations, including having this case restored to the Court’s active docket and seeking enforcement of the Agreement by the Court, or seeking rulings on the parties' cross motions for summary judgment, or pursuing any further motions or remedies under federal and/or state laws. Similarly, if an agreement is not reached at the conclusion of mediation,
2554236. 17

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 8 of 17
MCSO is not limited in any fashion in having the case restored to the court's active docket, seeking enforcement of the Agreement by the Court, seeking a ruling on the parties’ cross motions for summary judgment, or pursuing any further motions or remedies under federal and/or state laws.
V. TERMINATION
47. If DOJ determines that MCSO is in substantial compliance with the provisions of this Agreement, DOJ shall so state and memorialize its determination in writing to MCSO 55 days after the effective date, and, 60 calendar days after the effective date, DOJ shall move to dismiss the case from the Court’s inactive docket. Non-compliance with mere technicalities will not constitute failure to maintain substantial compliance.
48. Within twenty-four hours of signing this Agreement, the parties will file this Agreement in the United States District Court for the District of Arizona, together with a motion to remove the action from the Court’s active docket to its inactive docket and to further stay any proceedings on the parties' pending motions for summary judgment. The parties further agree that this case will remain on the Court’s inactive docket for 60 calendar days, after which time, subject to substantial compliance with the terms of this Agreement, DOJ will file a motion to dismiss the United States' Complaint without prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
49. This Agreement terminates when the Court enters an order dismissing the case without prejudice from its inactive docket or otherwise terminates the subject action.
50. Seventy-one (71) calendar days after the effective date, if MCSO maintains that it has reached substantial compliance with this Agreement, MCSO may file with the Court a motion to terminate the Agreement and to dismiss the action on the basis that MCSO has substantially complied with the terms of the Agreement. MCSO must provide DOJ with 10 calendar days notice of its intent to file such a motion, during which period DOJ and MCSO shall coordinate and discuss any areas of disagreement and attempt to resolve the outstanding differences.
51. Failure by any party to enforce this entire Agreement, or any provision thereof, with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
2554236. 18

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 9 of 17
This Agreement between the United States of America and the Sheriff of Maricopa County, Arizona, is signed on behalf of the United States by the following:
/s/ Amin Aminfar By: Thomas E. Perez, Assistant Attorney General Dennis K. Burke, United States Attorney Roy L. Austin, Jr. Matthew Colangelo Jonathan Smith Avner Shapiro Peter S. Gray Laurie A. Gelman Amin Aminfar Sergio Perez U.S. Department of Justice
 Civil Rights Division
 950 Pennsylvania Avenue, N.W.
 Washington, DC 20530

Michael M. Walker
 Assistant U.S. Attorney
 Two Renaissance Square
 40 North Central Avenue, Suite 1200

Attorneys for the United States
This Agreement between the United States of America and the Sheriff of Maricopa County, Arizona, is signed on behalf of the Sheriff of Maricopa County by the following:
/s/ Joseph J. Popolizio By: William R. Jones, Jr. John T. Masterson Joseph J. Popolizio Jones, Skelton & Hochuli, P.L.C. Attorneys for named Defendants Joseph M. Arpaio and Maricopa County Sheriff's Office
2554236. 19

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 10 of 17
Appendix A

Case 2:10-cv-01878-GMS Document 58-u1.s.FDileepda0r6tm/0e2n/1t 1of JPusatgicee11 of 17
Civil Rights Division

JMS:AMS:AA:dh DJ: 207-8-8

Special Litigation Sec/ion - PHB 950 Pennsylvania AW!, NW
Washington DC 20530

Via Facsimile and U.S. Mail

January 14,2011

Mr. John T. Masterson
Mr. Joseph 1. Popolizio Jones, Skelton & Hochuli, P.L.C.
2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012

Dear Messrs. Masterson and Popolizio:

I trust all is well with you both. I am writing because there are a number of matters on which I would either like to reach agreement or confirm we are in agreement prior to the Department of Justice ("DOJ") commencing interviews of Maricopa County Sheriff's Office ("MCSO") personnel on January 24, 2011. Additionally, there are certain documents that we need your cooperation in obtaining prior to the interviews going forward.

As we have discussed in our telephone calls and emails, DOJ requests that we use as a framework for conducting our interviews the parameters set out in the United States' proposed
agreement document which we forwarded to you on November 30, 2010. We are also asking for the discretion to conduct the interviews at the U.S. Attorney's Office. In sum, we are asking you to agree to the following interview parameters:

A. The United States will select at its discretion the MCSO personnel and irunates that it will interview to ascertain compliance with Title VI and its implementing regulations.
B. The United States will select a reasonable number ofMCSO personnel to interview, to not exceed (1) 40 personnel involved in its police enforcement operations; (2) 50 personnel involved in its jail facilities; and (3) 150 inmates.
C. The United States may, at its discretion, interview MeSO personnel and irunates multiple times, but such interviews of MCSO personnel will not
exceed a combined five hours. D. The United States may, at its discretion, conduct interviews while
accompanied by interpreters and perSOJ;lS employed as its consultants.
E. MCSO will take all reasonable efforts to make personnel and inmates
requested for interviews by the United States available for such interviews, including issuing such orders as may b·e necessary to assure availability ofMCSO personnel. F. MeSO will promptly make available MCSO personnel and irunates requested for interviews by the United States. IfMCSO personnel or inmates are not available within 24 hours of the United States' request for

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 12 of 17

-2-

an interview, Defendants will assure, barring exceptional circumstances

beyond the Defendants' control, availability within a period not to exceed

three days from the date of the United States' request.

G. Interviews of personnel below the command staff level, and all inmate

interviews, will not include attorneys or others representing the interests of

the Defendants. Attorneys representing individual personnel and inmates

may be present.

H. Inmate interviews will take place in confidential legal interview rooms,

without the presence of any MeSO recording devices of any kind~

I.

The United States will have the discretion to ask MeSO perS01U1el and

inmates to consent to having their interviews recorded by the United

States.

J.

The United States has discretion to conduct interviews of personnel at the

U.S. Attorney's Office.

By close of business Thursday, January 20, 2011, please inform us in writing, either by letter or email, as to whether you do or do not agree to each of the above described parameters. Where you object to a parameter please let us know why. Our goal in being explicit about obtaining your agreement in relation to these parameters by a date certain is to eliminate ambiguity which may undermine our efforts to go forward with these interviews as scheduled.

Additionally, we request that you forward to us as soon as possible, but in any event no later than the close of business Wednesday, January 19,2011, the following:

• The operation manual and associated policies for each MCSO subcomponent; and • A list or roster with names of MCSO employees and volunteers that includes the unit
or component for which each MCSO employee or volunteer works.

As I have indicated in earlier telephone conversations and emails relating to these items, we need both the policy docwnents and roster of names to prepare for our interviews. Because we are interested in obtaining this infonnation as quickly as possible, we request that you provide us with what you have that is most readily available flrst, and. then supplement at a later date if necessary. As always, any assistance you can provide us is greatly appreciated.

Sincerely,
~
Avner Shapiro Special Counsel Special Litigation Section

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 13 of 17
JONES, SKELTON & HOCHULI, P.L.C.


WILLIAM R. JONES, JR. TELEPHONE: (602) 263-1714 FAX: (602) 200-7801 E-MAIL: WJONES@JSHFIRM.COM
JOHN T. MASTERSON TELEPHONE: (602) 263-7330 FAX: (602) 200-7846 E-MAIL: JMASTERSON@JSHFIRM.COM
JOSEPH J. POPOLIZIO TELEPHONE: (602) 263-1741 FAX: (602) 200-7876 E-MAIL: JPOPOLIZIO@JSHFIRM.COM

January 20, 2011

2901 NORTH CENTRAL AVENUE SUITE 800
PHOENIX, ARIZONA 85012 PHONE: (602) 263-1700
FAX: (602) 651-7599 WWW.JSHFIRM.COM

Avner Shapiro U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Re: U.S. v. MCSO, et al. CV10-10878-PHX-GMS

Dear Avner:
I received your letter of January 14, 2011, and have discussed the DOJ’s listed requests with my clients. I will respond to the individual paragraphs A – J below.
A. The United States will select at its discretion the MCSO personnel and inmates that it will interview to ascertain compliance with Title VI and its implementing regulations.
Response: We understand that the United States can select at it its discretion the MCSO personnel and inmates who will be interviewed. Obviously, it is possible that certain personnel and/or inmates may not be available on the date or time selected by the United States. First, inmates do get transferred to other jail facilities, released, transferred to the Arizona Department of Corrections or other corrections facilities and/or may even be receiving medical treatment and care in our facility or other facilities. We will try to make personnel available according to your schedule. Again, there may need to be changes due to transfers, vacations, offduty status, or many other reasons for any requested individual to be unavailable. We will work with you at all times during these interviews in an efficient manner and according to plan. We do request that you take note we are trying to avoid expenditures of unnecessary overtime for the interviews of MCSO personnel. We had raised that concern with you previously.

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 14 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 2
B. The United States will select a reasonable number of MCSO personnel to interview, not to exceed (1) 40 personnel involved in its police enforcement operations; (2) 50 personnel involved in its jail facilities; and (3) 150 inmates.
Response: You may interview (1) 40 personnel involved in MCSO police enforcement operations; (2) 50 personnel involved in the MCSO jail facilities (you have already listed 50 personnel involved in MCSO jail facilities for interview; we are assuming that you are not requesting an additional 50); and (3) 150 inmates (again, my understanding is that you have already interviewed approximately 100 inmates; we are assuming you only intend to interview 50 more).
C. The United States may, at its discretion, interview MCSO personnel and inmates multiple times, but such interviews of MCSO personnel will not exceed a combined five hours.
Response: We find it difficult to understand why the DOJ needs to utilize five hours for these rather straightforward interviews. Most depositions in full blown lawsuits do not take five hours, at least in this jurisdiction. We understand that you may wish to interview personnel and inmates on more than one occasion and agree to that. We suggest, however, that the sum total of each or, if appropriate, multiple interviews not exceed three hours in total.
D. The United States may, at its discretion, conduct interviews while accompanied by interpreters and persons employed as its consultants.
Response: We understand that you may need interpreters while conducting certain of the inmate interviews. We have no problem allowing interpreters to be present. We also understand that you wish to have consultants present at the interviews. We agree to that as well, but request that you provide the name and curriculum vitae of all proposed consultants at least one day prior to any interview.
E. MCSO will take all reasonable efforts to make personnel and inmates requested for interviews by the United States available for such interviews, including issuing such orders as may be necessary to assure availability of MCSO personnel.
Response: As stated above, MCSO will make all reasonable efforts to make personnel and inmates available. Availability may depend upon those circumstances discussed above and other circumstances which may arise at the times of the particular requests. We are hesitant to “order” employees to appear. Some employees may be hesitant to do so. We will certainly encourage all requested employees to appear for their interviews as requested and will

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 15 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 3
explain the interview process to them prior to their interviews so that they will understand the process and not feel threatened by the DOJ’s intrusion into their daily affairs.
F. MCSO will promptly make available MCSO personnel and inmates requested for interviews by the United States. If MCSO personnel or inmates are not available within 24 hours of the United States’ request for an interview, Defendants will assure, barring exceptional circumstances beyond the Defendants’ control, availability within a period not to exceed three days from the date of the United States’ request.
Response: MCSO wishes to handle this interview process as efficiently and quickly as possible. To that end, we assure you that we will provide personnel and inmates requested for interviews as quickly as is reasonable under all of the circumstances present at the time of the individual requests. As stated above, it is possible that certain requested inmates may not even be in our custody at the time of a request, or be otherwise unavailable. If we do still have particular inmates within our control, we will make them available as requested, barring exceptional circumstances which we can certainly discuss at the time in order to resolve any particular problems that may arise during the interview process.
G. Interviews of personnel below the command staff level, and all inmate interviews, will not include attorneys or others representing the interests of the Defendants. Attorneys representing individual personnel and inmates may be present.
Response: Initially, we agree that interviews of personnel “below the command staff level” and all inmate interviews will not include attorneys or others representing the interests of the MCSO. Attorneys representing individual personnel and inmates may be present. We consider “command staff level” for the purposes of these interviews to be sergeants and above. Counsel and other appropriate persons representing the interests of the MCSO may be available during such command staff level interviews. In addition, as stated above, we will agree “initially” to interviews of personnel below the “command staff level” without counsel or other representation. That may change at any time during the interviews. While you have indicated that you are concerned with the possibility of intimidation of MCSO personnel, we too are concerned about the possibility of intimidation. If any particular employee feels intimidated or coerced by the interview process or otherwise feel that the interview is proceeding in an unreasonable fashion, such employee may request a recess of the interview and seek advice of personal counsel or counsel representing MCSO and the interests of MCSO.

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 16 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 4
H. Inmate interviews will take place in confidential legal interview rooms without the presence of any MCSO recording devices of any kind.
Response: Our understanding is that numerous inmate interviews have already occurred. We intend to proceed with the further interviews in the same fashion since the United States did not seem to find fault with the process that has already taken place. The interviews may also take place somewhere other than “legal” interview rooms. As we previously mentioned, we do have a concern with providing inmate access to their personal attorneys during the course of the United States’ investigation. We do not want to cease all other legal interviews during the time the DOJ is present at the jail. We have been assured that there will be no recording devices of any kind present in the interview rooms as further discussed below.
I. The United States will have the discretion to ask MCSO personnel and inmates to consent to having their interviews recorded by the United States.
Response: We agree that the United States will have the discretion to ask MCSO personnel and inmates to consent to having their interviews recorded by the United States. As a necessary part of that agreement, however, we request an authenticated copy of any interview recorded by the United States in its entirety. It seems reasonable and, moreover, fair to have the information that the United States intends to rely upon for our own use and review by counsel, consultants, and appropriate command staff. It seems reasonable to us to request copies of such recordings so that we all have the same information available to the United States.
J. The United States has discretion to conduct interviews of personnel at the U.S. Attorney’s Office.
Response: As mentioned above, we are also concerned with intimidation occurring during this DOJ interview process. It seems clear to all concerned that having interviews conducted at the U.S. Attorney’s Office would not only result in a significant waste of time for all concerned because of the unknown length of each interview and the fact that all interviewees will be “on duty” at the time of each individual interview. As we have discussed previously, it is easy to envision lines of MCSO personnel forming while waiting the completion of the preceding interview. We wish to avoid that. Also, it would be hard to imagine a more intimidating place for an interview than the U.S. Attorney’s Office. We do understand, however, some of your concerns. Due to that understanding, we propose that all interviews of personnel be conducted at the MCSO training facility at 2627 South 35th Avenue, Phoenix, Arizona 85009. As you may know, the training facility is located next to the LBJ facility. I am told that employees can reach the training facility within five to seven minutes from any of the other jail facilities. Again, and as above, we assure you that we will provide appropriate interview rooms

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 17 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 5

and will not have recording devices present in any such rooms. Your recording devices are subject to the agreement discussed above.
I am also going to briefly discuss your previous requests and Ms. Sreeharsha’s request for help in navigating through the vast amount of information that has previously been provided to you. One of your expressed concerns is that we have not provided all of the policies and procedures requested. I have been assured that we have provided all such policies and procedures and, when this question arose in the past, a separate disk was provided to you containing only the policies and procedures requested. If you cannot find that disk, please let me know and I will have another one sent to you.
In addressing your other concerns about navigating through the voluminous boxes and computerized information, I suggest that you have appropriate persons from DOJ come to Phoenix at their convenience. I will then arrange a meeting with appropriate MCSO personnel who should be able to provide reasonable and appropriate aid to those persons. Please let me know when it would be convenient and I will schedule the meeting.
Finally, you have mentioned that you wish to conduct additional jail tours. As you know, DOJ attorneys and other consultants have already toured all MCSO jail facilities. Those tours were requested by the United States, at the times and locations requested by the United States, with those present deemed necessary by the United States. Please let me know what you need to see that you haven’t already seen and we will be happy to consider that request.
I hope I have addressed all of your concerns and that we would be able to proceed with the interviews scheduled next week. As always, if you have any additional concerns or wish to discuss any other aspect of this investigation, please feel free to contact Bill Jones, me, or Joe Popolizio. We all would be happy to work with you in moving this matter to a successful conclusion.
Sincerely,

JTM/jag

John T. Masterson For the Firm

Case 2:10-cv-01878-GMS Document 58-2 Filed 06/02/11 Page 1 of 1

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 United States of America,

10

Plaintiff,

No. 2:10-cv-01878-PHX-GMS

11

v.

[PROPOSED] ORDER

12 Maricopa County, Arizona; Maricopa

13

County Sheriff’s Office; and Joseph M. Arpaio, in his official capacity as Sheriff of

14 Maricopa County, Arizona,

15

Defendants.

16

17

The Court, upon ha ving reviewed the United States of America and Defendants

18 Maricopa County Sheriff’s O ffice and Joseph M. Arpaio’s Joint Motion to Remove the

19 Case to the Inactive Docket an d Stay Proceedings, hearing arguments of the parties and

20 being advised in the prem ises, herein grants the Motion and removes this Case to the

21 Court’s inactive docket and stays any proce edings on the parties’ pending Motions for

22 Summary Judgment for a period of sixty (60) days or until further order of the Court.

23

IT IS SO ORDERED.

24

25

26

27

28

 </s> Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 1 of 10

1 Thomas E. Perez Assistant Attorney General
2 Dennis K. Burke United States Attorney
3 Roy L. Austin, Jr. (IL Bar #6228785) Matthew Colangelo (NY Bar #4228797)
4 Peter S. Gray (DC Bar #940031) Amin Aminfar (NC Bar #36589)
5 U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W.
6 Washington, DC 20530 (ph) 202-514-6225 / (fax) 202-514-4883
7 (email) amin.aminfar@usdoj.gov 8 Attorneys for the United States 9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12

13 United States of America,

14

Plaintiff,

No. _________________

15

v.

COMPLAINT

16 Maricopa County, Arizona; Maricopa County Sheriff’s Office; and Joseph M. Arpaio, in his
17 official capacity as Sheriff of Maricopa County, Arizona,
18 Defendants.
19

20

21

Plaintiff, the United States of America, by its undersigne d attorneys, brings this

22 civil action for declaratory and injunctive relief, and alleges as follows:

23

INTRODUCTION

24

1. The United States brings this action to enforce Title VI of the Civil Rights Act

25 of 1964, the Title VI implementing regulations issued by the United States Department

26 of Justice, and related contractual assurances. The United States seeks declaratory and

27 injunctive relief against Maricopa County , Arizona; the Maricopa County Sheriff’s

28 Office (MCSO); and Sheriff Joseph M. Arpaio (collectively, Defendants).

1

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 2 of 10

1

2. Accountability for taxpayer funds is a fundamental element of Title VI, its

2 implementing regulations, and the contractual assurance agreements that all recipients

3 sign as a condition of receiving federal financial assistance. As recipients of federal

4 financial assistance, Defenda nts are requi red by la w, regulation, a nd contract to

5 provide the United States with access to documents, other sources of inf ormation, and

6 facilities in connection with Title VI investigations or compliance reviews.

7

3. Since March 2009, the United States has attem pted to secur e Defendants’

8 voluntary cooperation with the U nited States’ investigation of alleged national origin

9 discrimination in Defendants’ police practi ces and jail operations. Despite notice of

10 their obligation to comply in full with th e United States’ requests for information,

11 Defendants have refused to do so. Defenda nts’ refusal to cooperate with reasona ble

12 requests for inf ormation regarding the us e of fe deral funds is a violation of

13 Defendants’ statutory, regulatory, and co ntractual obligations. The United States

14 accordingly seeks a judgment granting declaratory and injunctive relief for

15 Defendants’ violations of the law.

16

4. The United States, on information and belief, alleges:

17

DEFENDANTS

18

5. Maricopa County is a political subdivision of the St ate of Arizona. Maricopa

19 County programs and activitie s receive federal financia l assistance fro m the United

20 States Department of Justice (DOJ).

21

6. MCSO is a law enforcement agency in Maricopa County. MCSO is a program

22 or activity that receives federal financial a ssistance from DOJ, both directly and as a

23 subrecipient of Maricopa County.

24

7. Joseph M. Arpaio is the S heriff of Maricopa County and is responsible for t he

25 operation of MCSO.

26

JURISDICTION AND VENUE

27

8. This Court has jurisdiction over this action pursuant to 28 U.S. C. §§ 1331 and

28 1345.

2

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 3 of 10

1

9. The United States is authorized to in itiate this action under Title VI, 42 U.S.C.

2 §§ 2000d to 2000d-7; an d the Title VI implem enting regulations, 28 C.F.R. §§ 42.101

3 to 42.112.

4

10. Declaratory and injunctive relief is sought as authorized by 28 U.S.C. §§ 2201

5 and 2202.

6

11. Venue is proper in the District of Arizona pursuant to 28 U.S.C . § 1391(b).

7 Defendants reside in Arizona, a nd a substantial part of the e vents or omissions giving

8 rise to this claim occurred in Arizona.

9

FACTS

10

12. Title VI prohibits discrimination on the ground of race , color, or national

11 origin in any program or activity receiving federal financial assistance. 42 U.S. C.

12 § 2000d. DOJ has issued regu lations to implement the pr ovisions of Title VI. 42

13 U.S.C. § 2000d-1; 28 C.F.R. §§ 42.101 to 42.112.

14

13. The Title VI implementing regulations require, among other obligations, that

15 recipients of federal financial assistance permit access by DOJ to suc h sources of

16 information and facilities as may be pertinent to ascertai n compliance w ith Title VI

17 and the implementing regulations. 28 C.F.R. §§ 42.106, 42.107.

18

14. The Title VI implementing regulations also require that every application fo r

19 federal financial assistance be accompan ied by a contractual assurance that the

20 program will be conducted in compliance w ith all requirements im posed by Title VI

21 and the implementing regulations. 28 C.F.R. § 42.105(a)(1). Such assurances apply to

22 the direct recipient as well as to subrecipients that receive a disbursal of funds from the

23 direct recipient. 28 C.F.R. §§ 42.102(f), 42.105(b).

24

15. At all relevant tim es described in this complaint, Defendants have been and

25 remain recipients of federal financial assi stance from DOJ, either directly or through

26 another recipient of federal financial assistance.

27

16. Maricopa County has received the following grants fr om the DO J Office of

28 Justice Programs, Bureau of Justice Assistance:

3

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 4 of 10

1

a. A Fiscal Year 2009 Recovery Act Edward Byrne Memo rial Competitive

2

Grant in the amount of $2,045,584;

3

b. A Fiscal Y ear 2009 R ecovery Act Southern Border/HIDTA Grant in the

4

amount of $685,993;

5

c. A Fiscal Year 2009 Edward Byrne Memorial Justice Assistance Grant

6

(JAG Grant) in the amount of $2,429,831; and

7

d. A Fiscal Year 2009 Recovery Ac t JAG Grant in the amo unt of

8

$10,536,695.

9

17. Maricopa County has provided significant funding from the grants identified

10 in paragraph 16 to MCSO through sub-awards.

11

18. MCSO received a grant from the DOJ Office of Community Oriented

12 Policing Services in 2007 in the amount of $449,999. This grant has an award period

13 of September 1, 2007 through August 31, 2010, and a remaining balance of

14 approximately $18,543.

15

19. MCSO participates in the DOJ Equitable Sharing Program, which is

16 administered by the DOJ Criminal Divisi on, Asset Forfeiture and Mone y Laundering

17 Section (AFMLS). In its annual Equita ble Sharing Agreem ent and Certi fication

18 Report to AFMLS for Fiscal Year 2009, MCSO reported a ye ar-end balance in its

19 equitable sharing revenue account of $231 ,927.26. According to DOJ equitable

20 sharing records, during its Fis cal Year 2010, MCSO received equitable sharing

21 payments and tangible assets totaling $235 ,706.50, and has received equitable sharing

22 payments totaling $31,162.12 since the begi nning of MCSO’s 2011 fiscal year, which

23 began on July 1, 2010.

24

20. As a condition of r eceiving federal financial assistance, Maricopa County

25 has, through its authorized representatives, signed contract ual assurances agreeing to

26 comply with all requirements imposed by T itle VI and the implementing regulations .

27 These requirements include provi ding DOJ w ith access to and the right to examine

28 records and other sources of inform ation. The assurances signed by Maricopa County

4

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 5 of 10

1 bind subsequent recipients and s ubgrantees, including MCSO, to whom Maricopa

2 County disburses the funds.

3

21. As a condition of receiving fe deral financial assistance, MCSO has, through

4 its authorized representatives includin g Defendant Arpaio, signed contractual

5 assurances agreeing to com ply with all requirements im posed by Title VI and the

6 implementing regulations. These requirem ents include providing DOJ with access to

7 and the right to examine records and other sources of information.

8

22. In June 2008, the United States, through the DOJ Civ il Rights Division,

9 opened a preliminary inquiry into allegations that MCSO wa s engaged in a pattern or

10 practice of discriminatory law enforcement conduct.

11

23. On March 10, 2009, the United St ates notified Defendants that DOJ was

12 initiating an investigation of MCSO regardin g alleged discriminati on in violation of

13 the prohibition on national origin discrimina tion in Title VI, 42 U.S.C. § 2000d; the

14 pattern or practice provisions of the Omnibus Crime Control and Safe Streets Act o f

15 1968, 42 U.S.C. § 3789d; and the pattern or practice provisions of the Violent Crim e

16 Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. The United States

17 informed MCSO that the investigation would focus on allegations of discrim inatory

18 police practices and jail operations.

19

24. On March 25, 2009, the United Stat es supplied Defendants with its First

20 Request for Documents and Information (Fir st Request), which c onsisted of fifty-one

21 requests for doc uments. Re presentatives of t he United States and Def endants

22 conferred by telephone in March and April 2009 to discuss details r elated to the

23 production of the documents and information requested by the United States.

24

25. Representatives of the United States and Defendants met in Phoenix, Arizona

25 on April 30, 2009, to discuss the logi stics of the investiga tion and document

26 production. The United States explained that its investigation of MCSO would involve

27 extensive document review, facility tours, and interviews with command staff, lin e

28 officers, non-officer staff, and jail inmates.

5

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 6 of 10

1

26. On May 12, 2009, MCS O provided the United States with eleven pages of

2 documents. This initial produc tion was partially responsive to three of the fifty-one

3 requests in the First Request.

4

27. On May 12, May 20, and May 27, 2009, the United St ates sought additional

5 information from Defendants regarding th e status of the rem aining document

6 production.

7

28. On May 29, 2009, MCSO informed the United States that it would no longer

8 cooperate with the investigation and w ould not respond furt her to any doc ument

9 requests or other re quests for access to so urces of information is sued by the United

10 States.

11

29. On June 22, 2009, an attorne y for MCSO reiterated MCSO’s refusal to

12 cooperate during a conference call with representatives of the United States.

13

30. On July 7, 2009, Def endant Arpaio held a press conference and announce d

14 publicly that MCSO would no t cooperate with th e United States’ investigation, either

15 by providing documents or permitting interviews with personnel.

16

31. On July 16, 2009, MCS O indicated to the United States that it would

17 consider limited and partial cooperatio n with one portion of the investigation

18 (involving the pr ovision of services to persons with li mited English proficiency in

19 MCSO jail facilities), but would not cooperate with the remainder of the investigation.

20

32. On August 12, 2009, MCSO represen ted that it would provide this limited

21 cooperation in the form of a position statem ent by O ctober 2009. N o statement or

22 documents were produced by October 2009.

23

33. On November 10, 2009, MCSO represented that it would produce the limited

24 position statement by mid-December 2009. No statement or documents were produced

25 by mid-December 2009.

26

34. MCSO produced the limited position statement on June 14, 2010. The

27 position statement contained documents fully re sponsive to only tw o of the fifty-one

28 requests in the First Request, did not c ontain any information relevant to the

6

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 7 of 10

1 allegations of nationa l origin discrimination in MC SO police practices, and di d not

2 include any agreement to permit access to MCSO facilities or personnel.

3

35. On August 3, 2010, the United States notified Defe ndants that they were not

4 in compliance with T itle VI, its implementing regulations, and related contractual

5 assurances. The United States requested compliance by August 17, 2010, and advised

6 Defendants that absent full cooperation by th at date, the United States woul d conclude

7 that compliance could not be secured by voluntary means.

8

36. In a letter dated August 5, 2010, MCSO refused to coop erate in full with

9 DOJ’s investigation of both MCSO police practices and jail operations. MCSO also

10 requested a meet-and-confer to discuss the United States’ August 3 letter.

11

37. On August 12, 2010, Maricopa Co unty acknowledged the obligation of

12 federal fund recipients to cooperate with DOJ investiga tions, and directed MCS O to

13 fully cooperate in any DOJ Title VI inquiry.

14

38. MCSO responded to Maricopa County the next day a nd refused to com ply

15 with Maricopa County’s instruction.

16

39. Maricopa County ha s been una ble to compel MCSO to produc e all of the

17 requested documents, and is unable to secure access to MCSO’s facilities and staff.

18

40. On August 24, 2010, the United States and MCSO held a meet-and-confer to

19 discuss the United St ates’ investigation a nd requests for access. The United States

20 memorialized that meeting and communicated its expectations in writing the following

21 day. The United States also clarified and narrowed the scope of the two docum ent

22 requests as to which MCSO had requested clarification during the meet-and-confer.

23

41. On August 27, 2010, MCSO advised the United States by letter that it would

24 not cooperate in full with the investigation.

25

42. The United States ha s determined that all adm inistrative requirements have

26 been exhausted and securing c ompliance from Defendants cannot be achieved by

27 voluntary means.

28

43. On September 2, 2010, the U nited States notified De fendants that they ha d

7

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 8 of 10

1 failed to comply with Title VI, its implem enting regulations, and related contractual

2 assurances, and that this lawsuit would follow.

3

FIRST CLAIM FOR RELIEF:

4

DEFENDANTS’ DENIAL OF ACCESS TO SOURCES OF INFORMATION VIOLATES TITLE VI AND ITS IMPLEMENTING

5

REGULATIONS

44. Plaintiff re-alleges and inc orporates by reference the allegations set forth in

6

paragraphs 1-43 above.

7

45. Defendants received and c ontinue to receive federal financial assistance for

8

their programs and activities.

9

46. Defendants have de nied the United States access to such sources of

10

information and facilities as may be pertinent to ascertai n compliance w ith Title VI

11

and its implementing regulations.

12

47. Defendants’ denial of access to these sources of information and facilities

13

violates Title VI and its implementing regulations.

14

SECOND CLAIM FOR RELIEF:

15

DEFENDANTS’ DENIAL OF ACCESS TO SOURCES OF

INFORMATION VIOLATES THE TITLE VI ASSURANCES 16

48. Plaintiff re-alleges and inc orporates by reference the allegations set forth in

17

paragraphs 1-43 above.

18

49. Defendants signed contractual assura nce agreements with the United States

19 that all programs and activities receiving federal financial assistance would be

20 conducted in compliance with all of the requirements of Title VI and its implementing

21 regulations, including providing the Unit ed States with the right of access to

22 documents, facilities, and other sources of information as may be pertinent to ascertain

23 compliance with Title VI and the implementing regulations.

24 50. Defendants have denied the United States the right of ac cess to documents,

25 facilities, and other sources of information as are pertin ent to ascertain compliance

26 with Title VI and the implementing regulations.

27 51. Defendants’ denial of access violates the Title VI assurances.

28

8

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 9 of 10

1

PRAYER FOR RELIEF

2

52. The United States is authorized by Title VI and its implementing regulations

3 to seek relief for Defendants’ refusal to provide the United Stat es with access to

4 documents, facilities, and other sources of information necessary for the United States

5 to determine whether Defendants are in compliance with the nondiscrimination

6 requirements of Title VI and its implementing regulations.

7

WHEREFORE, the United States prays that the Court:

8

a. Declare that Defendants have vi olated Title VI, its implementing

9

regulations, and related contractual assurances by failing t o provide the

10

United States with access to document s, facilities, and other sources of

11

information pertaining to the inves tigation of alleged national origin

12

discrimination;

13

b. Direct Defendants to provide t he United States access to documents,

14

facilities, and other s ources of informa tion pertaining to its investigation,

15

including by directing De fendants to comp ly with the First Request for

16

Documents and Information, and all future requests; and

17

c. Order such other relief as the interests of justice may require.

18 19 DATED: September 2, 2010 20 21 22 23 24 25 26 27 28

Thomas E. Perez Assistant Attorney General
Dennis K. Burke United States Attorney
/s/ Amin Aminfar Roy L. Austin, Jr. (IL Bar #6228785) Matthew Colangelo (NY Bar #4228797) Peter S. Gray (DC Bar #940031) Amin Aminfar (NC Bar #36589) U.S. Department of Justice Civil Rights Division

9

Case 2:10-cv-01878-GMS Document 1 Filed 09/02/10 Page 10 of 10

1

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

2

(ph) 202-514-6255 / (fax) 202-514-4883

3

(email) amin.aminfar@usdoj.gov

4

Attorneys for the United States

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20 21 22 23 24 25 26 27 28

10

 </s> Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 1 of 4

1 Thomas E. Perez

2

Assistant Attorney General Dennis K. Burke

3

United States Attorney Roy L. Austin, Jr. (IL Bar #6228785)

4

Matthew Colangelo (NY Bar #4228797) Jonathan Smith (DC Bar #396578)

5

Avner Shapiro (DC Bar #452475) Peter S. Gray (DC Bar #940031)

6

Laurie A. Gelman (VA Bar #47743) Amin Aminfar (NC Bar #36589)

7

Sergio Perez (CA Bar #274798) U.S. Department of Justice, Civil Rights Division

8

950 Pennsylvania Avenue, N.W. Washington, DC 20530

9

(ph) 202-514-6225 / (fax) 202-514-4883, (email) amin.aminfar@usdoj.gov

10 Michael M. Walker (AZ Bar #20315)

11

Assistant U.S. Attorney Two Renaissance Square

12

40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408

13

(ph) 602-514-7500 / (fax) 602-514-7760, (email) michael.walker4@usdoj.gov

14 Attorneys for the United States

15

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18

19 United States of America,

20

Plaintiff,

21

v.

22 Maricopa County, Arizona; Maricopa

23

County Sheriff’s Office; and Joseph M. Arpaio, in his official capacity as Sheriff of

24 Maricopa County, Arizona,

25

Defendants.

No. 2:10-cv-01878-GMS
JOINT MOTION TO REMOVE CASE TO THE INACTIVE DOCKET AND STAY PROCEEDINGS

26

27

28

1 


Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 2 of 4

1

In an effort to resolve this action pursuant to agreement and to avoid protracted

2 litigation, Plaintiff, the United States of America, and Defendants, Sheriff Joseph M.

3 Arpaio and Maricopa County Sheriff’s Office, pursuant to the terms of the Agreement

4 attached as Exhibit A, respectfully move this Court for an order removing this case to

5 the Court’s inactive docket and staying any proceedings on the parties’ pending

6 Motions for Summary Judgment (Dkt. 18, 40, 43, and related filings) for sixty (60)

7 days or until further order of the Court. After the sixty (60) calendar days and subject

8 to substantial compliance with the terms of the Agreement, either Plaintiff will file a

9 Motion to Dismiss the United States’ First Amended Complaint without prejudice

10 pursuant to Fed. R. Civ. P. 41(a)(2) or a defendant could exercise its rights under the

11 Agreement and move for dismissal.

12

For the foregoing reasons and due to the parties’ Agreement, the parties

13 respectfully move this Court for an order removing this case to the inactive docket and

14 staying further proceedings on the parties' respective Motions for Summary Judgment.

15

16 Dated: June 2, 2011

Respectfully submitted,

17 Jones, Skelton & Hochuli, P.L.C.

United States Department of Justice
 Civil Rights Division 


18 /s/ Joseph J. Popolizio

19

William R. Jones, Jr. John T. Masterson

20

Joseph J. Popolizio 2901 North Central Avenue, Suite 800

21

Phoenix, Arizona 85012 Attorneys for named

Defendants

22

Maricopa County Sheriff’s Office and Joseph M. Arpaio

23

24

25

26

27

28

Thomas E. Perez 
 Assistant Attorney General 
 Dennis K. Burke
 United States Attorney 
 /s/ Amin Aminfar Roy L. Austin, Jr. Matthew Colangelo Jonathan Smith Avner Shapiro Peter S. Gray Laurie A. Gelman Amin Aminfar Sergio Perez U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (ph) 202-514-6255 / (fax) 202-514-4883 (email) amin.aminfar@usdoj.gov

2 


Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 3 of 4

1

Michael M. Walker 


2

Assistant U.S. Attorney
 Two Renaissance Square 


3

40 North Central Avenue, Suite 1200 
 Phoenix, AZ 85004-4408


4

(ph) 602-514-7500 / (fax) 602-514-7760 
 (email) michael.walker4@usdoj.gov 


5

Attorneys for the United States

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 


Case 2:10-cv-01878-GMS Document 58 Filed 06/02/11 Page 4 of 4

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on June 2, 2011, I electronically transmitted the attached

4 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of

5 a Notice of Electronic Filing to the following CM/ECF registrants:

6

7

Thomas K. Irvine

Polsinelli Shughart PC

8

3636 N. Central Avenue, Suite 1200

9

Phoenix, AZ 85012

10

Cynthia Renee Estrella

11

Polsinelli Shughart PC

1 E. Washington Street, Suite 1200

12

Phoenix, AZ 85004

13

William R. Jones, Jr.

14

Jones Skelton & Hochuli PLC

15

2901 N. Central Avenue, Suite 800

Phoenix, AZ 85012

16

17

John T. Masterson

Jones Skelton & Hochuli PLC

18

2901 N. Central Avenue, Suite 800

19

Phoenix, AZ 85012

20

Joseph John Popolizio

21

Jones Skelton & Hochuli PLC

2901 N. Central Avenue, Suite 800

22

Phoenix, AZ 85012

23

24

Attorneys for Defendants

25 /s/ Amin Aminfar

26

Amin Aminfar

27

28

4 


Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 1 of 17

UNITED STATES DISTRICT COURT
 DISTRICT OF ARIZONA


United States of America,
Plaintiff,
v.
Maricopa County, Arizona; Maricopa County Sheriff’s Office; and Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona,

No. 2:10-cv-01878-PHX-GMS

Defendants.

AGREEMENT
I. INTRODUCTION
1. The parties to this Agreement, the United States of America, represented by the United States Department of Justice (“DOJ”), and Joseph M. Arpaio, the Sheriff of Maricopa County, Arizona, represented by Jones, Skelton & Hochuli, P.L.C., agree on the terms and conditions set forth below (the “Agreement”).
2. The Sheriff of Maricopa County, Joseph M. Arpaio, is the elected official responsible for the operation of the Maricopa County Sheriff’s Office (“MCSO”). The Sheriff shall make reasonable efforts to ensure that employees of MCSO take all reasonable actions necessary to comply with the provisions of this Agreement.
3. On March 10, 2009, the United States informed MCSO that it was initiating an investigation under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7 (“Title VI”), and other statutes. Among the matters under investigation was alleged national origin discrimination in MCSO’s police practices and jail operations. Title VI, its implementing regulations, and related assurance agreements, require MCSO to provide the United States with access to pertinent sources of information, thereby enabling the United States to determine whether MCSO is in fact complying with Title VI mandates.
4. On March 25, 2009, the United States submitted its First Request for Documents and Information, consisting of 51 requests for documents and information. Shortly
2554236. 11

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 2 of 17
thereafter, the United States informed MCSO that its investigation would involve document review, tours of MCSO detention facilities, and interviews with MCSO staff and jail inmates. 5. On September 2, 2010, the United States filed this action against Sheriff Joseph M. Arpaio, in his official capacity, MCSO and Maricopa County.
6. Pursuant to DOJ’s requests, DOJ has completed and MCSO has allowed, requested tours of Maricopa County Jail facilities, as well as interviews of MCSO staff, detention officers, posse members, and command staff, including two interviews of Sheriff Joseph Arpaio. DOJ has also conducted interviews of inmates in the Maricopa County Jails. In addition, MCSO has produced documentation in response to each of DOJ’s March 25, 2009, document requests, and is compiling additional documents to satisfy additional requests.
7. Taking into consideration the cooperation the United States has received from MCSO, and MCSO’s expressed commitment to continuing cooperation, the United States has concluded that it can obtain any additional information it needs to complete its investigation without resorting to costly and protracted litigation.
8. Because MCSO's cooperation with the United States’ investigation obviates the need for any further litigation, the parties agree to resolve this matter pursuant to this Agreement. Within twenty-four hours of signing this Agreement, the parties will file this Agreement in the United States District Court for the District of Arizona, together with a motion to remove the action from the Court's active docket to its inactive docket and to further stay any proceedings on the parties’ pending motions for summary judgment. The parties further agree that this case will remain on the Court’s inactive docket for 60 calendar days, after which time, subject to substantial compliance with the terms of this Agreement, the DOJ will file a motion to dismiss the United States’ Complaint without prejudice pursuant to Fed. R. Civ. P. 41(a)(2).
9. It is the explicit intention of the parties to this Agreement that this Agreement is binding on the Sheriff’s successors, should the Agreement exceed the length of Sheriff Arpaio’s term as Sheriff.
2554236. 12

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 3 of 17
II. DEFINITIONS
10. “Discriminatory policing” shall refer to law enforcement policies and/or practices by law enforcement agencies that unlawfully discriminate against an individual due to his or her national origin, race, or color.
11. “Sheriff” shall refer to the Maricopa County Sheriff and his or her deputies, employees (sworn and unsworn), and successors in office.
12. “Personnel” and “MCSO personnel” shall both refer to all persons employed by MCSO in any capacity, including the Maricopa County Sheriff, command staff, sworn staff, unsworn staff, administrative staff, and volunteers, including posse members.
13. “Documents” and “MCSO documents” shall refer to any documents or records, whether electronic or paper, in whole or in part, in the possession of MCSO, subject to DOJ's understanding that certain documents may be subject to privacy, privilege, and/or other protections under federal and/or state laws.
14. “Effective date” shall mean the date this Agreement is signed by all the parties.
15. Throughout this Agreement, the term “substantial compliance” is used when discussing compliance under this Agreement. “Substantial compliance” shall mean that MCSO has achieved compliance with most or all components of the relevant provisions of the Agreement.
III. SUBSTANTIVE PROVISIONS
A. Access to Documents
16. MCSO shall comply with the access requirements of Title VI.
17. MCSO shall comply with all reasonable, relevant and necessary requests for documents, subject to privacy, privilege and other protections under federal and/or state laws, in their original format unless DOJ reasonably requests otherwise. Hard copy reproduction of any documentation that MCSO provides in electronic format shall occur at DOJ’s expense.
18. MCSO shall identify the software program and version required to read documents provided in electronic form, and provide any explanatory information reasonably necessary to understand the organizational scheme of the information provided.
19. MCSO shall notify DOJ within a reasonable time period but no more than 20 calendar days after receiving a request from DOJ of any inability to provide documents to DOJ outside of their original electronic formats.
2554236. 13

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 4 of 17
20. MCSO shall, if requested by DOJ, identify the source for the response to each document request, including integral MCSO staff member(s) or volunteer(s), assisting with, compiling, and/or providing the response and any electronic or database sources utilized to provide a partial or complete response, subject to DOJ’s understanding that the Sheriff may have limited ability to compel volunteers, posse members and employees to comply with any of the DOJ's requests arising under this Agreement. DOJ shall have the reasonable opportunity to communicate with said integral MCSO staff member(s) or volunteer(s), in order to better understand documents produced by MCSO, upon reasonable notice, during business hours and in the presence of counsel.
21. MCSO shall notify DOJ within a reasonable time period but no more than 20 calendar days of the effective date if a requested document does not exist.
22. MCSO shall provide DOJ with the following documents and information detailed in ¶¶ 23 to 38 of this Agreement within 45 calendar days of the effective date, unless otherwise noted.
a) General Policies and Procedures
23. All after Action Reports produced by Operations Command following large-scale law enforcement operations, often referred to as “crime suppression operations” and “workplace and workplace identity fraud enforcement operations” from July 2008 to the date of production.
b) Detention Facilities
24. MCSO’s current contract with the AT&T language line service and invoices documenting usage of the service from July 1, 2008, to the date of production.
25. A Spanish language copy of the Inmate Visitation form, which shall note its original date of formulation, currently being used in its detention facilities.
26. A Spanish language copy of the Disciplinary Action Report Appeal, which shall note its original date of formulation, currently being used in its detention facilities.
27. Representative samples of Online Journal entries for the Durango and Estrella detention facilities, including a month of entries for every three month period between January 1, 2008, and the date of production.
28. Attendance lists for all ESL classes offered at the Durango and Estrella detention facilities between July 2008 and the date of production. Unless ordered to do so by a court of competent jurisdiction, under no circumstances will the parties to this Agreement disclose or circulate these attendance lists, or the names or any identifying information of any individual on these lists, to anyone other than their respective
2554236. 14

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 5 of 17
attorneys, representatives and experts involved in this action for the purposes of this action and the related investigations.
c) Computer Aided Dispatch
29. Computer Aided Dispatch (“CAD”) Database for 2005 through 2010, as follows:
a. The produced database should contain every table and all fields from the source CAD database maintained by MCSO. If the fields or their variables have changed between years or in any other manner, MCSO shall provide a written explanation of the change to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
b. The produced database shall be accompanied by an explanation describing in detail the meaning of the various tables and fields in the database and the meaning of the values that may be used for each field. This explanation should also include who is responsible for inputting data into each field, i.e., the officer, the dispatcher, some other individual or whether the fields are completed automatically by the CAD software. Further, the explanation should identify any field that is routinely left blank as a matter of practice or policy. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
c. The produced database should be accompanied by a complete and unfiltered Premise Information file, along with an explanation of the function of the Premise Information file. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
d. The produced database should be identical to the source CAD database, filtered only according to the years requested. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
30. The names of MCSO personnel who are most familiar with the sources of information described in ¶29, specifically, all fields of the CAD database, including those that are presently unused and how all fields are populated, including fields listed as inaccurate. These personnel shall be made reasonably available for questions concerning the CAD database. Such MCSO personnel will provide any information requested pursuant to this paragraph to the extent possible and subject to
2554236. 15

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 6 of 17
limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
31. The names of MCSO training personnel, including Field Training Officers, who are most involved in training MCSO personnel concerning the use of the CAD system.
32. The list of all MCSO personnel categories who make use of the CAD system, including:
a. Names of MCSO dispatchers who use the CAD system. b. Names of the software specialists knowledgeable about the Mobile Data. c. Terminals used by MCSO personnel to interact with the CAD system.
33. MCSO shall make the personnel described in ¶¶ 30 to 32 of this Agreement available for interviews in a manner consistent with previously agreed-upon terms as detailed in the January 14, 2011, and January 20, 2011 letter exchanges between the parties. Such MCSO personnel will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
34. All policies, procedures, training manuals, and standard operating procedures regarding use of the sources of information described in ¶29. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
d) Oversight and Accountability
35. All use of force forms completed and submitted by MCSO law enforcement officers from September 2008 through March 2009.
36. All documents relating to Internal Affairs investigations concerning allegations of excessive use of force and/or discriminatory policing by MCSO personnel initiated from 2008 to the date of production.
37. All current or former MCSO personnel recommended for corrective action, discipline, suspension, or termination, as a result of excessive use of force and/or discriminatory policing, including whether discipline or corrective action was imposed and the nature and duration of any discipline or corrective action imposed, from January 1, 2007, to the present.
B. Access to Personnel
38. MCSO shall continue to provide DOJ with reasonable access to MCSO personnel in a manner consistent with previously agreed-upon terms as detailed in the January 14,
2554236. 16

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 7 of 17
2011/January 20, 2011, letter exchange between the parties, and DOJ will, in light of the access to MCSO personnel that DOJ has received, make reasonable efforts to limit further access to those MCSO personnel necessary to conduct its Title VI assessment. The January 14, 2011/ January 20, 2011, letter exchange is included in this Agreement as Appendix A.
IV. IMPLEMENTATION AND COMPLIANCE
39. Substantial compliance with this Agreement will be based on the entirety of the Agreement.
40. This Agreement shall be binding on all successors, assignees, employees, of MCSO, subject to DOJ's understanding that the Sheriff may have limited ability to compel volunteers, posse members and employees to comply with any of the DOJ's requests arising under this Agreement.
41. In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
42. Each party to this Agreement shall bear the cost of their fees and expenses incurred in connection with this Agreement and any litigation directly related to this action (United States v. Maricopa County, et al., No. 2:10-cv-01878).
43. DOJ shall notify MCSO of any material instance(s) in which it maintains that MCSO is not in substantial compliance with this agreement and has failed to carry out the requirements of this Agreement by providing a written Notice of Non-Compliance.
44. In the event that DOJ provides MCSO with a Notice of Non-Compliance, MCSO agrees to reasonably attempt to resolve the issues set forth by DOJ in its Notice Of Non-Compliance within 15 days following its receipt of a Notice Of NonCompliance.
45. If the parties cannot reach an agreement within the 15 calendar days following the receipt of a Notice of Non-Compliance, the parties agree to enter into mediation under the direction of a magistrate judge or any other neutral party appointed by the Court and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. These negotiations will last for a maximum of 10 business days from their inception.
46. If DOJ and MCSO fail to reach an agreement at the conclusion of mediation, DOJ is not limited in any fashion in pursuing its law enforcement obligations, including having this case restored to the Court’s active docket and seeking enforcement of the Agreement by the Court, or seeking rulings on the parties' cross motions for summary judgment, or pursuing any further motions or remedies under federal and/or state laws. Similarly, if an agreement is not reached at the conclusion of mediation,
2554236. 17

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 8 of 17
MCSO is not limited in any fashion in having the case restored to the court's active docket, seeking enforcement of the Agreement by the Court, seeking a ruling on the parties’ cross motions for summary judgment, or pursuing any further motions or remedies under federal and/or state laws.
V. TERMINATION
47. If DOJ determines that MCSO is in substantial compliance with the provisions of this Agreement, DOJ shall so state and memorialize its determination in writing to MCSO 55 days after the effective date, and, 60 calendar days after the effective date, DOJ shall move to dismiss the case from the Court’s inactive docket. Non-compliance with mere technicalities will not constitute failure to maintain substantial compliance.
48. Within twenty-four hours of signing this Agreement, the parties will file this Agreement in the United States District Court for the District of Arizona, together with a motion to remove the action from the Court’s active docket to its inactive docket and to further stay any proceedings on the parties' pending motions for summary judgment. The parties further agree that this case will remain on the Court’s inactive docket for 60 calendar days, after which time, subject to substantial compliance with the terms of this Agreement, DOJ will file a motion to dismiss the United States' Complaint without prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
49. This Agreement terminates when the Court enters an order dismissing the case without prejudice from its inactive docket or otherwise terminates the subject action.
50. Seventy-one (71) calendar days after the effective date, if MCSO maintains that it has reached substantial compliance with this Agreement, MCSO may file with the Court a motion to terminate the Agreement and to dismiss the action on the basis that MCSO has substantially complied with the terms of the Agreement. MCSO must provide DOJ with 10 calendar days notice of its intent to file such a motion, during which period DOJ and MCSO shall coordinate and discuss any areas of disagreement and attempt to resolve the outstanding differences.
51. Failure by any party to enforce this entire Agreement, or any provision thereof, with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
2554236. 18

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 9 of 17
This Agreement between the United States of America and the Sheriff of Maricopa County, Arizona, is signed on behalf of the United States by the following:
/s/ Amin Aminfar By: Thomas E. Perez, Assistant Attorney General Dennis K. Burke, United States Attorney Roy L. Austin, Jr. Matthew Colangelo Jonathan Smith Avner Shapiro Peter S. Gray Laurie A. Gelman Amin Aminfar Sergio Perez U.S. Department of Justice
 Civil Rights Division
 950 Pennsylvania Avenue, N.W.
 Washington, DC 20530

Michael M. Walker
 Assistant U.S. Attorney
 Two Renaissance Square
 40 North Central Avenue, Suite 1200

Attorneys for the United States
This Agreement between the United States of America and the Sheriff of Maricopa County, Arizona, is signed on behalf of the Sheriff of Maricopa County by the following:
/s/ Joseph J. Popolizio By: William R. Jones, Jr. John T. Masterson Joseph J. Popolizio Jones, Skelton & Hochuli, P.L.C. Attorneys for named Defendants Joseph M. Arpaio and Maricopa County Sheriff's Office
2554236. 19

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 10 of 17

Appendix A 


Case 2:10-cv-01878-GMS

Document

58-u1.s.FDileepda0r6tm/0e2n/1t 1of

Page 11 Justice

of

17

Civil Rights Division

JMS:AMS:AA:dh DJ: 207-8-8

Special Litigation Sec/ion - PHB 950 Pennsylvania AW!, NW Washington DC 20530

Via Facsimile and U.S. Mail

January 14,2011

Mr. John T. Masterson
Mr. Joseph 1. Popolizio Jones, Skelton & Hochuli, P.L.C.
2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012

Dear Messrs. Masterson and Popolizio:

I trust all is well with you both. I am writing because there are a number of matters on which I would either like to reach agreement or confirm we are in agreement prior to the Department of Justice ("DOJ") commencing interviews of Maricopa County Sheriff's Office ("MCSO") personnel on January 24, 2011. Additionally, there are certain documents that we need your cooperation in obtaining prior to the interviews going forward.

As we have discussed in our telephone calls and emails, DOJ requests that we use as a framework for conducting our interviews the parameters set out in the United States' proposed agreement document which we forwarded to you on November 30, 2010. We are also asking for the discretion to conduct the interviews at the U.S. Attorney's Office. In sum, we are asking you to agree to the following interview parameters:

A. The United States will select at its discretion the MCSO personnel and irunates that it will interview to ascertain compliance with Title VI and its implementing regulations.
B. The United States will select a reasonable number ofMCSO personnel to interview, to not exceed (1) 40 personnel involved in its police enforcement operations; (2) 50 personnel involved in its jail facilities; and (3) 150 inmates.
C. The United States may, at its discretion, interview MeSO personnel and irunates multiple times, but such interviews of MCSO personnel will not exceed a combined five hours.
D. The United States may, at its discretion, conduct interviews while accompanied by interpreters and perSOJ;lS employed as its consultants.
E. MCSO will take all reasonable efforts to make personnel and inmates
requested for interviews by the United States available for such interviews, including issuing such orders as may b·e necessary to assure availability ofMCSO personnel. F. MeSO will promptly make available MCSO personnel and irunates requested for interviews by the United States. IfMCSO personnel or inmates are not available within 24 hours of the United States' request for

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 12 of 17

-2-

an interview, Defendants will assure, barring exceptional circumstances

beyond the Defendants' control, availability within a period not to exceed

three days from the date of the United States' request.

G. Interviews of personnel below the command staff level, and all inmate

interviews, will not include attorneys or others representing the interests of

the Defendants. Attorneys representing individual personnel and inmates

may be present.

H. Inmate interviews will take place in confidential legal interview rooms,

without the presence of any MeSO recording devices of any kind~

I.

The United States will have the discretion to ask MeSO perS01U1el and

inmates to consent to having their interviews recorded by the United

States.

J. The United States has discretion to conduct interviews of personnel at the

U.S. Attorney's Office.

By close of business Thursday, January 20, 2011, please inform us in writing, either by letter or email, as to whether you do or do not agree to each of the above described parameters. Where you object to a parameter please let us know why. Our goal in being explicit about obtaining your agreement in relation to these parameters by a date certain is to eliminate ambiguity which may undermine our efforts to go forward with these interviews as scheduled.

Additionally, we request that you forward to us as soon as possible, but in any event no later than the close of business Wednesday, January 19,2011, the following:

• The operation manual and associated policies for each MCSO subcomponent; and • A list or roster with names of MCSO employees and volunteers that includes the unit
or component for which each MCSO employee or volunteer works.

As I have indicated in earlier telephone conversations and emails relating to these items, we need both the policy docwnents and roster of names to prepare for our interviews. Because we are interested in obtaining this infonnation as quickly as possible, we request that you provide us with what you have that is most readily available flrst, and. then supplement at a later date if necessary. As always, any assistance you can provide us is greatly appreciated.

Sincerely,
~
Avner Shapiro Special Counsel Special Litigation Section

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 13 of 17
JONES, SKELTON & HOCHULI, P.L.C.


WILLIAM R. JONES, JR. TELEPHONE: (602) 263-1714 FAX: (602) 200-7801 E-MAIL: WJONES@JSHFIRM.COM
JOHN T. MASTERSON TELEPHONE: (602) 263-7330 FAX: (602) 200-7846 E-MAIL: JMASTERSON@JSHFIRM.COM
JOSEPH J. POPOLIZIO TELEPHONE: (602) 263-1741 FAX: (602) 200-7876 E-MAIL: JPOPOLIZIO@JSHFIRM.COM

January 20, 2011

2901 NORTH CENTRAL AVENUE SUITE 800
PHOENIX, ARIZONA 85012 PHONE: (602) 263-1700
FAX: (602) 651-7599 WWW.JSHFIRM.COM

Avner Shapiro U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Re: U.S. v. MCSO, et al. 
 CV10-10878-PHX-GMS

Dear Avner:
I received your letter of January 14, 2011, and have discussed the DOJ’s listed requests with my clients. I will respond to the individual paragraphs A – J below.
A. The United States will select at its discretion the MCSO personnel and inmates that it will interview to ascertain compliance with Title VI and its implementing regulations.
Response: We understand that the United States can select at it its discretion the MCSO personnel and inmates who will be interviewed. Obviously, it is possible that certain personnel and/or inmates may not be available on the date or time selected by the United States. First, inmates do get transferred to other jail facilities, released, transferred to the Arizona Department of Corrections or other corrections facilities and/or may even be receiving medical treatment and care in our facility or other facilities. We will try to make personnel available according to your schedule. Again, there may need to be changes due to transfers, vacations, offduty status, or many other reasons for any requested individual to be unavailable. We will work with you at all times during these interviews in an efficient manner and according to plan. We do request that you take note we are trying to avoid expenditures of unnecessary overtime for the interviews of MCSO personnel. We had raised that concern with you previously.

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 14 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 2
B. The United States will select a reasonable number of MCSO personnel to interview, not to exceed (1) 40 personnel involved in its police enforcement operations; (2) 50 personnel involved in its jail facilities; and (3) 150 inmates.
Response: You may interview (1) 40 personnel involved in MCSO police enforcement operations; (2) 50 personnel involved in the MCSO jail facilities (you have already listed 50 personnel involved in MCSO jail facilities for interview; we are assuming that you are not requesting an additional 50); and (3) 150 inmates (again, my understanding is that you have already interviewed approximately 100 inmates; we are assuming you only intend to interview 50 more).
C. The United States may, at its discretion, interview MCSO personnel and inmates multiple times, but such interviews of MCSO personnel will not exceed a combined five hours.
Response: We find it difficult to understand why the DOJ needs to utilize five hours for these rather straightforward interviews. Most depositions in full blown lawsuits do not take five hours, at least in this jurisdiction. We understand that you may wish to interview personnel and inmates on more than one occasion and agree to that. We suggest, however, that the sum total of each or, if appropriate, multiple interviews not exceed three hours in total.
D. The United States may, at its discretion, conduct interviews while accompanied by interpreters and persons employed as its consultants.
Response: We understand that you may need interpreters while conducting certain of the inmate interviews. We have no problem allowing interpreters to be present. We also understand that you wish to have consultants present at the interviews. We agree to that as well, but request that you provide the name and curriculum vitae of all proposed consultants at least one day prior to any interview.
E. MCSO will take all reasonable efforts to make personnel and inmates requested for interviews by the United States available for such interviews, including issuing such orders as may be necessary to assure availability of MCSO personnel.
Response: As stated above, MCSO will make all reasonable efforts to make personnel and inmates available. Availability may depend upon those circumstances discussed above and other circumstances which may arise at the times of the particular requests. We are hesitant to “order” employees to appear. Some employees may be hesitant to do so. We will certainly encourage all requested employees to appear for their interviews as requested and will

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 15 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 3
explain the interview process to them prior to their interviews so that they will understand the process and not feel threatened by the DOJ’s intrusion into their daily affairs.
F. MCSO will promptly make available MCSO personnel and inmates requested for interviews by the United States. If MCSO personnel or inmates are not available within 24 hours of the United States’ request for an interview, Defendants will assure, barring exceptional circumstances beyond the Defendants’ control, availability within a period not to exceed three days from the date of the United States’ request.
Response: MCSO wishes to handle this interview process as efficiently and quickly as possible. To that end, we assure you that we will provide personnel and inmates requested for interviews as quickly as is reasonable under all of the circumstances present at the time of the individual requests. As stated above, it is possible that certain requested inmates may not even be in our custody at the time of a request, or be otherwise unavailable. If we do still have particular inmates within our control, we will make them available as requested, barring exceptional circumstances which we can certainly discuss at the time in order to resolve any particular problems that may arise during the interview process.
G. Interviews of personnel below the command staff level, and all inmate interviews, will not include attorneys or others representing the interests of the Defendants. Attorneys representing individual personnel and inmates may be present.
Response: Initially, we agree that interviews of personnel “below the command staff level” and all inmate interviews will not include attorneys or others representing the interests of the MCSO. Attorneys representing individual personnel and inmates may be present. We consider “command staff level” for the purposes of these interviews to be sergeants and above. Counsel and other appropriate persons representing the interests of the MCSO may be available during such command staff level interviews. In addition, as stated above, we will agree “initially” to interviews of personnel below the “command staff level” without counsel or other representation. That may change at any time during the interviews. While you have indicated that you are concerned with the possibility of intimidation of MCSO personnel, we too are concerned about the possibility of intimidation. If any particular employee feels intimidated or coerced by the interview process or otherwise feel that the interview is proceeding in an unreasonable fashion, such employee may request a recess of the interview and seek advice of personal counsel or counsel representing MCSO and the interests of MCSO.

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 16 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 4
H. Inmate interviews will take place in confidential legal interview rooms without the presence of any MCSO recording devices of any kind.
Response: Our understanding is that numerous inmate interviews have already occurred. We intend to proceed with the further interviews in the same fashion since the United States did not seem to find fault with the process that has already taken place. The interviews may also take place somewhere other than “legal” interview rooms. As we previously mentioned, we do have a concern with providing inmate access to their personal attorneys during the course of the United States’ investigation. We do not want to cease all other legal interviews during the time the DOJ is present at the jail. We have been assured that there will be no recording devices of any kind present in the interview rooms as further discussed below.
I. The United States will have the discretion to ask MCSO personnel and inmates to consent to having their interviews recorded by the United States.
Response: We agree that the United States will have the discretion to ask MCSO personnel and inmates to consent to having their interviews recorded by the United States. As a necessary part of that agreement, however, we request an authenticated copy of any interview recorded by the United States in its entirety. It seems reasonable and, moreover, fair to have the information that the United States intends to rely upon for our own use and review by counsel, consultants, and appropriate command staff. It seems reasonable to us to request copies of such recordings so that we all have the same information available to the United States.
J. The United States has discretion to conduct interviews of personnel at the U.S. Attorney’s Office.
Response: As mentioned above, we are also concerned with intimidation occurring during this DOJ interview process. It seems clear to all concerned that having interviews conducted at the U.S. Attorney’s Office would not only result in a significant waste of time for all concerned because of the unknown length of each interview and the fact that all interviewees will be “on duty” at the time of each individual interview. As we have discussed previously, it is easy to envision lines of MCSO personnel forming while waiting the completion of the preceding interview. We wish to avoid that. Also, it would be hard to imagine a more intimidating place for an interview than the U.S. Attorney’s Office. We do understand, however, some of your concerns. Due to that understanding, we propose that all interviews of personnel be conducted at the MCSO training facility at 2627 South 35th Avenue, Phoenix, Arizona 85009. As you may know, the training facility is located next to the LBJ facility. I am told that employees can reach the training facility within five to seven minutes from any of the other jail facilities. Again, and as above, we assure you that we will provide appropriate interview rooms

Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 17 of 17
JONES, SKELTON & HOCHULI, P.L.C.
January 20, 2011 Page 5

and will not have recording devices present in any such rooms. Your recording devices are subject to the agreement discussed above.
I am also going to briefly discuss your previous requests and Ms. Sreeharsha’s request for help in navigating through the vast amount of information that has previously been provided to you. One of your expressed concerns is that we have not provided all of the policies and procedures requested. I have been assured that we have provided all such policies and procedures and, when this question arose in the past, a separate disk was provided to you containing only the policies and procedures requested. If you cannot find that disk, please let me know and I will have another one sent to you.
In addressing your other concerns about navigating through the voluminous boxes and computerized information, I suggest that you have appropriate persons from DOJ come to Phoenix at their convenience. I will then arrange a meeting with appropriate MCSO personnel who should be able to provide reasonable and appropriate aid to those persons. Please let me know when it would be convenient and I will schedule the meeting.
Finally, you have mentioned that you wish to conduct additional jail tours. As you know, DOJ attorneys and other consultants have already toured all MCSO jail facilities. Those tours were requested by the United States, at the times and locations requested by the United States, with those present deemed necessary by the United States. Please let me know what you need to see that you haven’t already seen and we will be happy to consider that request.
I hope I have addressed all of your concerns and that we would be able to proceed with the interviews scheduled next week. As always, if you have any additional concerns or wish to discuss any other aspect of this investigation, please feel free to contact Bill Jones, me, or Joe Popolizio. We all would be happy to work with you in moving this matter to a successful conclusion.
Sincerely,

JTM/jag

John T. Masterson For the Firm

Case 2:10-cv-01878-GMS Document 58-2 Filed 06/02/11 Page 1 of 1

1

2

3

4

5

6

UNITED STATES DISTRICT COURT 


7

DISTRICT OF ARIZONA 


8

9 United States of America,

10

Plaintiff,

No. 2:10-cv-01878-PHX-GMS

11

v.

[PROPOSED] ORDER

12 Maricopa County, Arizona; Maricopa County Sheriff’s Office; and Joseph M.
13 Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona,
14

15

Defendants.

16

17

The Court, upon having reviewed the United States of America and Defendants

18 Maricopa County Sheriff’s Office and Joseph M. Arpaio’s Joint Motion to Remove the

19 Case to the Inactive Docket and Stay Proceedings, hearing arguments of the parties and

20 being advised in the premises, herein grants the Motion and removes this Case to the

21 Court’s inactive docket and stays any proceedings on the parties’ pending Motions for

22 Summary Judgment for a period of sixty (60) days or until further order of the Court.

23

IT IS SO ORDERED.

24

25

26

27

28

 </s> Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 1 of 32

1

Thomas E. Perez Assistant Attorney General

2

Roy L. Austin, Jr. (IL Bar #6228785) Deputy Assistant Attorney General

3

Jonathan M. Smith (DC Bar #396578) Winsome G. Gayle (NY Bar #3974193)

4

Sergio Perez (CA Bar #274798) Jennifer L. Mondino (NY Bar #4141636)

5

Edward G. Caspar (MA Bar #650566) U.S. Department of Justice, Civil Rights Division

6

950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

7

(ph) 202-305-4164 / (fax) 202-514-6273, (email) winsome.gayle@usdoj.gov

8 Attorneys for the United States

9

10

IN THE UNITED STATES DISTRICT COURT FOR THE

11

DISTRICT OF ARIZONA

12

13 United States of America,

14

Plaintiff,

No. _________________

15

v.

COMPLAINT

16

Maricopa County, Arizona; Maricopa County Sheriff’s Office; and Joseph M.

17

Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona,

18

Defendants.

19

20

21

INTRODUCTION

22

1. The Maricopa County Sheriff’s Office (MCSO) and Sheriff Joseph M.

23 Arpaio (Arpaio) have engaged and continue to engage in a pattern or practice of

24 unlawful discriminatory police conduct directed at Latinos in Maricopa County and

25 jail practices that unlawfully discriminate against Latino prisoners with limited

26 English language skills. For example, Latinos in Maricopa County are frequently

27 stopped, detained, and arrested on the basis of race, color, or national origin, and

28 Latino prisoners with limited English language skills are denied important

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 2 of 32

1 constitutional protections. In addition, Defendants MCSO and Arpaio pursue a

2 pattern or practice of illegal retaliation against their perceived critics by subjecting

3 them to baseless criminal actions, unfounded civil lawsuits, or meritless

4 administrative actions.

5

2. As a result of the pattern or practice of unlawful discrimination, Latinos in

6 Maricopa County are systematically denied their constitutional rights; the relationship

7 between MCSO and key segments of the community is eroded, making it more

8 difficult for MCSO to fight crime; and the safety of prisoners and officers in the jails

9 is jeopardized. Constitutional policing is an essential element of effective law

10 enforcement. MCSO and Arpaio’s conduct is neither constitutional nor effective law

11 enforcement.

12

3. Defendant Maricopa County, which is responsible for funding and

13 oversight of MCSO, has failed to ensure that MCSO’s programs or activities comply

14 with the requirements of the Constitution and federal law.

15

4. The Defendants’ violations of the Constitution and laws of the United

16 States are the product of a culture of disregard in MCSO for Latinos that starts at the

17 top and pervades the organization. MCSO jail employees frequently refer to Latinos

18 as “wetbacks,” “Mexican bitches,” and “stupid Mexicans.” MCSO supervisors

19 involved in immigration enforcement have expressed anti-Latino bias, in one instance

20 widely distributing an email that included a photograph of a Chihuahua dog dressed in

21 swimming gear with the caption “A Rare Photo of a Mexican Navy Seal.” MCSO

22 and Arpaio’s words and actions set the tone and create a culture of bias that

23 contributes to unlawful actions.

24

5. MCSO promotes, and is indifferent to, the discriminatory conduct of its law

25 enforcement officers, as is demonstrated by inadequate policies, ineffective training,

26 virtually non-existent accountability measures, poor supervision, scant data collection

27 mechanisms, distorted enforcement prioritization, an ineffective complaint and

28

2

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 3 of 32

1 disciplinary system, and dramatic departures from standard law enforcement

2 practices.

3

6. This Complaint sets out three categories of unlawful conduct: (1) a pattern

4 or practice of discriminatory and otherwise unconstitutional law enforcement actions

5 against Latinos in Maricopa County; (2) discriminatory jail practices against Latino

6 prisoners with limited English language skills; and (3) a pattern or practice of

7 retaliatory actions against perceived critics of MCSO activities.

8

7. This action is brought to enforce the First Amendment, Fourth Amendment,

9 and Fourteenth Amendment of the United States Constitution; the Violent Crime

10 Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141; Title VI of the Civil

11 Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7; the Title VI implementing

12 regulations issued by the United States Department of Justice, 28 C.F.R. §§ 42.101 to

13 42.112; and Title VI contractual assurances.

14

8. The United States seeks declaratory and injunctive relief to remedy the

15 Defendants’ violations of the law and to ensure that MCSO implements sustainable

16 reforms establishing police and jail practices that are constitutional. Implementation

17 of constitutional policing practices will enhance public safety for people in Maricopa

18 County.

19

9. The United States alleges the following:

20

DEFENDANTS

21

10. Defendant Maricopa County Sheriff’s Office (MCSO) is a law enforcement

22 agency in Maricopa County, Arizona. MCSO provides law enforcement throughout

23 the County and operates the county jail system. MCSO is a program or activity that

24 receives federal financial assistance from the United States Department of Justice

25 (DOJ), both directly and as a subrecipient of Maricopa County.

26

11. Defendant Joseph M. Arpaio (Arpaio) is the Sheriff of Maricopa County

27 and is responsible for the operation of MCSO, both in its policing and jail operations.

28 Arpaio has signed contractual assurances that MCSO will comply with federal law.

3

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 4 of 32

1

12. Defendant Maricopa County (the County) is a political subdivision of the

2 State of Arizona. The County is responsible for funding MCSO. The County’s

3 programs and activities receive federal financial assistance, including from DOJ. As a

4 recipient of federal funds, the County is responsible for ensuring—and it has made

5 contractual assurances that it will ensure—that the programs or activities to which it

6 distributes those funds, including programs administered by MCSO, comply with

7 federal law.

8

BACKGROUND

9

13. Maricopa County, Arizona has close to four million residents and is the

10 fourth largest county in the United States by population.

11

14. Maricopa County covers more than 9,200 square miles.

12

15. According to the 2010 census, Maricopa County is 59 percent White, non-

13 Hispanic, 30 percent Hispanic/Latino, 5 percent Black, 4 percent Asian, and 2 percent

14 Native American. The Hispanic population in Maricopa County grew by

15 approximately 47 percent during the period between the 2000 census and the 2010

16 census.

17

16. MCSO employs approximately 900 sworn deputies and 1,800 sworn

18 detention officers (both are referred to as “officers” in this Complaint). It also relies

19 on the services of approximately 3,000 volunteer posse members.

20

JURISDICTION AND VENUE

21

17. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331

22 and 1345.

23

18. The United States is authorized to initiate this action against Defendants

24 Maricopa County, MCSO, and Arpaio (collectively, “the Defendants”) under the

25 Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, and

26 Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7, and its

27 implementing regulations, 28 C.F.R. §§ 42.101 to 42.112.

28

4

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 5 of 32

1

19. Declaratory and injunctive relief is sought as authorized by 42 U.S.C.

2 § 14141(b) and 28 U.S.C. §§ 2201 and 2202.

3

20. Venue is proper in the District of Arizona pursuant to 28 U.S.C. § 1391(b).

4 The Defendants are located in Arizona, and all events, actions, or omissions giving

5 rise to these claims occurred in Arizona.

6

FACTS

7

I. MCSO’s Police Practices Unlawfully Discriminate against Latinos in

8

Violation of Their Constitutional and Statutory Rights

9

21. In or about 2006, Arpaio decided to turn MCSO into a “full-fledged anti-

10 illegal immigration agency.” Since that time, MCSO has made immigration

11 enforcement one of the highest priorities of its law enforcement efforts.

12

22. From at least 2006 and continuing through the present, MCSO officers have

13 unlawfully discriminated against Latinos and otherwise violated their constitutional

14 rights through a broad range of police practices, including the following:

15

a. Unconstitutional and unlawful targeting of Latinos, because of their race,

16

color, or national origin, for pretextual traffic stops during routine

17

enforcement activity, in connection with purported immigration and human

18

smuggling law enforcement activities, and during purported crime

19

suppression operations (suppression sweeps);

20

b. Unconstitutional and unlawful detention of Latino drivers and passengers,

21

because of their race, color, or national origin, to determine immigration

22

status, when there is no lawful basis for the detention;

23

c. Unconstitutional and unlawful searches and seizures of Latinos, because of

24

their race, color, or national origin, during raids of residences suspected of

25

housing undocumented persons; and

26

d. Unconstitutional and unlawful targeting of Latino workers and illegal

27

detention of Latinos, because of their race, color, or national origin, during

28

worksite raids.

5

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 6 of 32

1

23. These practices, and the Defendants’ discriminatory actions against Latino

2 limited English proficient (LEP) prisoners in MCSO jails (described below),

3 constitute a pattern or practice of conduct that deprives Latinos in Maricopa County

4 of rights, privileges, and immunities secured and protected by the United States

5 Constitution and federal laws.

6

24. The Defendants’ intent to discriminate against Latinos is demonstrated not

7 only by the disparate negative impact on Latinos of the discriminatory conduct

8 described above, but by other practices, policies, and statements of the Defendants,

9 including:

10

a. MCSO’s departure from standard law enforcement practices that help to

11

prevent biased policing and ensure constitutional policing; and

12

b. Statements by MCSO leadership and staff denigrating and endorsing the

13

denigration of Latinos.

14

A. MCSO Targets Latinos on the Roads in a Discriminatory and

15

Otherwise Unconstitutional Manner

16

25. MCSO officers unlawfully rely on race, color, or national origin in their

17 enforcement of traffic laws.

18

26. Latino drivers are subjected to disparate treatment as compared to similarly

19 situated non-Latino drivers.

20

27. This was evidenced by a 2011 study that assessed the incidence of traffic

21 violations by non-Latino and Latino drivers and compared those data to the rates at

22 which MCSO officers stopped non-Latino and Latino traffic violators.

23

28. For example, in the southwest portion of the County, the study found that

24 Latino drivers are almost four times more likely to be stopped by MCSO officers than

25 non-Latino drivers engaged in similar conduct.

26

29. In the northwest portion of the County, the study found that Latino drivers

27 are over seven times more likely to be stopped by MCSO officers than non-Latino

28 drivers engaged in similar conduct.

6

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 7 of 32

1

30. Most strikingly, in the northeast portion of the County, the study found that

2 Latino drivers are nearly nine times more likely to be stopped by MCSO officers than

3 non-Latino drivers engaged in similar conduct.

4

31. This targeting of Latinos for traffic enforcement violates the Fourth

5 Amendment and the Due Process and Equal Protection Clauses of the Fourteenth

6 Amendment.

7

i. Unlawful Traffic Stops by the Human Smuggling Unit

8

32. MCSO discriminates against Latinos through traffic stops made in

9 connection with the immigration enforcement activities of its Human Smuggling Unit

10 (HSU).

11

33. HSU is a unit of approximately 15 officers and supervisors whose mission

12 is to “interdict human smuggling loads and drop houses, and conduct investigations

13 that result in the successful prosecution of all suspects under A.R.S. §13-2319.A.”

14 A.R.S. §13-2319.A is Arizona’s criminal human smuggling law.

15

34. In pursuing HSU’s mission of interdicting human smugglers, HSU

16 members unlawfully and routinely rely on race, color, or national origin in initiating

17 pretextual stops of vehicles on the roads and highways of Maricopa County.

18

35. HSU members exercise significant discretion in determining whom to stop.

19

36. Training of HSU members emphasizes highly subjective factors to

20 determine which cars to target for stops and whether to treat passengers in stopped

21 cars as potentially undocumented persons.

22

37. The factors described in MCSO deputy training, and relied upon by HSU

23 members, are not reasonably calculated to differentiate between undocumented

24 immigrants and U.S. citizens who are Latino, or Latinos who are otherwise lawfully

25 in the United States. For example, in determining which cars to stop and which

26 people to detain, MCSO officers routinely rely upon factors such as whether

27 passengers look “disheveled” or do not speak English. These criteria, as routinely

28 cited by HSU officers, are insufficient to provide reasonable suspicion that a vehicle

7

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 8 of 32

1 contains undocumented persons or to justify the detention of passengers for

2 questioning.

3

38. HSU does not collect relevant data or other information that would allow it

4 to assess the efficacy of its methods, or to evaluate whether any HSU officer is

5 engaged in unconstitutional conduct.

6

39. Officers are given little meaningful training on procedures to avoid racial

7 profiling and MCSO has no meaningful accountability mechanisms in place.

8

40. HSU operates without meaningful policy guidance, despite the high risk of

9 racial profiling from immigration-targeted law enforcement activities. The MCSO

10 Handbook provided to HSU officers contains no guidance on the enforcement of

11 immigration laws or the determination of probable cause for immigration violations in

12 a manner that avoids discrimination based on race, color, or national origin.

13

41. As a result, vehicles occupied by Latinos are far more likely to be stopped

14 by HSU officers, as compared to non-Latino drivers and passengers.

15

42. HSU officers report low “hit” rates from pretextual stops. The vast

16 majority of people stopped by HSU officers are either United States citizens or are

17 otherwise lawfully present in the United States.

18

43. HSU targets not only drivers, but passengers, in an attempt to apprehend

19 both smugglers and the persons who are being smuggled.

20

44. HSU officers often unlawfully justify stops of Latino drivers on grounds

21 that are false, contradict their own records, or do not rise to the level of a traffic law

22 violation.

23

45. In one instance, HSU officers stopped and detained a Latino driver and

24 Latino passengers for a human smuggling investigation because they “appeared to be

25 laying or leaning on top of each other” and “appeared, disheveled, dirty, or stained

26 clothing [sic].” However, MCSO pictures taken at the scene show neatly dressed

27 passengers sitting comfortably in the rear of the vehicle.

28

8

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 9 of 32

1

46. In another instance, MCSO officers stopped a car carrying four Latino men,

2 although the car was not violating any traffic laws. The MCSO officers ordered the

3 men out of the car, zip-tied them, and made them sit on the curb for an hour before

4 releasing all of them. The only reason given for the stop was that the men’s car “was

5 a little low,” which is not a criminal or traffic violation.

6

47. In addition to engaging in discrimination in the determination of whom to

7 stop, HSU officers illegally detain Latino passengers to determine immigration status.

8

48. Once HSU officers stop a car, and a driver or passenger appears to be

9 Latino, officers will typically question the passenger regarding immigration status and

10 ask for identification. If the passenger cannot produce identification or does not speak

11 English to the officer, the HSU officer routinely will detain the passenger to

12 determine whether the passenger is lawfully in the United States.

13

49. Reports by MCSO officers reveal the routine absence of probable cause to

14 arrest passengers. For example, the following factors, in some combination, were

15 listed as the support for probable cause in more than 50 arrest reports: passengers

16 appeared nervous or avoided eye contact; passengers had strong smell of body odor;

17 and passengers had no luggage or personal belongings in the car.

18

ii. Unlawful Traffic Stops During Suppression Sweeps

19

50. MCSO unlawfully discriminates against Latinos in traffic stops conducted

20 during “crime suppression operations,” commonly known as suppression sweeps.

21

51. MCSO has adopted the practice of suppression sweeps—large-scale,

22 resource-intensive operations involving dozens of officers and volunteer posse

23 members—as part of its efforts to enforce immigration laws.

24

52. Suppression sweeps are a practice of using a high volume of pretextual

25 traffic stops over a designated period in selected geographic areas in an effort to

26 identify undocumented persons.

27

53. MCSO officers exercise significant discretion in determining whom to stop

28 during suppression sweeps.

9

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 10 of 32

1

54. During these operations, MCSO officers target Latinos, as opposed to non-

2 Latinos, for traffic stops based on their race, color, or national origin. These sweeps

3 result in the systematic violation of the constitutional rights of Latinos.

4

55. The suppression sweeps are not based on reliable intelligence or allegations

5 of criminal activity, lack sufficient operational planning, are not subject to meaningful

6 oversight, and are conducted by MCSO officers, along with volunteer posse members,

7 who are given insufficient training or guidance as to the execution of suppression

8 sweeps.

9

56. MCSO does not collect relevant data or other information that would allow

10 it to assess the efficacy of these suppression sweeps, or to evaluate whether any

11 officer misconduct occurs during such operations.

12

57. Highly subjective criteria are used to determine who is subject to detention

13 pursuant to a pretext traffic stop.

14

58. Locations also have been selected for sweeps because of complaints by

15 non-Latino residents that there are Latinos in those areas.

16

59. A high percentage of people who are stopped have committed no criminal

17 offense. In one crime suppression sweep, out of 299 stops, only 41 persons were

18 taken into custody. In another, 451 vehicles were stopped and only 53 persons were

19 taken into custody. These rates are typical of all MCSO suppression sweeps.

20

60. MCSO suppression sweeps on County roads result in extensive and

21 unjustified seizures, often of dozens of law-abiding Latinos who happen to be in the

22 area in which the operation is taking place.

23

iii. Mistreatment of Latinos In the Course of Traffic Enforcement

24

61. The unlawful targeting and stopping of Latinos by MCSO officers through

25 routine traffic enforcement activities and immigration-related operations has led to the

26 mistreatment of Latinos.

27

62. For example, an MCSO officer stopped a Latina woman – a citizen of the

28 United States and five months pregnant at the time – as she pulled into her driveway.

10

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 11 of 32

1 After she exited her car, the officer then insisted that she sit on the hood of the car.

2 When she refused, the officer grabbed her arms, pulled them behind her back, and

3 slammed her, stomach first, into the vehicle three times. He then dragged her to the

4 patrol car and shoved her into the backseat. He left her in the patrol car for

5 approximately 30 minutes without air conditioning. The MCSO officer ultimately

6 issued a citation for failure to provide identification. This citation was later changed

7 to failure to provide proof of insurance. The citation was resolved when the woman

8 provided her proof of insurance to the local court.

9

63. In another instance, during a crime suppression operation, two MCSO

10 officers followed a Latina woman, a citizen of the United States, for a quarter of a

11 mile to her home. The officers did not turn on their emergency lights, but insisted that

12 the woman remain in her car when she attempted to exit the car and enter her home.

13 The officers’ stated reasons for approaching the woman was a non-functioning license

14 plate light. When the woman attempted to enter her home, the officers used force to

15 take her to the ground, kneed her in the back, and handcuffed her. The woman was

16 then taken to an MCSO substation, cited for “disorderly conduct,” and returned home.

17 The disorderly conduct citation was subsequently dismissed.

18

B. MCSO Targets Latinos in Their Homes and Workplaces for

19

Immigration Enforcement in a Discriminatory and Otherwise

20

Unconstitutional Manner

21

64. MCSO, through its specialized units and specialized operations, has

22 targeted Latinos in their homes and in their workplaces in a discriminatory and

23 otherwise unconstitutional manner.

24

65. At the same time, MCSO has knowingly failed to implement adequate

25 policies, training, or accountability mechanisms to prevent unlawful discrimination

26 against Latinos.

27

66. HSU officers have searched and seized Latinos without cause on the basis

28 of race, color, or national origin in raids of residences.

11

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 12 of 32

1

67. For example, during a raid of a house suspected of containing human

2 smugglers and their victims, HSU officers went to an adjacent house, which was

3 occupied by a Latino family. The officers entered the adjacent house and searched it,

4 without a warrant and without the residents’ knowing consent. Although they found

5 no evidence of criminal activity, after the search was over, the officers zip-tied the

6 residents, a Latino man, a legal permanent resident of the United States, and his 12-

7 year-old Latino son, a citizen of the United States, and required them to sit on the

8 sidewalk for more than one hour, along with approximately 10 persons who had been

9 seized from the target house, before being released.

10

68. The Criminal Employment Squad (CES) is an immigration enforcement

11 unit of approximately 10 MCSO officers that relies primarily on state identity theft

12 laws to interdict undocumented immigrants. CES officers conduct raids at worksites

13 in an effort to arrest undocumented persons who are working without proper

14 authorization. These raids are conducted in a manner that results in the seizure of

15 Latinos without reasonable suspicion.

16

69. According to MCSO, CES has conducted 60 raids resulting in 627 arrests

17 since 2006, with the most recent in May 2012.

18

70. Virtually all worksite raids have taken place at businesses where the

19 majority of the employees are Latino.

20

71. CES officers typically conduct these raids pursuant to search warrants that

21 list specific persons at the worksite who are suspected of being in possession of

22 fraudulent identity documents. They do not ordinarily obtain arrest warrants.

23

72. During raids, CES typically seizes all Latinos present, whether they are

24 listed on the warrant or not. For example, in one raid CES had a search warrant for 67

25 people, yet 109 people were detained. Fifty-nine people were arrested and 50 held for

26 several hours before they were released. Those detained, but not on the warrant, were

27 seized because they were Latino and present at the time of the raid. No legal

28 justification existed for their detention.

12

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 13 of 32

1

73. In another raid, a U.S.-born Latina was taken into custody for four hours to

2 determine whether she was lawfully in the United States. In response to media

3 inquiries about this incident, Arpaio was quoted as saying: “That’s just normal police

4 work. You sometimes take people in for probable cause for questioning and they’re

5 released.” The only cause for her arrest was that she was Latina and on-site during a

6 raid, reasons insufficient to provide probable cause for the detention.

7

74. CES officers ordinarily use unjustified seizures to conduct interviews of all

8 seized persons to determine if they are legally in the country, despite lacking legal

9 justification to detain them. The determination of whether to seize and detain a

10 worker for questioning is impermissibly based on race, color, or national origin.

11 These seizures are not for the limited, legitimate purposes of protecting officers,

12 protecting evidence, or identifying persons listed on the warrant.

13

75. For example, during one worksite raid, CES officers demanded to see the

14 identification of a Latino man who was parked in a lot adjacent to the business

15 targeted in the worksite raid, indicating that CES officers questioned the man because

16 he appeared Latino and happened to be in the vicinity of the worksite raid.

17

76. The worksite raids are not subject to meaningful oversight, lack sufficient

18 operational planning, and are conducted by MCSO officers who are given insufficient

19 training or guidance as to the execution of worksite raids.

20

77. In addition, MCSO does not collect data or other information that would

21 allow it to assess the efficacy of these worksite raids or evaluate whether any officer

22 misconduct occurs during such operations.

23

78. MCSO’s treatment of Latino employees in CES worksite raids stands in

24 stark contrast to the treatment of their employers, who are often non-Latino. MCSO

25 officers do not charge or detain business owners whose worksites are raided.

26

27

28

13

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 14 of 32

1

C. MCSO Has Significantly Departed from Standard Law Enforcement

2

Practices that Protect against Discriminatory Policing

3

79. MCSO has failed to develop and implement policies and practices that

4 generally would be expected of law enforcement agencies, and specifically would be

5 expected of law enforcement agencies to protect against discriminatory policing.

6 There is no legitimate law enforcement purpose that explains these failures. These

7 failures are evidence that MCSO’s discrimination against Latinos is intentional.

8

i. MCSO Fails to Adopt Basic Policy, Training and Oversight Practices

9

in Connection with HSU and CES

10

80. The nature of the specialized work performed by HSU and CES carries

11 with it a high risk of discriminatory conduct. For example, HSU makes heavy use of

12 pretextual traffic stops of Latinos to purportedly interdict human smugglers and their

13 victims; a high number of stops made by HSU result in extended searches and

14 seizures; and HSU’s success is judged by the number of immigration arrests it makes.

15

81. Under these circumstances, a law enforcement agency ordinarily would

16 require that a unit engaged in activities with these risks receive more supervision and

17 meaningful policy guidance. By contrast, HSU and CES officers operate under less

18 oversight than other MCSO officers and receive limited written guidance. HSU and

19 CES officers receive no formal training specific to their responsibilities, beyond that

20 received by other MCSO officers. HSU is guided in its high-risk policing by a three-

21 page document.

22

82. Arpaio and MCSO leadership promote and are indifferent to the heightened

risk of discriminatory conduct that is created by MCSO’s lack of basic policy, training 23

and oversight practices in connection with HSU and CES. The failure to provide such 24

supervision and guidance is evidence of intent to discriminate against Latinos. 25

26

27

28

14

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 15 of 32

1

ii. MCSO and Arpaio’s Decision to Prioritize Immigration Enforcement over the

2

Investigation of Rape, Sexual Assault, and other Violent Crime Provides

3

Additional Evidence of Defendants’ Intent to Discriminate against Latinos

4

83. MCSO has focused its most intensive law enforcement efforts on low-level

5 immigration offenses over more serious crime from approximately 2006 to the

6 present. MCSO’s prioritization of immigration enforcement has resulted in a failure

7 to meet its other law enforcement responsibilities, and provides further evidence of

8 the Defendants’ intent to discriminate against Latinos.

9

84. Statistical reports show an increase in violent crime in Maricopa County,

10 and of homicides in particular, during the period of enhanced immigration

11 enforcement.

12

85. MCSO has failed, for example, to adequately respond to reports of sexual

13 violence, including allegations of rape, sexual assault, and sexual abuse of girls, thus

14 exposing women and girls, who constitute the majority of victims of crimes of sexual

15 violence in Maricopa County, to a disproportionate risk of physical and psychological

16 harm.

17

86. Faced with such an increase in crime and the risk of harm presented by

18 unaddressed sexual assaults, a law enforcement agency ordinarily would be expected

19 to prioritize more serious offenses, such as crimes of sexual violence, over less

20 serious offenses, such as low-level immigration offenses.

21 iii. MCSO and Arpaio’s Ineffective Oversight, Accountability, Training, and Policies

22

Fail to Prevent Unlawful Targeting of Latinos and Provides Additional Evidence

23

of Their Intent to Discriminate Against Latinos

24

87. MCSO has inadequate policies and training, and systems of oversight and

25 accountability. These institutional failures persist despite MCSO’s awareness of the

26 risk of discriminatory policing created by MCSO’s program to enforce immigrations

27 laws. MCSO fails to adopt policies and practices to prevent and address

28 discriminatory policing.

15

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 16 of 32

1

88. MCSO fails to collect data that will permit the identification of

2 discriminatory practices. MCSO has no system in place for effectively tracking

3 deputy or unit conduct, traffic stops, citations, arrests, uses of force, or complaints.

4 These data are collected by many other law enforcement agencies as a means of

5 preventing discriminatory policing.

6

89. MCSO’s occasional reliance on its Computer-Aided Dispatch (CAD)

7 system to monitor officer conduct is inadequate since it does not fully track deputy

8 activity. The CAD system does not, for instance, track such information as race or

9 ethnicity, and MCSO officers have wide discretion regarding the use of and

10 information they input into CAD.

11

90. MCSO’s institutional failures further extend to grossly inadequate

12 procedures for tracking deputy misconduct.

13

91. MCSO’s system for investigating complaints of deputy misconduct gives

14 substantial discretion to the supervisor of the deputy who is the subject of the

15 complaint. Supervisors, who may bear some responsibility for that misconduct, are

16 given discretion to close the investigation of the complaint without further notification

17 through the command structure, notification of Internal Affairs, or centralized record

18 keeping.

19

92. Neither Internal Affairs nor any other element of the MCSO command

20 structure tracks allegations of deputy misconduct. Consequently, MCSO command

21 staff members often are unaware of repeated complaints made about a deputy.

22

93. MCSO practices discourage individuals from filing complaints and fail to

23 collect data that would assist it in identifying and correcting incidents of biased

24 policing.

25

94. MCSO has virtually no policies or procedures designed to prevent

26 discriminatory policing by its officers. MCSO nominally forbids racial profiling, but

27 has no policy describing with any degree of specificity what racial profiling is or how

28 to prevent it.

16

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 17 of 32

1

95. MCSO is fully aware of the risk of discriminatory policing created by its

2 practices. Given that, the lack of adequate training and policies necessary to prevent

3 the discriminatory treatment and abuse of Latinos reveals a disregard for the rights of

4 the Latino community, and stands as further evidence of an intent to discriminate

5 against Latinos.

6

iv. MCSO Posses Receive Inadequate Training and Oversight

7

96. MCSO has recruited nearly 3,000 volunteer posse members since 1993.

8 MCSO makes use of volunteer posse members in various capacities, including in

9 operations by HSU and CES, and in suppression sweeps.

10

97. MCSO has used volunteer posse members in its immigration enforcement

11 actions since 2008. In 2010, it created an “illegal immigration posse.”

12

98. Volunteer posse members do not receive the same level of training as

13 sworn MCSO officers. As acknowledged by MCSO policies, posse volunteers are not

14 qualified to participate in routine law enforcement activities.

15

99. Nonetheless, MCSO relies on volunteer posse members for immigration

16 enforcement operations. Volunteer posse members assist in the identification and

17 search of vehicles and suspected “drop houses;” the transport of individuals suspected

18 of immigration law violations; the execution of worksite raids by CES; and crowd

19 control during demonstrations against MCSO immigration policies.

20

100. MCSO provides insufficient supervision and oversight to ensure that

21 volunteer posse members taking part in immigration enforcement activities do so

22 without engaging in unlawful discrimination.

23

D. MCSO Leadership and Staff Demonstrate Intent to Discriminate

24

against Latinos through Their Public Statements and Endorsement of Anti-

25

Latino Statements

26

101. Arpaio and MCSO command staff have created and fostered institutional

27 bias against Latinos, which underlies and further encourages the unlawful treatment of

28 Latinos by MCSO. MCSO’s pervasive bias against Latinos is demonstrated by

17

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 18 of 32

1 MCSO command staff’s public expressions of hostility toward Latinos and the Latino

2 community—including public statements by MCSO command staff indicating bias

3 against Latinos, endorsement of and reliance on citizen correspondence evincing

4 animus against Latinos, and emails circulated among MCSO staff indicating bias

5 against Latinos.

6

102. Arpaio has made public statements that conflate all Latinos with

7 undocumented individuals and that demonstrate bias toward Latinos and their

8 presence in the United States.

9

103. Arpaio voiced his biased opinion of Latinos and Latino culture in a book

10 that he coauthored in 2008. In that book, Arpaio singles out Mexicans and Latinos as

11 different from all other immigrant groups in America. For example, Arpaio states that

12 Latinos maintain “language [,] customs [and] beliefs separate from the mainstream,”

13 and are trying to “reconquest” American soil through their migration to the United

14 States.

15

104. In a nationally televised interview in 2009, Arpaio stated: “They hate me,

16 the Hispanic community, because they’re afraid they’re going to be arrested. And

17 they’re all leaving town, so I think we’re doing something good, if they’re leaving.”

18

105. Such statements convey to MCSO personnel that discrimination and other

19 unlawful conduct against Latinos is acceptable and part of MCSO’s policies or

20 practices.

21

106. Arpaio has adopted practices that further convey to MCSO command staff

22 his endorsement of discrimination and other unlawful conduct toward Latinos.

23 Arpaio has circulated letters from constituents and the wider public that express

24 biased sentiments toward Latinos—but which contain no actionable information about

25 criminal activity or immigration-related offenses—to MCSO command staff, along

26 with his annotations on the letters giving instructions to staff to respond with thank-

27 you notes or to maintain copies for his files.

28

18

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 19 of 32

1

107. For example, Arpaio received a letter stating “[i]f you have dark skin, then

2 you have dark skin. Unfortunately, that is the look of the Mexican illegals who are

3 here illegally. . . I’m begging you to come over . . . and round them all up.” Arpaio

4 labeled the letter as “intelligence,” forwarded it to his Deputy Chief of Enforcement

5 Operations and told the Deputy Chief to “[h]ave someone handle this.”

6

108. Arpaio received a letter endorsing “stopping Mexicans to make sure they

7 are legal” as a police practice, sent a letter of appreciation to its two authors, and kept

8 three copies of the original letter for himself.

9

109. Arpaio instructed his senior staff to “look into” a complaint that workers

10 were speaking Spanish in a McDonald’s restaurant.

11

110. Similarly, Arpaio maintains an “immigration file,” in which he keeps letters

12 that advocate blatant bias against Latinos.

13

111. MCSO supervisory staff also expresses bias and endorses discrimination

14 and other unlawful conduct against Latinos.

15

112. MCSO personnel, including MCSO supervisors, have circulated among

16 themselves, on County computers, e-mails mocking or stereotyping Mexicans or

17 Latinos.

18

113. For example, an e-mail circulated among MCSO personnel contained an

19 image of an imitation driver’s license with a caricature of a Mexican national

20 described as originating from “Mexifornia” and having a driver class of “illegal

21 alien.”

22

114. Still another e-mail sent by a sergeant in MCSO’s HSU suggested that

23 Mexicans are prone to drunkenness.

24

115. MCSO personnel responsible for prisoners held in MCSO jails routinely

25 direct racial slurs toward Latino prisoners, including calling Latino prisoners “paisas,”

26 “wetbacks,” “Mexican bitches,” “fucking Mexicans,” and “stupid Mexicans.”

27

28

19

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 20 of 32

1

116. MCSO’s Chief of Enforcement acknowledged that the majority of

2 undocumented persons in Maricopa County are Latino and described undocumented

3 persons as “the lowest element in our society.”

4 II. MCSO’s Correctional Practices Violate the Constitutional and Statutory

5

Rights of Latino Limited English Proficient Prisoners

6

117. Latino Limited English Proficient (LEP) prisoners in MCSO jails routinely

7 suffer harm because of their inability to speak English. This harm is a direct result of

8 MCSO and Arpaio’s intentional failure, since at least 2009 and continuing to the

9 present, to provide necessary Spanish language-assistance services for Latino LEP

10 prisoners and to adequately supervise and train their detention officers.

11

118. MCSO and Arpaio failed to provide necessary Spanish language-assistance

12 even though they know that Latino prisoners comprise the vast majority of LEP

13 prisoners in MCSO jails.

14

119. MCSO is aware of what is necessary to provide meaningful LEP services in

15 the correctional context.

16

120. In a June 14, 2010 Position Statement outlining its policies, MCSO noted

17 the importance of providing language assistance to Latino LEP prisoners, stating that

18 such assistance is “essential to the overall operation of the jails and the safety of the

19 prisoners and officers.”

20

121. MCSO is aware of the discriminatory treatment of Latino LEP prisoners in

21 its jails; yet, it allows the jails to continue to operate in a discriminatory manner and

22 fails to take basic, well-established measures to address and correct these matters.

23

122. MCSO does not have a written plan in place that addresses how it will

24 provide language assistance to prisoners (nor does it have a plan for addressing

25 language assistance in its police work). The absence of a plan is intentional: the June

26 14, 2010 Position Statement notes that “MCSO does not have a formal written

27 language assistance plan.” Although MCSO contends that this gives MCSO detention

28 officers flexibility to address inmate language requirements, the absence of a written

20

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 21 of 32

1 plan allows the ad hoc, inconsistent, and discriminatory treatment of Latino LEP

2 prisoners to occur.

3

123. MCSO’s failure to provide language assistance means that Latino LEP

4 prisoners are denied the services, programs, and activities that MCSO makes available

5 to non-LEP prisoners.

6

124. Latino LEP prisoners are penalized by MCSO detention officers for not

7 submitting forms written in English.

8

125. MCSO detention officers routinely have refused to accept grievance forms

9 or prisoner request orders (“tank orders”) written in Spanish. Grievance forms

10 provide the means for prisoners to report misconduct by a detention officer. Tank

11 orders provide the means for prisoners to request basic daily services, religious

12 materials, legal research, or information—such as court dates, and other important

13 information.

14

126. For example, female Latino LEP prisoners have been denied basic sanitary

15 items. In some instances, female Latino LEP prisoners have been forced to remain

16 with sheets or pants soiled from menstruation because of MCSO’s failure to ensure

17 that detention officers provide language assistance in such circumstances.

18

127. MCSO detention officers routinely issue commands only in English.

19

128. In some instances, when a Latino LEP prisoner has been unable to

20 understand commands given in English, MCSO detention officers have put an entire

21 area of the jail in lockdown—effectively preventing all the prisoners in that area from

22 accessing a number of privileges because of the Latino LEP prisoner’s inability to

23 understand English, inciting hostility toward the LEP prisoner, and potentially placing

24 MCSO officers and other prisoners in harm’s way.

25

129. In other instances, MCSO detention officers have put Latino LEP prisoners

26 in solitary confinement for extended periods of time because of their inability to

27 understand and thus follow a command given in English.

28

21

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 22 of 32

1

130. MCSO detention officers routinely make announcements only in English.

2 Some of these are basic announcements informing prisoners, among other things,

3 when it is time for them to go outdoors, receive clothing, or eat.

4

131. MCSO detention officers use MCSO’s institutional failure to provide

5 language assistance to take advantage of Latino LEP prisoners.

6

132. For example, MCSO detention officers have pressured Latino LEP

7 prisoners to sign “voluntary return” forms without proper language assistance. Once

8 signed, these forms oblige foreign nationals to give up any right to have an

9 immigration hearing, challenge their removal from the United States, speak with an

10 attorney, or otherwise seek a determination permitting them to stay in the United

11 States. Latino LEP prisoners have been compelled by MCSO detention officers to

12 sign this form even when they have pending proceedings that may authorize their

13 continued stay in the United States.

14

133. MCSO detention officers have used Spanish-speaking prisoners to interpret

15 for them in non-exigent circumstances, but MCSO makes no determination whether

16 these prisoners have the language competency to interpret.

17

134. The use of inmate interpreters risks not only inaccuracy, but also may give

18 the inmate-interpreter access to personal or private information of the LEP inmate and

19 presents a security and safety risk in a detention setting.

20

135. Detention officers have received little training or guidance from command

21 staff with regard to providing language assistance to Latino LEP prisoners.

22

136. MCSO does not have in place any meaningful system to record or use the

23 language proficiency of its detention officers. Although MCSO has noted that it

24 created a “Foreign Language Skills Roster,” which listed the names of detention

25 officers who self-identified as speaking languages other than English, MCSO has

26 neither assessed the ability of these detention officers to interpret or translate nor

27 provided them with training to provide language services.

28

22

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 23 of 32

1

137. The absence of these critical components of a language assistance program

2 is a substantial departure from generally accepted correctional standards.

3 III. MCSO Has Retaliated against Perceived Critics of Its Practices in Violation

4

of the First Amendment

5

138. Since at least 2006 and continuing to the present, in violation of the First

6 Amendment, MCSO and Arpaio have retaliated against critics of MCSO practices,

7 and particularly MCSO’s immigration practices, in an effort to punish these persons

8 for their criticism and to prevent future criticism.

9

139. As recounted below, the filing of unsubstantiated complaints and lawsuits

10 demonstrates the pattern or practice of retaliation for protected speech activity.

11

140. The former Chief Deputy, acting on behalf of MCSO and Arpaio, filed five

12 separate complaints with the Arizona State Bar targeting attorneys who spoke out

13 publicly against MCSO and Arpaio. Each of these complaints was dismissed for lack

14 of facts or evidence sufficient to support even the initiation of an investigation.

15

141. The former Chief Deputy, acting on behalf of MCSO and Arpaio, filed four

16 complaints with the Arizona Commission on Judicial Conduct targeting judges who

17 had either made public statements critical of MCSO or had issued decisions that

18 Arpaio or MCSO command staff disliked. Each of these complaints was dismissed

19 for lack of facts or evidence to support opening an investigation.

20

142. Acting in concert with the former Chief Deputy, Arpaio, and MCSO, a

21 former Maricopa County Attorney filed a lawsuit accusing people who had publicly

22 criticized MCSO of conspiracy in a criminal enterprise. Arpaio participated as a

23 named plaintiff in the lawsuit and substantially contributed to its filing. This case was

24 soon abandoned as unjustified and the responsible attorneys, including former

25 Maricopa County Attorney Andrew Thomas and two of his assistant attorneys, were

26 subsequently charged by the Arizona State Bar for having violated the Arizona Rules

27 of Professional Conduct by bringing the lawsuit.

28

23

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 24 of 32

1

143. On April 10, 2012, former Maricopa County Attorney Thomas and his two

2 assistant attorneys were found guilty of the ethics charges. Thomas announced that he

3 was not appealing his disbarment.

4

144. MCSO and Arpaio also have used arrests as a means to intimidate and

5 retaliate against persons who have spoken out against their immigration practices.

6 The Opinion and Order in the Thomas ethics matter found, for example: “Sheriff

7 Arpaio, through Chief Deputy Hendershott, closing their eyes to his Constitutional

8 rights, ordered Mr. Stapley [an Arpaio critic] arrested. They never filed any

9 documents or charges but instead surreptitiously videotaped his arrest, and held him

10 in jail for hours. Testimony at the disbarment hearing revealed that no one ever filed

11 anything against Mr. Stapley regarding this event, but the press was called and

12 informed that Mr. Stapley had been arrested.”

13

145. The Thomas ethics Opinion and Order also described the treatment of

14 Arpaio critics by Arpaio, Thomas and others as “a concerted effort … to wrestle

15 power from [Maricopa County Board of Supervisors], County officials, and Superior

16 Court judges, and to instill fear in the hearts of those who would resist.” The Opinion

17 and Order concluded that this effort culminated in a “conspiracy” to indict a judge

18 without cause: “Thomas and [assistant county attorney] Aubuchon quietly met with

19 Arpaio and [former Chief Deputy] Hendershott behind closed doors. This shameful

20 gathering had but one motive. The foursome met to conspire about how to muzzle

21 their next most-feared nemesis. After much late-night intrigue by Thomas and

22 Aubuchon, the conclave’s results were revealed the following morning. On

23 December 9th, Thomas and Aubuchon filed criminal charges against Presiding

24 Criminal Judge Gary Donahoe without a shred of evidence that Donahoe had

25 committed any crime.” Judge Donahoe had done nothing more than issue a ruling

26 adverse to MCSO and was perceived to be a critic of Arpaio.

27

146. Retaliation was not reserved for officials and judges in Maricopa County,

28 but also extended to individuals perceived as critical of Arpaio and MCSO.

24

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 25 of 32

1

147. MCSO arrested a peaceful protestor for obstructing a thoroughfare during

2 an act of civil disobedience. The protestor – who has a long history of publicly

3 criticizing MCSO immigration operations – was released.

4

148. The protestor then went to observe the continuing protests. Although this

5 critic of MCSO policies was observing the protest without participating, MCSO

6 unlawfully arrested him when Arpaio, who is very familiar with this protestor,

7 publicly suggested that he be arrested a second time. At the arraignment, the

8 prosecuting attorney admitted that there had been no probable cause for the second

9 arrest. The interim County Attorney later dismissed the charges stemming from the

10 second arrest for lack of probable cause.

11

149. On repeated occasions, MCSO officers arrested persons who had expressed

12 their disagreement with MCSO immigration policies during the course of County

13 Board meetings by applauding. These arrests were unjustified, as the arrestees did not

14 disrupt the meeting in any meaningful way. Indeed, the judge presiding over the trial

15 of the arrestees found that the arresting MCSO deputy “believes it is his role to make

16 uncomfortable anyone who express[es] views that disagree with the Sheriff” and that

17 Arpaio’s officers had “trampl[ed] on the First Amendment.” The court acquitted the

18 arrestees on its own motion at the close of the State’s case.

19

150. Another critic of Arpaio was arrested for engaging in protected speech, and

20 was subsequently acquitted. Despite the acquittal, Arpaio explicitly stated that “[i]n

21 the same circumstance, he would be arrested again,” making clear that retaliation,

22 rather than legitimate law enforcement, motivates Arpaio’s treatment of his critics.

23

151. These actions, taken by MCSO and Arpaio, have deterred and are likely to

24 deter persons from engaging in protected speech.

25

IV. MCSO Is a Recipient of Federal Financial Assistance

26

152. At all relevant times described in this Complaint, the Defendants have been

27 and continue to be recipients of federal financial assistance from the Department of

28 Justice, either directly or through another recipient of federal financial assistance.

25

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 26 of 32

1

153. The County has received grants from the DOJ Office of Justice Programs

2 (OJP). MCSO has been and is a subrecipient of grants that the County has received

3 from OJP. MCSO is also a subrecipient of grants from other recipients of federal

4 financial assistance from OJP.

5

154. MCSO has received grants from the DOJ component Community Oriented

6 Policing Services (COPS).

7

155. MCSO participates in the DOJ Equitable Sharing Program, which is

8 administered by the DOJ Criminal Division, Asset Forfeiture and Money Laundering

9 Section (AFMLS).

10

156. As a condition of receiving federal financial assistance, the County, through

11 its authorized representatives, certified that it agreed to comply with all requirements

12 imposed by Title VI and the federal regulations implementing Title VI.

13

157. Title VI and its implementing regulations prohibit intentional

14 discrimination on the grounds of race, color, or national origin in any of a grant

15 recipient’s or subrecipient’s operations, and they prohibit methods of administration

16 that have the effect of subjecting individuals to discrimination because of their race,

17 color, or national origin, or have the effect of defeating or substantially impairing

18 accomplishment of the objectives of the grant recipient’s or subrecipient’s operations

19 with respect to individuals of a particular race, color, or national origin.

20

158. The assurances signed by the County bind subsequent recipients and

21 subgrantees, including MCSO, to which the County disburses the funds. The County

22 is responsible for ensuring that subsequent recipients and subgrantees comply with the

23 requirements of Title VI and its implementing regulations.

24

159. As a condition of receiving federal financial assistance, MCSO, through its

25 authorized representatives, including Arpaio, agreed to comply with all requirements

26 imposed by Title VI and its implementing regulations.

27

160. On December 15, 2011, the United States notified the Defendants that they

28 had failed to comply with Title VI, its implementing regulations, and related

26

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 27 of 32

1 contractual assurances, and that this lawsuit would follow if compliance could not be

2 achieved by voluntary means.

3

161. Between December 15, 2011, and April 3, 2012, the United States sought to

4 engage with the Defendants in an effort to achieve voluntary compliance with Title

5 VI, its implementing regulations, and contractual assurances, as well as to resolve the

6 other constitutional deficiencies identified in the December 15, 2011 letter. These

7 efforts were unsuccessful.

8

162. The United States has determined that all administrative requirements have

9 been exhausted and that securing compliance from the Defendants cannot be achieved

10 by voluntary means. Accordingly, the United States has provided the Defendants’

11 with a Notice of Intent to File Civil Action. See Exhibits A, B, and C.

12

CLAIMS FOR RELIEF

13

163. The United States is authorized under 42 U.S.C. § 14141(b) to seek

14 declaratory and equitable relief to eliminate a pattern or practice of law enforcement

15 officer conduct that deprives persons of rights, privileges, or immunities secured or

16 protected by the Constitution or laws of the United States.

17

164. The United States is authorized under Title VI to seek declaratory and

18 equitable relief and/or the termination of federal funds to ensure that no person shall

19 be excluded from participation in, be denied the benefits of, or be subjected to

20 discrimination under any program or activity receiving federal funding on the basis of

21 race, color, or national origin.

22

FIRST CLAIM FOR RELIEF:

23

DEFENDANTS’ LAW ENFORCEMENT POLICIES AND PRACTICES

24

VIOLATE 42 U.S.C. § 14141 AND THE FOURTEENTH AMENDMENT

25

165. Plaintiff re-alleges and incorporates by reference the allegations set forth in

26 paragraphs 1-164, above.

27

166. The Defendants, their agents, and persons acting on their behalf, including

28 MCSO officers, have engaged in law enforcement practices, including traffic stops,

27

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 28 of 32

1 workplace raids, home raids, and jail operations, with the intent to discriminate

2 against Latino persons in Maricopa County on the basis of their race, color, or

3 national origin.

4

167. The discriminatory law enforcement practices engaged in by the

5 Defendants, their agents, and persons acting on their behalf constitute a pattern or

6 practice of conduct by law enforcement officers that deprives persons of rights

7 protected by the Due Process and Equal Protection Clauses of the Fourteenth

8 Amendment of the United States Constitution, in violation of 42 U.S.C. § 14141(a).

9

SECOND CLAIM FOR RELIEF:

10

DEFENDANTS’ SEARCHES, ARRESTS, AND DETENTIONS

11

VIOLATE 42 U.S.C. § 14141 AND THE FOURTH AMENDMENT

12

168. Plaintiff re-alleges and incorporates by reference the allegations set forth in

13 paragraphs 1-164, above.

14

169. The Defendants, their agents, and persons acting on their behalf, including

15 MCSO officers, have unreasonably searched, arrested, and detained numerous persons

16 in Maricopa County, including searches and arrests without probable cause or

17 reasonable suspicion.

18

170. The unreasonable searches, arrests, and detentions lacking probable cause

19 or reasonable suspicion engaged in by the Defendants, their agents, and persons acting

20 on their behalf constitute a pattern or practice of conduct by law enforcement officers

21 that deprives persons of their rights under the Fourth Amendment, in violation of 42

22 U.S.C. § 14141(a).

23

THIRD CLAIM FOR RELIEF:

24

DEFENDANTS’ TREATMENT OF LATINOS VIOLATES TITLE VI

25

171. Plaintiff re-alleges and incorporates by reference the allegations set forth in

26 paragraphs 1-164, above.

27

172. The Defendants received and continue to receive federal financial

28 assistance for their programs and activities.

28

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 29 of 32

1

173. The Defendants have engaged in law enforcement practices that are

2 unjustified and have an adverse disparate impact on Latinos.

3

174. The Defendants have engaged in law enforcement practices with the intent

4 to discriminate against Latinos on the basis of their race, color, or national origin.

5

175. The Defendants’ discriminatory law enforcement practices, and intentional

6 discrimination, independently violate Title VI and the Title VI implementing

7 regulations.

8

FOURTH CLAIM FOR RELIEF:

9

DEFENDANTS’ TREATMENT OF LATINO LEP PRISONERS

10

VIOLATES TITLE VI

11

176. Plaintiff re-alleges and incorporates by reference the allegations set forth in

12 paragraphs 1-164, above.

13

177. The Defendants received and continue to receive federal financial

14 assistance for their programs and activities.

15

178. The Defendants have excluded limited English proficient (LEP) Latino

16 prisoners from participation in, denied LEP Latino prisoners the benefits of, and

17 intentionally subjected LEP Latino prisoners to discrimination under Defendants’

18 programs and activities relating to the operations of the Maricopa County jails on the

19 basis of those persons’ race, color, or national origin.

20

179. The Defendants’ treatment of Latino LEP prisoners is unjustified and has

21 an adverse disparate impact on Latinos.

22

180. The Defendants’ discriminatory treatment of LEP individuals violates Title

23 VI, and the Title VI implementing regulations.

24

FIFTH CLAIM FOR RELIEF:

25

DEFENDANTS’ TREATMENT OF LATINOS

26

VIOLATES THE TITLE VI ASSURANCES

27

181. Plaintiff re-alleges and incorporates by reference the allegations set forth in

28 paragraphs 1-164, above.

29

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 30 of 32

1

182. The Defendants signed contractual assurance agreements with the United

2 States that all of their programs and activities would be conducted in compliance with

3 all the requirements of Title VI and its implementing regulations.

4

183. The Defendants’ intentional discrimination against Latinos and Latino LEP

5 prisoners violates Title VI and its implementing regulations.

6

184. The Defendants’ unjustified policing and jail practices that have an adverse

7 disparate impact on Latinos and Latino LEP prisoners violate Title VI and its

8 implementing regulations.

9

185. The Defendants therefore have violated their Title VI contractual

10 assurances.

11

SIXTH CLAIM FOR RELIEF:

12

DEFENDANTS’ RETALIATION AGAINST THEIR CRITICS

13

VIOLATES 42 U.S.C. § 14141 AND THE FIRST AMENDMENT

14

186. Plaintiff re-alleges and incorporates by reference the allegations set forth in

15 paragraphs 1-164, above.

16

187. The Defendants, their agents, and persons acting on their behalf, including

17 MCSO officers, have retaliated against persons in Maricopa County on the basis of

18 protected speech and thereby chilled future protected speech.

19

188. The retaliation against protected speech and the chilling of future protected

20 speech engaged in by the Defendants, their agents, and persons acting on their behalf

21 constitute a pattern or practice of conduct by law enforcement officers that deprives

22 persons of their rights under the First Amendment of the United States Constitution,

23 in violation of 42 U.S.C. § 14141(a).

24

PRAYER FOR RELIEF

25

189. WHEREFORE, the United States prays that the Court:

26

190. Declare that the Defendants have engaged in a pattern or practice of

27 conduct by MCSO law enforcement officers that deprives persons of rights,

28

30

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 31 of 32

1 privileges, or immunities secured or protected by the Constitution or laws of the

2 United States, in violation of 42 U.S.C. § 14141(a);

3

191. Declare that the Defendants have excluded persons from participation in,

4 denied persons the benefits of, or subjected persons to discrimination under programs

5 or activities receiving federal financial assistance, on the basis of race, color, or

6 national origin, in violation of Title VI;

7

192. Order the Defendants, their officers, agents, and employees to refrain from

8 engaging in any of the predicate discriminatory acts forming the basis of the pattern or

9 practice of unlawful conduct described herein;

10

193. Order the Defendants, their officers, agents, and employees to adopt and

11 implement policies, procedures, and mechanisms to remedy the pattern or practice of

12 unlawful conduct described herein, and by specifically addressing, inter alia, the

13 following areas: policies and training; non-discriminatory policing and jail

14 operations; stops, searches, and arrests; response to crimes of sexual violence; posse

15 operations; jail operations; supervision; misconduct complaint intake, investigation,

16 and adjudication; retaliation; oversight and transparency; and community

17 engagement; and

18

194. Order such other relief as the interests of justice may require.

19

20

21

22

23

24

25

26

27

28

31

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 32 of 32

1

2

DATED: May 10, 2012

3

Thomas E. Perez

4

Assistant Attorney General

5

Roy L. Austin, Jr.

6

Deputy Assistant Attorney General

7

Jonathan M. Smith (DC Bar #396578)

8

Chief, Special Litigation Section

9

10

11

/s/ Winsome G. Gayle_________ Winsome G. Gayle (NY Bar #3974193)

12

Sergio Perez (CA Bar #274798)

Jennifer L. Mondino (NY Bar #4141636)

13

Edward G. Caspar (MA Bar #650566)

14

Trial Attorneys

U.S. Department of Justice, Civil Rights Division

15

950 Pennsylvania Avenue, N.W.

16

Washington, D.C. 20530

Tel. (202) 305-4164/Fax (202) 514-6273

17

winsome.gayle@usdoj.gov

18

Attorneys for the United States

19

20

21

22

23

24

25

26

27

28

32

 </s> Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 1 of 52

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT 


7

FOR THE DISTRICT OF ARIZONA 


8

9 United States of America,

No. CV-12-00981-PHX-ROS

10

Plaintiff,

ORDER

11 v.

12 Maricopa, County of, et al.,

13

Defendants.

14

15

Before the Court are the parties’ cross-motions for summary judgment (Doc. 332,

16 334, 345).

17

BACKGROUND

18 I. The Parties

19

Plaintiff the United States brought the present action alleging a pattern or practice

20 of discrimination against Latinos in Maricopa County, Arizona by Defendants Joseph M.

21 Arpaio (“Arpaio”) and Maricopa County in violation of the Constitution and federal

22 statutes. Defendant Arpaio is the Sheriff of Maricopa County and heads the Maricopa

23 County Sheriff’s Office (“MCSO”). As MCSO’s chief officer, Arpaio directs law 24 enforcement throughout Maricopa County.1 He is responsible for MCSO’s policies and
25 operations, which include all facets of policing and prison administration. MCSO is a 26 subdivision of Maricopa County. Maricopa County’s primary governing body is the

27

28

1 MCSO is a non-jural entity, which the Arizona Court of Appeals has determined cannot be sued. Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App.

2010).

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 2 of 52

1 Board of Supervisors (the “Board”). The Board consists of five Supervisors, each of

2 whom is elected from one of Maricopa County’s five districts. Maricopa County

3 determines the budgets and provides the funding for its subdivisions, including municipal

4 courts, public schools, and law enforcement (i.e. MCSO). Maricopa County receives

5 federal financial assistance from the United States, which it distributes to various county

6 subdivisions, including MCSO.

7 II. The Prior Litigation: Melendres v. Arpaio

8

In 2007, private individual plaintiffs initiated a class action lawsuit against Arpaio,

9 MCSO, and Maricopa County, alleging MCSO officers engaged in racial discrimination

10 against Latinos “under the guise of enforcing immigration law.” Ortega-Melendres v.
11 Arpaio, 836 F. Supp. 2d 959, 969 (D. Ariz. 2011), aff’d sub nom. Melendres v. Arpaio,
12 695 F.3d 990 (9th Cir. 2012) (hereinafter “Melendres”). The case focused on “saturation
13 patrols,” which were described as “crime suppression sweeps” in which officers saturate
14 a given area and target persons who appeared to be Latino for investigation of their
15 immigration status. (2:07-CV-02513-GMS, Doc. 26 at 10). Jose de Jesus Ortega-
16 Melendres, the named plaintiff, was stopped in his vehicle by members of the MCSO’s
17 Human Smuggling Unit and detained without probable cause while officers investigated 18 his immigration status, along with those of his passengers. Melendres v. Arpaio, 989 F. 19 Supp. 2d 822, 880 (D. Ariz. 2013); (2:07-CV-02513-GMS, Doc. 26 at 17). The certified
class of plaintiffs encompassed “[a]ll Latino persons who, since January 2007, have been 20
or will be in the future stopped, detained, questioned or searched by [the defendants’] 21
agents while driving or sitting in a vehicle on a public roadway or parking area in 22
Maricopa County, Arizona.” Melendres v. Arpaio, 695 F.3d 990, 995 (9th Cir. 2012). See 23
also Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 994 (D. Ariz. 2011). 24
In May 2009, Maricopa County requested a stay pending the outcome of the 25
United States’ investigation of Arpaio’s practices, which had begun one month earlier. 26
The United States opposed the motion, as did Arpaio, and the court denied the stay due to 27
the timing and uncertainty regarding the outcome of the United States’ investigation. 28
Melendres v. Maricopa Cnty., No. 07-cv-02513, 2009 WL 2515618, at *4 (D. Ariz. Aug.

- 2 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 3 of 52

1 13, 2009). Over the course of the Melendres litigation, the United States requested

2 deposition transcripts and filed motions for protective orders regarding discovery. It also

3 sought to transfer a 2010 Title VI enforcement action to the Melendres court.

4

In October 2009, the Melendres court granted a joint motion and stipulation to

5 dismiss Maricopa County without prejudice. (2:07-CV-02513-GMS, Doc. 194). The

6 stipulation stated, “Defendant Maricopa County is not a necessary party at this juncture

7 for obtaining the complete relief sought.” (2:07-CV-02513-GMS, Doc. 178).

8

On May 24, 2013, the Melendres court issued Findings of Fact and Conclusions of

9 Law. Melendres v. Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013) (“Melendres Order”).
10 The court held MCSO’s “saturation patrols all involved using traffic stops as a pretext to
11 detect those occupants of automobiles who may be in this country without authorization,”
12 id. at 826, and “MCSO’s use of Hispanic ancestry or race as a factor in forming
13 reasonable suspicion that persons have violated state laws relating to immigration status
14 violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 899. The court
15 also found MCSO conducted discriminatory traffic stops outside of saturation patrols. Id. 16 at 844-845, 889-890. The Melendres Order enjoined MCSO from “using Hispanic 17 ancestry or race as [a] factor in making law enforcement decisions pertaining to whether 18 a person is authorized to be in the country, and [] unconstitutionally lengthening [vehicle] 19 stops.” Id. at 827.
After the ruling, the United States filed a statement of interest concerning potential 20
forms of relief.2 On October 2, 2013, the court issued its Supplemental Permanent 21
Injunction/Judgment Order. Melendres v. Arpaio, No. CV-07-02513-PHX-GMS, 2013 22
WL 5498218, at *1 (D. Ariz. Oct. 2, 2013) (“Supplemental Order”). The order 23
permanently enjoined Defendants from: 1) “[d]etaining, holding or arresting Latino 24
occupants of vehicles in Maricopa County based on a reasonable belief, without more, 25

26

2 The statement of interest was made pursuant to 28 U.S.C. § 517, which permits

27

the Attorney General to send officers of the Department of Justice to “any State or district in the United States to attend to the interests of the United States in a suit pending in a

28

court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517. See M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2012)

(comparing “statement of interest” under 28 U.S.C. § 517 to an amicus brief).

- 3 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 4 of 52

1 that such persons are in the country without authorization”; 2) “[u]sing race or Latino

2 ancestry as a factor in deciding whether to stop any vehicle” or in deciding whether a

3 vehicle occupant was in the United States without authorization; (3) “[d]etaining Latino

4 occupants of vehicles stopped for traffic violations for a period longer than reasonably

5 necessary to resolve the traffic violation in the absence of reasonable suspicion that any

6 of the vehicle’s occupants have committed or are committing a violation of federal or

7 state criminal law”; (4) “[d]etaining, holding or arresting Latino occupants of a vehicle . .

8 . for violations of the Arizona Human Smuggling Act without a reasonable basis for

9 believing the necessary elements of the crime are present”; and (5) “[d]etaining, arresting

10 or holding persons based on a reasonable suspicion that they are conspiring with their

11 employer to violate the Arizona Employer Sanctions Act.” Id. The Supplemental Order

12 also contained numerous provisions regarding the implementation of bias-free policing,

13 including standards for bias-free detention and arrest policies and training, as well as

14 detailed policies and procedures for ensuring and reviewing MCSO’s compliance with

15 the Melendres Order. The procedures included the appointment of an independent

16 monitor to report on Arpaio and MCSO’s compliance and collection of traffic stop data.

17 Id.

18

Arpaio and MCSO appealed the Melendres Order and the Supplemental Order

19 (collectively, the “Melendres injunction”), challenging provisions which addressed non-

saturation patrol activities and arguing the evidence was insufficient to sustain the district 20

court’s conclusion that Arpaio and MCSO’s unconstitutional policies extended beyond 21
the context of saturation patrols. Melendres v. Apraio, No. 13-16285, Opening Brief of 22
Defendant/Appellant Arpaio, Doc. 32-1, at 2, 13-15, 17-18 (March 17, 2014). MCSO 23
also argued it was not a proper party in the case. Id. 24
On April 15, 2015, the Ninth Circuit issued an opinion holding MCSO was not a 25
proper party because it is a non-jural entity lacking separate legal status from Maricopa 26
County. Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). The Ninth Circuit ordered
27 Maricopa County substituted as a party in lieu of MCSO. Id. at 1260. But the court also

28 stated, “[o]n remand, the district court may consider dismissal of Sheriff Arpaio in his

- 4 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 5 of 52

1 official capacity because ‘an official-capacity suit is, in all respects other than name, to be 2 treated as a suit against the entity.’” Id.3 In addition, the court held the Melendres

3 injunction was not overbroad because it applied to activities beyond saturation patrols:

4 “Although the evidence largely addressed [the] use of race during saturation patrols, the

5 district court did not clearly err in finding [Arpaio’s] policy applied across-the-board to 6 all law enforcement decisions—not just those made during saturation patrols.”4 Id.

7 However, the court found the requirements for the independent monitor “to consider the

8 ‘disciplinary outcomes for any violations of departmental policy’ and to assess whether

9 Deputies are subject to ‘civil suits or criminal charges . . . for off-duty conduct” were not

10 narrowly tailored and ordered the district court “to tailor [these provisions] to address

11 only the constitutional violations at issue.” Id. at 1267.

12 III. The Litigation Before This Court: U.S. v. Maricopa County

13

On March 10, 2009, the United States Department of Justice (“DOJ”) sent Arpaio

14 a letter notifying him it was commencing an investigation of his office. (Doc. 333-3 at 6).
15 Over a year later, on August 3, 2010, DOJ issued a “Notice of noncompliance with the
16 obligation to cooperate with the Department of Justice investigation pursuant to Title VI
17 of the Civil Rights Act of 1964.” (Doc. 333-3 at 9) (“Notice Letter”). Although the
18 Notice Letter appears to have been mailed only to counsel for MCSO, counsel for 19 Maricopa County responded to it. (Doc. 333-3 at 9). On August 12, 2010, Maricopa
County’s private counsel wrote to the United States to express Maricopa County’s 20
“desire[] to cooperate in any way possible with the [United States’] investigation 21
referenced in the Notice Letter,” emphasizing, “[a]s a recipient of Title VI funds, 22
Maricopa County believes it has an obligation to cooperate.” Id. Maricopa County 23
offered to use its subpoena power to procure documents in aid of DOJ’s investigation. Id. 24
at 10. The letter also stated Maricopa County would “[notify] MCSO that it [could] not 25

26 3 On May 15, 2015, Maricopa County filed a Petition for Rehearing on its
27 substitution as a party in Melendres.

28

4 The reference to “all law enforcement decisions” was referring to decisions made

regarding vehicle stops outside of the context of official saturation patrols.

- 5 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 6 of 52

1 expend any public funds, including on outside counsel, to resist any DOJ Title VI

2 inquiry,” and that “Maricopa County [would] not pay those bills as resisting a Title VI

3 inquiry is outside the scope of the employment of any elected or appointed official.” Id.

4

On December 15, 2011, DOJ sent Maricopa County Attorney Bill Montgomery

5 (“Montgomery”) a 22-page letter notifying him of the investigation into MCSO and

6 announcing “the findings of the Civil Rights Division’s investigation into civil rights

7 violations by the [MCSO].” (Doc. 333-2 at 2) (“Findings Letter”). The Findings Letter

8 did not reference Maricopa County, specifically. Montgomery immediately responded

9 that DOJ had “noticed the wrong party.” (Doc. 333-3 at 12). On January 17, 2012, DOJ

10 responded it would continue to include Maricopa County in all correspondence because

11 its “investigation potentially affect[ed] Maricopa County as the conduit of federal

12 financial assistance to MCSO.” (Doc. 333-3 at 14).

13

On May 9, 2012, DOJ advised Maricopa County:

14

[I]n accordance with the notice requirements set forth in DOJ’s Title VI

regulations, 42 C.F.R. § 108(d)(3), it is the intention of the Department of Justice

15

to file a civil action against Maricopa County, the Maricopa County Sheriff’s

16

Office, and Sheriff Joseph M. Arpaio in order to remedy the serious Constitutional

and federal law violations, including noncompliance with Title VI, as noted in our

17

December 15, 201[1] Findings Letter.

18 (Doc. 333-3 at 25). The following day, the United States filed a complaint in this Court,

19 outlining six claims for relief against Arpaio, MCSO, and Maricopa County:

20

(1) Intentional discrimination on the basis of race, color or national origin in

21 violation of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §

22 14141 (“Section 14141”) and the Due Process and Equal Protection clauses of the

23 Fourteenth Amendment.

24

(2) Unreasonable searches, arrests and detentions lacking probable cause or

25 reasonable suspicion in violation of Section 14141 and the Fourth Amendment.

26

(3) Disparate impact and intentional discrimination on the basis of race, color or

27 national origin in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§

28 2000d-2000d-7 (“Title VI”).

- 6 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 7 of 52

1

(4) Disparate impact and intentional discrimination against limited English

2 proficient (“LEP”) Latino prisoners in violation of Title VI.

3

(5) Disparate impact and intentional discrimination in violation of Defendants’

4 contractual assurances under Title VI.

5

(6) Retaliation against Defendants’ critics in violation of Section 14141 and the

6 First Amendment.

7 (Doc. 1).

8

Arpaio, MCSO, and Maricopa County moved to dismiss. On December 12, 2012,

9 the Court denied Maricopa County’s motion and granted Arpaio and MCSO’s motion in

10 part. (Doc. 56). MCSO was dismissed from the case based on the Arizona Court of

11 Appeals decision, Braillard v. Maricopa County, which held MCSO is a non-jural entity,

12 lacking the capacity to sue and be sued. 224 Ariz. 481, 487 (Ct. App. 2010).

13

The remaining parties proceeded with discovery. The United States and Arpaio

14 now each move for partial summary judgment. (Doc. 332, 345). Maricopa County moves

15 for summary judgment on all claims. (Doc. 334).

16

ANALYSIS

17 I. Legal Standard

18

Under Rule 56, summary judgment is appropriate when the moving party

19 demonstrates the absence of a genuine dispute of material fact and entitlement to

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is 20

material when, under governing substantive law, it could affect the outcome of the case. 21
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); United States v. Kapp, 564 22
F.3d 1103, 1114 (9th Cir. 2009). A dispute is genuine if a reasonable jury could return a 23
verdict for the nonmoving party. Anderson, 477 U.S. at 248. 24
A party seeking summary judgment bears the initial burden of establishing the 25
absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. The moving party 26
can satisfy this burden in two ways: either (1) by presenting evidence that negates an
27 essential element of the nonmoving party’s case; or (2) by demonstrating the nonmoving

28 party failed to establish an essential element of the nonmoving party’s case on which the

- 7 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 8 of 52

1 nonmoving party bears the burden of proof at trial. Id. at 322-23. “Disputes over

2 irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W.

3 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

4

Once the moving party establishes the absence of genuine disputes of material

5 fact, the burden shifts to the nonmoving party to set forth facts showing a genuine dispute

6 remains. Celotex, 477 U.S. at 322. The nonmoving party cannot oppose a properly

7 supported summary judgment motion by “rest[ing] on mere allegations or denials of his

8 pleadings.” Anderson, 477 U.S. at 256. The party opposing summary judgment must also

9 establish the admissibility of the evidence on which it relies. Orr v. Bank of America, NT

10 & SA, 285 F.3d 285 F.3d 764, 773 (9th Cir. 2002) (a court deciding summary judgment

11 motion “can only consider admissible evidence”); see also Beyene v. Coleman Sec.

12 Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (“It is well settled that only

13 admissible evidence may be considered by the trial court in ruling on a motion for

14 summary judgment.”); Fed. R. Civ. P. 56, 2010 Advisory Committee Notes (“The burden

15 is on the proponent to show that the material is admissible as presented or to explain the

16 admissible form that is anticipated.”).

17

When ruling on a summary judgment motion, the court must view every inference

18 drawn from the underlying facts in the light most favorable to the nonmoving party.

19 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 601 (1986). The court

does not make credibility determinations with respect to evidence offered. See T.W. Elec., 20
809 F.2d at 630-631 (citing Matsushita, 475 U.S. at 587). Summary judgment is therefore 21
not appropriate “where contradictory inferences may reasonably be drawn from 22
undisputed evidentiary facts.” Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 23
1324, 1335 (9th Cir. 1980). 24
II. Justiciability 25
A. Justiciability of Claims Against Arpaio 26
Arpaio argues the United States’ claims involving discriminatory traffic stops in
27

28

- 8 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 9 of 52

1 Counts One, Two, Three, and Five are moot.5 He argues the Melendres injunction

2 eliminated all threat of immediate and future discriminatory traffic stops, as well as the 3 ability of this Court to provide redress for those claims.6 The United States argues its

4 traffic stop claims are not moot for four reasons: (1) the Melendres injunction does not

5 reach all of the conduct challenged in the present suit because it is necessarily tied to and

6 based upon the immigration-related operations at issue in Melendres; (2) the federal

7 government has unique interests which warrant providing it with its own enforcement

8 mechanism for the types of reforms and controls in the Melendres injunction; (3) Arpaio

9 appealed the scope of the Melendres injunction; and (4) the Melendres injunction is years

10 away from full implementation.

11

Mootness doctrine prevents courts from ruling “when the issues presented are no

12 longer live and therefor the parties lack a cognizable interest for which the courts can

13 grant a remedy.” Alaska Ctr. For Env’t v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir.

14 1999). “The party asserting mootness bears the burden of establishing that there is no 15 effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d 455,

16

17

5 In the “Introduction” of the complaint, the United States summarizes the basis of

18

the lawsuit as “discriminatory police conduct directed at Latinos.” (Doc. 1 at 1). This conduct includes: 1) stopping, detaining, and arresting Latinos on the basis of race; 2)

19

denying Latino prisoners with limited English language skills constitutional protections; and 3) illegally retaliating against perceived critics through baseless criminal actions,

20

lawsuits, and administrative actions. (Doc. 1 at 1-2). Specifically, Count One alleges violations of 42 U.S.C. § 14141 and the Fourteenth Amendment based on a pattern or

21

practice of law enforcement practices, including traffic stops, workplace raids, home raids, and jail operations, with the intent to discriminate. Count Two alleges violations of

22

42 U.S.C. § 14141 and the Fourth Amendment based on a pattern or practice of unreasonable searches and seizures conducted without probable cause or reasonable

23

suspicion. Count Three alleges violations of Title VI based on the use of federal financial assistance by persons alleged to be engaging in discriminatory law enforcement practices.

24 Count Five alleges violations of Title VI’s contractual assurances.

6 Arpaio argues the same facts regarding redressability to claim the action is moot, 25 the Court lacks subject matter jurisdiction, the United States lacks standing, and the

26

action is not ripe. In doing so, he often conflates the standards pertaining to each doctrine. Because standing is measured at the time an action is commenced (in this case, May 10,

27

2012) and the Melendres injunction was not issued until over a year later (May 24, 2013), it appears the only cognizable justiciability argument Arpaio makes concerns mootness.

28

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n. 5 (1992) (“[S]tanding is to be determined as of the commencement of suit”). Therefore, the Court will analyze the

viability of the United States’ claims under mootness doctrine.

- 9 -


Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 10 of 52

1 461 (9th Cir. 2006). And “[t]hat burden is ‘heavy’; a case is not moot where any effective

2 relief may be granted.” Id. “Partial relief in another proceeding cannot moot an action

3 that legitimately seeks additional relief.” Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d

4 879, 885 (9th Cir. 1992).

5

As a general principle, “the government is not bound by private litigation when the

6 government’s action seeks to enforce a federal statute that implicates both public and

7 private interests.” California v. IntelliGender, LLC, 771 F.3d 1169, 1177 (9th Cir. 2014)

8 (internal quotation marks and citation omitted). See also Hathorn v. Lovorn, 457 U.S.

9 255, 268 n. 23 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n. 6 (1975).

10 For example, in E.E.O.C. v. Goodyear Aerospace Corp., the Ninth Circuit held the Equal

11 Employment Opportunity Commission’s (“EEOC”) “interests in determining the legality

12 of specific conduct and in deterring future violations are distinct from the employee’s

13 interest in a personal remedy.” 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the

14 Court held the EEOC’s enforcement action was not mooted by a private plaintiff’s

15 lawsuit and settlement based on the same facts. Id. at 1543 (“[The private plaintiff’s]

16 settlement does not moot the EEOC’s right of action seeking injunctive relief to protect

17 employees as a class and to deter the employer from discrimination.”).

18

Goodyear Aerospace Corp. involved a previous suit by an individual private

19 plaintiff. But the court’s analysis relied in part on Secretary of Labor v. Fitzsimmons,

where the prior suit was a private class action. 805 F.2d 682 (7th Cir. 1986). In 20

Fitzsimmons, the Seventh Circuit held the Secretary of Labor was not barred by res 21
judicata from bringing an ERISA enforcement action based on the same facts as a 22
previously settled class action in which the Secretary had intervened. Fitzsimmons, 805 23
F.2d at 699. The decision was based in part on the history and structure of ERISA. The 24
court noted ERISA arose out of concern over the “increasingly interstate” “operational 25
scope and economic impact” of employee benefit plans and the direct effect such plans 26
had on the “well-being and security of millions of employees and their dependents.” Id. at
27 689 (citing 29 U.S.C. § 1001(a)). Employee benefit plans were also thought to

28 “substantially affect the revenues of the United States” and therefore to be “affected with

- 10 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 11 of 52

1 a national public interest.” Id. The statute provided the Secretary of Labor the right to

2 intervene in any action brought by a participant, beneficiary, or fiduciary. Id.

3

The defendants in Fitzsimmons argued the right to intervene in private lawsuits

4 created privity between the Secretary of Labor and the private plaintiffs so as to bar the

5 Secretary from bringing a separate enforcement action. In determining no privity existed

6 between the government and the private class of plaintiffs, the court articulated

7 compelling and unique government interests, which justified the Secretary’s separate,

8 second lawsuit:

9

[I]t is clear that the Secretary does have a unique, distinct, and separate public

interest, duty and responsibility in bringing this ERISA action to enforce the

10

trustees’ fiduciary obligations and duties, to ensure public confidence in the

11

private pension system that provides billions of dollars of capital for investments

affecting federal tax revenues and interstate commerce, and most importantly, to

12

protect the income of the retired workers and beneficiaries. Further, the Secretary

13

of Labor has a separate interest when he intervenes so as to prevent the

establishment of harmful legal precedent as well as to ensure uniformity in

14

the enforcement and application of ERISA laws.

15 Id. at 696.7 See also Herman v. S. Carolina Nat. Bank, 140 F.3d 1413, 1424 (11th Cir.

16 1998) (same) (citing Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991)); Donovan v.

17 Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983)).

18

The Supreme Court has addressed the situation where the government seeks

19 injunctive relief which is potentially duplicative of relief already afforded to a private

20 party. In United States v. Borden Co., the Supreme Court held a private plaintiff’s

21 injunctive relief did not bar the federal government from bringing suit for injunctive

22 relief under the Clayton Act, 15 U.S.C. § 25. 347 U.S. 514, 520 (1954). The district court

23 had held the violations described in the government’s complaint and shown at the trial

24 were, “for the most part, old violations . . . [and] the [private injunction] assure[d], as

25

26

7 The court went so far as to conclude “private parties can never be representatives

27

of this clear, specific, and unambiguous national interest of the Secretary,” id., and “even if one were to assume that the interests of the Secretary and the class plaintiffs were the

28

same . . . where the Secretary did not participate in structuring the settlement agreement it is impossible to conclude that the private plaintiffs had adequately represented the

Secretary’s interests.” Id. at 695, n. 16.

- 11 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 12 of 52

1 completely as any decree can assure, that there will be no new violations.” Id. at 517-518

2 (internal quotation marks and citation omitted). The Supreme Court reversed, holding

3 that the district court’s reasoning ignored “the prime object of civil decrees secured by

4 the Government—the continuing protection of the public, by means of contempt

5 proceedings, against a recurrence of [] violations.” Id. at 519. The Court continued:

6

Should a private decree be violated, the Government would have no right to bring

contempt proceedings to enforce compliance; it might succeed in intervening in

7

the private action but only at the court’s discretion. The private plaintiff might find

8

it to his advantage to refrain from seeking enforcement of a violated decree; for

example, where the defendant’s violation operated primarily against plaintiff’s

9

competitors. Or the plaintiff might agree to modification of the decree, again

10

looking only to his own interest. In any of these events it is likely that the public

interest would not be adequately protected by the mere existence of the private

11

decree. It is also clear that Congress did not intend that the efforts of a private

12

litigant should supersede the duties of the Department of Justice in policing an

industry. Yet the effect of the decision below is to place on a private litigant the

13

burden of policing a major part of the milk industry in Chicago, a task beyond its

14

ability, even assuming it to be consistently so inclined.” Id. at 519.

15 Thus, the Supreme Court recognized the government’s interest in enforcing the

16 provisions of a privately-held injunction, as well as its duty to enforce its laws may

17 justify a second injunction. The private decree was to be considered in determining

18 whether the government could show a likelihood of recurring illegal activity, but it was

19 not dispositive of that question. Id. at 520.

20

The Supreme Court also determined that, in stating the United States district

21 attorneys and the Attorney General had a duty to institute equity proceedings to enforce

22 antitrust laws while also allowing private plaintiffs to obtain injunctive relief, the Clayton

23 Act created a scheme in which “private and public actions were designed to be

24 cumulative, not mutually exclusive.” Id. at 518.

25

A similar conclusion applies to Title VI, one of the statutes under which the

26 United States’ brings its claims. Title VI is part of the Civil Rights Act of 1964, a

27 sweeping piece of legislation which banned racial discrimination in voting, schools,

28 workplaces, and public accommodations and created mechanisms through which the

- 12 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 13 of 52

1 federal government could enforce each provision. The Act was passed in the context of

2 widespread conflict and unrest regarding racial desegregation, including resistance to

3 desegregation by state and local governments and private individuals. Its purpose was to

4 harness the power of the federal government to eradicate racial discrimination throughout

5 the United States, regardless of local bias. The Supreme Court has held private plaintiffs

6 may bring suit under Title VI for violations caused by intentional discrimination but not

7 disparate impact discrimination. Alexander v. Sandoval, 532 U.S. 275 (2001). The federal

8 government, by contrast, may sue for either intentional or disparate impact

9 discrimination. See infra, Part III(A). And federal agencies which extend federal financial

10 assistance are both “authorized and directed to effectuate [its] provisions.” 42 U.S.C. §

11 2000d (emphasis added). Just as in Borden Co., the statutory scheme of Title VI and the

12 Civil Rights Act of 1964 lends itself to and is enhanced by viewing private enforcement

13 action as supplemental and cumulative to government enforcement action.

14

The other statute under which the United States brings these claims, the Violent

15 Crime Control and Law Enforcement Act of 1994, may be best known for its crime

16 prevention measures, including a federal ban on assault weapons and increased federal
17 funding of local law enforcement. See Rachel A. Harmon, Federal Programs and the
18 Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 883 n. 35-36 (2015). But the Act also
19 contains provisions directed at reforming law enforcement. For instance, under § 14141,
the relevant section here, the Attorney General has discretion to bring civil actions to 20
obtain appropriate equitable and declaratory relief to eliminate the pattern or practice of 21
law enforcement that violates constitutional rights and privileges. 22
Portions of the United States’ claims of discriminatory policing involve conduct 23
addressed in Melendres—discriminatory vehicle stops related to immigration 24
enforcement. But the United States’ claims also include allegations regarding 25
discriminatory home raids, worksite raids, and non-motor vehicle related arrests and 26
detentions, which are different in important respects from those presented in Melendres. 27
For one, the United States’ claims are not confined to immigration enforcement, but 28
extend to discrimination in general law enforcement.

- 13 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 14 of 52

1

Despite this overlap, the United States possesses a unique interest, which supports

2 the finding of a live controversy as to allegations regarding discriminatory traffic stops.

3 Furthermore, the purposes of Title VI and § 14141 would be served by permitting the

4 United States to bring its own enforcement actions, regardless of previous action taken by

5 private plaintiffs. The United States’ interest in this case is distinct from those of private

6 plaintiffs’ in Melendres. As with the Secretary of Labor in Fitzsimmons, the federal

7 government has an interest in the uniform and robust enforcement of federal civil rights

8 legislation nationwide. Its interest in preventing the type of discrimination charged in this

9 case extends beyond the well-being of a defined class of plaintiffs to the safety, security,

10 and just and harmonious coexistence of all citizens. The United States likewise has an

11 interest in ensuring confidence in law enforcement activities which utilize federal funding

12 and may affect interstate commerce. In addition, the findings in Part III(A), infra, show

13 congressional intent to permit the federal government to bring an enforcement action. To

14 paraphrase Fitzsimmons, to hold mootness doctrine bars the Attorney General from

15 independently pursuing enforcement of Title VI would effectively limit the authority of

16 the Attorney General under the statute—something a court will not do in the absence of

17 an explicit legislative directive. See Fitzsimmons, 805 F.2d at 691.

18

In addition, the Melendres injunction does not moot the portions of the United

19 States’ claims which overlap with Melendres because continued violations by Arpaio and

MCSO following the issuance of the injunction demonstrate a real and immediate threat 20

of future harm, as well as the importance of granting the United States authority to 21
enforce injunctive relief addressing MCSO’s discriminatory traffic stops. See Borden 22
Co., 347 U.S. at 519; (2:07-CV-2513-GMS, Doc. 948) (Arpaio’s stipulation to violations 23
of the Melendres injunction by Arpaio and MCSO); (2:07-CV-2513-GMS, Doc. 0127 at 24
118-125). In addition, in the context of the United States’ broader claims, its claims 25
regarding traffic stops may lead to different injunctive measures than those put forth in 26
Melendres, where the allegations of discriminatory traffic stops were brought in isolation.
27 In other words, the Melendres injunction may afford some, but only partial relief for the

28 United States’ claims. See Flagstaff Med. Ctr., Inc., 962 F.2d at 885.

- 14 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 15 of 52

1

In sum, it is premature for the Court to conclude the United States’ allegations

2 would lead to a replica of the Melendres injunction. And, even if portions of the order

3 were replicated, the United States’ unique interest in enforcing those provisions and the

4 continuing threat of future harm it faces render the claims justiciable.

5

B. Justiciability of Claims Against Maricopa County

6

Maricopa County argues the United States does not have standing because it has

7 failed to show “the harms it alleges are ‘likely to be redressed’ by a judgment against the

8 County.” (Doc. 334 at 8). The United States contends it has shown a likelihood of redress

9 and that the “law of the case” precludes the County’s argument. (Doc. 348 at 8).

10

To have Article III standing, a plaintiff must demonstrate: (1) it has suffered

11 “injury in fact—an invasion of a legally protected interest which is . . . concrete and

12 particularized”; (2) “a causal connection between the injury and the conduct complained

13 of”; and (3) the likelihood “the injury will be redressed by a favorable decision.” Lujan v.

14 Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (internal quotation marks and

15 citations omitted).

16

In a previous order, the Court held, “Under Arizona law, the Sheriff has final

17 policymaking authority with respect to County law enforcement and jails, and the County

18 can be held responsible for constitutional violations resulting from these policies,” (Doc.

19 56 at 13), and denied Maricopa County’s motion to dismiss, including the allegation of lack of standing.8
20
“Law of the case” doctrine “preclude[s a court] from reexamining an issue 21
previously decided by the same court, or a higher court, in the same case.” United States 22
v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) (citation omitted). The doctrine applies 23
where an issue was “decided explicitly or by necessary implication in [the] previous 24
disposition.” Id. (internal quotation marks and citation omitted). 25
In finding Maricopa County could be held responsible for Arpaio’s constitutional 26
violations, the Court ruled, by necessary implication, the County was capable of
27

28

8 The Court reaffirmed this decision in denying Maricopa County’s motion for

reconsideration. (Doc. 73).

- 15 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 16 of 52

1 redressing those violations. Nonetheless, Maricopa County now claims the Court’s

2 previous analysis was flawed because it relied on precedents from § 1983 cases involving

3 claims for monetary, rather than injunctive relief. Maricopa County acknowledges A.R.S.

4 § 11-201 gives it the power to determine MCSO’s budget, but maintains that authority is

5 insufficient to influence or control how MCSO is run. Maricopa County also claims: 1)

6 the County cannot “cure the alleged violations here” (Doc. 356 at 10); 2) the United

7 States has failed to show Arpaio and MCSO engage in “assessing, collecting,

8 safekeeping, managing or disbursing the public revenues” such that they would fall under

9 Maricopa County’s supervisory authority pursuant to A.R.S. § 11-251(1); and 3) A.R.S. §

10 11-444 severely limits its authority to withhold funding.

11

Although the cases on which the Court’s previous order relied involved claims

12 under § 1983, which allows for monetary as well as injunctive relief, the reasoning

13 applied to find Maricopa County potentially liable for MCSO’s constitutional violations

14 was not premised on the form of relief sought, but rather on the bases for “policymaker”

15 liability. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378 (Ct. App. 2002).

16

As will be discussed at greater length in Part III(B)(i), infra, the logic of

17 “policymaker” liability under § 1983 applies to produce institutional liability under Title

18 VI and its sister statute, Title IX, as well. See Pers. Adm’r of Mass. v. Feeney, 442 U.S.

19 256, 279 (1979) (holding that a successful showing of a Title VI violation rests on the

actions of a decisionmaker). The Court’s previous order relied on numerous state court 20
decisions identifying the sheriff as a policymaker for Maricopa County, United States v. 21
Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1082-84 (D. Ariz. 2012), (Doc. 56), and 22
that determination is the law of this case. See United States v. Jingles, 702 F.3d 494, 499 23
(9th Cir. 2012). 24
Regarding Maricopa County’s argument that its inability to “cure the alleged 25
violations” destroys the United States’ standing, the United States is correct that it need 26
only show the potential for partial redress. See Meese v. Keene, 481 U.S. 465, 476
27

28

- 16 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 17 of 52

1 (1987).9

2

The sheriff is independently elected. Ariz. Const. art. XII, § 3. And his duties are

3 statutorily required. A.R.S. § 11-441. Those duties range from “[p]reserve[ing] the

4 peace” to “[a]rrest[ing] . . . persons who attempt to commit or who have committed a

5 public offense” to “[t]ak[ing] charge of and keep[ing] the county jail.” A.R.S. § 11-441.

6

However, A.R.S. § 11-251(1) provides: 


7

The board of supervisors, under such limitations and restrictions as are prescribed 


by law, may: . . . Supervise the official conduct of all county officers and officers 


8

of all districts and other subdivisions of the county charged with assessing, 


9

collecting, safekeeping, managing or disbursing the public revenues, see that such 


officers faithfully perform their duties and direct prosecutions for delinquencies. 
 10

11 A.R.S. § 11-251(1). And the Arizona Court of Appeals has held the sheriff is an “officer”

12 within the definition provided in this subsection. Fridena v. Maricopa Cnty., 18 Ariz.

13 App. 527, 530 (Ct. App. 1972). Therefore, the Board of Supervisors is charged with

14 supervising the sheriff under the statute.

15

The Board’s authority over the sheriff’s budget is somewhat constrained by A.R.S.

16 § 11-444(A), which states: “The sheriff shall be allowed actual and necessary expenses

17 incurred by the sheriff in pursuit of criminals, for transacting all civil or criminal

18 business.” But the statute also provides that the Board meet monthly to allocate funds to

19 the sheriff for the payment of such expenses and that the sheriff “render a full and true

account of such expenses” every month to the Board. A.R.S. § 11-444(B)-(C). 20
In 1965, the Arizona Attorney General’s Office issued an opinion interpreting 21
A.R.S. § 11-444,10 which stated: 22
[T]he board of supervisors, being the agency of the county vested with 23

24

9 It is also worth noting that policymaker liability under § 1983 is not premised on

25

complete control of the principal over the official in question. Rather, the amount of control the defendant, i.e. the county board of supervisors, possesses over the official is

26

but one factor in the determination of whether that official qualifies as a policymaker for the municipal government. Goldstein v. City of Long Beach, 715 F.3d 750, 755 (9th Cir.

27

2013) cert. denied sub nom. Cnty. of Los Angeles, Cal. v. Goldstein, 134 S. Ct. 906, 187 L. Ed. 2d 778 (2014).

28

10 The relevant language of A.R.S. § 11-444 in 1965 was substantially similar to

its present form.

- 17 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 18 of 52

1

responsibility for allowing claims, must be satisfied in each instance when

2

examining the claims of sheriffs . . . that the expenses claimed are for a public

purpose and are the actual and necessary expenses thereof.

3

4 Op. Atty. Gen. No. 65-18. This reading harmonizes the funding requirements of A.R.S. §

5 11-444 with the Board’s duty under A.R.S. § 11-251(1) to “see that such officers
6 faithfully perform their duties and direct prosecutions for delinquencies.” A.R.S. § 11­
251(1). Cf. Pinal Cnty. v. Nicholas, 179 P. 650, 651-52 (Ariz. 1919) (holding, in 7
executing its duty to pay “necessary expenses” of the County Attorney, “the board of 8
supervisors is charged with the duty of supervising all expenditures incurred by him, and 9
rejecting payment of those which are illegal or unwarranted”). Therefore, the Board can 10
refuse to fund inappropriate activities, which is exactly what the United States wants 11
Maricopa County to do. 12
Maricopa County’s argument centers on its purported inability to initiate any 13
authorized action to affect Arpaio’s compliance with the law or a court order, given the 14
sheriff’s statutory duties and electoral independence and the Board’s statutory obligation 15
to fund his activities. But Maricopa County admits it has the ability and duty “to facilitate
16 compliance of the Sheriff and other constitutional officers with judicial orders.” (Doc.
17 334 at 9, n. 2). And the United States identified numerous ways in which Maricopa
18 County could, within its authority, exercise oversight and influence over Arpaio. For

19 instance, Maricopa County could put the sheriff on a line-item budget and use its power

20 to withhold approval for capital expenditures, salary increases and the like to encourage

21 compliance with court orders. (Docs. 348 at 10-12; 349 at ¶13-26). The United States

22 also discussed actions Maricopa County has already taken to oversee and control

23 MCSO’s fiscal management to ensure its compliance with county policy. (Docs. 348 at

24 13; 349 at ¶13). In the name of sound fiscal management, and at least partially in

25 response to constituent complaints, the Board has, in the past, ordered audits and

26 “operational efficiency reviews” of MCSO’s vehicle use, extradition and travel policy,

27 and staffing practices and ordered “oversight functions” be performed by the County

28 Office of Management and Budget. (Docs. 349-2, 349-3). In fact, Maricopa County’s

- 18 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 19 of 52

1 own initial response to DOJ’s investigation stated the County could deny MCSO

2 reimbursement for funds expended in an effort to resist the investigation, as such

3 resistance was “outside the scope of the employment of any elected or appointed

4 official.” (Doc. 333-3 at 10). This evidence and the Arizona Attorney General’s

5 interpretation of the relevant statutes, show Maricopa County has the ability to afford at

6 least partial redress for violations committed by Arpaio, MCSO, and Maricopa County.

7

In addition, another district court recently upheld taxpayers’ standing to sue

8 Maricopa County in challenging the expenditure of municipal funds for MCSO’s

9 enforcement of an allegedly discriminatory statute. Puente Arizona v. Arpaio, No. CV­
10 14-01356-PHX-DGC, 2015 WL 58671 at *11 (D. Ariz. Jan. 5, 2015) (“[A] favorable
11 decision would . . . prevent[] further expenditures for enforcement of the identity theft
12 laws.”) (citing Hinrichs v. Bosma, 440 F.3d 393, 397–98 (7th Cir. 2006) (“Such an injury
13 is redressed not by giving the tax money back . . . but by ending the unconstitutional 14 spending practice.”)).11 See also We Are Am./Somos Am., Coal. of Arizona v. Maricopa
15 Cnty. Bd. of Supervisors, 809 F. Supp. 2d 1084, 1104 (D. Ariz. 2011) (finding plaintiffs
16 had alleged injury sufficient to confer standing to sue county/Board of Supervisors, the 17 sheriff, and others in action seeking suspension of the use of municipal funds for MCSO 18 enforcement of discriminatory policy). In Puente, as here, Maricopa County argued its 19 inability to control the County’s criminal law enforcement meant that allowing Maricopa
County to remain a party “could result in it being ‘bound by an injunction that is not 20
within its authority to comply with under Arizona law.’” 2015 WL 58671 at *25. The 21
court held “[t]his fact might limit [Maricopa County’s] exposure to contempt or other 22
remedies if an injunction is disregarded, but it does not alter the fact that the County is a 23
proper defendant.” Id. 24
Even assuming Maricopa County’s control over MCSO’s operations is limited to 25
control over funding, as opposed to direct and complete oversight and control of 26
enforcement operations, that control establishes Maricopa County could contribute to the 27

28

11 Arpaio and Maricopa County’s arguments against standing in that case focused

on injury, not redressability.

- 19 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 20 of 52

1 requested relief, which is all the law requires to create standing. Therefore, summary 2 judgment on this issue will be denied.12

3 III. Maricopa County’s Liability Under Title VI and 42 U.S.C. § 14141

4

Maricopa County advances several arguments for granting summary judgment in

5 its favor with respect to the United States’ claims under Title VI (Counts Three, Four,

6 and Five) and § 14141 (Counts One, Two, and Six). First, Maricopa County claims Title

7 VI does not authorize the United States to file suit to enforce its provisions. Next,

8 Maricopa County claims neither Title VI nor § 14141 authorize imputation of liability

9 from Arpaio and MCSO to Maricopa County. Alternatively, Maricopa County argues

10 even if the statutes authorize imputation, the County would not be liable for the alleged

11 violations. Finally, Maricopa County claims the United States failed to comply with the 12 notice requirements of Title VI.13

13

A. Authorization to File Suit Under Title VI

14

Maricopa County argues summary judgment in its favor as to Counts Three, Four,

15 and Five is required because Title VI does not authorize the United States to bring suit to
16 enforce its provisions. Maricopa County draws a comparison between Title VI and Title
17 IV, the latter of which explicitly authorizes the Attorney General “to institute . . . in the
18 name of the United States a civil action . . . against such parties and for such relief as may 19 be appropriate.” 42 U.S.C. § 2000c-6. Maricopa County claims that because “Congress
knew how to authorize a lawsuit by [the United States],” there is “‘strong evidence’ that 20
no lawsuit was authorized here.” (Doc. 334 at 6). The United States challenges this 21
assertion through interpretation of the phrase “any other means authorized by law” in 22
Title VI. 42 U.S.C. § 2000d-1. 23
Under Title VI, compliance may be effected “by termination of or refusal to grant 24

25

12 The Ninth Circuit’s recent decision in substituting Maricopa County for MCSO

26

in Melendres, although it does not discuss Maricopa County’s capability of redressing the wrongs found in that case or implementing the Melendres injunction, supports a finding

27

of standing against Maricopa County in this case. Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015).

28

13 The standing argument raised by Maricopa County was addressed in the

previous section. See Part II(B), supra.

- 20 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 21 of 52

1 or to continue assistance” or “by any other means authorized by law.” 42 U.S.C. § 2000d­

2 1. The parties focus on the interpretation of the phrase “any other means authorized by

3 law.” The United States relies on National Black Police Association, Inc. v. Velde, 712

4 F.2d 569, 575 (D.C. Cir. 1983) and United States v. Baylor University Medical Center,

5 736 F.2d 1039, 1050 (5th Cir. 1984), each of which recognizes “any other means

6 authorized by law” as including enforcement options beyond administrative action. See

7 also Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 630

8 (1983) (J. Marshall, dissenting) (“[I]n extending grants the United States has always

9 retained an inherent right to sue for enforcement of the recipient’s obligation.”).

10 Maricopa County claims Velde and Baylor University Medical Center do not represent

11 the current approach to statutory interpretation which was abandoned by the Supreme

12 Court in Alexander v. Sandoval. 532 U.S. 275 (2001).

13

In Sandoval, the Supreme Court condemned lower courts’ liberal implication of

14 private rights of action “to provide remedies as are necessary to make effective []

15 congressional purpose” and established a stricter standard requiring more explicit
16 findings of congressional intent to support such causes of action. 532 U.S. 275, 287
17 (2001). In determining the congressional intent behind § 602 of Title VI the Court 18 endeavored to discern the “focus” of the provision. Sandoval, 532 U.S. at 288-289.14 The
Court held: “Statutes that focus on the person regulated rather than the individuals 19
protected create ‘no implication of an intent to confer rights on a particular class of 20
persons.’” Id. at 289. It found § 602 focused neither on persons regulated nor individuals 21
protected, but instead exclusively on federal agency enforcement. Id. (“[Section] 602 is 22
‘phrased as a directive to federal agencies engaged in the distribution of public funds,’ . . 23
. . When this is true, ‘[t]here [is] far less reason to infer a private remedy in favor of 24
individual persons.’”). The implication, then, is that where a statutory provision focuses 25

26

14 DOJ promulgated regulations under § 602 prohibiting disparate impact racial 27 discrimination in federally-funded programs. 28 CFR § 42.104(b)(2) (2000). Sandoval

28

did not affect previous decisions establishing a private right of action to enforce § 601, which prohibits intentional discrimination based on race in federally-funded programs.

Id. at 281.

- 21 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 22 of 52

1 on a particular party, it is more likely Congress intended to confer a right of action on that

2 party to enforce the provision. The logic of Sandoval, therefore, supports finding a right

3 of action for federal agency enforcement under § 602 of Title VI.

4

The Sixth Circuit appears to be the only federal court of appeals to have addressed

5 the meaning of “any other means authorized by law” as it applies to means of

6 government enforcement following Sandoval. The Sixth Circuit acknowledged the pre-

7 Sandoval understanding of the phrase and found it authorized the government to bring 8 suit to enforce a statutory provision.15 United States v. Miami Univ., 294 F.3d 797, 808

9 (6th Cir. 2002) (“We believe that the fourth alternative [‘take any other action authorized

10 by law with respect to the recipient’] expressly permits the [agency] to bring suit to

11 enforce the [statutory] conditions in lieu of its administrative remedies.”) (citing Baylor

12 Univ. Med. Ctr., 736 F.2d at 1050; Nat’l Black Police Ass’n, 712 F. 2d at 575). Cf. United

13 States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 611 (5th Cir. 1980) (“[T]he

14 government’s right to sue to enforce its contracts exists as a matter of federal common

15 law, without necessity of a statute . . . Congress may nullify the right, but, as the Supreme

16 Court has repeatedly emphasized, courts are entitled to conclude that Congress has done

17 so only if the evidence of Congress' intent is extremely, even unmistakably, clear.”).

18

Maricopa County claims Congress rejected an amendment to Title VI explicitly

19 authorizing public judicial enforcement of Title VI. The rejected amendment provided

that a recipient of federal funds “assume[d] a legally enforcible [sic] undertaking . . . [and 20
the] United States district courts [would] have jurisdiction [over] civil actions brought in 21
connection with such undertakings by either the United States or by any recipient 22
aggrieved by action take under any such undertaking.” 110 Cong. Rec. 2493-94 (1964). 23
The author of the proposed amendment, Congressman Meader, envisioned such disputes 24
being governed by the law of contracts. 110 Cong. Rec. 2493 (1964). But the amendment 25
was rejected in favor of the broader provision for enforcement of contractual obligations 26
not only through the courts, but by “any . . . means authorized by law.” In the words of
27

28

15 The phrase, as interpreted, appeared in the Family Educational Rights and

Privacy Act (“FERPA”).

- 22 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 23 of 52

1 Congressman Celler, the Meader Amendment would have “den[ied] much needed

2 flexibility to the Federal agencies to effectuate their nondiscrimination policy . . . [in

3 contrast to the version using ‘any other means authorized by law’ which] seeks to

4 preserve [] the maximum [] existing procedures . . . including any judicial review.” 110

5 Cong. Rec. 2494 (1964). The record of the congressional debate surrounding this

6 amendment clearly shows Congress’s intent that the provisions of Title VI be enforceable

7 through lawsuits to allow enforcement by judicial review.

8

Furthermore, to the extent the phrase “any other means authorized by law” may be

9 ambiguous as it appears in Title VI, the Court must defer to DOJ’s interpretation. See

10 City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (citing Chevron U.S.A.

11 Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). DOJ regulations

12 interpret the phrase “any other means authorized by law” in Title VI to include

13 “[a]ppropriate proceedings brought by the Department to enforce any rights of the United

14 States under any law of the United States (including other titles of the Act), or any

15 assurance or other contractual undertaking.” 28 C.F.R. § 42.108(a)(1).

16

Based on the foregoing, summary judgment for Maricopa County regarding the

17 United States’ ability to enforce Title VI through lawsuits will be denied.

18

B. Imputation of Liability

19

Maricopa County claims neither Title VI nor § 14141 authorize imputation of

liability from Arpaio and MCSO to Maricopa County. It contrasts these statutes with 42 20

U.S.C. § 1983, which explicitly creates liability for entities which cause others to commit 21
constitutional violations. The United States claims the Court already decided Maricopa 22
County can be held liable for Arpaio’s violations in its order on the early motion to 23
dismiss. It also contends Arpaio’s actions constitute the actions of Maricopa County for 24 purposes of liability under § 14141 and Title VI.16 25

26

16 In its recent Melendres decision, the Ninth Circuit held, on remand, the district 27 court could consider whether dismissal of Sheriff Arpaio in his official capacity was

28

warranted because, typically, a suit against a person in his official capacity is, “in all respects other than name, [] treated as a suit against the entity.” Melendres v. Arpaio, 784

F.3d 1254, 1260 (9th Cir. 2015). Because the court did not specify whether Arpaio is or is

- 23 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 24 of 52

1

i. Title VI (42 U.S.C. §§ 2000d-2000d-7)

2

Maricopa County refers to itself as “the Board,” as in, the Board of Supervisors.

3 (Doc. 334 at 12). The United States argues for a broader understanding of persons

4 comprising county government for purposes of Title VI liability. It argues Maricopa

5 County’s policymakers constitute the County under the statute and that Maricopa County

6 violated Title VI in two ways: First, through the Board, by failing to live up to its

7 contractual obligations, and second, through the pattern, practice, and policy of

8 discrimination promulgated by Arpaio, the County’s policymaker.

9

Section 1983 explicitly provides liability for government entities which cause

10 others to violate constitutional rights. 42 U.S.C. § 1983. Under § 1983, municipal liability
11 for officers’ actions is not automatic but attaches “when execution of [the] government’s
12 policy or custom, whether made by its lawmakers or by those whose edicts or acts may
13 fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc.
14 Servs. of City of New York, 436 U.S. 658, 694 (1978). In other words, a violation caused
15 by a municipal policy, e.g. a policy made by a municipal policymaker, is a violation by
16 the municipality. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378, 54 P.3d 837, 847 17 (Ct. App. 2002) (“Liability [under § 1983] is imposed, not on the grounds of respondeat 18 superior, but because the agent’s status cloaks him with the governmental body’s 19 authority.”).
“To hold a local government liable for an official’s conduct [under § 1983], a 20
plaintiff must first establish that the official (1) had final policymaking authority 21
‘concerning the action alleged to have caused the particular constitutional or statutory 22
violation at issue’ and (2) was the policymaker for the local governing body for the 23
purposes of the particular act.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 24
2000) (citing McMillian v. Monroe County Alabama, 520 U.S. 781, 785 (1997)). In 25
analyzing the second question—whether a policymaker may be associated with a 26

27 not an appropriate party and because no party has argued this point, the Court will not

28

decide it. The Ninth Circuit’s statement does, however, bolster the Court’s assessment of the relationship between Maricopa County and Arpaio and the potential for Maricopa

County’s liability.

- 24 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 25 of 52

1 particular government entity for purposes of liability—the amount of control the

2 government entity, i.e. the county board of supervisors, possesses over the official is but

3 one factor. Goldstein v. City of Long Beach, 715 F.3d 750, 755 (9th Cir. 2013) cert.

4 denied sub nom. Cnty. of Los Angeles, Cal. v. Goldstein, 134 S. Ct. 906, 187 L. Ed. 2d

5 778 (2014). Other factors include the county’s obligation to defend or indemnify the

6 official, the scope of the official’s duties, and the official’s definition in the state

7 constitution. Goldstein, 715 F.3d at 755-762. The Court’s previous order held Arpaio

8 “has final policymaking authority with respect to County law enforcement and jails, and

9 [based on that,] the County can be held responsible for constitutional violations resulting

10 from these policies.” United States v. Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1082­

11 84 (D. Ariz. 2012); (Doc. 56).

12

Title VI does not explicitly provide liability for entities which cause others to

13 violate the statute. Title VI provides: “No person in the United States shall, on the ground

14 of race, color, or national origin, be excluded from participation in, be denied the benefits

15 of, or be subjected to discrimination under any program or activity receiving Federal
16 financial assistance.” 42 U.S.C. § 2000d. The section is enforceable through termination
17 or refusal of federal funding or “by any other means authorized by law.” 42 U.S.C. §
18 2000d-1. Termination or refusal of funding is “limited to the particular political entity, or 19 part thereof, or other recipient as to whom [an express finding on the record . . . of a
failure to comply] has been made and, shall be limited in its effect to the particular 20
program, or part thereof, in which such noncompliance has been so found.” 42 U.S.C. § 21
2000d-1. 22
No court has directly confronted the question of whether “policymaker” liability 23
applies under Title VI. But case law on Title IX, which parallels Title VI,17 is instructive. 24

25

17 See Cannon v. Univ. of Chicago, 441 U.S. 677, 684 (1979) (stating Title IX was 26 patterned on Title VI). Title IX prohibits discrimination in federally funded educational

27

programs on the basis of gender instead of race. 20 U.S.C. § 1681. Like Title VI, Title IX authorizes termination or refusal of funding for “the particular political entity, or part

28

thereof, or other recipient as to whom [an express finding on the record . . . of a failure to comply] has been made and, shall be limited in its effect to the particular program, or part

thereof, in which such noncompliance has been so found,” as well as enforcement

- 25 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 26 of 52

1 Like Title VI, Title IX does not explicitly provide liability for causing others to violate

2 the statute, nor for classic respondeat superior liability. In Gebser v. Lago Vista

3 Independent School District, the Supreme Court held “Congress did not intend to allow

4 recovery [under Title IX] where liability rests solely on principles of vicarious liability or

5 constructive notice.” 524 U.S. 274, 288 (1998). See also Davis Next Friend LaShonda D.

6 v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999) (“[A] recipient of federal funds

7 may be liable in damages under Title IX only for its own misconduct.”). Instead, a

8 principal can be held liable for “employees’ independent actions” only if, after actual

9 notice to an “appropriate person,”18 the principal fails to adequately respond to the

10 employees’ violations, thus demonstrating “deliberate indifference” to the alleged

11 violation. Gebser, 524 U.S. at 289-291 (“It would be unsound, we think, for a statute’s

12 express system of enforcement to require notice to the recipient and an opportunity to

13 come into voluntary compliance while a judicially implied system of enforcement permits

14 substantial liability without regard to the recipient’s knowledge or its corrective actions

15 upon receiving notice.”) (emphasis in original). This sort of “deliberate indifference” is a

16 form of intentional discrimination by the employer/principal directly, not a form of

17 vicarious liability. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005).

18

An institution is also directly liable for its “own official decision[s].” Gebser, 524

19

20 through “any other means authorized by law.” 20 U.S.C. § 1682.

18 An “appropriate person,” under Title IX is, “at a minimum, an official of the 21 recipient entity with authority to take corrective action to end the discrimination.” Id. at

22

290. In the context of schools (the primary entities governed by Title IX), “appropriate person” can refer to teachers, principals, or school boards, depending on the authority of

23

those actors within a particular educational system. See Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1020-21 (7th Cir. 1997) (“While a principal has some authority

24

over the activities within his school, the [state] statutes place institutional control over ‘program or activities’ with the school district and school board . . . [and] does not give

25

assistant principals administrative control over educational programs or activities. . . . Thus neither a principal nor an assistant principal can be considered a grant recipient.”).

26

Notice to an “appropriate person” is also required under Title VI. And at least one

27

district court has extended the Supreme Court’s interpretation of this phrase in Title IX to Title VI, holding a person with “authority to take corrective action to end the alleged

28

discrimination” can be liable under Title VI if, after notice of another’s violation of the statute, the authority fails to take corrective action. Rubio ex rel. Z.R. v. Turner Unified

Sch. Dist. No. 202, 475 F. Supp. 2d 1092, 1098-99 (D. Kan. 2007).

- 26 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 27 of 52

1 U.S. at 290-291. The Ninth Circuit and others have held a separate finding of “deliberate

2 indifference” is not necessary when an institutional policy violates the statute.

3 Mansourian v. Regents of Univ. of California, 602 F.3d 957, 967-969 (9th Cir. 2010). See

4 also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007) (“[A]

5 funding recipient can be said to have ‘intentionally acted in clear violation of Title IX,’

6 when the violation is caused by official policy.”) (citing Davis, 526 U.S. at 642). Because

7 a “policymaker” is not acting individually, but on behalf of the institution/entity, and his

8 policies are the policies of the entity, no imputation takes place in charging the entity

9 with violations stemming from those policies—they are the policies of the entity, not

10 merely the individual.

11

This logic parallels the reasoning that undergirds the law establishing

12 “policymaker” liability under § 1983 and applies with equal force to Title VI. Maricopa

13 County is directly liable for violations resulting from its official policy, which includes

14 policy promulgated by Arpaio. See United States v. Maricopa Cnty., Ariz., 915 F. Supp.

15 2d 1073, 1082-84 (D. Ariz. 2012). These policies constitute intentional acts by Maricopa

16 County for which no imputation is required. Therefore, summary judgment on the

17 grounds of impermissible imputation (i.e. vicarious liability) under Title VI will be

18 denied.

19

ii. 42 U.S.C. § 14141

Maricopa County claims § 14141 imposes liability only on an entity which 20

engages directly in conduct that results in constitutional injury. 21

The Violent Crime Control and Law Enforcement Act of which § 14141 is a part

22

provides, among other things, grants for state and local law enforcement agencies to

23

improve police training and practices and help prevent crime. Pub. L. 103-322, 42 U.S.C.

24

Ch. 136, §§ 13701-14223. Section 1414, specifically, provides:

25

It shall be unlawful for any governmental authority, or any agent thereof, or any

26

person acting on behalf of a governmental authority, to engage in a pattern or

27

practice of conduct by law enforcement officers or by officials . . . that deprives

persons of rights, privileges, or immunities secured or protected by the

28

Constitution or laws of the United States.

- 27 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 28 of 52

1

2 42 U.S.C. § 14141 (emphasis added).

3

The Court is unable to find a case speaking directly to the question of vicarious or

4 imputed liability under § 14141. However, again, the logic of policymaker liability

5 discussed in the preceding section would render Maricopa County directly, not indirectly
6 liable under the statute. In addition, the United States has sued and settled under the
statute with various governments for violations committed by law enforcement 7
departments. See United States v. State of New Jersey, et al., 3:99-cv-05970-MLC-JJH; 8
United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013); United States v. 9
Puerto Rico, 922 F. Supp. 2d 185 (D.P.R. 2013). All of these cases ended in settlement 10
and in none did the defendant government challenge liability by arguing vicarious or 11
imputed liability was unavailable under § 14141. Therefore, the case law suggests 12
liability is available to sue governments whose law enforcement violates the statute. 13
Summary judgment will not be granted to Maricopa County on this issue of imputation of 14
liability under § 14141. 15
C. Liability Under Title VI and 42 U.S.C. § 14141
16 Maricopa County argues it is entitled to summary judgment regarding its liability
17 under Title VI and § 14141, even if imputation is permitted because “the County cannot
18 control the Sheriff’s policies and practices relating to law enforcement or jailing.” (Doc.

19 334 at 18). This argument was addressed in Part II(B), supra. Maricopa County has

20 sufficient authority to provide some redress for violations committed by Arpaio and

21 MCSO. Therefore, the argument is without merit.

22

Maricopa County further claims its contractual assurances under Title VI must be

23 read in accordance with Arizona law, including statutory limitations on the Board of

24 Supervisors’ authority regarding the Sheriff. To the extent Maricopa County entered into

25 a contract for which it lacked the authority to agree, Maricopa County argues, the

26 contract is void. (Doc. 351 at 13).

27

The United States has the power to sue to enforce its contracts. See Cotton v.

28 United States, 52 U.S. 229, 231, 13 L. Ed. 675 (1850); Rex Trailer Co. v. United States,

- 28 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 29 of 52

1 350 U.S. 148, 151 (1956). And “[f]ederal law governs the interpretation of contracts

2 entered pursuant to federal law where the federal government is a party.” Chickaloon-

3 Moose Creek Native Ass’n., Inc. v. Norton, 360 F.3d 972, 980 (9th Cir. 2004).

4

Neither party offered authority addressing how courts treat the enforcement of an

5 ultra vires contract between a county and the federal government. But the Court rejected

6 the contention that Maricopa County lacked any authority to enforce the

7 nondiscrimination mandate that attaches to federal funds under Title VI. See Part II(B),

8 supra; (Doc. 56). Even if “persons dealing with public officers are bound, at their peril, to

9 know the extent and limits of their power,” the United States is, at the very least, entitled

10 to hold Maricopa County accountable for failing to take action it was authorized to take

11 under Arizona law with respect to Arpaio and MCSO, which could have helped prevent

12 violations of Maricopa County’s contractual obligations under Title VI. See Pinal Cnty.

13 v. Pomeroy, 60 Ariz. 448, 455 (1943). Therefore, summary judgment will be denied on

14 the issues of Maricopa County’s liability for its contractual assurances and violations

15 under § 14141.

16

D. Notice of Maricopa County’s Violations

17

Finally, Maricopa County argues the United States failed to provide notice

18 regarding “any alleged improper conduct on its [Maricopa County’s] part,” as required by

19 Title VI. (Doc. 334 at 5). The United States claims it provided Maricopa County with

proper notice of the violations for which it seeks to hold the County accountable. 20

Title VI provides: “no [] action shall be taken until the department or agency 21
concerned has advised the appropriate person or persons of the failure to comply with the 22
requirement and has determined that compliance cannot be secured by voluntary means.” 23
42 U.S.C.A. § 2000d-1. The regulations state notification of “failure to comply and action 24
to be taken to effect compliance” must be given to the “[funding] recipient or other 25
person.” 28 C.F.R. § 42.108(d)(3). The Supreme Court has interpreted “appropriate 26
person” under Title IX, a parallel statute, to mean “at a minimum, an official of the
27 recipient entity with authority to take corrective action to end the discrimination.” Gebser

28 v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). The notice provision in Title

- 29 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 30 of 52

1 IX, which requires actual, not constructive notice, however, only applies “when the

2 alleged Title IX violation consists of an institution’s deliberate indifference to acts that

3 ‘do not involve official policy of the recipient entity.’” Mansourian v. Regents of Univ. of

4 California, 602 F.3d 957, 967 (9th Cir. 2010) (citing Gebser, 524 U.S. at 290). Again, the

5 Court interprets the provisions of Title VI in parallel with those of its sister statute, Title

6 IX. See n. 19, supra.

7

Maricopa County first responded to DOJ’s notice of MCSO’s noncompliance with

8 its obligation to cooperate in DOJ’s investigation in August of 2010. (Doc. 333-3 at 9). In

9 that response, Maricopa County characterized DOJ’s correspondence as a “Notice Letter”

10 and appeared to embrace its own obligation to assist in the investigation, including by

11 denying MCSO funding for expenses for activities contrary to the law. Id. But on

12 December 15, 2011, in response to DOJ’s Findings Letter, discussing the results of its

13 investigation, Maricopa County Attorney Bill Montgomery (“Montgomery”) responded

14 that the United States had “noticed the wrong party” and directed DOJ to Jones, Skelton

15 & Hochuli, P.L.C. (“Jones Skelton”), MCSO’s counsel of record. (Doc. 333-3 at 12).

16 Approximately one month after Montgomery sent his letter, on January 17, 2012, DOJ

17 replied, stating:

18

It has not always been clear who represents the [MCSO] with respect to different matters, so we felt it made sense to provide notice to both you and the attorneys

19

who represented MCSO with respect to our [a previous] lawsuit. Since our current

investigation potentially affects Maricopa County as the conduit of federal

20

financial assistance to MCSO, we will continue to carbon copy you on significant

21

correspondence between us and [Jones Skelton].

22 (Doc. 333-3 at 14) (emphasis added).

23

DOJ continued to copy Montgomery and Maricopa County on its correspondence

24 with Jones Skelton, which revealed the United States’ position that Jones Skelton and

25 MCSO were not engaging in good faith negotiations with the federal government. (Doc.

26 333-3 at 15-20). On May 9, 2012, the United States wrote to Jones Skelton and

27 Montgomery separately to advise each of its plans to file suit. In its letter to Montgomery,

28 the United States stated MCSO’s counsel had chosen to “cancel negotiations” and that

- 30 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 31 of 52

1 the United States had “determined the [MCSO’s] compliance . . . [could not] be secured

2 through voluntary means.” (Doc. 333-3 at 25). Finally, the letter stated:

3

Based on the foregoing, please be advised that in accordance with the notice

4

requirements set forth in DOJ’s Title VI regulations, 42 C.F.R. § 108(d)(3) [sic], it is the intention of the Department of Justice to file a civil action against Maricopa

5

County, [MCSO], and [Arpaio] in order to remedy the serious Constitutional and

6

federal law violations . . . noted in our December 15, 2012 [sic] Findings Letter.

7 (Doc. 333-3 at 25-26).

8

Maricopa County argues that because the Findings Letter refers only to Title VI

9 violations by MCSO, not Maricopa County, the letter cannot constitute proper notice to

10 Maricopa County under the statute. The United States argues the notice provided to

11 Maricopa County via the January 17, 2012 letter, “numerous communications” between

12 attorneys for the United States and Maricopa County, and meetings between DOJ and “at

13 least two county commissioners” was sufficient to place Maricopa County on notice of its

14 liability and provide it with an opportunity to respond.19 The United States also argues

15 that because MCSO is not a jural entity separate, for legal purposes, from Maricopa 16 County, its communications with MCSO count towards notice to Maricopa County.20

17

To the extent Maricopa County attempts to defeat claims based on official policies

18 which allegedly violated Title VI, its argument fails. The Supreme Court has held notice

19

20

19 DOJ’s meeting with county supervisors highlights an issue which has yet to be

21

resolved by the facts presented, but which is not necessary to the issue of notice. Maricopa County points out that DOJ’s meeting with the supervisors took place without

22

Montgomery or any representative from the Maricopa County Attorney’s Office (“MCAO”) and that this could mean one of two things: either (1) the United States did

23

not believe the Board of Supervisors (in other words, Maricopa County) was represented by MCAO, or (2) the United States did believe the Board of Supervisors was represented

24

by MCAO and committed an ethical violation by meeting with the Board without MCAO’s presence, notification, or consent. If the first option is true, communications

25

with Montgomery would be irrelevant to the question of notice. If the second is true, communications with Montgomery would be relevant, but the United States would have

26

also committed an ethical violation. Maricopa County’s motion does not clarify one way or another whether MCAO was representing Maricopa County at the time of the United

27 States’ communications or whether the United States believed it to be.

20 All of the communications the United States claims constituted notice occurred 28 after the Arizona Court of Appeals ruling in Braillard v. Maricopa County, 224 Ariz.

481, 487 (Ct. App. 2010) (establishing MCSO as a non-jural entity).

- 31 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 32 of 52

1 requirements like the one contained in Title VI only apply where the violation stems from

2 the practices of individual actors or staff, not institutional decisions such as those

3 embodied by official policy. See Gebser, 524 U.S. at 290 (holding notice required in case

4 not involving official policy of recipient entity); Mansourian, 602 F.3d at 967-969

5 (“[T]he Supreme Court has made clear that no notice requirement is applicable to Title

6 IX claims that rest on an affirmative institutional decision [such as the promulgation of

7 institutional policies]”).

8

Even if notice was required to hold Maricopa County liable for Arpaio and

9 MCSO’s actions (as opposed to its policies), Maricopa County’s argument that “[t]elling

10 a party that an investigation ‘potentially affects’ them is a far cry from providing notice
11 ‘of the failure to comply with [Title VI],’” (Doc. 356 at 9), is not facially apparent from
12 the correspondence, and Maricopa County cites no law to support it. On its face, the
13 Findings Letter constitutes notice of Maricopa County’s liability “as the conduit of
14 federal financial assistance to MCSO” for violations of its contractual assurances under
15 Title VI. Maricopa County concedes the Findings Letter put it on notice of MCSO’s
16 violations and does not argue this notification was sent to an “inappropriate person.”
17 Furthermore, earlier correspondence from August of 2010 indicates Maricopa County 18 was fully aware not only of potential violations by MCSO, but also of its own obligation 19 to cooperate with and assist DOJ in investigating and remedying those violations.
Therefore, summary judgment on the issue of the adequacy of notice under Title VI will 20
be denied. 21
IV. Non-Mutual, Offensive Issue Preclusion and Counts One, Three, and Five 22
Having resolved that liability is possible, the next issue is whether the United 23
States has actually proven such liability. 24
The United States seeks to preclude Arpaio and Maricopa County from contesting 25
the issues decided in Melendres which reappear in this case and argues those issues 26
entitle the United States to summary judgment on portions of its discriminatory policing 27
claims contained in Counts One, Three, and Five. These counts, as set forth in the 28
complaint, are based on alleged discrimination in multiple areas of law enforcement:

- 32 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 33 of 52

1 traffic stops, workplace raids, home raids, and jail operations. The Melendres court found

2 discrimination in one of those areas: traffic stops. In effect therefore, the United States is

3 seeking summary judgment on a narrower form of the counts it outlined in its original

4 complaint. It argues the Court can grant summary judgment on these narrow grounds and

5 allow the United States to prove additional grounds at trial.

6

A. Application of Non-Mutual, Offensive Issue Preclusion to Arpaio

7

Arpaio claims applying non-mutual, offensive issue preclusion as to the findings

8 from Melendres would be unfair and, therefore, cannot apply. The United States argues

9 non-mutual, offensive issue preclusion should apply because an identity of issues exists,

10 the issues were actually litigated and decided, and the United States did not improperly

11 interfere in the previous litigation or adopt a “wait and see” strategy.

12

Issue preclusion, formerly known as collateral estoppel, has the “dual purpose of

13 protecting litigants from the burden of relitigating an identical issue . . . and of promoting

14 judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439

15 U.S. 322, 326 (1979). However, the offensive use of issue preclusion may have the

16 opposite effect, encouraging plaintiffs to “wait and see” in a way which may “increase

17 rather than decrease the total amount of litigation.” Id. at 330. Thus, special care must be

18 taken when considering whether to apply non-mutual, offensive issue preclusion.

19

Ordinary issue preclusion requires a party show: “(1) the issue sought to be

litigated is sufficiently similar to the issue presented in an earlier proceeding and 20

sufficiently material in both actions to justify invoking the doctrine, (2) the issue was 21
actually litigated in the first case, and (3) the issue was necessarily decided in the first 22
case.” Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir. 2003).21 A 23

24 21 An “identity of issues” exists where:
25

26

(1) There is substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first,

27

(2) The new evidence or argument involves the application of the same rule of law

28 as that involved in the prior proceeding,

(3) Pretrial preparation and discovery related to the matter presented in the first

- 33 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 34 of 52

1 plaintiff seeking non-mutual, offensive issue preclusion, however, must also show its

2 application would not be unfair. See Parklane Hosiery Co., 439 U.S. 322, 330-331

3 (1979). A number of circumstances may render offensive issue preclusion unfair and

4 therefore impermissible. For instance, where a defendant “may have little incentive to

5 defend vigorously, particularly if future suits are not foreseeable . . . [or] if the judgment

6 relied upon as a basis for the estoppel is itself inconsistent with one or more previous

7 judgments . . . [or] where the second action affords the defendant procedural

8 opportunities unavailable in the first action that could readily cause a different result.” Id.

9 at 330-331.

10

Arpaio does not contest the identity of issues between Melendres and certain

11 aspects of the United States’ complaint. Nor does he argue these issues were not actually

12 litigated or necessarily decided. Instead, Arpaio focuses entirely on the question of

13 fairness. He first argues the United States adopted a “wait and see” strategy in the

14 Melendres litigation and that it deliberately withheld suit until the Melendres decision so
15 that it could use the findings from that case in this suit. “Wait and see” was explicitly
16 denounced by the Supreme Court as contrary to judicial economy and a factor
17 disfavoring application of non-mutual, offensive issue preclusion. Id. at 329. As proof of
18 this strategy, Arpaio offers Maricopa County’s motion to stay Melendres pending the 19 outcome of DOJ’s investigation. But Arpaio himself opposed the stay, as did the
Melendres plaintiffs, and ultimately, the court denied the motion. The Melendres court 20
reasoned: “[I]t is doubtful that the DOJ investigation will necessarily overlap with the 21
issues of this case sufficient to prove markedly beneficial. Even if they did, the length of 22
the stay proposed by the County undercuts any such utility.” Melendres v. Maricopa 23
Cnty., No. 07-CV-02513-PHX-GMS, 2009 WL 2515618, at *2 (D. Ariz. Aug. 13, 2009). 24

25

26

action can reasonably be expected to have embraced the matter sought to be presented in the second,

27

(4) The claims involved in the two proceedings are closely related.

28 Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir. 1995) opinion amended on reh’g sub nom. Kamilche v. United States, 75 F.3d 1391 (9th Cir. 1996).

- 34 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 35 of 52

1 At the time of the court’s ruling, discovery in Melendres was closed and the dispositive

2 motion deadline had passed. It was unclear when DOJ’s investigation, which had begun a

3 few months prior, would be complete. Not only was the Melendres court’s denial of the

4 stay reasonable, it is not a basis for attributing a “wait and see” strategy to the United

5 States now. In addition, despite being aware of DOJ’s ongoing investigation, neither

6 Arpaio nor any other party moved to join the United States as a party in Melendres.

7

The evidence also does not support Arpaio’s argument that the United States was

8 “heavily involved in the Melendres litigation” in such a way as would render application

9 of non-mutual, offensive issue preclusion unfair. (Doc. 346 at 8). Arpaio attempts to

10 characterize the United States as seeking influence and control in Melendres, but the
11 United States more accurately describes its actions as “routine efforts to stay apprised of
12 related litigation.” (Doc. 354 at 6). The United States requested and was denied the
13 opportunity to attend depositions. Melendres v. Arpaio, No. CV-07-02513-PHX-GMS,
14 2009 WL 3489402, at *1 (D. Ariz. Oct. 28, 2009). It ordered transcripts, requested a
15 protective order for documents the parties sought in discovery, attended status
16 conferences relevant to its document production, and requested a related case be
17 transferred to the judge who was handling Melendres. The United States’ statement of 18 interest, filed after the Melendres court published its decision, offered the services and 19 suggestions of the federal government regarding addressing constitutional violations in
law enforcement agencies. The statement even discussed the possibility of a “global 20
settlement encompassing the United States’ claims,” an option the Melendres litigants, 21
including Arpaio, failed to pursue. (2:07-CV-02513-GMS, Doc. 580). 22
Finally, contrary to the few non-controlling and distinguishable cases Arpaio cites, 23
this is not a case in which the United States could have easily joined the prior litigation. 24
Cf. Charles J. Arndt, Inc. v. City of Birmingham, 748 F.2d 1486, 1494 (11th Cir. 1984) 25
(individual plaintiff was aware of and testified in the earlier suit); In re Air Crash 26
Disaster at Stapleton Int’l Airport, Denver, Colo., on Nov. 15, 1987, 720 F. Supp. 1505, 27
1523 (D. Colo. 1989) rev’d on other grounds by Johnson v. Cont’l Airlines Corp., 964 28
F.2d 1059 (10th Cir. 1992) (plaintiffs were aware of, testified in, and were represented by

- 35 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 36 of 52

1 the same counsel as plaintiffs in earlier suit). The timing issues discussed above, as well

2 as the differences between the federal government joining litigation versus an individual

3 plaintiff doing so, indicate the difficulty that would have been involved in consolidating

4 these two cases.

5

Because the United States did not “purpose[fully] elude[] the binding force of an

6 initial resolution of a simple issue” nor improperly interfere in the initial proceeding such

7 that this case would represent its second bite of the apple, non-mutual, offensive issue

8 preclusion would not be unfair and, therefore, should be granted in this case. Starker v.

9 United States, 602 F.2d 1341, 1349-1350 (9th Cir. 1979). Indeed, employing the doctrine

10 here will promote judicial economy and all parties’ interest in expeditious resolution.

11 Therefore, summary judgment on this issue will be granted, and the United States will be

12 permitted to offer the factual findings and rulings from Melendres in support of its

13 claims.

14

B. Application of Non-Mutual, Offensive Issue Preclusion to Maricopa

15 County

16

Maricopa County argues non-mutual, offensive issue preclusion should not apply

17 to the County, which was not a party to Melendres. The United States argues non-mutual,

18 offensive issue preclusion should apply to Maricopa County because the County was only

19 dismissed from the previous suit because of its identity with MCSO, which was a party

and, further, that Maricopa County is in privity with MCSO and Arpaio with respect to 20
the previous litigation and was adequately represented therein. 21
“A person who was not a party to a suit generally has not had a ‘full and fair 22
opportunity to litigate’ the claims and issues settled in that suit.” Taylor v. Sturgell, 553 23
U.S. 880, 892 (2008). But the Supreme Court has recognized six categories of exceptions 24
to this general principle. A nonparty may be precluded from relitigating an issue from a 25
prior case when: (1) the nonparty agreed to be bound by the determinations of the prior 26
case; (2) the nonparty had a “pre-existing ‘substantive legal relationship’” with a party
27

28

- 36 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 37 of 52

1 bound by the judgment;22 (3) the nonparty was “adequately represented by someone with 2 the same interests who [wa]s a party”;23 (4) the nonparty “‘assume[d] control’ over the

3 litigation in which [the] judgment was rendered;” (5) a party to the previous litigation

4 was a “designated representative” or proxy of the nonparty; and (6) a special statutory 5 scheme “expressly foreclose[es] successive litigation by nonlitigants.”24 Sturgell, 553

6 U.S. at 893-895. The third exception, adequate representation, requires: (1) the interests

7 of the nonparty and the party to the prior litigation were aligned in the litigation; (2) the

8 party to the prior litigation either understood itself to be acting in a representative

9 capacity or the original court took care to protect the interests of the nonparty; and, in

10 certain circumstances, (3) the nonparty had notice of the original suit. Id. at 900.25

11

The Sturgell decision represented a retreat from what the Supreme Court

12 characterized as lower courts’ expansive readings of “privity” doctrine as it applied to

13 issue preclusion. The phrase “substantive legal relationship” was deliberately substituted

14 for “privity” in an attempt to narrow the scope of the exception. See id. at 894, n. 8.

15 Previously, the Supreme Court had held issue preclusion could be applied to a nonparty
16 of the previous case when the nonparty was in privity with a party to the prior litigation.
17 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-403 (1940). In Adkins, the
18 Supreme Court held a suit involving the National Bituminous Coal Commission, a 19 federal entity, was binding on the entire federal government. Adkins, 310 U.S. at 402
(“There is privity between officers of the same government.”). “The crucial point,” the 20
Court stated, “[was] whether or not in the earlier litigation [the party] had authority to 21
represent [the nonparty’s] interests in a final adjudication of the issue in controversy.” Id. 22
at 403. The Ninth Circuit and other courts subsequently went further, holding that when 23

24

22 “Qualifying relationships include, but are not limited to, preceding and

25 succeeding owners of property, bailee and bailor, and assignee and assignor.” Id. at 894.

23 E.g. Class actions. 26

24 I.e. Bankruptcy proceedings. 27

25 Sturgell does not make clear whether the three additional factors articulated as 28 the requirements of “adequate representation” apply to all of the categories for proper

nonparty issue preclusion or just the one for “adequate representation.”

- 37 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 38 of 52

1 interests are sufficiently aligned, there may even be privity between “governmental

2 authorities as public enforcers of ordinances and private parties suing for enforcement as

3 private attorneys general.” In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997). In

4 Sturgell, the Supreme Court reframed its precedent as “endeavor[ing] to delineate

5 discrete exceptions [to the bar against nonparty preclusion] that apply in ‘limited 6 circumstances.’” Sturgell, 553 U.S. at 888.26

7

The parties in Melendres jointly stipulated to dismiss Maricopa County as “‘not . .

8 . necessary’ to obtain ‘complete relief.’” See (2:07-CV-02513-GMS, Doc. 178); Ortega

9 Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1039 (D. Ariz. 2009). But the stipulation was
10 made before the Arizona Court of Appeals ruled on MCSO’s status as a non-jural entity.
11 The stipulation was likely related to the County’s funding structure. Because Maricopa
12 County funds MCSO, “[w]hether the County or the Sheriff is liable is of no practical
13 consequence . . . they both lead to the same money.” Payne v. Arpaio, No. CV09-1195­
14 PHX-NVW, 2009 WL 3756679, at *6 (D. Ariz. Nov. 4, 2009). MCSO is not a separate
15 legal entity from the County. Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. 16 Ct. App. 2010). In its motion to dismiss in Melendres, Maricopa County called MCSO its 17 political subdivision. (Doc. 355-1 at 20). Therefore, there is little doubt Maricopa County 18 would qualify for the “substantive legal relationship” exception to the bar against 19 nonparty issue preclusion.
Even if the requirements for the “adequate representation” exception also apply, 20
Maricopa County qualifies for nonparty issue preclusion. Maricopa County argues its 21
interests were not aligned with MCSO because “the County contested its responsibility 22
for the Sheriff’s actions.” But MCSO also contested its liability for the Sheriff’s actions 23
and Maricopa County and MCSO together submitted a joint answer and joint motion to 24

25

26 The Supreme Court rejected the concept of “virtual representation,” which it

26

described as a more “expansive” basis for nonparty preclusion. “Virtual representation” had various definitions in the lower courts. The D.C. Circuit’s version held a nonparty

27

was virtually represented for purposes of preclusion where the nonparty: (1) shared an identity of interests with a party to the litigation, (2) was adequately represented in the

28

prior litigation, and (3) had either a close relationship with the putative representative, substantially participated in the prior case, or was tactically maneuvering to avoid

preclusion. Sturgell, 553 U.S. at 889-890.

- 38 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 39 of 52

1 dismiss the complaint. Maricopa County argues MCSO could not have “‘understood

2 itself to be acting in a representative capacity’ for the County.” Again, Maricopa County

3 and MCSO’s joint representation by counsel in Melendres and their joint submissions,

4 defenses, and arguments for dismissal demonstrate both the alignment of their interests

5 and their understanding of themselves as indistinguishable legal entities for purposes of

6 defending the suit. In fact, the Ninth Circuit recently ordered the Melendres court—post­

7 trial and after the issuance of an injunctive order—to substitute Maricopa County for

8 MCSO due to MCSO’s status as a non-jural entity. Melendres v. Arpaio, 784 F.3d 1254

9 (9th Cir. 2015). Without discussing the issue, the Ninth Circuit appears to have assumed

10 Maricopa County was adequately represented in the preceding Melendres litigation such

11 that adding it as a party for purposes of injunctive relief was fair and reasonable.

12

Therefore, summary judgment on this issue will be granted. The same non-mutual,

13 offensive issue preclusion that applies to Arpaio in this case as a result of Melendres will 14 also apply to Maricopa County.27

15

C. The Effect of Non-Mutual, Offensive Issue Preclusion

16

Application of non-mutual, offensive issue preclusion here means the United

17 States will not have to relitigate facts and issues decided in Melendres which also

18 underlie parts of the United States’ current claims. Instead, those issues will be given

“conclusive effect” here. See Restatement (Second) of Judgments § 13 (1982). The issues 19

include MCSO’s performance of traffic stops in connection with purported immigration 20

and human smuggling law enforcement, including “crime suppression operations” and 21
“saturation patrols,” during which the officers unlawfully relied on race, color, or 22
national origin, as well as MCSO’s use of Hispanic ancestry or race as a factor in forming 23
reasonable suspicion that persons violated state laws relating to immigration status in 24
violation of the Equal Protection Clause of the Fourteenth Amendment. See Melendres v. 25
Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013). In sum, in deciding the merits of the United 26
States’ claims, the Court will treat the Melendres findings relating to discriminatory
27

28

27 Neither party attempts to argue Maricopa County lacked notice of the previous

case.

- 39 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 40 of 52

1 enforcement of immigration laws through vehicle stops as findings of fact in this case.

2

The United States argues these findings from Melendres entitle it to summary

3 judgment on its discriminatory policing claims contained in Counts One, Three, and 4 Five.28

5

i. Count One

6

Count One claims violations of 42 U.S.C. § 14141 and the Fourteenth Amendment

7 based on MCSO’s law enforcement practices, including traffic stops, workplace raids,

8 home raids, and jail operations.

9

Section 14141 provides: “It shall be unlawful for any governmental authority, or

10 any agent thereof, or any person acting on behalf of a governmental authority, to engage

11 in a pattern or practice of conduct by law enforcement officers . . . that deprives persons

12 of rights, privileges, or immunities secured or protected by the Constitution or laws of the

13 United States.” 42 U.S.C. § 14141. A “pattern or practice” is “more than the mere

14 occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Int’l Bhd. of

15 Teamsters v. United States, 431 U.S. 324, 336 n.16 (1977). See also Obrey v. Johnson,

16 400 F.3d 691, 694 (9th Cir. 2005). In order to show a “pattern or practice,” one must

17 prove the conduct “was the [defendant’s] standard operating procedure the regular rather

18 than the unusual practice.” Teamsters, 431 U.S. at 336.

19

There is no dispute that Arpaio is a “governmental authority” under the statute,

and the Melendres court found Arpaio and MCSO violated the Constitution, specifically 20
the Equal Protection Clause of the Fourteenth Amendment. See Melendres v. Arpaio, 989 21
F. Supp. 2d 822 (D. Ariz. 2013). Furthermore, the findings of Melendres amount to a 22
“pattern or practice” under the statute. The Melendres court found Arpaio and MCSO at 23
one time promulgated official policies which “expressly permitted officers to make racial 24
classifications.” Melendres, 989 F. Supp. 2d at 899. The court also found that even once 25

26

28 The following analysis focuses on the Melendres court’s findings as to Arpaio,

27

but applies equally to Maricopa County because, as discussed in Part III(B), supra, Maricopa County is directly liable for the actions of Arpaio as its official policymaker on

28 law enforcement matters and for MCSO, a non-jural subdivision of the County.

- 40 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 41 of 52

1 these explicit policies were discontinued for facially race-neutral ones, intentional

2 discrimination on the basis of race continued to influence MCSO’s operations. Id. at 902­

3 904 (finding MCSO continued to instruct officers that although race could not be the only

4 basis for law enforcement action, it was a legitimate factor, among others, on which they

5 could base decisions pertaining to immigration enforcement). Overall, the court

6 concluded Arpaio and MCSO’s policies and procedures “institutionalize[d] the

7 systematic consideration of race as one factor among others in forming reasonable

8 suspicion or probable cause in making law enforcement decisions.” Id. at 898. These

9 findings clearly show a “pattern or practice.” The discrimination found by the Melendres

10 court was not of an isolated or accidental nature, but rather of standard operating

11 procedure throughout MCSO.

12

The United States has thus satisfied all of the elements for proving a portion of

13 Count One: violations of § 14141. However, the United States admits Count One is based

14 not only on the pattern of discriminatory conduct found in Melendres, but also on “three

15 other patterns or practices of unlawful conduct.” (Doc. 332 at 9). Thus, any injunctive

16 relief the Court ultimately grants will be based only on conduct it has found violated the
17 law. See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012)
18 (“Courts should not enjoin conduct that has not been found to violate any law.”).
19 Therefore, in order to obtain the full and greater relief it seeks under Count One,
including for allegations not decided in Melendres (namely a pattern or practice of 20
discrimination in workplace raids, home raids, and jail operations), the United States will 21
have the burden of proving those allegations at trial. 22
ii. Count Three 23
Count Three alleges violations of Title VI and its implementing regulations based 24
on Arpaio and MCSO’s disparate impact and disparate treatment of Latinos and the 25
office’s receipt of federal financial assistance. 26
Title VI and its implementing regulations prohibit discrimination against any 27
person on the basis of race, color, or national origin under “any program or activity 28
receiving Federal financial assistance.” 42 U.S.C. §§ 2000d; 28 C.F.R. §§ 42.104. A

- 41 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 42 of 52

1 “program or activity” is defined as: “(i) A department, agency, . . . or other

2 instrumentality of a State or of a local government; or (ii) The entity of such State or

3 local government that distributes such assistance and each such department or agency

4 (and each other State or local government entity) to which the assistance is extended, in

5 the case of assistance to a State or local government . . . .” 28 C.F.R. § 42.102(d).

6

MCSO is clearly a department of local government under the statute, and Arpaio is

7 its head. It is undisputed that MCSO and Arpaio received federal financial assistance.

8 And the Melendres court found MCSO and Arpaio discriminated on the basis of race.

9 Thus, the United States has again shown the Melendres findings satisfy the elements of

10 its claim. Summary judgment on a portion of Count Three will be granted. Again, this

11 ruling only potentially entitles the United States to relief tailored to the findings in

12 Melendres. Any additional and greater relief will be contingent on the United States

13 proving additional Title VI violations at trial.

14

iii. Count Five

15

Count Five is for violations of contractual assurances associated with Title VI and

16 the receipt of federal financial assistance.

17

DOJ regulations under Title VI require each recipient of federal financial

18 assistance to include an assurance that the recipient and subrecipients will comply with

19 Title VI and its implementing regulations. See 28 CFR § 42.105(a), (b). Violations of

Title VI, therefore, automatically violate these contractual assurances. Based on the 20

foregoing, summary judgment on a portion of Count Five will be granted. Again, the 21
relief granted will be based on the facts found in Melendres and any further facts and 22
violations the United States may prove at trial.29 23
V. Claims Related to LEP Inmates 24
Arpaio argues he is entitled to summary judgment on the allegations of intentional 25
discrimination or disparate treatment regarding limited English proficient (“LEP”)
26

27

29 In addition to liability based on the actions of Arpaio and MCSO, Maricopa

28

County is also liable for this claim based on the contractual assurances given by its Board of Supervisors, the entity which distributes federal funds to various County departments,

including Arpaio and MCSO.

- 42 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 43 of 52

1 inmates in Counts Four and Five. In reply, he also argues he is entitled to summary

2 judgment on allegations of disparate impact on LEP inmates. The United States claims it

3 has submitted ample evidence that Arpaio has and continues to intentionally discriminate

4 against LEP inmates in violation of Title VI. It also argues Arpaio did not initially move

5 for summary judgment on the disparate impact claims.

6

Whether or not Arpaio raised it in his initial motion, his argument that Title VI

7 applies only to intentional discrimination is not accurate. In Alexander v. Sandoval, the

8 Supreme Court held § 601 of Title VI created a private cause of action only for

9 intentional discrimination. 532 U.S. 275 (2001). But the Court chose to defer to

10 regulations promulgated by DOJ under § 602 of the law, which prohibited activities

11 having a disparate impact on the basis of race. Sandoval, 532 U.S. aqt 281-282. It

12 assumed without deciding that these regulations were reasonable and, therefore, valid. Id.

13 The focus in Sandoval was whether a private right of action existed to enforce the

14 disparate impact regulations DOJ had created. The Court held it did not, but declined to

15 address whether a disparate impact cause of action under Title VI existed. Id. As

16 discussed in Part III(A), supra, the Supreme Court’s analysis implies a cause of action for

17 disparate impact discrimination does lie. Therefore, summary judgment on the claim for

18 disparate impact discrimination will not be granted.

19

Regarding Arpaio’s motion with respect to intentional discrimination, Title VI

provides: “No person in the United States shall, on the ground of race, color, or national 20

origin, be excluded from participation in, be denied the benefits of, or be subjected to 21
discrimination under any program or activity receiving Federal financial assistance.” 42 22
U.S.C. § 2000d. DOJ’s implementing regulations specifically prohibit “[restricting] an 23
individual in any way in the enjoyment of any advantage or privilege enjoyed by others 24
receiving any disposition, service, financial aid, or benefit under the program,” 28 C.F.R. 25
§ 42.104(b)(1)(iv), or “[utilizing] criteria or methods of administration which have the 26
effect of subjecting individuals to discrimination . . . [or] defeating or substantially
27 impairing accomplishment of the objectives of the program as respects individuals of a

28 particular race, color, or national origin.” 28 C.F.R. § 42.104(b)(2) (emphasis added).

- 43 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 44 of 52

1

DOJ guidance provides, a federal funding recipient must “take reasonable steps to

2 ensure ‘meaningful’ access to the information and services they provide [to LEP

3 inmates].” Department of Justice, Enforcement of Title VI of the Civil Rights Act of

4 1964—National Origin Discrimination Against Persons With Limited English

5 Proficiency; Policy Guidance, 65 FR 50123-01, 50124 (Aug. 16, 2000); Department of

6 Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI

7 Prohibition Against National Origin Discrimination Affecting Limited English Proficient

8 Persons, 67 Fed. Reg. 41455, 41469-70 (Jun 18, 2002).

9

The McDonnell Douglas burden shifting framework applies to Title VI disparate

10 treatment claims. Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014). “First,

11 the plaintiff has the burden of proving by [a] preponderance of the evidence a prima facie

12 case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case,

13 the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason

14 for the [treatment].’” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 248 (1981)

15 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

16

Arpaio argues he has made reasonable efforts to provide LEP inmates with

17 meaningful access to information and services, thus defeating the United States’ claim.

18 He cites his DI-6 Policy, which states LEP inmates are to have “the same rights and

19 protections mandated by federal, state, and local laws.” (Doc. 345 at 10). The United

States attacks these assertions on three grounds: (1) the DI-6 Policy on which Arpaio 20

relies was not enacted until October 2013—eighteen months after the U.S. brought suit; 21
(2) the pre-DI-6 Policy actions Arpaio took to address LEP discrimination were 22
insufficient to meet the “reasonable steps” requirement; and (3) notwithstanding the 23
enactment of the DI-6 Policy, evidence shows disparate treatment of a significant level of 24
continuing harm to LEP inmates. The DI-6 Policy was, indeed, enacted in 2013. But 25
Arpaio claims the policy memorialized “MCSO’s long standing, reasonable efforts to 26
ensure LEP inmates have meaningful access.” (Doc. 358 at 6). He contests the claim that
27 the United States’ evidence proves “a significant number of LEP beneficiaries” are being

28 deprived of access. Id. at 7 (emphasis in original). The arguments are fact-based, and the

- 44 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 45 of 52

1 facts are in dispute, namely how Arpaio and MCSO were treating LEP inmates prior and

2 subsequent to the October 2013 enactment of the DI-6 Policy and the effects of that

3 treatment. (See Doc. 353 beginning at ¶ 65). Therefore, this issue is not appropriate for

4 summary judgment.

5 VI. Retaliation Claims

6

Arpaio argues he is entitled to summary judgment on Count Six: the United

7 States’ claim for retaliation pursuant to § 14141. Arpaio argues the claim is premised on

8 bar complaints, which are absolutely privileged under state law, and lawsuits, for which

9 the United States has failed to show he lacked reasonable suspicion or probable cause.

10 The United States claims the Arizona privilege for state bar complaints does not bar suits

11 for federal civil rights violations and that pleading a lack of probable cause is not

12 required for a claim of retaliation in violation of the First Amendment.

13

A. Bar Complaints

14

Arpaio claims his complaints to the state bar cannot function as grounds for a

15 claim for First Amendment violations. The United States contends the Arizona statute

16 providing privilege for bar complaints cannot block a suit based on federal law and, by

17 implication, can form the basis of such a suit.

18

Arizona courts have established “an absolute privilege extended to anyone who

19 files a complaint with the State Bar alleging unethical conduct by an attorney.”

Drummond v. Stahl, 127 Ariz. 122, 126 (Ct. App. 1980) (“[P]ublic policy demands the 20

free reporting of unethical conduct”). However, the Supreme Court and the Ninth Circuit 21
have held that “state law cannot provide immunity from suit for federal civil rights 22
violations.” Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000); Martinez v. State of 23
Cal., 444 U.S. 277, 285, n. 8 (1980) (“A construction of the federal statute which 24
permitted a state immunity defense to have controlling effect would transmute a basic 25
guarantee into an illusory promise; and the supremacy clause of the Constitution insures 26
that the proper construction may be enforced”). For example, in Imbler v. Pachtman, the
27 Court held common law prosecutorial immunity applies to cases under § 1983. 424 U.S.

28

- 45 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 46 of 52

1 409 (1976).30 But the Fifth Circuit refused to extend prosecutorial immunity to decisions

2 to bring complaints before state ethics commissions, even where a state law also provides

3 absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.

4 2011) (“Lampton likely enjoys immunity from the state law claims under Mississippi

5 law. . . . [H]owever, federal law does not provide immunity to complainants before state

6 ethics committees . . . . In the absence of congressional action, we should not create that

7 immunity merely because it may be desirable for some policy reason.”).

8

Arpaio cites Donahoe v. Arpaio in support of his position. 869 F. Supp. 2d 1020

9 (D. Ariz. 2012) aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 2013). In

10 Donahoe, Arpaio had filed suit against various Maricopa County officials—including

11 members of the Board of Supervisors and judges—under the federal Racketeer

12 Influenced and Corrupt Organization Act (“RICO”). He claimed the officials were

13 improperly using their power to obstruct a criminal investigation. Arpaio’s allegations

14 spanned a variety of conduct and included his adversaries’ filing of bar complaints

15 against the County Attorney. Id. The officials sued Arpaio for retaliation for the exercise

16 of their First Amendment rights. Id. The district court held Arpaio’s alleged injuries were

17 not actionable under RICO, nor was the conduct on which the claim was based, including

18 bar complaints. Id. at 1053.

19

Donahoe is an anomaly. The case law cited above strongly indicates state law

immunities do not bar federal suits or prevent those suits from being based on elements 20
immune from suit under state law. The Donahoe court did not consider previous 21
decisions regarding the interaction between state law immunities and federal causes of 22
action, nor the Supremacy Clause issues on which those decisions were based. As an 23
outlier, Donahoe is not a proper basis on which to grant this motion. Therefore, summary 24
judgment will be denied on Arpaio’s claim that bar complaints cannot form the basis of a 25
retaliation claim. 26

27

28

30 The Court also held the scope of that immunity was fixed at what it was in 1871,

the year § 1983 was enacted.

- 46 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 47 of 52

1

B. Probable Cause

2

Arpaio argues the United States’ retaliation claim must fail because the United

3 States does not and cannot show Arpaio lacked probable cause for the lawsuits it claims

4 were retaliatory. The United States argues it is not required to show lack of probable

5 cause to succeed in a claim for retaliatory law enforcement action.

6

To prove a claim for retaliation in violation of the First Amendment, a plaintiff

7 must show: (1) the defendant “took action that ‘would chill or silence a person of

8 ordinary firmness from future First Amendment activities’” and (2) the defendant’s

9 “desire to cause the chilling effect was a but-for cause of the defendant’s action.” Skoog

10 v. Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (citing Mendocino Envtl. Ctr.

11 v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.1999); Hartman v. Moore, 547 U.S.

12 250 (2006)).

13

At the time Skoog was decided, whether a plaintiff had to plead a lack of probable

14 cause in order to satisfy the second requirement was “an open question in [the Ninth

15 Circuit] and the subject of a split in other circuits.” Id. The Skoog court held “a plaintiff

16 need not plead the absence of probable cause in order to state a claim for retaliation.” Id.
17 The court contrasted this with the Supreme Court’s ruling in Hartman v. Moore, where
18 the Supreme Court held plaintiffs claiming retaliatory prosecution must plead lack of
19 probable cause. 547 U.S. 250 (2006). The reason, the Hartman Court stated, was that a
claim for retaliatory prosecution involves showing “an official bent on retaliation” 20
convinced a prosecutor to filed suit. Id. at 260-266. In an “ordinary” retaliation claim, by 21
contrast, the retaliatory action is performed directly by the retaliation-driven official. The 22
causal link between retaliatory animus and retaliatory action, therefore, is more readily 23
apparent in a case of pure retaliation than in a case of retaliatory prosecution where 24
“some evidence must link the allegedly retaliatory official to a prosecutor whose action 25
has injured the plaintiff[, and t]he connection, to be alleged and shown, is the absence of 26
probable cause.” Id. at 263. 27
The United States’ claim against Arpaio includes ordinary retaliation, as well as 28
retaliatory prosecution. It alleges, with retaliatory motive, Arpaio complained to the

- 47 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 48 of 52

1 Arizona Commission on Judicial Conduct, ordered arrests, and initiated lawsuits through

2 then County Attorney Andrew Thomas (“Thomas”). (Doc. 1 at 23-25). Arpaio

3 acknowledges Skoog, but argues “the Ninth Circuit has shifted away from [its]

4 conclusion.” (Doc. 345 at 14). He cites Acosta v. City of Costa Mesa, for the proposition

5 that the Ninth Circuit has “affirmatively stated that the existence of probable cause is

6 dispositive of a retaliatory arrest claim.” (Doc. 345 at 14) (emphasis added); see Acosta

7 v. City of Costa Mesa, 718 F.3d 800, 825 (9th Cir. 2013). Acosta addressed the question

8 of whether arresting officers were entitled to qualified immunity for claims of retaliatory

9 arrest. The Ninth Circuit held, for purposes of qualified immunity, “there [was no] clearly

10 established First Amendment right to be free from a retaliatory arrest that is otherwise

11 supported by probable cause.” Acosta, 718 F.3d at 825 (citing Reichle v. Howards, 132 S.

12 Ct. 2088, 2097 (2012)) (emphasis added). The United States argues, whether or not this

13 right would have been clear to an arresting officer, it exists and applies here. The United

14 States is correct.

15

As the Ninth Circuit’s analysis in Ford v. City of Yakima shows, the question of

16 the substance of a constitutional right is distinct from the question of whether that right
17 was clearly established for purposes of qualified immunity. 706 F.3d 1188 (9th Cir.
18 2013). The Supreme Court has held Hartman’s impact on the requirements for a claim of
19 retaliatory arrest was “far from clear” at the time it was decided. Thus, an officer accused
of retaliatory arrest could assert the defense of qualified immunity because Hartman’s 20
rule regarding probable cause did not necessarily extend to the area of retaliatory arrests. 21
Reichle v. Howards, 132 S. Ct. 2088, 2095-96 (2012). But the Court specially noted, 22
unlike in a claim for retaliatory prosecution, “in many retaliatory arrest cases, it is the 23
officer bearing the alleged animus who makes the injurious arrest.” Id. at 2096. 24
Nevertheless, the Court stopped short of providing a definitive answer as to whether 25
proving lack of probable cause was necessary to succeed on a claim for retaliatory arrest. 26
Instead, the Court simply stated, “Hartman injected uncertainty into the law governing 27
retaliatory arrests.” Id. Since Hartman and Reichle, the Ninth Circuit has continued to 28
hold “an individual has a right ‘to be free from police action motivated by retaliatory

- 48 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 49 of 52

1 animus but for which there was probable cause.’” Ford, 706 F.3d at 1193 (citing Skoog,

2 469 F.3d at 1235).

3

Arpaio does not assert the defense of qualified immunity in this motion (nor could

4 he in an action for declaratory or injunctive relief). The single issue is whether the United

5 States’ claim fails because it does not plead lack of probable cause. It does not. First,

6 again the claim is premised, in part, on conduct for which the United States would not

7 have to prove a lack of probable cause: judicial complaints and arrests. Second, Arpaio

8 has not shown as a matter of law there was probable cause for the lawsuits in question,

9 nor that the United States is incapable of proving there was not probable cause for the

10 suits. Therefore, summary judgment on these grounds will be denied.

11

C. Justiciability: Standing and Mootness

12

Arpaio denies he retaliated against his critics for voicing their disapproval of his

13 practices. He also claims the United States lacks standing to bring a retaliation claim

14 because the alleged conduct represents a past wrong with no real or immediate threat of

15 future retaliation. The United States argues standing does not require the immediate

16 threat of unlawful conduct, but rather injury, and that the harm caused by Arpaio’s past

17 retaliation persists. It also claims the “voluntary cessation” exception to mootness

18 doctrine applies, maintaining this claim’s justiciability.

19

In order for a case to be justiciable, “[t]he plaintiff must show that he ‘has

sustained or is immediately in danger of sustaining some direct injury’ as the result of the 20

challenged official conduct and the injury or threat of injury must be both ‘real and 21
immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 22
95, 101-02 (1983) (citations omitted). 23
“It is well settled that ‘a defendant’s voluntary cessation of a challenged practice 24
does not deprive a federal court of its power to determine the legality of the practice.’” 25
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) 26
(citation omitted). A case only becomes moot in the context of a voluntary cessation “if
27 subsequent events [make] it absolutely clear that the allegedly wrongful behavior could

28 not reasonably be expected to recur.” Id. (citing United States v. Concentrated Phosphate

- 49 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 50 of 52

1 Export Ass’n., 393 U.S. 199, 203 (1968)) (emphasis added). “[A] voluntary governmental

2 cessation of possibly wrongful conduct [may be treated] with some solicitude.” Sossamon

3 v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009). But courts warn the

4 solicitude should only be applied where the “self-correction . . . appears genuine.”

5 Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988).

6

Arpaio does not contest that he and MCSO filed the lawsuits, submitted bar

7 complaints, and performed the arrests the United States alleges. What Arpaio contests is

8 the allegation that these actions were performed in retaliation for criticism he and his

9 office received. In other words, that they were done with retaliatory animus. But the

10 United States’ facts are sufficient to raise a reasonable inference that Arpaio’s actions

11 were performed out of retaliatory animus. Arpaio’s conclusory denials do not defeat this

12 evidence. Therefore, summary judgment will not be granted on these grounds.

13

Arpaio’s second argument—even if he at one time retaliated against critics in the

14 manner alleged, there is insufficient proof the threat continues—is not persuasive. If the

15 United States’ allegations of past retaliation are true, there is a genuine issue of material

16 fact as to the ongoing effect of those actions. Arpaio remains Sheriff of Maricopa County
17 and retains the power he allegedly misused to perform acts of retaliation. He has offered
18 no facts showing any fear or chilling his actions may have caused has permanently ended
19 or abated since his claimed cessation. Therefore, summary judgment on this issue will be
denied. 20
VII. Obey the Law Injunction 21
Arpaio claims the United States’ prayer for relief is an improper “obey the law” 22
injunction, which entitles him to summary judgment on all counts. The United States 23
argues the Court has broad discretion to shape remedies and it “would be premature to 24
determine the availability of any injunctive relief without first hearing the evidence in 25
dispute.” (Doc. 350 at 17). 26
Under the federal rules, “[e]very order granting an injunction and every restraining 27
order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) 28
describe in reasonable detail—and not by referring to the complaint or other document—

- 50 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 51 of 52

1 the act or acts restrained or required.” Fed. R. Civ. P. 65(d). As such, “blanket injunctions

2 to obey the law are disfavored.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,

3 518 F. Supp. 2d 1197, 1226 (C.D. Cal. 2007) (quoting Mulcahy v. Cheetah Learning

4 LLC, 386 F.3d 849, 852 n. 1 (8th Cir. 2004)) (internal quotation marks omitted). But

5 district courts have broad discretion to shape equitable remedies. See Monsanto Co. v.

6 Geertson Seed Farms, 561 U.S. 139, 175 (2010). When an appellate court finds a trial

7 court abused its discretion by issuing an overly broad order, it may strike those provisions

8 “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express

9 Pub. Co., 312 U.S. 426, 435 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th

10 Cir. 2005) (holding general “obey-the-law” injunctions unenforceable).

11

The purpose of Rule 65(d) is to ensure defendants have fair notice of what conduct

12 is prohibited and to avoid undue restraint. The Ninth Circuit has “not adopted a rule

13 against ‘obey the law’ injunctions per se.” F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 944

14 (9th Cir. 2012). Instead the court recognizes, in certain circumstances, “injunction[s] . . .

15 framed in language almost identical to the statutory mandate . . . [are not] vague” because

16 they “adequately describe the impermissible conduct.” United States v. Miller, 588 F.2d
17 1256, 1261 (9th Cir. 1978). See also E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th
18 Cir. 2013) (holding “obey-the-law” injunctions may be an “appropriate” form of
19 equitable relief where evidence suggests the proven illegal conduct may continue or be
resumed, for example, when those responsible for workplace discrimination remain with 20
the same employer or some other factor “convinces the court that voluntary compliance 21
with the law will not be forthcoming”). 22
A request for an injunction is not determinative of the type of relief the court will 23
ultimately issue. Only if the court ultimately issues an inappropriately broad or non­ 24
specific injunction might a defendant be entitled to relief from that order. Hence, an 25
overbroad request does not entitle the defendant to judgment as a matter of law on the 26
underlying claims. Furthermore, in the Ninth Circuit, injunctions tracking statutory 27
language are not per se invalid. Therefore, it is premature for Arpaio to challenge an 28
injunctive order that has yet to be issued in a case in which numerous matters remain to

- 51 ­

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 52 of 52

1 be decided. Summary judgment on these grounds will not be granted.

2

Accordingly,

3

IT IS ORDERED Defendant Maricopa County’s Motion for Summary Judgment,

4 (Doc. 334), is DENIED.

5

IT IS FURTHER ORDERED Defendant Arpaio’s Motion for Partial Summary

6 Judgment, (Doc. 345), is DENIED. His prior motion for partial summary judgment,

7 which exceeded page limits, (Doc. 336), is STRICKEN.

8

IT IS FURTHER ORDERED Plaintiff the United States’ Motion for Partial

9 Summary Judgment, (Doc. 332), is GRANTED. Non-mutual, offensive issue preclusion

10 bars relitigation of issues previously decided in Melendres v. Arpaio. As a result,

11 summary judgment is granted regarding the discriminatory traffic stop claims in Counts

12 One, Three, and Five.

13

Dated this 15th day of June, 2015.

14

15

16

Honorable Roslyn O. Silver

17

Senior United States District Judge

18

19

20

21

22

23

24

25

26

27

28

- 52 ­

 </s> Case 2:10-cv-01878-GMS Document 65 Filed 08/01/11 Page 1 of 1

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 United States of America,

10

Plaintiff,

11

v.

12 Maricopa County, Arizona; Maricopa

13

County Sheriff’s Office; and Joseph M. Arpaio, in his official capacity as Sheriff of

14 Maricopa County, Arizona,

15

Defendants.

No. CV-10-1878-GMS ORDER

16

17 The Court, upon having reviewed the United States’ Motion to Dismiss (Doc.

18 63), and being advised in the premises,

19

IT IS HEREBY ORDERED granting the Motion and dismissing this action

20 without prejudice pursuant to Fed. R. Civ. P. 41(a)(2), each party to bear their own

21 costs and fees.

22 Dated this 1st day of August, 2011.

23

24

25

26

27

28

1

 </s> Assistant Attorney General

Washinx/on, D,C. 20530

December 15,2011
Mr. Bill Montgomery County Attorney Maricopa County 301 West Jefferson Street Phoenix, AZ 85003
Re: United States' Investigation of the Maricopa County Sheriffs Office
Dear Mr. Montgomery:
We write to report the findings of the Civil Rights Division's investigation into civil rights violations by the Maricopa County Sheriffs Office ("MCSO"). Our initial inquiry began in June 2008, and the investigation has focused on MCSO's compliance with the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141"), and Title VI of the Civil Rights Act of 1964,42 U.S.C. §§ 2000d to 2000d-7 and its implementing regulations at 28 C.F.R. § 42.101 et seq. ("Title VI"). Section 14141 prohibits law enforcement agencies, such as MCSO, from engaging in activities that amount to a pattern or practice of violating the Constitution or laws of the United States. Title VI and its implementing regulations provide that recipients of federal financial assistance, such as MCSO, may not discriminate on the basis of race, color, or national origin. These laws give the United States the authority to file legal action and obtain the necessary relief to ensure compliance with the Constitution and laws of the United States.
We notified MCSO of our formal investigation in March 2009. I During our investigation, aided by four leading police practice experts, one jail expert, and an expert on statistical analysis, we reviewed tens of thousands of pages of documentary evidence; toured MCSO'sjails; and interviewed over 400 individuals, including approximately 150 former and current MCSO jail inmates, and more than 75 former and current MCSO personnel, including the Sheriff, the Chief of Enforcement, the Chief of Patrol, the Administrative Investigative Commander, the Sergeant heading MCSO's Criminal Employment Squad, and the Lieutenant heading MCSO's Human Smuggling Unit.

lOur investigation was delayed when MeSO repeatedly refused to provide the United States with access to pertinent material and personnel. After repeated attempts to resolve the dispute short of litigation, the United States filed a lawsuit in September 2010 to secure MeSO's compliance with its legal obligations to provide information pertinent to our investigation. The United States and Meso eventually resolved this lawsuit in June 2011 after MeSO agreed to provide us with the information and access we had been seeking.

-2­
Based upon our extensive investigation, we find reasonable cause to believe that MCSO engages in a pattern or practice of unconstitutional policing. Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO's policies or practices, all in violation of Section 14141. MCSO's discriminatory police conduct additionally violates Title VI and its implementing regulations.
We also find reasonable cause to believe that MCSO operates its jails in a manner that discriminates against its limited English proficient ("LEP") Latino inmates. Specifically, we find that MCSO, through the actions of its deputies, detention officers, supervisory staff, and command staff, routinely punishes Latino LEP inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations.
The absence of clear policies and procedures to ensure effective and constitutional policing, along with the deviations from widely accepted policing and correctional practices, and the failure to implement meaningful oversight and accountability structures, have contributed to a chronic culture of disregard for basic legal and constitutional obligations.
In addition to the formal findings noted above, we have identified three additional areas of serious concern that, while not warranting a formal pattern or practice finding at this time, require further investigation. First, our investigation revealed a number of troubling incidents involving MCSO deputies using excessive force against Latinos. Second, we observed that MCSO has implemented its immigration enforcement program in a way that has created a "wall of distrust" between MCSO officers and Maricopa County's Latino residents-a wall of distrust that has significantly compromised MCSO's ability to provide police protection to Maricopa County's Latino residents? Third, we have expanded our investigation to encompass a review of serious allegations that MCSO failed to investigate a large number of sex crimes.
Given the systemic nature ofMCSO's constitutional violations, effective resolution of this matter will require the development of a comprehensive written agreement along with federal judicial oversight. We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary. We would like to immediately begin a constructive dialogue about comprehensive and sustainable ways to remedy the identified violations of the Constitution and federal law. Please let us know by close of business on January 4,2012, ifMCSO is interested in having this dialogue. IfMCSO is not interested or if we deem that MCSO is not engaged in good-faith efforts to achieve compliance by voluntary means, we are prepared to file a civil action to compel compliance.
In the remainder of this letter, we highlight our factual and legal findings, broadly describe our investigation ofMCSO's practices, provide an outline of our factual findings in sufficient detail to give you fair notice of the violations committed, briefly discuss how those
2 During one of our interviews, an MeSO deputy used the term "wall of distrust" to describe the adverse effect of MeSO's immigration law enforcement policies on the relationship between Meso and the Latino community.

-3­
factual findings relate to MCSO's violations of federal law, and outline the remedial measures MCSO must undertake to comply with the law.
SUMMARY OF FINDINGS
Discriminatory Policing
Our factual findings relating to MCSO's discriminatory police practices include, but are not limited to, the following:
• Based upon a recent statistical study, commissioned by the Department of Justice ("Department"), of MCSO traffic stop activities on Maricopa County roadways, Latino drivers are four to nine times more likely to be stopped than similarly situated non-Latino drivers.
• Our review (which was conducted with the assistance of our expert law enforcement consultants) of all of the traffic-related incident reports generated by MCSO's Human Smuggling Unit ("HSU") over a three-year period showed that roughly one-fifth of the reports, almost all of which involved Latino drivers, contained information indicating that the stops were conducted in violation of the Fourth Amendment's prohibition against unreasonable seizures.
• Individual accounts regarding MCSO deputies stopping Latinos on the basis of their appearance corroborate the use of discriminatory policing practices.
• Our investigation uncovered a number of instances in which immigration-related crime suppression activities were initiated in the community after MCSO received complaints that described no criminal activity, put rather referred, for instance, to individuals with "dark skin" congregating in one area, or individuals speaking Spanish at a local business. The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification.
Discriminatory Jail Practices
With respect to MCSO's jail practices, MCSO sent us a 53-page letter acknowledging its obligations to treat inmates who are limited English proficient ("LEP inmates") in accordance with its obligations under federal law and provided examples of how it allegedly complies with those obligations. However, our investigation uncovered the following:
• MCSO detention officers discriminatorily punish Latino LEP inmates who fail to understand commands given in English by, for example, locking down their pods (which increases the risk of inmate-on-inmate violence), or imposing disciplinary segregation (solitary confinement).
• MCSO detention officers refuse to accept forms completed by Latino LEP inmates in Spanish. Such forms include tank orders, which enable inmates to request basic daily services, and grievance forms, which enable inmates to identify and address alleged

-4­
mistreatment. Even in instances when Spanish language requests are accepted, Latino LEP inmates face delays in services for not submitting requests and grievance forms in English.
• MCSO pressures Latino LEP inmates to sign voluntary return forms that implicate constitutional and statutory rights without language assistance.
• Latino LEP inmates are limited in their ability to access important services, such as services enabling early release, and are denied access to basic information about programs and services, since most announcements are made in English only.
Findings Pertaining to Both Police and Jail Practices
• MCSO retaliates against individuals who criticize its police practices, including practices relating to its discriminatory treatment of Latinos, by subjecting its critics to retaliatory detentions and arrests without cause, unfounded civil lawsuits, and other baseless complaints.
• MCSO fosters and perpetuates discriminatory police and jail practices by failing to operate in accordance with basic policing and correctional practices and by failing to develop and implement policing and correctional safeguards against discrimination in such areas as training, supervision, and accountability systems.
• The pervasive nature ofMCSO's discriminatory treatment of Latinos reflects a general culture of bias within MCSO.
Legal Findings Under Section 14141 & Title VI and its Implementing Regulations
The evidence uncovered during our investigation supports the following legal conclusions/determinations:
• MCSO discriminates against Latinos by engaging in police practices that violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Section 14141, Title VI, and the Department's Title VI implementing regulations.
• MCSO discriminates against its Latino LEP inmates onthe basis of their national origin in violation of Title VI and the Department's Title VI implementing regulations.
• MCSO engages in a pattern or practice of unlawful seizures, including unjustified stops, detentions, and arrests, of Latinos in violation of the Fourth Amendment to the United States Constitution and Section 14141.
• MCSO engages in a pattern or practice of retaliatory actions against individuals who complain about MCSO's conduct or criticize MCSO's operations and policies,

-5­
especially its immigration-related policies, in violation of the First Amendment to the United States Constitution and Section 14141.
INVESTIGATIVE BACKGROUND
In June 2008, after considering publicly available information, the Civil Rights Division opened a preliminary inquiry into allegations that MCSO was engaged in a pattern or practice of unlawful conduct. The inquiry was unrelated to a previous investigation of Maricopa County jails concerning the excessive use of force against inmates and MCSO's deliberate indifference towards their medical needs. 3 On March 10,2009, we notified MCSO and Sheriff Joseph Arpaio that we were investigating allegations of discriminatory police practices, unlawful search and seizures, and discriminatory treatment' of Latino LEP inmates. Shortly thereafter, MCSO refused to provide the Department with access to pertinent documents, facilities, and personnel. For over eighteen months, MCSO consistently refused to cooperate with our investigation. As a result, we had to assert our right to access pertinent sources of information. On September 2, 2010, the United States filed suit against MCSO under Title VI, its implementing regulations, and the contractual assurances MCSO had entered into with the United States, all of which require MCSO, as a recipient of federal financial assistance, to cooperate with investigations relating to Title VI compliance. During this period, we continued our investigation without the cooperation of MCSO, gathering and reviewing documents from various sources external to MCSO and interviewing numerous Maricopa County residents who provided accounts of being victims of MCSO's discriminatory police practices.
After we filed our Title VI lawsuit, MCSO reversed course, and provided us with the cooperation we had been seeking. MCSO permitted the Department's attorneys and experts to interview Sheriff Arpaio; conduct dozens of interviews, including interviews of command staff, deputies, detention officers, first-line supervisors, and jail inmates. MCSO also allowed tours of its six facilities and responded to our original document requests. Moreover, under the terms of a court-enforceable agreement entered into on June 2, 2011, MCSO committed itself to providing the Department with any remaining access the Department needed in order to complete its investigation.
Our findings are based on the information we received prior to and as a result of our Title VI suit and subsequent agreement, including reviewing official documents and interviewing numerous MCSO officials and Maricopa County residents. In addition, our findings incorporate the analysis of experts, including four current and former police executives with extensive knowledge of policing standards and practices, a correctional expert with substantial experience as a correctional administrator and a jail and prison auditor, and a statistician with extensive experience reviewing police practices.
3 In August 1995, the Civil Rights Division initiated an investigation to determine whether conditions at MCSO jails violated inmates' constitutional rights, pursuant to the Civil Rights ofInstitutionalized Persons Act, 42 U.S.c. § 1997 et seq. We concluded that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997.

-6­
FACTUAL FINDINGS
We find that MCSO deputies, detention officers, supervisory staff, and command staff, including Sheriff Arpaio, have engaged in a widespread pattern or practice of law enforcement and jail activities that discriminate against Latinos. This discrimination flows directly from a culture of bias and institutional deficiencies that result in the discriminatory treatment of Latinos.
A. Discriminatory Police Practices
Both the Constitution and Title VI prohibit intentional discrimination on the basis of race, color, or national origin. In addition, Title VI's implementing regulations ban recipients of federal funds from engaging in activities that have a discriminatory effect on the basis of race, color, or national origin.
It is MCSO's prerogative to establish enforcement priorities. At the same time, in the course of implementing its enforcement priorities, MCSO must comply with the Constitution and laws of the United States. Since roughly 2007, in the course of establishing its immigration enforcement program, MCSO has implemented practices that treat Latinos as if they are all undocumented, regardless of whether a legitimate factual basis exists to suspect that a person is undocumented. By emphasizing its immigration enforcement efforts without following basic policing protocols and without implementing any meaningful safeguards against discriminatory police practices, MCSO has engaged in a series of practices that have adversely and disproportionately impacted Latinos. While MCSO has undergone some recent changes in its command staff, these problems have continued, and we have observed no substantive changes in MCSO's policies, protocols, or policing practices.
First, MCSO deputies target Latino drivers. A statistical analysis ofMCSO's traffic stops made since the initiation ofMCSO's immigration enforcement program-which is dominated by the use of pretextual stops-shows that MCSO's enforcement practices have a discriminatory impact on Latino drivers. We had a leading expert on measuring racial profiling through statistical analysis examine MCSO traffic stops. The expert found that Latino drivers were between four to nine times more likely to be stopped than similarly situated non-Latino drivers. Overall, the expert concluded that this case involves the most egregious racial profiling in the United States that he has ever personally seen in the course of his work, observed in litigation, or reviewed in professional literature.
Second, MCSO's HSU, which purportedly focuses on interdicting both human smugglers and their victims, engages in unlawful conduct in its attempts to enforce immigration-related laws. HSU deputies stop, detain, and/or arrest Latino drivers without adequate cause. When we reviewed all of the traffic-related incident reports generated by HSU from March 2006 to March 2009, we found that roughly 20% of the reports contained information indicating that the stops, almost all of which involved Latino drivers, were conducted without reasonable suspicion or probable cause. Further, HSU's enforcement actions rarely result in human smuggling arrests. During our interviews, an HSU deputy stressed that his unit conducts a "ton of stops" and he estimated the "hit rate" (success rate as measured by frequency of smuggling arrests) to be at 10% to 15%. Accordingly, 85% to 90% of the vehicles HSU stops purportedly based on suspicion of immigration violations have, at most, committed a traffic violation. Pretextual stops

-7­
motivated by racial bias, or that are the result of a policy targeting a protected group, are impermissible. The typical characteristic ofHSU's enforcement efforts is, therefore, the targeting and harassment of Latino drivers rather than the effective enforcement of immigration law, an element ofMCSO's overall pattern of discrimination against Latinos in Maricopa County.
Third, witness accounts are consistent with the data: MCSO's immigration enforcement practices are unconstitutional and are harming innocent Latinos. Below are just two of the many examples we discovered during our investigation:
• AA, a legal resident of the United States who is Latino, was pulled over by an MCSO deputy in June 2008, during a crime suppression operation in Mesa, due to an alleged failure to use his turn-signal. The deputy requested that AA provide a driver license and other documents. AA did not produce a driver license, but did provide the deputy with an Arizona identification card, a valid work visa, a Social Security card, and a Mexican passport. Without any evidence that AA had engaged in criminal activity, the deputy instructed him to sit on the curb of the street for 15 minutes. The deputy then placed AA under arrest for failing to provide any type of proper identification, even though AA had provided him with multiple documents in satisfaction of the Arizona law regarding unlicensed drivers. AA was incarcerated for 13 days before his citation was dismissed.
• B.B., a legal resident of the United States, and his 12 year-old son, a U.S. citizen, are both Latino. In May 2009, a group ofMCSO deputies conducted a raid of a house neighboring B.B.'s home that the deputies suspected of being a "drop house" for human smuggling. At some point during the raid, two of the MCSO deputies involved entered AA's home after obtaining consent to enter. Without obtaining consent to search, the deputies searched the home without a warrant. Although they found no evidence of criminal activity in the house, the MCSO deputies proceeded to handcuff both B.B. and his son with plastic zip-ties and remove them from their ' home. The deputies directed both to sit on the sidewalk next to approximately ten other individuals who had been removed from the neighboring house. MCSO released B.B. and his son without any citation after detaining them with restraints for more than an hour.
Fourth, we find that MCSO's regular and highly publicized "crime suppression" operations adversely impact Latinos. During these operations, which often use vast numbers of personnel for many hours and which one MCSO lieutenant referred to as "round-ups of illegal aliens," deputies are encouraged to make high-volume pretextual traffic stops in targeted locations. We have identified and interviewed Latinos who, though legally present in the United States, were arrested or detained without cause as a consequence of these operations.
Fifth, MCSO's Criminal Employment Squad ("CES") deputies, tasked with interdicting undocumented persons by enforcing state forgery and identity theft statutes, routinely raid businesses in a manner that harms innocent Latino workers. Specifically, CES's deputies typically detain and investigate the immigration status of all employees at a raided worksite,

-8­
whether or not the employees are listed in the warrant authorizing the raid. The CES targets worksites where most, if not all, of the employees are Latino.
Sixth, MCSO makes use of unverified tips and/or constituent complaints about the presence of Latinos that are infected with bias against Latino persons, but contain no credible information concerning criminal activity or immigration violations, in selecting sites for immigration enforcement operations. This practice too has had a disparate and adverse impact on Maricopa County's Latino residents. For example:
• Sheriff Arpaio received a letter in August 2008 expressing dismay that the employees of a Sun City McDonald's did not speak English and suggesting that Sheriff Arpaio should "check this out" and "check out Sun City." Because the letter only alleged that a business had Spanish-speaking employees, the only basis it provided for a police response was the biased assumption that speaking Spanish was indicative of undocumented status. Though the letter did not describe unlawful conduct of any kind, Sheriff Arpaio wrote a note on the letter directing a response thanking the writer "for the info" and stating that he would "look into it." Sheriff Arpaio also forwarded the letter to MCSO Enforcement Chief Brian Sands with the handwritten instruction "for our operation." Two weeks later, MCSO conducted an immigration operation in Sun City.
• Sheriff Arpaio also received a letter in May 2008 complaining that police had not stopped day laborers in Mesa "in order to determine whether these day laborers are here under legitimate circumstances" although the writer of the letter "believe[d] that they were in the country illegally." Sheriff Arpaio marked the quoted sections ofthe letter, believing them to be "intelligence," and forwarded the letter to Chief Sands. Sheriff Arpaio later testified that being a day laborer is not a crime. Sheriff Arpaio then received a similar letter later that month stating that Mesa needed "a sweep ... terribly" and accusing specifically Latino members of MCSO and the Mesa Police Department of negligence in pursuing "illegals." Sheriff Arpaio directed that a thank you letter be written, noted that "I will be going into Mesa," and forwarded the letter to Chief Sands. Chief Sands later testified that he assumed that the letter's author correlated undocumented persons with "dark-complected people." Despite the bias evident in both letters, MCSO conducted crime suppression operations in Mesa on June 26-27, 2008, and on July 14,2008.
Seventh, we note that MCSO's prioritization of immigration enforcement may have compromised its ability to secure the safety and security of Maricopa County residents. Since MCSO shifted its focus toward combating illegal immigration, violent crime rates in the county have increased significantly as compared to similarly situated jurisdictions.4 From 2004 to the
4 Clint Bolick, Mission Unaccomplished: The Misplaced Priorities o/the Maricopa County Sheriff's Office, 229 Goldwater Institute Policy Report, Dec. 2, 2008, at 1 (citing FBI Uniform Crime Reporting Statistics); See also Ryan Gabrielson & Paul Giblin, Reasonable Doubt, East Valley Tribune (July 9-13, 2008), http://www.eastvalleytribune.com/specia.-reports/reasonable_doubt/;JacquesBilleaud.Critics: 'Tough' Sheriff Botched Sex-Crime Cases, Associated Press (Dec. 4,2011), http://abcnews.go.com/US/wireStorylcritics-tough­ sheriffbotched-sex-crime-cases (reporting that MCSO failed to adequately investigate approximately 70 in EI

-9­
end of2007, reported violent crimes grew by over 69 percent, including a 166 percent increase in homicides over the three-year period. 5 Since 2008, violent crime rates have remained at roughly the same level in Maricopa County, while dropping by over 10 percent in similarly situated jurisdictions.6
B. Discriminatory Language Access Jail Practices
The national origin discrimination prohibited by Title VI and its implementing regulations includes practices and procedures that deny meaningful access to linguistic minorities subject to the jurisdiction of a federally funded recipient. MCSO, through its correctional officers, supervisory staff, and command staff, implements language access practices that have a discriminatory impact on Latinos (who make up the vast majority of MCSO's LEP inmates). In its June 2010 Position Statement, MCSO acknowledged the importance of communicating with Spanish-speaking inmates in Spanish: "Because of the large number of Spanish speaking inmates, the use of Spanish is not only important to everyday communication, it is essential to the overall operation of the jails and the safety of the inmates and officers." Nonetheless, MCSO's language access practices fall far short of what is required and disproportionately harm Latinos in a number of ways.
First, our investigation revealed that officers have refused to accept forms completed by LEP inmates in Spanish, including tank orders, which contain requests for the most basic daily jail services, and grievance forms, which enable inmates to identify and address alleged mistreatment. In one incident, an inmate reported that a detention officer told him: "This is America. You have to fill [your tank order] out in English." Detention officers confirmed that comments like these were made by fellow officers. In addition, four detention officers admitted that they do not accept inmate requests written in Spanish. One detention officer recounted that she returns tank orders submitted to her in Spanish and instructs the inmate to obtain an English translation.
Second, Latino LEP inmates are told to sign important forms written in English without the aid of appropriate language assistance. For example, witnesses report that MCSO officials pressure Latino LEP inmates to sign English language voluntary return forms by yelling at them, routinely failing to advise them of their rights, and confining them in uncomfortably cold cells for extended periods of time. Although signing a voluntary return form may allow an individual to avoid a formal order of removal-a type of expulsion from the United States that carries more severe immigration consequences for the expelled individual-a person who signs a voluntary return form has agreed, in effect, to leave the United States without attempting to (or working with an attorney to attempt to) assert any rights he or she may have to stay.
Mirage and more than 400 countywide, respectively, sex-crimes-including dozens of child molestations-during a 
 three-year period ending in 2007). 

5 Bolick, supra note 4, at 4. 

6 FBI Uniform Crime RepOiting Statistics for MCSO, Mesa Police Department, and Phoenix Police Department, 
 http://www.ucrdatatool.gov/.

-10­
Third, detention officers punish, directly and indirectly, Latino LEP inmates for their inability to fully understand or fluently speak English. For instance, the inability of one Latino LEP inmate to understand a command given in English can result in the confinement ("lockdown") of an entire house or pod. Lockdowns are sometimes in effect for as long as 72 hours. When a lockdown is ordered, inmates must return to their cells and are denied access to the visitor area, canteen recreation area, television, non-legal telephone calls, and inmate programs. Punishing other inmates for a Latino LEP inmate's inability to understand English commands endangers the LEP inmate. A Latino LEP inmate's inability to understand a detention officer's English language instructions also can result in the detention officer sending the inmate into disciplinary segregation, commonly referred to as being sent to the "hole." Inmates sent to the hole are confined 23 hours each day, and are denied non-legal telephone use, regular visits, television, program participation (including church services), and access to the canteen (except hygiene items). Such disciplinary actions are especially troubling when considering that many Latino LEP inmates reported that they never received a copy of the Inmate Rules and Regulations, or did not receive a copy in a language they could comprehend, denying them a basic understanding ofjail policies.
Fourth, MCSO discriminates against Latino LEP inmates by failing to provide them with equal access to a range of services, opportunities, and benefits available to other inmates. For example:
• Detention officers have denied requests for new clothes or sheets when items are soiled because the inmates made the request in Spanish. One Latino LEP inmate attempted to use a fellow inmate as an interpreter to explain that her sheets were soiled. The detention officer refused the request, insisting that the inmate had to make the request herself in English.
• Latino LEP inmates are frequently denied access to basic information about programs and services as most announcements are made in English only, including announcements about recreation and the collection of grievances.
• Latino LEP inmates have been denied the opportunity to serve in trustee-type positions whereby certain inmates assist with daily tasks in the jails, which adversely impacts the LEP inmates because inmates selected to perform these chores typically receive preferential treatment, such as additional food, a change of clothes, and greater freedom of movement.
• Latino LEP inmates are denied access to important activities, including access to a program that enables inmates to obtain early release by performing community serVIce.
C. Direct Evidence of Discriminatory Bias
We find a pervasive culture of discriminatory bias against Latinos at MCSO that reaches the highest levels of the agency. Supervisors ofMCSO's police operations, including at least one directly involved in supervising the HSU, have sent emails that demean and express derision for Latinos to fellow command staff members, deputies, and posse volunteers, often using county

-11­
email accounts. One email mocks individuals of Mexican national origin by including as an attachment a faux driver license issued to an individual caricatured to be Mexican and designated as originating from "Mexifornia," with a driver class of "illegal alien." Yet another email contains two pictures purporting to illustrate the difference between "Indian Yoga" and "Mexican Yoga," contrasting a picture of a man in a yoga pose and an apparently inebriated man prone on the ground.
In MCSO's jails, detention officers direct racial slurs at Latino inmates. Detention officers also insult or ignore Latino inmates when they attempt to communicate in Spanish. A detention officer confirmed that officers on her shift frequently tell Latino LEP inmates to speak in English. Other detention officers observed similar hostility: detention officers learn curse words in Spanish, enabling them to swear at Latino inmates, and report hearing staff using slurs when referring to Latino persons. Our investigation also found that MCSO detention officers call Latinos "wetbacks," "Mexican bitches," "fucking Mexicans," and "stupid Mexicans" when either talking among themselves or addressing Latino inmates.
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos. For example, Sheriff Arpaio received a letter asking him to do a "round-up" at 29th Street and Greenway in Phoenix. The letter justified the requested police action by asserting that "[i]fyou have dark skin, then you have dark skin. Unfortunately, that is the look of the Mexican illegals who are here illegally." Instead of ignoring the request to focus on "dark-skin[ned]" people, Sheriff Arpaio, believing that the letter was relevant "intelligence," passed it on to a member of his command staff with a note instructing him to "[h]ave someone handle this." Labeling as "intelligence" a letter explicitly equating skin color with law-breaking and instructing a subordinate to address it are striking examples of how Sheriff Arpaio has promoted a culture of bias in his organization and clearly communicated to his officers that biased policing would not only be tolerated, but encouraged.
D. Departures from Policing and Correctional Standards and Procedures
MCSO has adopted and maintained deficient policies and procedures that depart from policing and correctional standards and lead to violations of constitutional and federal rights. We find that MCSO's oversight and accountability, training in non-biased policing, and policies for deputy conduct substantially depart from generally accepted policing standards. MCSO's practices are often most egregiously deficient where they directly relate to MCSO's immigration enforcement program.
Contrary to standard policing practices throughout the country, MCSO supervisors have made a variety of statements undervaluing the us'efulness of statistics and data collection for effective law enforcement. MCSO does not require deputies on patrol to keep a log of their activities, but instead requires them only to enter a highly limited amount of data into the Computer Aided Dispatch system and to produce records only for their citations and arrests. Consequently, whenever one of its deputies stops a motorist without issuing a citation, MCSO

-12­
cannot review the basis for the stop, nor can it directly track the ethnicity of the stopped driver. MCSO's decision to allow its deputies to go about their traffic work without having to report many of their stops ensures that MCSO will be unable to properly monitor its deputies' traffic work or identify officers engaged in racial profiling. In the jails, MCSO has no reliable practice of documenting which inmates are LEP, leaving detention officers to guess at the language needs of the inmates.
MCSO has failed to put in place meaningful oversight and accountability structures. Such structures include systems for documenting deputy or detention officer activity and for handling complaints. MCSO departs significantly from generally accepted policing standards in its implementation of these systems. With respect to complaints, MCSO has a policy of routing all misconduct complaints to the immediate supervisor of the deputy involved. The first-line supervisor then has discretion to close the investigation without any further involvement from the command structure or Internal Affairs and without further documenting the complaint in any way. Consequently, MCSO does not track complaints directed at deputies or units within the organization. Further, because deputy misconduct often reflects poorly on the actions or inactions of the first-line supervisor, MCSO's system of relying on first-line supervisors places the critical determination of whether to go forward with an investigation in the hands of someone who has an inherent conflict of interest in having a matter thoroughly investigated.
The complaint process is also substandard in the jails. When inmates file grievances against detention officers, it is common practice for the detention officer named in the complaint to resolve the grievance by pressuring the inmate to sign a release, resulting in no further review of the complained-of activity.
Contrary to standard law enforcement practices, MCSO neither offered nor required training on how to avoid engaging in biased policing until as recently as 2010 (well over a year after we notified MCSO of the commencement of our investigation into biased police practices). While MCSO provided us with rosters showing that most of its deputies have now completed the training, most of the deputies and supervisors we interviewed in January 2011, including those routinely engaged in immigration enforcement policing, either stated that they had never received the training or that they had little to no recollection of what the training was about.
Just as MCSO failed to provide training on how to avoid biased policing, MCSO's training on how to work with LEP inmates has been inadequate. Although there is one reference to language barriers in the MCSO Jail Diversity curriculum, the material is so scant that a detention officer who completed the training just several months prior to his interview did not recall any instruction on the subject. 7
7 In a July 28, 2011, submission to the Civil Rights Division, MCSO counsel provided a draft copy of a June 20 II PowerPoint entitled "Limited English Proficiency" and an undated nine-page draft "Lesson Plan: Limited English Proficiency." This revised curriculum fails to address many of the deficiencies in MCSO's language service provisions identified in this letter, including, for example, the failure to instruct non-Spanish speaking detention officers on how to make announcements in Spanish, translate inmate forms filled out in Spanish, and communicate with inmates in housing units where the Language Line is unavailable.

-13­
The most egregious deviations from policing norms relate to the way in which MCSO operates the two units most directly involved in its immigration enforcement activities, HSU and CES. Standard police procedures require MCSO to provide additional oversight over the activities of these two units because of the sensitive nature of their work. But MCSO has provided deputies in these units with little in the way of policy guidance, training, or oversight. For example, HSU relies heavily on pretextual stops, but has no meaningful policies discussing when pretextual stops are appropriate, their legality, or any other aspect of their conduct. As such, MCSO has failed to appreciate the need to develop critical protocols to ensure compliance with important constitutional and statutory requirements.
With regard to correctional standards, MCSO has failed to meet its LEP obligations under Title VI, the regulations implementing Title VI, or the standards that MCSO set for itself to satisfy these obligations. On June 14, 2010, over a year after we had informed MCSO of our investigation into its treatment of Latino LEP inmates, MCSO issued a Position Statement in which it represented to the United States that it had taken a number of measures to ensure language access for its LEP inmates. However, when we toured MCSO's jail facilities in January 2011, we discovered that the Statement was inconsistent with the actual state of affairs at the jails. For example, contrary to the Statement's representations, detention officers refused to accept written requests by inmates in Spanish, failed to use or rely upon a Foreign Language Skills Roster, and continued to rely on inmates to provide other inmates with language assistance. They also failed to use an available telephonic interpretation service or to request bilingual colleagues to assist them in communicating with LEP inmates. We find that MCSO's practice of relying on inmates to interpret or translate is dangerous for both inmates and detention officers and is a departure from generally accepted correctional practices.
E. Retaliatory Actions
We find that MCSO command staff and deputies have engaged in a pattern or practice of retaliating against individuals for exercising their First Amendment right to free speech. Under the direction of Sheriff Arpaio and other command staff, MCSO deputies have sought to silence individuals who have publicly spoken out and participated in protected demonstrations against the policies and practices of MCSO-often over its immigration policies. MCSO command staff and deputies have arrested individuals without cause, filed meritless complaints against the political adversaries of Sheriff Arpaio, and initiated unfounded civil lawsuits and investigations against individuals critical of MCSO policies and practices.
• One of the victims ofMCSO's retaliatory practices is C.C., an organizer with an immigration rights community organization who for several years has engaged in public speech critical of MCSO' s practices and its treatment of Latinos. On July 29, 2010, C.C. participated in a peaceful protest against MCSO. During the course of the protest, MCSO arrested him and charged him with failure to obey a police officer and blocking a public thoroughfare. C.C. was released that night. On July 30, 2010, C.C. stood across the street from the Lower Buckeye Jail watching another protest. A video recording of the incident shows six or more MCSO deputies approaching and then arresting C.c., who was simply standing with his hands by his side at the time. Chief Sands stated that C.C. was arrested for violating his order of release. As the

-14­
incident unfolded, Sheriff Arpaio posted a series of approving messages on a social networking site.
C.c. was detained at the Fourth Avenue Jail, pending his initial court appearance, and not allowed to speak to his attorney while there. MCSO deputies charged him with obstructing a judicial proceeding, but on August 3, 2010, then-Maricopa County Attorney Rick Romley dropped the charge, admitting that there was no probable cause for the arrest.
MCSO deputies also retaliated against members of Maricopa Citizens for Safety and Accountability ("MCSA"), an organization highly critical of what they called MCSO's discriminatory treatment of Latinos. In December 2008, during two separate public meetings of the County Board of Supervisors, MCSO deputies arrested members of MCSA when the MCSA members attempted to express their opposition to certain MCSO actions. The individuals arrested were all charged with criminal trespassing, and some were also charged with disorderly conduct. None of the charges re~ulted in convictions, and those charged subsequently filed a lawsuit against Maricopa County and MCSO for wrongful arrest, malicious prosecution, and civil rights violations. On July 6,2010, the parties reached a mediated settlement.
Finally, MCSO officials have resorted to using official harassment to silence MCSO's critics. Between October 2007 and November 2009, former Chief Deputy David Hendershott filed, in his official capacity, unfounded complaintswith the Arizona State Bar against five attorneys, alleging that they had engaged in ethical violations. Each of the complaints was filed against individuals who made public statements critical ofMCSO'sjail policies, investigatory tactics, and/or police practices.
Similarly, on November 30,2009, Hendershott, acting in his official capacity, filed four complaints with the Arizona Commission on Judicial Conduct against judges who had made critical public comments about MCSO and Sheriff Arpaio or had rendered decisions detrimental to MCSO's interests. All of these bar and judicial complaints were dismissed as insufficient to warrant even an investigation.
In a related action, Sheriff Arpaio participated as a named plaintiff in a civil federal racketeering suit filed against the same judges targeted by Hendershott, as well as a number of other County officials. The claims against the judges echoed those claims in the complaints filed by Hendershott. The suit was eventually abandoned.
The arrests and harassment undertaken by MCSO have been authorized at the highest levels of the agency and constitute a pattern of retaliatory actions intended to silence MCSO's critics.
F. Additional Areas of Serious Concern
In addition to the violations of the Constitution and federal law described above, there are three additional areas of serious concern where, at the moment, we do not make a formal pattern or practice finding, but our review continues. These areas of concern are:

-15­
• Use of excessive force against Latinos; • Reduction of policing services to the Latino community; and • Gender and/or national origin bias by failing to adequately investigate sex crimes.
These three issues are of concern standing alone and may also relate to our ultimate findings concerning MCSO's discriminatory police practices. A deliberate failure to provide policing services, or a deliberate indifference to public safety needs of certain communities, implicates important constitutional protections and can compromise public safety and undermine public confidence in MCSO. It does not matter for the purposes of the Constitution and federal laws whether it is an act of commission or omission.
With regard to use of force, our investigation revealed multiple instances of MCSO deputies using excessive force, a troubling trend made more problematic by MCSO's failure to have in place meaningful systems of accountability and supervision. Such systems are also crucial components in deterring and addressing the use of excessive force, and their absence is a glaring flaw in MCSO's institutional practices relating to the use of force. MCSO's use of excessive force may constitute a pattern or practice of Fourth Amendment violations under Section 14141, and our investigation into this conduct is ongoing.
• In February 2009, D.D., a Latino U.S. citizen, was driving home when a trailing MCSO deputy turned on his emergency lights to signal a traffic stop, allegedly for a failed brake light on D.D.'s vehicle. The MCSO deputy did not activate his siren, and D.D. drove the remaining short distance to his house because he feared how the MCSO deputy would treat him because of his Latino ethnicity. When D.D. exited his car, the MCSO deputy purposefully struck D.D. with his patrol car, pinning D.D. under the vehicle and dragging him for more than ten feet. The MCSO deputy did not attempt to remove D.D., and instructed other arriving deputies to "leave him there." D.D. was eventually extracted by the local fire department. The deputy's actions caused serious injury, including broken bones, burns, and other injuries. D.D. sued MCSO for his injuries; the lawsuit was eventually settled for $600,000. The MCSO deputy claimed that the incident was an accident arising from D.D. attempting to flee his vehicle. MCSO arrested the deputy, and he was charged with aggravated assault.
• In May 2009, an MCSO deputy stopped E.E., a Latino U.S. citizen, after E.E. picked up a Latino day laborer. The deputy told E.E. that he had pulled him over for speeding, but E.B. suspected that he had been pulled over because of his and his passenger's Latino ethnicity. E.B. questioned the deputy's reason for pulling him over. The deputy, along with other MCSO deputies who had arrived on the scen~, responded by forcibly removing B.B. from his vehicle, twisting his arm, head, and neck and causing E.E. to fall and hit his face on the pavement. The MCSO deputies kept E.B. on the ground, handcuffed him, and searched him. E.E. was bleeding from multiple lacerations to his face, and experienced neck and back pain from the holds the MCSO deputies had used to remove him from his vehicle. E.B. was ultimately taken to a medical facility where he received treatment for injuries to his face, neck, shoulder, and back. E.B. was never charged with any offense that might explain the officers' use of force. Instead, E.B. was charged with criminal speeding and failure to produce identification. Both of these charges were eventually dropped.

-16­
We continue to investigate whether MCSO has implemented its immigration enforcement program with deliberate indifference to the way in which the program compromises MCSO's ability to provide effective policing services to Maricopa County's Latino population. There are indicators that MCSO has undermined its own ability to engage in effective policing in the Latino community. Much of a modern-day police agency's effectiveness is predicated on building a relationship of trust with all segments of the community. MCSO has done almost nothing to build such a relationship with Maricopa County's Latino residents. The absence of trust has substantially compromised effective policing by limiting the willingness of witnesses and victims to report crimes and speak to the police about criminal activity.
MCSO deputies we interviewed admitted that the immigration enforcement program, which lacks basic accountability and quality control measures and is characterized by wide­ ranging and poorly planned "crime suppression" operations, has adversely affected their ability to obtain information and cooperation from the County's Latinos. One deputy informed us that MCSO's "aggressive" immigration interdiction efforts create a "wall of distrust" that divides the Latino community and MCSO. Another deputy was told by his supervisors to expect that he would encounter hostility from people who believed they were being stopped because of their ethnicity. A different MCSO deputy bemoaned the impact ofMCSO's immigration-related operations, stressing that they "affect our ability to work in a community that hates you." The Police Executive Research Forum, an independent, national organization made up of police executives, interviewed a number of law enforcement officers in Maricopa County who believe that MCSO has enforced immigration laws in a way that has poisoned the relationship between law enforcement and Latinos, hindering general law enforcement efforts within the Latino community.8 Our investigation further found no evidence that MCSO has acted to improve its relationship with the Latino community, preferring instead to simply continue the practices that have compromised its effectiveness in the Latino community.
Finally, we are continuing our review of allegations that MCSO has failed to investigate a large number of sex crimes.9 The Sheriffs office has acknowledged that 432 cases of sexual assault and child molestation were not properly investigated over a three-year period ending in 2007. 10 These cases only came to light after a review by the EI Mirage Police Department of a period in which MCSO was under contract to provide policing services to that community. It appears that many of the victims may have been Latino. If established, this may constitute a failure to provide police services in a manner that constitutes gender and/or national origin discrimination in violation of the Equal Protection guarantee of the United States Constitution. 11 Our review will not be limited to the pre-2007 cases, but include any allegations that the practice continued after that time.
8 Debra A. Hoffmaster, et al., Police and Immigration: How Chieft are leading their communities through the challenges, Police Executive Research Forum 39 (2010).
9 Gabrielson, supra note 4; Billeaud, supra note 4.
10 SheriffJoe Arpaio apologizes/or botched El Mirage sex-crime cases, Associated Press, Dec. 5,2011, http://www.azcentral.com/news/articles/2011/12/05/20111205arpaio-apologizes-botched-cases. html.
11 See Investigation of the New Orleans Police Depmtment, U.S. Department of Justice, Civil Rights Division., pp.43-49. March 16,2011, http://www.justice.gov/crt/about/spl/nopdphp.

-17­
LEGAL DISCUSSION 

A. Discriminatory Policing
Section 14141, a provision of the Violent Crime Control and Law Enforcement Act of 1994, grants the United States a cause of action to sue a state or local government for equitable and declaratory relief when a "governmental authority ... engage[s] in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."
An agency such as MCSO violates the Equal Protection Clause when its decision-maker adopts a facially neutral policy or practice with a discriminatory intent, and that policy or practice has a discriminatory effect. Washington v. Davis, 426 U.S. 229, 239-40 (1976). While discriminatory intent need not be the only motive, an Equal Protection violation occurs when the circumstantial evidence shows that a policy at issue was adopted "because of, not merely in spite of, its adverse effects upon an identifiable group." Personnel Adm 'r ofMass. v. Feeney, 442 U.S. 256, 279 (1979). To assess whether intentional discrimination infected the decision-making process, courts look to the totality of the circumstances with particular attention to factors that the SupreIl1e Court has identified as most probative of discriminatory intent. Village ofArlington Heights v. Metro. Hous. Redev. Corp., 429 U.S. 252 (1977). Those factors include: evidence of discriminatory effect; evidence of departures from normal procedures; the specific sequence of events that led to the discriminatory practices at issue; and contemporaneous statements from a decision-maker that reveal a discriminatory intent. Id. at 266-68.
As described above, our investigation uncovered substantial evidence of the kind identified by the Supreme Court in Arlington Heights, showing that Sheriff Arpaio has intentionally decided to implement his immigration program in a manner that discriminates against Latinos. Our evidence further shows that discrimination against Latino persons exists in a wide range ofMCSO practices. We have obtained compelling statistical evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly situated non­ Latinos on Maricopa County roadways. This evidence speaks directly to both the discriminatory effects and discriminatory motives of MCSO deputies engaged in traffic enforcement. It is difficult to conceive of any valid, non-discriminatory explanation for stopping Latino drivers at a rate that is four to nine times higher than the rate for similarly situated non-Latino drivers. In addition to this statistical evidence, other data and witness statements show that MCSO deputies, particularly members of the HSU or the CES, frequently detain and/or arrest Latino drivers without cause. Additionally, the evidence of a culture of bias at MCSO discussed above directly relates to the impermissible motives behind the actions ofMCSO's deputies. For these and other reasons, the evidence establishes that MCSO is engaged in a pattern or practice of Equal Protection violations.
Discriminatory law enforcement activities are likewise prohibited by Title VI. Title VI provides that "[n]o person in the United States shall, on the ground ofrace, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [fJederal financial assistance." 42 U.S.C. § 2000d. In addition, Title VI's implementing regulations proscribe "criteria or methods of administration" that exert a discriminatory effect on the basis of race, color, or national origin.

-18­
28 C.F.R. § 42.1 04(b)(2). For the reasons detailed in the findings section above, the evidence obtained to date establishes that MCSO has violated the aforementioned regulation.
B. Unreasonable Seizures
We conclude that MCSO has engaged in a pattern or practice of conduct by its law enforcement officers that has deprived many of Maricopa County's Latino residents of their right, under the Constitution's Fourth Amendment, to be "secure in their persons, houses, papers,
and effects, against unreasonable ... seizures." u.s. Const. amend. IV. "The 'general Fourth
Amendment approach' requires courts to examine the totality of the circumstances to determine whether a ... seizure is reasonable." United States v. Guzman-Padilla, 573 F.3d 865, 876 (9th Cir. 2009) (quoting United States v. Knights, 534 U.S. 112,118 (2001)). To qualify as "reasonable," arrests must be based on probable cause to believe that an arrestee has or is committing a crime, and even brief detentions, such as traffic stops, must be based on reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 20-21 (1968). Reasonable suspicion, at a minimum, means "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. King, 244 F.3d 736, 738 (9th Cir. 2001).
In this instance, we have both data and witness statements showing that MCSO deputies, in the course of engaging in immigration-related enforcement activities, frequently stop or arrest Latinos without either probable cause or reasonable suspicion. As discussed above, the HSU arrest reports we analyzed provide us with reasonable cause to believe that HSU officers routinely stop Latino motorists without appropriate cause. Moreover, there are a number of other practices related to MCSO's immigration enforcement program that frequently result in Fourth Amendment violations. For example, our investigation revealed that CES deputies typically detain all those present within the vicinity of the business they are raiding. In certain instances, these mass detentions of innocent individuals have lasted for extended periods of time, and, in at least one case, lasted for roughly two hours. These types of prolonged detentions of innocent individuals without specific evidence of criminal activity constitute Fourth Amendment violations. See Ganwich v. Knapp, 319 F.3d 1115, 1121 (9th Cir. 2003).
C. Discriminatory Jail Practices
Title VI authorizes the United States to initiate civil litigation in federal court for injunctive relief against a recipient of federal financial assistance whose program or activity violates Title VI or its implementing regulations. 42 U.S.C. § 2000d-1; 28 C.F.R. § 42.1 08. MCSO's language access procedures violate Title VI ifMCSO maintains those procedures to intentionally discriminate against Latinos on the basis of their national origin or if the procedures have a discriminatory effect on Latinos. 28 C.F.R. § 42.104(b)(2); NY Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995). In this instance, MCSO's language access procedures and practices are intentionally discriminatory and have a discriminatory effect.
Our investigation demonstrates that MCSO's language access procedures intentionally discriminate against Latinos. There is substantial evidence that biases against Latinos have played a role in MCSO's decision to maintain its current language access practices and procedures. MCSO has been on notice for many years of its legal obligation to treat LEP

-19­
inmates in a non-discriminatory manner. In 2002, the Department of Justice issued non­ discriminationiLEP language access standards applicable to the correctional functions of law enforcement agencies receiving federal financial assistance, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18,2002). When accepting grants from the Department, MCSO officials signed assurances promising to abide by Title VI, including an assurance in which MCSO agreed that, "[p]ursuant to Department of Justice guidelines (June 18,2002 Federal Register (Volume 67, Number 117, pages 41455-72)), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency." In March 2009, we informed MCSO that we were investigating allegations that its language assistance program in its jails discriminated against Latino LEP inmates, thereby putting MCSO on notice that the United States had received complaints articulating serious concerns relating to its language access program. Finally, grievances filed by Latino LEP inmates, particularly regarding the lack of access to church services, also have placed MCSO on notice as to the absence of services for Latino LEP inmates. Although MCSO has ample reason to know that its policies are denying Latino LEP inmates access, MCSO persists in maintaining many of its discriminatory practices.
MCSO's language access procedures and practices have a discriminatory effect upon MCSO's LEP inmates. As detailed above, MCSO's LEP inmates, who are overwhelmingly Latino, do not receive the same services and benefits as non-LEP inmates, are pressured to sign important immigration-related documents without language assistance, and are singled out for punishments, such as being subjected to lockdowns and disciplinary segregation for failing to understand English commands. In all of these ways and more, MCSO's language access practices disproportionately and adversely impact the Latino inmates in MCSO's jails. See Lau v. Nichols, 414 U.S. 563, 568 (1974) (noting that "[i]t seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational program­ all earmarks of the discrimination banned by" Title VI and applicable regulations); Yniguez v. Arizonans/or Official English, 69 FJd 920,947-48 (9th Cir. 1995), vacated on other grounds, 520 U.S. 43 (1997) (striking down the English-only amendment to the Arizona Constitution, stating that the amendment's impact "is especially egregious because it is not uniformly spread over the population, but falls almost entirely upon Hispanics and other national origin minorities").
D. Retaliatory Practices
We find that MCSO has violated Section 14141 by engaging in a pattern or practice of conduct by its law enforcement officers that has deprived a number of Maricopa County residents of their First Amendment rights. The First Amendment prohibits government actors from "abridging the freedom of speech," U.S. Const. amend. I, and prohibits a government official from subjecting an individual to retaliatory actions for speech that falls under the protections of the First Amendment. Hartman v. Moore, 547 U.S. 250, 251 (2006). The Ninth Circuit has held that to prove a First Amendment retaliation claim, a plaintiff must show "that by his actions [the defendant] deterred or chilled [the plaintiffs] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct." Mendocino' Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). To succeed in bringing a

-20­
First Amendment retaliation claim, courts have held that plaintiffs must show only that "an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities." Id. The plaintiff must also show that the "chilling effect was a but-for cause of the defendant's action." Skoog v. County o/Clackamas, 469 F.3d 1221,1232 (9th Cir. 2006).
In this case, we have identified instances of retaliatory actions by MCSO officials. Some of the most serious incidents involve MCSO deputies, at times apparently acting at the direction ofMCSO's leadership, bringing false criminal charges against MCSO's critics. The fact that all of the charges are subsequently dismissed strongly suggests that the "chilling effect was [the] but-for cause" of the police action. Moreover, such maliciously motivated charges would have the effect of silencing a person of ordinary firmness from engaging in future protected speech. Based on our review of the evidence, there is reasonable cause to believe that MCSO officials have committed a series of retaliatory actions directed at perceived critics of MCSO that are designed to chill the exercise of protected First Amendment activities.
REMEDIAL MEASURES
The factual findings detailed above provide reasonable cause to believe that MCSO has committed violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution, Section 14141, and Title VI. The Civil Rights Division accordingly notifies you that, absent MCSO taking clear steps toward reaching an agreement with the Division to correct these violations in the next 60 days, the United States will conclude that voluntary compliance is not possible and will initiate civil litigation to compel compliance with Section 14141 and Title VI. Should MCSO indicate within those 60 days that it does not intend to work with the Division, we may initiate suit in fewer than 60 days. MCSO is further cautioned not to intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the civil rights laws we enforce.
The constitutional violations and institutional deficiencies highlighted above are the product of an ingrained culture that encourages and tolerates the discriminatory treatment of Latino persons and an agency that lacks the requisite policies and practices to ensure effective and constitutional law enforcement. Reform will require sustained commitment to long-term structural, cultural, and institutional change, including, but not limited to, the following:
• Training for Deputies: MCSO must develop effective and meaningful training for deputies in constitutional policing, including how to perform stops, searches, seizures, and arrests consistent with the requirements of the Fourth and Fourteenth Amendments.
• Special Operations and Specialized Units: MCSO must develop and implement detailed policies, procedures, and training regarding (1) special operations, including, but not limited to, crime suppression sweeps or saturation patrols, worksite raids, drop house raids, and roving smuggling patrols, and (2) specialized units, including, but not limited to, SWAT, HSU, and CES.

-21­
• Data Collection and Risk Management: MCSO must develop and implement a data collection system regarding all law enforcement activity in order to enable MCSO to supervise, manage, and intervene, when appropriate. Such a program requires detailed auditable reports for traffic and pedestrian stops; immigration-related stops, raids, or inquiries; searches and seizures; and worksite raids.
• Complaint System and Internal Affairs: MCSO must develop and implement a comprehensive complaint, investigation, and disciplinary system to enable it to hold officers accountable when they violate policy and/or the law. The complaint system must be accessible to all community members and allow the public to make complaints against MCSO staff and deputies without fear of retaliation. The internal investigative process should include clear avenues for adjudication, discipline, and criminal prosecution, if necessary, as well as access for LEP individuals.
• Language Access: MCSO must develop and implement a comprehensive language access program for its deputies and officers who encounter LEP individuals in the jails and for its enforcement activity in the community. Training on this program must be routine and detailed, such that all staff are aware of their language access obligations and are held accountable for failure to implement appropriate measures.
• Community Outreach: MCSO must meet the law enforcement needs of all its residents, regardless of their race or ethnicity. To that end, MCSO must engage with and reach out to Maricopa County's Latino residents to ensure that it is fairly and effectively providing them with law enforcement services.
We strongly believe that effective policing and constitutional policing go hand in hand. In recent years, we have worked productively and collaboratively with law enforcement agencies across the country, increasingly at their request, to address serious concerns that threaten to undermine public confidence and hinder operational effectiveness. Our goal in every case is to work collaboratively to obtain a detailed understanding of the precise challenges and their root causes, and to develop and implement sustainable reform measures that will reduce crime, ensure respect for the Constitution, and increase public confidence in law enforcement. We stand ready to work cooperatively with you to address the concerns outlined in this letter, and we remain prepared to take prompt, appropriate legal action if you choose to forego collaboration.
The violations we have identified are serious, and voluntary compliance with the Constitution and federal law will require a detailed agreement incorporating the foregoing remedial measures. Given the systemic nature of the constitutional violations, effective compliance in this case will require federal judicial oversight; a court-enforceable agreement will provide the structure, transparency, and accountability necessary to achieve sustained success.

-22­
Please note that this letter is a public document. It will be posted on the Civil Rights Division's website. We look forward to hearing from you soon. If you have any questions, please contact Jonathan Smith, Chief of the Special Litigation Section, at (202) 514-6255.
Sincerely,
Thomas E. Perez Assistant Attorney General
cc: William R. Jones, Jr. Counsel for Maricopa County Sheriffs Office Jones, Skelton & Hochuli, P.L.C. 2901 North Central Ave, Suite 800 Phoenix, Arizona 85012

 </s> Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 1 of 8
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:10−cv−01878−GMS

CLOSED,STD

United States of America v. Maricopa, County of et al Assigned to: Judge G Murray Snow Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 09/02/2010 Date Terminated: 08/01/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Amin Aminfar US Dept of Justice 950 Pennsylvania Ave NW PHB SPL 5427A Washington, DC 20530 202−307−0652 Fax: 202−514−6903 Email: amin.aminfar@usdoj.gov ATTORNEY TO BE NOTICED

Avner Michael Shapiro US Dept of Justice − Civil Rights Division 601 D St. NW, 5th Fl. SPL Washington, DC 20530 202−305−1840 Fax: 202−514−0212 Email: avner.shapiro@usdoj.gov ATTORNEY TO BE NOTICED

Laurie Gelman US Dept of Justice 950 Pennsylvania Ave NW NWB Washington, DC 20530 202−616−8463 Fax: 202−307−0595 Email: laurie.gelman@usdoj.gov ATTORNEY TO BE NOTICED

Matthew Colangelo US Dept of Justice Civil Division 950 Pennsylvania Ave NW Washington, DC 20530−0001 202−514−5441 Fax: 202−514−0293 Email: matthew.colangelo@usdoj.gov ATTORNEY TO BE NOTICED

Michael Madison Walker US Attorneys Office 2 Renaissance Sq. 40 N Central Ave., Ste. 1200 Phoenix, AZ 85004−4408 602−514−7697 Email: michael.walker4@usdoj.gov TERMINATED: 08/09/2011 ATTORNEY TO BE NOTICED

Peter S Gray US Dept of Justice

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 2 of 8
Civil Rights Division 950 Pennsylvania Ave NW
Washington, DC 20530 202−514−6225 Fax: 202−514−4883 Email: peter.gray2@usdoj.gov ATTORNEY TO BE NOTICED
Roy L Austin US Dept of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202−514−3845 Email: roy.austin@usdoj.gov ATTORNEY TO BE NOTICED
Sheridan Leigh England US Attorneys Office − Phoenix, AZ 2 Renaissance Square 40 N Central Ave., Ste. 1200 Phoenix, AZ 85004−4408 602−514−7500 Email: sheridan.england@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant Maricopa, County of named as: Maricopa County, Arizona
Defendant Maricopa County Sheriff's Office

represented by Cynthia Renee Estrella Polsinelli PC − Phoenix, AZ 1 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−650−2003 Fax: 602−926−8108 Email: cestrella@polsinelli.com ATTORNEY TO BE NOTICED
Thomas K Irvine Polsinelli Shughart 3636 N Central Ave., Ste. 1200 Phoenix, AZ 85012 602−650−2094 Fax: 602−264−7033 Email: tirvine@polsinelli.com ATTORNEY TO BE NOTICED
represented by Alec R Hillbo Ogletree Deakins Nash Smoak & Stewart PC 2415 E Camelback Rd Ste 800 Phoenix, AZ 85016 602−778−3700 Fax: 602−778−3750 Email: alec.hillbo@ogletreedeakins.com TERMINATED: 10/21/2010 ATTORNEY TO BE NOTICED
John T Masterson Jones Skelton & Hochuli PLC

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 3 of 8

40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7846 Email: jmasterson@jshfirm.com ATTORNEY TO BE NOTICED

Joseph John Popolizio Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602200−7876 Email: jpopolizio@jshfirm.com ATTORNEY TO BE NOTICED

Kerry Scott Martin Ogletree Deakins Nash Smoak & Stewart PC − Tucson, AZ 3430 E Sunrise Dr., Ste. 220 Tucson, AZ 85718 602−778−3715 Fax: 602−778−3750 Email: kerry.martin@ogletreedeakins.com TERMINATED: 10/21/2010 ATTORNEY TO BE NOTICED

Leigh Eric Dowell Ogletree Deakins Nash Smoak & Stewart PC 2415 E Camelback Rd Ste 800 Phoenix, AZ 85016 602−778−3700 Fax: 602−778−3700 Email: eric.dowell@ogletreedeakins.com TERMINATED: 10/21/2010 ATTORNEY TO BE NOTICED

William R Jones , Jr. Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7801 Email: Wjones@jshfirm.com ATTORNEY TO BE NOTICED

Defendant
Joseph M Arpaio in his official capacity as Sheriff of Maricopa County, Arizona

represented by Alec R Hillbo (See above for address) TERMINATED: 10/21/2010 ATTORNEY TO BE NOTICED

John T Masterson (See above for address) ATTORNEY TO BE NOTICED

Joseph John Popolizio (See above for address) ATTORNEY TO BE NOTICED

Kerry Scott Martin (See above for address)

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 4 of 8
TERMINATED: 10/21/2010 ATTORNEY TO BE NOTICED
Leigh Eric Dowell (See above for address) TERMINATED: 10/21/2010 ATTORNEY TO BE NOTICED
William R Jones , Jr. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/02/2010
09/03/2010
09/03/2010 09/09/2010
09/09/2010 09/10/2010 09/10/2010 09/10/2010

# Docket Text
1 COMPLAINT, filed by United States of America (submitted by Amin Aminfar). (Attachments: # 1 Civil Cover Sheet)(REK) (Entered: 09/02/2010)
2 SUMMONS Submitted by United States of America (submitted by Amin Aminfar). (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(REK) (Entered: 09/02/2010)
3 This case has been assigned to the Honorable Lawrence O. Anderson. All future pleadings or documents should bear the correct case number: CV 10−1878−PHX−LOA. Magistrate Election form attached. (Attachments: # 1 Magistrate Consent Form)(REK) (Entered: 09/02/2010)
4 SUMMONS Submitted by United States of America. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(Aminfar, Amin) (Entered: 09/02/2010)
5 Summons Issued as to Joseph M Arpaio, Maricopa, County of (by serving the following individual Board of Supervisors Members: R. Fulton Brock, Andrew W. Kunasek, Donald T. Stapley, Jr., Mary Rose Wilcox, and Max W. Wilson). (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(REK). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 09/02/2010)
6 NOTICE OF ASSIGNMENT AND ORDER − that Plaintiff shall file its written election to either consent to magistrate−judge jurisdiction or elect to proceed before a United States district judge on or before Thursday, September 26, 2010. FURTHER ORDERED that Defendants shall file their written electionto either consent to magistrate−judge jurisdiction or elect to have this case assigned to a United States district judge within 14 days of its appearance herein or as otherwise directed by the Court. Signed by Magistrate Judge Lawrence O Anderson on 9/2/10. (KMG) (Entered: 09/03/2010)
7 NOTICE of Appearance by Thomas K Irvine on behalf of Maricopa, County of (Irvine, Thomas) (Entered: 09/03/2010)
8 NOTICE OF ASSIGNMENT AND ORDER that Defendant Maricopa County, Arizona, shall file its written election to either consent to magistrate−judge jurisdiction or elect to proceed before a United States district judge on or before Thursday, September 22, 2010. Signed by Magistrate Judge Lawrence O Anderson on 9/9/10. (LSP) (Entered: 09/09/2010)
9 NOTICE of Appearance by Michael Madison Walker on behalf of United States of America (Walker, Michael) (Entered: 09/09/2010)
10 SUMMONS Returned Executed Maricopa County Sheriff's Office served on 9/2/2010; Maricopa, County of served on 9/2/2010 − c/o Max Wilson. (LAD) (Entered: 09/10/2010)
11 SUMMONS Returned Executed Joseph M Arpaio served on 9/2/2010. (LAD) (Entered: 09/10/2010)
12 SUMMONS Returned Executed upon Maricopa County, Maricopa County Sheriff's Office on 9/2/10 − c/o Mary Rose Wilcox (LAD) (Entered: 09/10/2010)

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 5 of 8

09/10/2010 09/10/2010 09/10/2010 09/13/2010 09/13/2010 09/13/2010 09/13/2010
09/13/2010 09/13/2010 09/15/2010 09/16/2010
09/16/2010 09/17/2010
09/17/2010 09/27/2010

13 SUMMONS Returned Executed upon Maricopa County and Maricopa County Sheriff's Office on 9/2/10 − c/o Donald T. Stapley Jr. (LAD) (Entered: 09/10/2010)
14 SUMMONS Returned Executed on 9/2/10 on Maricopa County and Maricopa County Sheriff's Office − c/o R. Fulton Brock, Member (LAD) (Entered: 09/10/2010)
15 SUMMONS Returned Executed on 9/2/10 upon Maricopa County and Maricopa County Sheriff's Office − c/o Andrew W. Kunasek (LAD) (Entered: 09/10/2010)
16 NOTICE of Appearance by Laurie Gelman on behalf of United States of America (Gelman, Laurie) (Entered: 09/13/2010)
17 AMENDED COMPLAINT against All Defendants, filed by United States of America.(Aminfar, Amin) (Entered: 09/13/2010)
18 MOTION for Summary Judgment by United States of America. (Aminfar, Amin) (Entered: 09/13/2010)
19 STATEMENT of Undisputed Facts re 18 MOTION for Summary Judgment by Plaintiff United States of America. (Attachments: # 1 Affidavit Declaration of Peter S. Gray, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit 51, # 53 Exhibit 52, # 54 Exhibit 53, # 55 Exhibit 54, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63, # 65 Exhibit 64, # 66 Exhibit 65, # 67 Exhibit 66, # 68 Exhibit 67, # 69 Exhibit 68)(Aminfar, Amin) (Entered: 09/13/2010)
20 NOTICE re Filing of Motion to Transfer Case by United States of America. (Attachments: # 1 Filed Motion to Transfer Case, # 2 Filed Proposed Order For Motion to Transfer Case)(Aminfar, Amin) (Entered: 09/13/2010)
21 NOTICE re Service by United States of America re 17 Amended Complaint, 19 Statement,,,,, 20 Notice (Other), 18 MOTION for Summary Judgment. (Aminfar, Amin) (Entered: 09/13/2010)
22 NOTICE of Appearance by Kerry Scott Martin on behalf of Joseph M Arpaio, Maricopa County Sheriff's Office (Martin, Kerry) (Entered: 09/15/2010)
23 NOTICE OF ASSIGNMENT AND ORDER Defendants Maricopa County Sheriff's Office and Joseph M. Arpaio shall file their written election to either consent to magistrate−judge jurisdiction or elect to proceed before a United States district judge on or before Wednesday, September 28, 2010. Signed by Magistrate Judge Lawrence O Anderson on 9/16/10. (LSP) (Entered: 09/16/2010)
24 Party Elects Assignment of Case to District Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 09/17/2010)
25 Minute Order: Pursuant to Local Rule 3.8(a), a request has been received for a random reassignment of this case to a District Judge FURTHER ORDERED Case reassigned by random draw to Judge G. Murray Snow. All further pleadings/papers should now list the following COMPLETE case number: CV 10−1878−PHX−GMS. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 09/17/2010)
26 NOTICE of Appearance by Alec R Hillbo on behalf of Joseph M Arpaio, Maricopa County Sheriff's Office (Hillbo, Alec) (Entered: 09/17/2010)
27 MOTION to Continue All Case Matters by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Dowell, Leigh) (Entered: 09/27/2010)

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 6 of 8

09/28/2010 09/28/2010 10/05/2010 10/06/2010 10/06/2010 10/14/2010 10/21/2010
10/29/2010 11/01/2010 11/01/2010 12/03/2010 12/06/2010 12/10/2010 12/10/2010 12/10/2010 12/10/2010

28 RESPONSE to Motion re 27 MOTION to Continue All Case Matters filed by United States of America. (Aminfar, Amin) (Entered: 09/28/2010)
29 ANSWER to 17 Amended Complaint by Joseph M Arpaio, Maricopa County Sheriff's Office.(Martin, Kerry) (Entered: 09/28/2010)
30 REPLY to Response to Motion re 27 MOTION to Continue All Case Matters filed by Joseph M Arpaio, Maricopa County Sheriff's Office. (Dowell, Leigh) (Entered: 10/05/2010)
31 ORDER granting 27 Motion to Continue. Defendants shall locate new counsel and that new counsel shall file a notice of appearance no later than 14 days from the date of this Order. Signed by Judge G Murray Snow on 10/6/10.(LSP) (Entered: 10/06/2010)
32 ANSWER to 17 Amended Complaint by Maricopa, County of.(Irvine, Thomas) (Entered: 10/06/2010)
33 EX PARTE MOTION for Substitution of Counsel with Consent by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Exhibit Consent to Substitution of Counsel)(Masterson, John) (Entered: 10/14/2010)
34 ORDER granting 33 Ex Parte Motion to Substitute Counsel. ORDERED that William R. Jones, Jr., John T. Masterson, Joseph J. Popolizio and the law firm of Jones, Skelton & Hochuli, P.L.C., be substituted as counsel of record for named Defendants Maricopa County Sheriffs Office and Joseph M. Arpaio in the place of Alec R. Hillbo, Kerry Scott Martin, Leigh Eric Dowell and the lawfirm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.. Signed by Judge G Murray Snow on 10/21/10. (MAP) (Entered: 10/21/2010)
35 MOTION for Extension of Time to File Response to Motion for Summary Judgment by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) Modified on 11/1/2010 (LSP). CORRECTION to "Motion for Extension of Time to File Response/Reply". (Entered: 10/29/2010)
36 RESPONSE to Motion re 35 MOTION for Extension of Time to File Response to Motion for Summary Judgment filed by United States of America. (Aminfar, Amin) (Entered: 11/01/2010)
37 ORDER granting in part and denying in part 35 Motion for Extension of Time to File Response re 18 MOTION for Summary Judgment; Defendants are directed to file a Response on or before December 3, 2010. Signed by Judge G Murray Snow on 11/1/10.(LSP) (Entered: 11/01/2010)
38 STIPULATION Stipulated Motion to Extend Deadline to Respond to Motion for Summary Judgment by Joseph M Arpaio, Maricopa County Sheriff's Office, Maricopa, County of, United States of America. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) (Entered: 12/03/2010)
39 ORDER pursuant to 38 Stipulation: the deadline for Defendants to respond to Plaintiff's Motion for Summary Judgment (Doc. 18) is extended to December 10, 2010. Signed by Judge G Murray Snow on 12/6/10. (LSP) (Entered: 12/06/2010)
40 RESPONSE to Motion re 18 MOTION for Summary Judgment, CROSS−MOTION for Summary Judgment filed by Joseph M Arpaio, Maricopa County Sheriff's Office. (Popolizio, Joseph) Modified on 12/13/2010 (SAT). CORRECTION: Motion event added to entry of this two−part document. (Entered: 12/10/2010)
41 STATEMENT of of Facts in Support of their Response to Plaintiff's Motion for Summary Judgment by Defendants Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Index and Exhibits 1−4, # 2 Exhibit 5, # 3 Exhibits 6−8, # 4 Exhibits 9−18, # 5 Exhibits 19−22)(Popolizio, Joseph) (Entered: 12/10/2010)
42 OBJECTION re 19 Statement,,,,, by Defendants Joseph M Arpaio, Maricopa County Sheriff's Office. (Popolizio, Joseph) (Entered: 12/10/2010)
43 RESPONSE to Motion re 18 MOTION for Summary Judgment, CROSS−MOTION for Summary Judgment / Defendant Maricopa County's Response to Motion for Summary Judgment −and− Cross−Motion for Summary Judgment filed by Maricopa, County of. (Estrella, Cynthia) Modified on 12/13/2010 (SAT). CORRECTION:

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 7 of 8

12/10/2010
12/21/2010 12/22/2010
02/04/2011 02/04/2011
02/04/2011 02/04/2011 02/04/2011 02/24/2011 02/25/2011 04/26/2011 04/26/2011 04/26/2011 06/01/2011

Motion event added to entry of this two−part document. (Entered: 12/10/2010)
44 STATEMENT re 43 Response to Motion for Summary Judgment / Defendant's Controverting and Separate Statement of Facts in Support of Response to Plaintiff's Motion for Summary Judgment and Maricopa Count's Cross−Motion for Summary Judgment by Defendant Maricopa, County of. (Estrella, Cynthia) (Entered: 12/10/2010)
45 STIPULATION Stipulated Motion for Extension of Time to Reply to Defendants' Responses and Respond to Defendants' Cross−Motions for Summary Judgment by United States of America. (Attachments: # 1 Text of Proposed Order)(Aminfar, Amin) (Entered: 12/21/2010)
46 ORDER pursuant to 45 Stipulation: the United States shall be allowed through and including February 4, 2011, in which to file its combined Replies and Responses to Defendants respective Responses to the United States Motion for Summary Judgment and Cross−Motions for Summary Judgment. Signed by Judge G Murray Snow on 12/22/10. (LSP) (Entered: 12/22/2010)
47 REPLY to Response to Motion re 18 MOTION for Summary Judgment and Response to 40 Cross−Motion for Summary Judgment filed by United States of America. (Aminfar, Amin) Modified on 2/7/2011 (LSP). CORRECTION to document linkage. (Entered: 02/04/2011)
48 STATEMENT of Supplemental Facts re 47 Response to 40 Cross−Motion for Summary Judgment by Plaintiff United States of America. (Attachments: # 1 Affidavit Declaration of Avner Shapiro, # 2 Exhibit 69, # 3 Exhibit 70)(Aminfar, Amin) Modified on 2/7/2011 (LSP). CORRECTION to document linkage. (Entered: 02/04/2011)
49 OBJECTION re 41 Statement, by Plaintiff United States of America. (Aminfar, Amin) (Entered: 02/04/2011)
50 REPLY to Response to Motion re 43 MOTION for Summary Judgment and Response to 43 Cross−Motion for Summary Judgment filed by United States of America. (Aminfar, Amin) Modified on 2/7/2011 (LSP). CORRECTION to document linkage and event. (Entered: 02/04/2011)
51 OBJECTION re 44 Statement, by Plaintiff United States of America. (Aminfar, Amin) (Entered: 02/04/2011)
52 STIPULATION to Extend Deadline to File Reply in Support of Cross−Motion for Summary Judgment by Joseph M Arpaio, Maricopa County Sheriff's Office, Maricopa, County of, United States of America. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) (Entered: 02/24/2011)
53 ORDER pursuant to 52 Stipulation: extending the deadline for Defendants to file a Reply in Support of 43 their Cross−Motion for Summary Judgment, to and including, April 26, 2011. Signed by Judge G Murray Snow on 2/24/11. (LSP) (Entered: 02/25/2011)
54 *Reply to Response to Motion re 40 Cross−Motion for Summary Judgment by Defendants Joseph M Arpaio, Maricopa County Sheriff's Office. (Popolizio, Joseph) *Modified on 4/27/2011, to Reply to Response to Motion and to add 40 , (LSP). (Entered: 04/26/2011)
55 STATEMENT of Facts in Support of Reply to Cross−Motion for Summary Judgment re 54 Reply by Defendants Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Exhibit 1, 2, 3, 4)(Popolizio, Joseph) (Entered: 04/26/2011)
56 *REPLY to Response to Motion re 43 MOTION for Summary Judgment, Reply in Support of its Cross−Motion for Summary Judgment filed by Maricopa, County of. (Estrella, Cynthia) *Modified on 4/27/2011, deleted 40 and ]18], (LSP).* (Entered: 04/26/2011)
57 Minute Order: Status Conference set for 6/3/2011 3:30 p.m. in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.(ADG)

Case: 2:10-cv-1878 As of: 10/19/2017 03:34 PM MST 8 of 8

06/02/2011 06/02/2011 06/03/2011 06/03/2011
06/06/2011
08/01/2011 08/01/2011 08/01/2011 08/09/2011

(Entered: 06/01/2011)
58 Joint MOTION to Stay and Remove Case to the Inactive Docket by United States of America. (Attachments: # 1 Exhibit A − Agreement, # 2 Text of Proposed Order)(Aminfar, Amin) (Entered: 06/02/2011)
59 NOTICE re No Objection to Joint Motion to Remove Case to the Inactive Docket and Stay Proceedings by Maricopa, County of re 58 Joint MOTION to Stay and Remove Case to the Inactive Docket. (Irvine, Thomas) (Entered: 06/02/2011)
60 NOTICE of Appearance by Avner Michael Shapiro on behalf of United States of America (Shapiro, Avner) (Entered: 06/03/2011)
61 Minute Entry for proceedings held before Judge G Murray Snow. Appearances: Avner Shapiro (telephonically) and Michael Walker for plaintiff. Joseph Popolizio for defendants Joseph Arpaio and Maricopa County Sheriff's Office. Cynthia Estrella for defendant Maricopa County. Status Conference held on 6/3/2011. Order to follow. (Court Reporter Candy Potter.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KFZ) (Entered: 06/03/2011)
62 ORDER that this matter will, without further Order of this Court, be dismissed without prejudice within 60 days of the date of this Order unless prior to that date the United States of America files a motion to postpone dismissal of the case. The Clerk shall terminate this matter on August 2, 2011 unless the United States of America has filed a motion to postpone the dismissal of the case. Signed by Judge G Murray Snow on 6/3/11. (LSP) (Entered: 06/06/2011)
63 MOTION to Dismiss Case without prejudice by United States of America. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Aminfar, Amin) (Entered: 08/01/2011)
64 RESPONSE to Motion re 63 MOTION to Dismiss Case without prejudice filed by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Exhibit)(Popolizio, Joseph) (Entered: 08/01/2011)
65 ORDER granting the United States' 63 Motion to Dismiss and dismissing this action without prejudice pursuant to Fed. R. Civ. P. 41(a)(2), each party to bear their own costs and fees. Signed by Judge G Murray Snow on 08/01/11. (ESL) (Entered: 08/01/2011)
66 NOTICE OF ATTORNEY SUBSTITUTION: Sheridan L. England appearing for United States of America. Attorney Michael Madison Walker terminated. (England, Sheridan) (Entered: 08/09/2011)

 </s> Department of Justice Releases Investigative Findings on the Maricopa County Sheriff’s Office | OPA | Department of Justice

Search this site

Search

HOME ABOUT AGENCIES BUSINESS RESOURCES NEWS CAREERS CONTACT Home » Office of Public Affairs

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

SHARE Thursday, December 15, 2011

Department of Justice Releases Investigative Findings on the Maricopa County Sheriff’s Office
Findings Show Pattern or Practice of Wide-ranging Discrimination Against Latinos and Retaliatory Actions Against Individuals Who Criticized MCSO Activities
WASHINGTON– Following a comprehensive investigation, the Justice Department today announced its findings in the ongoing civil rights investigation of the Maricopa County Sheriff’s Office (MCSO). The Justice Department found reasonable cause to believe that MCSO, under the leadership of Sheriff Joseph M. Arpaio, has engaged in a pattern or practice of misconduct that violates the Constitution and federal law. The investigation, opened in June 2008, was conducted under the provisions of the Violent Crime Control and Law Enforcement Act of 1994 and Title VI of the Civil Rights Act of 1964, and the Title VI implementing regulations.
The department found reasonable cause to believe that a pattern or practice of unconstitutional conduct and/or violations of federal law occurred in several areas, including:
Discriminatory policing practices including unlawful stops, detentions and arrests of Latinos; Unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices, including but not limited to practices relating to its discriminatory treatment of Latinos; and Discriminatory jail practices against Latino inmates with limited English proficiency by punishing them and denying them critical services.
The Justice Department found a number of long-standing and entrenched systemic deficiencies that caused or contributed to these patterns of unlawful conduct, including:
A failure to implement policies guiding deputies on lawful policing practices; Allowing specialized units to engage in unconstitutional practices; Inadequate training;

Report a Crime
Get a Job
Locate a Prison, Inmate, or Sex Offender
Apply for a Grant
Submit a Complaint
Report Waste, Fraud, Abuse or Misconduct to the Inspector General
Find Sales of Seized Property
Find Help and Information for Crime Victims
Register, Apply for Permits, or Request Records

https://www.justice.gov/opa/pr/department-justice-releases-investigative-findings-maricopa-county-sheriff-s-office[8/17/2016 2:46:16 PM]

Department of Justice Releases Investigative Findings on the Maricopa County Sheriff’s Office | OPA | Department of Justice

Inadequate supervision; An ineffective disciplinary, oversight and accountability system; and A lack of sufficient external oversight and accountability.
In addition to these formal pattern or practice findings, the investigation uncovered additional areas of serious concern, including:
Use of excessive force; Police practices that have the effect of significantly compromising MCSO’s ability to adequately protect Latino residents; and Failure to adequately investigate allegations of sexual assaults.

Identify Our Most Wanted Fugitives
Find a Form
Report and Identify Missing Persons
Contact Us

While no formal findings of pattern or practice violations have been made in connection with these issues, the investigation remains ongoing.

“MCSO’s systematic disregard for basic constitutional protections has created a wall of distrust between the sheriff’s office and large segments of the community, which dramatically compromises the ability to protect and serve the people,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The problems are deeply rooted in MCSO’s culture, and are compounded by MCSO’s penchant for retaliation against individuals who speak out.”

The department’s thorough and independent investigation involved an in-depth review of MCSO practices, as well as extensive community engagement. Department attorneys, investigators and experts conducted interviews with more than 400 individuals including, 75 current and former MCSO supervisors and deputies, including Sheriff Arpaio, and 150 former and current MCSO inmates. In addition, the department reviewed thousands of pages of documents. Many of the interviews and much of this review was delayed when MCSO refused to provide required documents and access. MCSO finally provided the required access and documents after the department filed a lawsuit under Title VI in September 2010.

Addressing the findings, and reforming MCSO, requires a sustained commitment to long term structural, cultural and institutional change. MCSO must develop and implement new policies and procedures and train its officers in effective and constitutional policing. In addition, MCSO must implement systems to ensure accountability, and eliminate unlawful bias from all levels of law enforcement decision making.

The department will seek to obtain a court enforceable agreement and will attempt to work with MCSO and Maricopa County officials to develop and implement a comprehensive reform plan with the judicial oversight needed to address the violations of the Constitution and federal law.

“Effective policing and constitutional policing go hand in hand. Developing and implementing meaningful reforms will assist in reducing crime, ensuring respect for the Constitution, and ensuring that the people of Maricopa County have confidence in MCSO’s commitment to fair and effective law enforcement,” said Thomas E. Perez. “We hope to resolve the concerns outlined in our findings in a collaborative fashion, but we will not hesitate to take appropriate legal action if MCSO chooses a different course of action.”

https://www.justice.gov/opa/pr/department-justice-releases-investigative-findings-maricopa-county-sheriff-s-office[8/17/2016 2:46:16 PM]

Department of Justice Releases Investigative Findings on the Maricopa County Sheriff’s Office | OPA | Department of Justice
This investigation was conducted by the Special Litigation Section and the Federal Coordination and Compliance Section of the Civil Rights Division with the assistance of law enforcement professionals, including former police chiefs, a jail practices consultant and a consultant on statistical analysis. Members of the Maricopa County community who may wish to provide information to the department in furtherance of this investigation may call 1-877-613-2137 or email community.maricopa@usdoj.gov .

The full report can be found at www.justice.gov/crt/about/spl/mcso.php For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov/crt

11-1645

Civil Rights Division Updated September 15, 2014

ABOUT The Attorney General Budget & Performance Strategic Plans History
AGENCIES
BUSINESS Business Opportunities Small & Disadvantaged Business Grants

| 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

RESOURCES Forms Publications Case Highlights Legislative Histories Information for Victims in Large Cases

CAREERS Legal Careers Interns, Recent Graduates, and Fellows Veteran Recruitment
CONTACT

NEWS The Justice Blog Public Schedule Videos Photo Gallery

JUSTICE.GOV

Archive

Social Media

Accessibility

For Employees

Adobe Reader

Office of the

FOIA

Inspector General

No FEAR Act

Government

Information QualityResources

Privacy Policy

Open Government

Legal Policies & Plain Writing

Disclaimers

USA.gov

BusinessUSA

https://www.justice.gov/opa/pr/department-justice-releases-investigative-findings-maricopa-county-sheriff-s-office[8/17/2016 2:46:16 PM]

 </s> Justice Department Reaches Settlement in Civil Rights Lawsuit Against Maricopa County, Arizona, and Maricopa County Sheriff | OPA | Department of Justice

Search this site

Search

HOME ABOUT AGENCIES BUSINESS RESOURCES NEWS CAREERS CONTACT Home » Office of Public Affairs

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

SHARE Friday, July 17, 2015

Justice Department Reaches Settlement in Civil Rights Lawsuit Against Maricopa County, Arizona, and Maricopa County Sheriff
The Department of Justice’s Civil Rights Division announced today that it has reached a partial settlement in its civil rights lawsuit against Maricopa County, Arizona, and Maricopa County Sheriff Joseph M. Arpaio. The settlement resolves the United States’ claims that the Maricopa County Sheriff’s Office (MCSO) conducted unlawful detentions of Hispanics during worksite raids of local businesses in violation of the Fourth and 14th Amendments, and retaliated against critics of Sheriff Arpaio and MCSO in violation of the First Amendment. The parties have filed a joint motion requesting that the federal district court in Arizona approve and agree to enforce the settlement agreement. The parties also reached a separate settlement resolving the United States’ claim that MCSO failed to provide adequate language access for limited English-proficient Hispanics in MCSO jails in violation of Title VI of the Civil Rights Act of 1964.   
“The resolution of these claims, with the important safeguards against future constitutional violations included in these agreements, is in the best interests of the people of Maricopa County,” said Deputy Assistant Attorney General Mark Kappelhoff of the Justice Department’s Civil Rights Division. “The Maricopa County Sheriff’s Office changed many of their practices after the commencement of our litigation, and these agreements ensure that progress continues and the Constitutional rights of the people of Maricopa County will be protected for the long term.”
Under the agreements, MCSO will comply with the following measures, ensuring that its activities comport with federal law and the Constitution:
Before MCSO may conduct any worksite raids, it must first establish a set of written policies and protocols and submit them to the Civil Rights Division for review, to ensure that the worksite raids comply with all applicable laws and constitutional protections. If MCSO conducts a worksite raid, the Civil Rights Division may request any information and documents to determine whether the operation was conducted consistently with federal law and the Constitution.
MCSO will prohibit retaliation against individuals engaging in First Amendment protected activity, such as public criticism of Sheriff Arpaio or the MCSO.  

Report a Crime
Get a Job
Locate a Prison, Inmate, or Sex Offender
Apply for a Grant
Submit a Complaint
Report Waste, Fraud, Abuse or Misconduct to the Inspector General
Find Sales of Seized Property
Find Help and Information for Crime Victims
Register, Apply for Permits, or Request Records

https://www.justice.gov/opa/pr/justice-department-reaches-settlement-civil-rights-lawsuit-against-maricopa-county-arizona[8/17/2016 2:49:41 PM]

Justice Department Reaches Settlement in Civil Rights Lawsuit Against Maricopa County, Arizona, and Maricopa County Sheriff | OPA | Department of Justice

MCSO must ensure that limited English-proficient (LEP) Hispanic inmates in MCSO jails have adequate language access and are protected from unlawful, national origin-based discrimination. These measures include:
Improving MCSO’s policies and practices for identifying LEP inmates;
Ensuring that LEP inmates have adequate access to language assistance services, such as bilingual staff, telephonic interpretation services and Spanish-language translations of important written policies and postings in the jails; and
Requiring that all vital announcements in MCSO facilities be made in both English and Spanish; and
Requiring MCSO to take reasonable steps to ensure that medical staff are informed if an inmate needing medical attention is LEP and requires language assistance.
As part of today’s agreements, if the Civil Rights Division determines that MCSO is not in substantial compliance with any provision of the agreements, it will attempt to first resolve the issue with MCSO; if the Civil Rights Division is unable to cooperatively resolve the compliance issues, however, it may bring appropriate enforcement actions before the federal district court in Arizona.
Today’s agreements resolve the majority of the claims involved in the division’s lawsuit, filed in May 2013, against Sheriff Arpaio and Maricopa County. That lawsuit alleged four patterns or practices of unconstitutional conduct: (1) discriminatory policing against Hispanic persons in MCSO’s saturation patrols, general traffic enforcement and worksite operations targeting Hispanic immigrants, (2) detentions in violation of the Fourth Amendment during MCSO’s worksite raids targeting Hispanic immigrants, (3) failures in the provision of language access to Hispanic LEP jail inmates and (4) retaliatory police action against critics of Sheriff Arpaio and MCSO. Last month, the federal district court of Arizona granted the United States’ motion for partial summary judgment on its discriminatory policing claim, finding that the United States was entitled to judgment on its claims that MCSO had engaged in discrimination against Hispanics in its enforcement of traffic laws. A remedy on that issue is still to be determined by the court. The parties are in ongoing discussions to resolve the remaining claims in the division’s lawsuit.
The agreements, as well as a description of the division’s previous investigation of and litigation against the Maricopa County Sheriff Arpaio and Maricopa County, will be available at: http://www.justice.gov/crt/about/spl/.
Maricopa Settlement Agreement and Attachment A.pdf (1.03 MB)
Maricopa Proposed Order.pdf (23.54 KB)
Maricopa Joint Motion to Approve.pdf (37.86 KB)

Identify Our Most Wanted Fugitives
Find a Form
Report and Identify Missing Persons
Contact Us

15-901 Topic: Civil Rights

Civil Rights Division Civil Rights - Special Litigation
Updated February 4, 2016

| 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

JUSTICE.GOV

Archive

Social Media

https://www.justice.gov/opa/pr/justice-department-reaches-settlement-civil-rights-lawsuit-against-maricopa-county-arizona[8/17/2016 2:49:41 PM]

 </s> Justice Department Settles Lawsuit with Maricopa County Sheriff’s Office | OPA | Department of Justice

Search this site

Search

HOME ABOUT AGENCIES BUSINESS RESOURCES NEWS CAREERS CONTACT Home » Office of Public Affairs

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

SHARE Thursday, June 2, 2011

Justice Department Settles Lawsuit with Maricopa County Sheriff’s Office
Settlement Comes After the Sheriff’s Office Provided Information Sought in Title VI Investigation
WASHINGTON – The Justice Department today announced that it has entered in to a courtenforceable agreement with the Maricopa County Sheriff’s Office (MCSO) and Maricopa County Sheriff Joe Arpaio resolving a longstanding dispute over access to information related to the department’s Title VI investigation of the sheriff’s office. The settlement comes after MCSO allowed officials from the Justice Department to conduct more than 220 interviews and review hundreds of thousands of pages of documents. Prior to the litigation, MCSO refused to cooperate in full with the investigation.
On Sept. 2, 2010, the department filed a lawsuit after exhausting all cooperative measures to gain access to MCSO’s documents and facilities, as part of the department’s investigation of alleged discrimination in MCSO’s police practices and jail operations. Since March 2009, the department attempted to secure voluntary compliance with the department’s investigation and did not receive full compliance until the lawsuit was filed.
MCSO has now cooperated with the investigation by permitting the department to interview Sheriff Arpaio, command staff, deputies, detention officers and first line supervisors, as well as jail inmates. MCSO has also allowed tours of its facilities and has responded to each of the department’s original document requests. Under the terms of the agreement, MCSO will continue to provide the department with access to sources of information that the department determines are pertinent to its Title VI investigation.
“After numerous requests for access to information, the department was forced to resort to litigation to compel the sheriff’s office to provide us with full access to facilities, staff and documents, as required by federal law,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “We are pleased that since the filing of our lawsuit, the sheriff’s office has reversed course and provided the department with information we have been seeking. Today’s

Report a Crime
Get a Job
Locate a Prison, Inmate, or Sex Offender
Apply for a Grant
Submit a Complaint
Report Waste, Fraud, Abuse or Misconduct to the Inspector General
Find Sales of Seized Property
Find Help and Information for Crime Victims
Register, Apply for Permits, or Request Records

https://www.justice.gov/opa/pr/justice-department-settles-lawsuit-maricopa-county-sheriff-s-office[8/17/2016 2:53:02 PM]

Justice Department Settles Lawsuit with Maricopa County Sheriff’s Office | OPA | Department of Justice settlement shows that the Department of Justice is ready to take action against any recipient of federal funds that fails to cooperate with a civil rights investigation.”
“This is a positive development after delay upon delay by the Sheriff’s Office,” said Dennis Burke, U.S. Attorney for the District of Arizona. “We are working aggressively to review the facts and complete this investigation.”

Identify Our Most Wanted Fugitives
Find a Form
Report and Identify Missing Persons
Contact Us

Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally assisted programs on the ground of race, color or national origin. Recipients of federal funds, such as MCSO, are obligated to provide the department with access to information and facilities pertinent to an investigation under Title VI. The department’s investigation of MCSO involves alleged violations of the prohibition on national origin discrimination in Title VI; the pattern or practice provisions of the Omnibus Crime Control and Safe Streets Act of 1968; and the pattern or practice provisions of the Violent Crime Control and Law Enforcement Act of 1994.

The department’s investigation remains open and ongoing. For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov/crt

11-722

Civil Rights Division Updated September 15, 2014

ABOUT The Attorney General Budget & Performance Strategic Plans History
AGENCIES
BUSINESS Business Opportunities Small & Disadvantaged Business Grants

| 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

RESOURCES Forms Publications Case Highlights Legislative Histories Information for Victims in Large Cases

CAREERS Legal Careers Interns, Recent Graduates, and Fellows Veteran Recruitment
CONTACT

NEWS The Justice Blog Public Schedule Videos Photo Gallery

JUSTICE.GOV

Archive

Social Media

Accessibility

For Employees

Adobe Reader

Office of the

FOIA

Inspector General

No FEAR Act

Government

Information QualityResources

Privacy Policy

Open Government

Legal Policies & Plain Writing

Disclaimers

USA.gov

BusinessUSA

https://www.justice.gov/opa/pr/justice-department-settles-lawsuit-maricopa-county-sheriff-s-office[8/17/2016 2:53:02 PM]

 </s> Justice Department Files Lawsuit Against Maricopa County Sheriff’s Office For Refusing Full Cooperation With Title VI Investigation | OPA | Department of Justice

Search this site

Search

HOME ABOUT AGENCIES BUSINESS RESOURCES NEWS CAREERS CONTACT Home » Office of Public Affairs

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

SHARE Thursday, September 2, 2010

Justice Department Files Lawsuit Against Maricopa County Sheriff’s Office For Refusing Full Cooperation With Title VI
Investigation
WASHINGTON – The Justice Department filed a lawsuit today against the Maricopa County Sheriff’s Office (MCSO), Maricopa County, and Maricopa County Sheriff Joe Arpaio for refusing full cooperation with the department’s investigation of alleged national origin discrimination in violation of Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination in programs that receive federal funds, and also requires grant recipients to cooperate with investigations of discrimination by providing access to documents, facilities and staff. MCSO signed contractual assurance agreements as a condition of receiving federal funds, and promised that it would cooperate with investigations of alleged discrimination.
The department filed today’s lawsuit after exhausting all cooperative measures to gain access to MCSO’s documents and facilities, as part of the department’s investigation of alleged discrimination in MCSO’s police practices and jail operations. Since March 2009, the department has attempted to secure voluntary compliance with the department’s investigation. MCSO’s refusal to cooperate with the investigation makes it an extreme outlier and the department is unaware of any other police department or sheriff’s office that has refused to cooperate in the last 30 years.
“The actions of the sheriff's office are unprecedented. It is unfortunate that the department was forced to resort to litigation to gain access to public documents and facilities,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.
The department’s investigation of MCSO concerns alleged discrimination against Hispanics, in violation of the prohibition on national origin discrimination in Title VI; the pattern or practice provisions of the Omnibus Crime Control and Safe Streets Act of 1968; and the pattern or practice provisions of the Violent Crime Control and Law Enforcement Act of 1994. Title VI prohibits discrimination in federally assisted programs on the ground of race, color, or national origin.
The department’s investigation remains open and ongoing. For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov/crt.

Report a Crime
Get a Job
Locate a Prison, Inmate, or Sex Offender
Apply for a Grant
Submit a Complaint
Report Waste, Fraud, Abuse or Misconduct to the Inspector General
Find Sales of Seized Property
Find Help and Information for Crime Victims
Register, Apply for Permits, or Request Records

https://www.justice.gov/opa/pr/justice-department-files-lawsuit-against-maricopa-county-sheriff-s-office-refusing-full[8/17/2016 2:55:54 PM]

Justice Department Files Lawsuit Against Maricopa County Sheriff’s Office For Refusing Full Cooperation With Title VI Investigation | OPA | Department of Justice

United States of America v. Maricopa County, Arizona (PDF) 10-993

Civil Rights Division Updated September 15, 2014

Identify Our Most Wanted Fugitives
Find a Form
Report and Identify Missing Persons
Contact Us

ABOUT The Attorney General Budget & Performance Strategic Plans History
AGENCIES
BUSINESS Business Opportunities Small & Disadvantaged Business Grants

| 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

RESOURCES Forms Publications Case Highlights Legislative Histories Information for Victims in Large Cases

CAREERS Legal Careers Interns, Recent Graduates, and Fellows Veteran Recruitment
CONTACT

NEWS The Justice Blog Public Schedule Videos Photo Gallery

JUSTICE.GOV

Archive

Social Media

Accessibility

For Employees

Adobe Reader

Office of the

FOIA

Inspector General

No FEAR Act

Government

Information QualityResources

Privacy Policy

Open Government

Legal Policies & Plain Writing

Disclaimers

USA.gov

BusinessUSA

https://www.justice.gov/opa/pr/justice-department-files-lawsuit-against-maricopa-county-sheriff-s-office-refusing-full[8/17/2016 2:55:54 PM]

 </s> Department of Justice Files Lawsuit in Arizona Against Maricopa County, Maricopa County Sheriff’s Office, and Sheriff Joseph Arpaio | OPA | Department of Justice

Search this site

Search

HOME ABOUT AGENCIES BUSINESS RESOURCES NEWS CAREERS CONTACT Home » Office of Public Affairs

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

SHARE Thursday, May 10, 2012

Department of Justice Files Lawsuit in Arizona Against Maricopa County, Maricopa County Sheriff’s Office, and Sheriff Joseph Arpaio
The Department of Justice filed a civil lawsuit in federal court today against Maricopa County, the Maricopa County Sheriff’s Office (MCSO) and Sheriff Joseph M. Arpaio, arising from unconstitutional and unlawful actions by the defendants.

The lawsuit follows a comprehensive and independent investigation initiated, in June 2008, under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994 and Title VI of the Civil Rights Act of 1964. On Dec. 15, 2011, the department issued a 22 page letter of findings, which found reasonable cause that MCSO and Sheriff Arpaio were engaged in a pattern or practice of unconstitutional conduct and/or violations of federal law. Following the issuance of the letter of findings, the department attempted to reach a resolution with MCSO and Sheriff Arpaio and provided them with a comprehensive draft settlement agreement. The proposed agreement contained a number of key reforms that had been successfully implemented elsewhere. However, negotiations were unsuccessful, primarily because MCSO and Sheriff Arpaio refused to agree to any independent oversight by a monitor.
The complaint alleges that Maricopa County, MCSO and Sheriff Arpaio engaged in and continue to engage in a pattern or practice of:
·          Discriminatory and otherwise unconstitutional law enforcement actions against Latinos who are frequently stopped, detained and arrested on the basis of race, color, or national origin;
·          Discriminatory jail practices against Latino inmates with limited English skills; and
·          Illegal retaliation against their perceived critics, subjecting them to baseless criminal actions,

Report a Crime
Get a Job
Locate a Prison, Inmate, or Sex Offender
Apply for a Grant
Submit a Complaint
Report Waste, Fraud, Abuse or Misconduct to the Inspector General
Find Sales of Seized Property
Find Help and Information for Crime Victims
Register, Apply for Permits, or Request Records

https://www.justice.gov/opa/pr/department-justice-files-lawsuit-arizona-against-maricopa-county-maricopa-county-sheriff-s[8/17/2016 2:58:53 PM]

Department of Justice Files Lawsuit in Arizona Against Maricopa County, Maricopa County Sheriff’s Office, and Sheriff Joseph Arpaio | OPA | Department of Justice

unfounded civil lawsuits, or meritless administrative actions.
According to the complaint, since approximately 2006, MCSO and Sheriff Arpaio have intentionally and systematically discriminated against Latinos. They have accomplished this by stopping Latinos in their vehicles four to nine times more often than similarly situated non-Latino drivers. In addition, MCSO stops Latinos on the county’s roads without the required legal justification. Also, MCSO detains and searches Latinos on the roads, in their homes, and in their workplaces without legal justification for doing so. Further, MCSO mistreats Latino detainees with limited English proficiency by ignoring important requests if they are not made in English and punishing detainees if they fail to understand orders given in English. Finally, MCSO files baseless administrative actions, civil actions and criminal cases against its perceived critics in an attempt to chill free speech.

Identify Our Most Wanted Fugitives
Find a Form
Report and Identify Missing Persons
Contact Us

The conduct of MCSO dramatically departs from standard law enforcement practices in numerous ways. As described in the complaint, “MCSO promotes and is indifferent to the discriminatory conduct of its law enforcement officers, as is demonstrated by inadequate policies, ineffective training, virtually non-existent accountability measures, poor supervision, scant data collection mechanisms, distorted enforcement prioritization [and] an ineffective complaint and disciplinary system.”

Additionally, the complaint alleges that the conduct is the product of a culture of disregard for Latinos that starts at the top and pervades the organization. MCSO employees frequently use derogatory terms to refer to Latinos, and Sheriff Arpaio and MCSO supervisors, through their words and actions, set the tone and create a culture of bias that contributes to unlawful actions.

In the complaint, the department seeks declaratory and injunctive relief that would ensure that MCSO implements policies and procedures to prevent the pattern or practice of unconstitutional conduct identified in the complaint.

“At its core, this is an abuse of power case involving Sheriff Arpaio and a sheriff’s office that disregarded the Constitution, ignored sound police practices, and did not hesitate to retaliate against perceived critics in a variety of unlawful ways,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “Constitutional policing and effective policing go hand in hand. The complaint outlines how Sheriff Arpaio’s actions were neither constitutional nor effective. No one in Maricopa County is above the law and the department will fight to ensure that the promise of the Constitution is realized by everyone in Maricopa County.”

This complaint was filed after a thorough and independent investigation of MCSO’s policies and practices. Department attorneys, investigators and experts conducted interviews with more than 400 individuals including, 75 current and former MCSO supervisors and deputies, including Sheriff Arpaio, and 150 former and current MCSO inmates. In addition, the department reviewed thousands of pages of documents. Many of these interviews and much of this review was delayed when MCSO refused to provide required documents and access. MCSO finally provided the required access and documents after the department filed a lawsuit under Title VI in September 2010.
https://www.justice.gov/opa/pr/department-justice-files-lawsuit-arizona-against-maricopa-county-maricopa-county-sheriff-s[8/17/2016 2:58:53 PM]

Department of Justice Files Lawsuit in Arizona Against Maricopa County, Maricopa County Sheriff’s Office, and Sheriff Joseph Arpaio | OPA | Department of Justice

Section 14141 prohibits law enforcement agencies, such as MCSO, from engaging in activities that amount to a pattern or practice of violating the Constitution or laws of the United States. Title VI and its implementing regulations provide that recipients of federal financial assistance, such as Maricopa County and MCSO, may not discriminate on the basis of race, color or national origin.

Since releasing its findings in December 2011, the department has repeatedly reached out to MCSO in an effort to achieve voluntary compliance with the Constitution and Title VI. MCSO ended these efforts in April 2012. In light of the deeply rooted nature of the problems facing MCSO, the complaint seeks a host of reforms, including a court order requiring that the defendants:

·          Develop and implement new policies and procedures and train MCSO officers in effective and constitutional policing;
·          Implement systems to ensure accountability and improve the quality of policing throughout the county; and
·          Eliminate unlawful bias from all levels of law enforcement decision.

In addition, the Justice Department’s experience has shown that the most effective path to sustainable reform includes the appointment of an independent monitor to work collaboratively with the department and the community to ensure the effective implementation of the provisions of any court order.

This investigation was conducted by the Special Litigation Section and the Federal Coordination and Compliance Section of the Civil Rights Division with the assistance of law enforcement professionals, including former police chiefs, a jail practices consultant and a consultant on statistical analysis. The investigation into the handling of sexual assaults by MCSO remains ongoing at this time. Members of the Maricopa County community who may wish to provide information to the Justice Department may call 1-877-613-2137 or email community.maricopa@usdoj.gov .

For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov/crt
Related Materials:
Remarks by Assistant Attorney General Thomas E. Perez at the Maricopa County Press Conference MCSO Complaint

12-602

Civil Rights Division Civil Rights - Federal Coordination and Compliance
Updated August 5, 2015

https://www.justice.gov/opa/pr/department-justice-files-lawsuit-arizona-against-maricopa-county-maricopa-county-sheriff-s[8/17/2016 2:58:53 PM]


[CONTENT] September 2, 2010 | the United States Department of Justice | Civil Rights Division | Title VI | the Civil Rights Act | 1964 | the United States Court | Arizona | Phoenix Division ||| DOJ | Maricopa County | the Civil Rights Act ||| DOJ | Maricopa County | a year | Maricopa County ||| Maricopa County | Sheriff's Office ||| DOJ ||| the Omnibus Crime Control Act | the Violent Crime Control | Law Enforcement Act | the Maricopa County Sheriff's Office ||| 51 ||| MCSO | 3 | 51 ||| DOJ | Title VI ||| June 2, 2011 ||| DOJ | MCSO ||| MCSO | DOJ | Title VI ||| August 1, 2011 | Court | Murray G. Snow | 60 days | Remove Case | the Inactive Docket |||  ||| May 10, 2012 | the United States | Maricopa County | United States | Maricopa County ||| 2:12 | cv-00981-LOA [SUMMARY] On September 2, 2010, the United States Department of Justice ("DOJ"), Civil Rights Division, filed this lawsuit under Title VI of the Civil Rights Act of 1964 in the United States Court for the District of Arizona, Phoenix Division. The DOJ sought declaratory and injunctive relief, claiming that Maricopa County had violated the Civil Rights Act by failing to comply with a DOJ investigation. Specifically, the DOJ claimed that Maricopa County had refused to comply after a year of being minimally cooperative and obstructing the DOJ investigation into the police practices in Maricopa County.

Maricopa County receives federal funds for its Sheriff's Office. Under an implementing regulation, offices that receive financial assistance agree to give the DOJ access to their records and they make contractual agreements to that effect.  The DOJ was investigating a violation of the Omnibus Crime Control Act and the Violent Crime Control and Law Enforcement Act, and had requested documents from the Maricopa County Sheriff's Office (MCSO). The DOJ made 51 specific requests. After over a year had passed, the MCSO had only partially complied with 3 of these 51 requests. The DOJ found them to be in violation of Title VI and initiated this lawsuit.

On June 2, 2011, after the parties had both filed motions for summary judgment, a settlement agreement was reached. The agreement granted the DOJ access to the MCSO facilities. Additionally, the MCSO agreed to produce the documents that the DOJ had requested, as well as a blanket agreement to comply with Title VI. On August 1, 2011, the Court (Judge Murray G. Snow) dismissed the case 60 days after a Joint Motion to Remove Case to the Inactive Docket was made.

There is no further activity and this case appears to be closed.

On May 10, 2012, presumably as a result of the continued investigation, the United States filed a lawsuit against Maricopa County in a related case, United States v. Maricopa County, et. Al, docket #2:12-cv-00981-LOA, (Clearinghouse Code: <a href="http://www.clearinghouse.net/detail.php?id=12017">PN-AZ-0001</a>).