1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 MANUEL DE JESUS ORTEGA )

MELENDRES, JESSICA QUITUGUA )

10 RODRIGUEZ, DAVID RODRIGUEZ, )

VELIA MERAZ, MANUEL NIETO, JR.),

11 on behalf of them selves and all others )

similarly situated, a nd SOMOS)

12 AMERICA,

)

)

13

Plaintiffs,

)

)

14 vs.

)

)

15

)

JOSEPH M. ARPAIO, in his official )

16 capacity as Sheriff of Maricopa County, )

MARICOPA SHERIFF’S OFFICE, and )

17 MARICOPA COUNTY, ARIZONA, )

)

18

Defendants.

)

)

19

)

No. CV 07-2513-PHX-MHM ORDER

20

21 Currently before this Court is Plaintiff Manuel De Jesus Ortega Melendres, et al.,

22 ("Plaintiff") Motion for Leave to Amend Complaint. (Dkt.#17). Plaintiff seeks leave of the

23 Court under Rule 15(a) of the Federal Rules ofCivil Procedure to file an amended complaint

24 "to eliminate[] all demands for monetary damages, reduce[] the number of claims for relief,

25 and narrow[] the scope of the definition of the proposed class." (Plaintiff' s Motion, p.2).

26 Defendants respond by stating that granting Plaintiff’s motion would be “futile, as a matter

27 of law.” (Defendants’ Motion, p. 2). After reviewing all of the pleadings in this case, the

28 Court finds oral argument unnecessary and issues the following Order.

1 I. Background

2 This case arose out of an encounter between Manuel De Jesus Ortega Melendres and

3 deputies from the Maricopa County Sheriff’s Office in Cave Creek, Arizona on or about

4 September 26, 2007. (Plaintiff’s Complaint, p. 3)

5 On December 12, 2007, Plaintiff filed a seven-count complaint against Maricopa County,

6 Sheriff Joseph Arpaio, and fictitiously nam ed Sheriff’s deputies. (Dkt.#1). Plaintiff’s

7 complaint alleged violations of the Equal Protection Clause, the Due Process Clause and the

8 Privileges and Im munities Clause of the Fourteenth Am endment to the United States

9 Constitution, as well as violations of the Fourth Amendment, Title VI of the Civil Rights Act

10 of 1964, and sta te law claims based on concepts of Due Process and Privacy under the

11 Arizona Constitution. (Dkt.#1). Plaintiff pled relief in the formof a declaratory judgment,

12 a preliminary and perm anent injunction, an award of com pensatory, consequential and

13 punitive damages, and attorney’s fees. (Dkt.#1).

14 On January 3, 2008, Defendants’ filed a motion to dismiss under Fed. R. Civ. P.12(b)(6),

15 and the following day answered. (Dkt.#12,13). Plaintiff, after filing a response in opposition

16 to Defendants’ motion to dismiss, substituted its counsel of record. (Dkt.#16). On July 16,

17 2008, Plaintiff’s new counsel moved this Court for permission to amend its complaint under

18 Fed. R. Civ. P.15(a). (Dkt.# 17).

19 The proposed First Am ended Complaint seeks to join as Plaintiffs, Je ssica Quitugua

20 Rodriguez, David Rodriguez, Velia Meraz, and Manuel Nieto, Jr., as well as the organization

21 Somos America. The Amended Complaint also seeks to add as a defendant, the Maricopa

22 Sheriff’s Department (MSCO). Additionally, the First Am ended Complaint eliminates all

23 claims for monetary damages, omits three claims for relief, and changes the class definition

24 from “all individuals of Hispanic descent who reside, are employed, attend school and travel

25 within the borders of Maricopa County, Arizona,” (Plaintiff’s Com plaint, p. 11), to “all

26 Latino persons who, since January 2007, have been or will be in the future, stopped,

27 detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a

28

- 2 -

1 public roadway or parking area in Maricopa County, Arizona.” (Plaintiff’s Proposed First

2 Amended Complaint, p. 24)

3 II. Analysis

4 Once a responsive pleading has been filed, the Federal Rules of Civil Procedure provide

5 that parties may amend a pleading,“only by leave of the court or by written consent of the

6 adverse party; and leave shall be freely given when justice so requires.” F ed. R. Civ. P .

7 15(a). Court’s a pply Rule 15(a) with “extrem e liberality.” Em inence Capital, LLC v.

8 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Meaning, there is a strong presumption

9 in favor of granting a party leave to amend. See id. at 1052.

10 In determining the propriety of a motion for leave to amend, courts consider five factors.

11 Manzarek v. St. Paul Fire & Ins. Co. , 519 F.3d 1025, 1034 (9th Cir. 2008). These factors

12 include (1) bad faith on the part of the m oving party; (2) undue delay; (3) prejudice to the

13 non-moving party; (4) whether the moving party has previously amended his complaint; and

14 (5) the apparent futility of any proposed amendment. DCD Programs, Ltd. V. Leighton, 833

15 F.2d 183, 186 (9th Cir. 1987). The Ninth Circuit has instructed that this “determ ination

16 should generally be performed with all inferences in favor of granting the motion.” Griggs

17 v. Pace Amer. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999).

18 In the instant case, Defendants have not contested factors one through four, and the only

19 issue that remains in dispute is whether Plaintiff’s First Amended Complaint is futile, thereby

20 justifying the Court’s denial of its motion to amend.

21 “Futility can, by itself, justify the denial of a motion for leave to amend.” Gentala v. City

22 of Tucson, 213 F.3d 1055, 1061 (9th Cir. 2000) However, “a proposed amendment is futile

23 only if no set of facts can be proved under the am endment to the pleading that would

24 constitute a valid and sufficient claimor defense. ” Sweaney v. Ada County, 119 F.3d 1385,

25 1393 (9th Cir. 1997) (quoting Miller v. Rykoff-Sexton, Inc. , 845 F.2d 209, 214 (9th Cir.

26 1988)). The concept of futility is most frequently at issue when the original complaint, at its

27 core, is so factually or legally flawed that it “could not be saved by any [proposed]

28

- 3 -

1 amendment,” and where granting leave to amend the complaint would amount to nothing

2 more than an exercise in futility by the district court. Chang v. Che, n80 F.3d 1293, 2196 (9th

3 Cir. 1996).

4 In the instant case, Defendants have put forward several arguments alleging the futility of

5 Plaintiff’s proposed First Amended Complaint. Defendants first allege that the parties added

6 as plaintiffs in theproposed First Amended Complaint have legal defects that preclude proper

7 amendment. For instance, Defendants argue that the party Somos America lacks Article III

8 standing, either individually or through the concept of third-party/organizational standing.

9 See Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992); W arth v. Seldin, 422 U.S. 490

10 (1975). Defendants further contend that the 42 U.S.C. § 1983 claim s made by proposed

11 parties David Rodriguez, Jessica Rodriguez, Velia Meraz, and Manuel Nieto, Jr. fail as a

12 matter of law under the two-part test for qualified immunity. Rodis v. City & County of San

13 Francisco, 499 F.3d 1094, 1097 (9th Cir. 2007) (citing Saucier v. Katz, 533 U.S. 194, 202

14 (2001)).

15 Defendants also state that the First Amended Complaint attempts to improperly add the

16 MCSO, which is non-jural entity, having no le gal identity separate and apart from that of

17 Maricopa County. (Defendant’s Response in Opposition to Motion for Leave to Amend, p.

18 8)

19 Lastly, Defendant’s re-iterate an argument made in their Motion to Dismiss. Defendant’s

20 allege that municipal liability under § 1983, see Monell v. New York City Dept. of Soc.

21 Serv., 436 U.S. 658 (1978), cannot attach to Maricopa County because Sheriff Arpaio is not

22 an official policy m aker for the County and that in any event the County did not have a

23 policy to deprive Plaintiffs of a constitutional right. (Defendants’ Motion to Dismiss, p. 2-4;

24 Defendants’ Response in Opposition to Motion for Leave to Amend, p. 8)

25 Defendants have over-stated the scope of inquriy engaged in by the Court when evaluating

26 the “futility” of a motion requesting leave to amend. This Court is not inclined to use Rule

27

28

- 4 -

1 15(a) as a vehicle for hearing arguments that are clearly more properly suited to a 12(b)(1),

2 12(b)(6) or Summary Judgment Motion.

3 On this point, the case of Sweaney v. Ada County, Idaho, 119 F.3d 1385 (9th Cir. 1997),

4 is instructive. Sweaney involved § 1983 claim s brought by the parent of a child against a

5 county, a sheriff, and various sheriff’s deputies,after the parent was arrested for striking her

6 child with a belt on school grounds. Sweaney , 119 F.3d at 1387-88. The suit alleged that

7 defendants had deprived the parent of a substantive due process right to im pose corporal

8 punishment on her child. Id. After defendants moved for summary judgment on the basis of

9 qualified immunity, the child’s parent moved the court for leave to amend her complaint. Id.

10 at 1388. The district court denied the motion for leave to amend, but granted the defendant’s

11 motion for summary judgment. Id. On appeal, the Ninth Circuit affirmed the district court’s

12 determination that the defendant’s were entitled to qua lified immunity on the ground that

13 even if the Constitution protected a parent’s rgiht to strike their child on school grounds such

14 a right was in no sense “clearly established” under Harlow v. Fitzge rald, 457 U.S . 800

15 (1982). Id. at 1390. The court went on to uphold the district court’s de nial of plaintiff’s

16 motion of leave to amend.

17 The proposed amendments in Sweaney attempted to add a claim alleging that the county

18 had in place a municipal policy of failing to train its deputies to adequately investigate

19 matters involving the exercise of a constitutional right, and facts which indicated that

20 sheriff’s deputies were purposefully targeting the plaintiff for criminal charges. Id.at 1393.

21 With respect to these changes, the Ninth Circuit held that claim s contained in the original

22 complaint were so legally flawed that any attem pt to amend them was essentially futile,

23 despite the liberal standard for am endment embodied by the Federal Rules of Civil

24 Procedure. See id. The court noted that because the defendants in Sweaneydid not violate

25 clearly established federal law, it was useless for the plaintiff to propose to am end her

26 complaint to add allegations of a municipal wrongdoing. Id. Whatever the county policy ,

27 plaintiff’s rights were not violated. Id. As to the subjective misgivings of the deputies, the

28

- 5 -

1 court reasoned that the defendants’ subjective intent was not relevant to the qualified

2 immunity test. Id.

3 The instant case is distinguisha ble from a case like Sweaney . Here, Plaintiffs have not

4 merely sought to add additional claims or legally insignificant facts to a complaint filed by

5 a single plaintiff. Instead, multiple parties have been added as plaintiffs, claims for monetary

6 damages have bee n eliminated, and the nature of the proposed class has been altered.

7 Furthermore, unlike Sweaney, Defendants’ Response in Opposition does not focus on the

8 underlying merit of the original com plaint, nor why any of the initial claim s brought by

9 Melendres were futile and should not proceed. Even if this Court were to deny this motion

10 on the grounds of qualified im munity–with respect to claim s made by J. Rodriguez, D.

11 Rodriguez, Meraz and Nieto–this Court w ould still need to conduct a qualified im munity

12 analysis for claim s made by Melendres. In fact, the only argum ent put forward by the

13 Defense that would have any effect on the original claim s made by Melendres is that of

14 municipal liability under § 1983 and Monell.

15 In order to avoid piecemeal adjudication, this Court would rather address these and other

16 substantive issues when they are squarely presented to the Court in the formof a dispositive

17 motion addressed to a single am ended complaint, where the standard of review on appeal

18 would be de novo rather tha n an abuse of discretion. See Plum eau v. Sch. Dist. No. 40,

19 County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (“Leave to amend is generally within

20 discretion of district court”); Ove v. Gwinn, 264 F.3d 817(9th Cir. 2001) (stating that a

21 motion to dismiss is reviewed de novo).

22 The parties should take note that after am endment the original pleading is treated as

23 nonexistent. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, the original

24 12(b)(6) motion filed by Defendants will be treated as m oot and there will be another

25 opportunity to file Rule 12 motions and a responsive pleading.

26 While it is generally disfavored for a plain tiff to seek leave of the court to am end after

27 dispositive motions have been fully briefed–when they might feel the impending doom of a

28

- 6 -

1 motion to dismiss–Plaintiffs have sought to am end only after counsel of record had been

2 substitute, and no allegations of bad faith or undue delay have beenamde by the non-moving

3 party.

4 Accordingly,

5 IT IS HEREBY ORDEREDgranting Plaintiff's Motion for Leave to Amend Complaint.

6 (Dkt.#17);

7 IT IS FURTHER ORDEREDdenying Defendant’s 12 (b)(6) Motion to Dismiss as moot.

8 (Dkt.#12).

9 IT IS FURTHER ORDERED vacating the Motion Hearing set on September 24, 2008

10 at 3:30 p.m.

11

DATED this 5th day of September, 2008.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 7 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiff,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendant.

)

14

)

)

15

No. 07-2513-PHX-MHM ORDER

16

Currently pending before the Court is Bill Stoller and the Aggrieved and Irreparably

17 Injured Class of United States and Phoenix Citizens’ Motion to Intervene Under Rule 22 and

18 24 Fed. R. Civ. P. (Dkt.#24).

19

A party may intervene as of right or with the Court’s permission. See Fed. R. Civ. P.

20 24. Intervention as of right is available onlywhen a person can demonstrate: (1) a significant

21 protectable interest relating to the property or transaction of the cur rent lawsuit; (2) the

22 ultimate disposition of the case m ay, as a practical m atter, impair or impede a person’s

23 interest; (3) the application is timely; and (4) the existing parties do not adequately represent

24 the person’s interest. United States v. Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002). “In

25 evaluating whether these requirements are met, courts are guided primarily by practical and

26 equitable considerations.” Id. (quoting Donelly v. Glickman, 159 F.3d 405 (9th Cir. 1998)

27 (internal quotations omitted)).

28

1

Stoller’s attempt to intervene as of right fails because Defendants are well suited to

2 ensure that his interests are adequately represented, and this case’s ultimate disposition will

3 not practically impair or impede his interests.

4

The Ninth Circuit em ploys a three-part test to determ ine the adequacy of

5 representation: (1) whether the interests of the current parties are such that they will raise all

6 of the intervenor’s relevant arguments; (2) whether the current parties are capable and willing

7 of making such argum ents; (3) whether the inte rvenor makes contentions or presents

8 elements of a claim that the other parties would neglect. People of State of Cal. v. Tahoe

9 Reg’l Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986). Here, Stoller’s contentions are

10 likely to duplicate those made by Defendants. Apparently, Stoller would like to intervene

11 to alert the Court to the fact that he and other m embers of his purported class support

12 Defendants’ position in this litigation, and believe Plaintiff’s claims have been taken in bad

13 faith. To the extent his cont entions relate in any sense to the instant case, Stoller has not

14 sufficiently demonstrated that defendants will not be capable of com petently raising all

15 relevant legal arguments without his presence. With respect to the presence of the purported

16 class, even if the Court were to assum e that Stoller’s class, com prised of “aggrieved and

17 irreparably injured” residents of the “City of Phoenix” and the “United States,” we re

18 ascertainable and capable of certification under Fed. R. Civ. P. 23, its interests are such that

19 it is also sufficiently repre sented by Defendants, who are com prised of the County of

20 Maricopa, Arizona, its elected Sheriff, and his Office.

21

Moreover, Stoller has failed to demonstrate how his interests, or those of his class,

22 would be practically impaired if this case were to proceed absent their participation. Stoller’s

23 pleadings, if properly labeled as such, appear to assert unrelated claims that fall outside the

24 scope of this current litigation. For example, Stoller contends that the City of Phoenix, and

25 Plaintiff Jessica Rodriguez in particular, devised a schem e to provide non-citizens with

26 preferential treatment, file false and malicious lawsuits, and otherwise commit various torts

27 against Stoller and his proposed class members. It is unclear what relationship, if any, these

28 claims have to the instant case. Regardless of the outcome of this case, Stoller will be free

- 2 -

1 to pursue his claim s against Plaintiffs in another, m ore appropriate, forum. Once there,

2 Stoller will not likely be subject to the doctrines of res judicata, collateral estoppel or even

3 stare decisis, because his contentions are both factually and legally distinct to events which

4 form the basis of the instant case. As Plaintiffs note, Rule 24 “is not intended to allow the

5 creation of whole new suits by intervenors.” Washington Elec. Coop., Inc. v. Washington

6 Mun. Elec.Co., 922 F.2d 92, 97 (2d Cir. 1990).

7

With respect to permissive intervention, under Rule 24, a person may intervene with

8 leave from the Court only when it has (1) a claimor defense that shares with the main action

9 a common question of law or fact; and (2) the intervention will not unduly delay or prejudice

10 the parties. See Fed. R. Civ. P. 24( b). The Court will not exercise its discretion to allow

11 Stoller and his proposed class into the current lawsuit. As stated in the preceding paragraph,

12 Stoller’s claims do not share a common question of law or fact with the main action. Indeed,

13 they seem to be predicated on entirely separate events. These events appear to relate to

14 alleged activities undertaken by the City of Phoenix—who is not even a party before the

15 Court. In addition, the danger of prejudice is too high to perimt intervention, since the claims

16 Stoller seeks to prosecute against Plaintiffs would distract themfrom the main action, forcing

17 Plaintiffs to spend their valuable time and resources addressing Stoller’s seemingly frivolous

18 claims in a dispositive motion.

19

With respect to Rule 22, Stoller’s m otion for an interpleader is not well taken. As

20 Plaintiffs correctly note, rule based interpleader allows a party “who holds money or other

21 tangible property for which m ultiple persons have m utually-exclusive claims, to join all

22 persons claiming an interest in the fund to avoid m ultiple [and inconsistent] litigation.”

23 (Dkt.#30, p. 6-7); Fed. R. Civ. P. 22. It should be clear to all persons before the Court,

24 including a pro se intervenor like Stoller, that this case is wholly inappropriate for rule based

25 interpleader.

26 ///

27

28

- 3 -

1

Accordingly,

2

IT IS HEREBY ORDEREDdenying Bill Stoller and the Aggrieved and Irreparably

3 Injured Class of United States and Phoenix Citizens’ Motion to Intervene Under Rule 22 and

4 24 Fed. R. Civ. P. (Dkt.#24).

5

DATED this 29th day of September, 2008.

6

7

8

9

10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 4 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres,

10

Plaintiff,

11 vs.

12 Joseph M. Arpaio, et al.,
13 Defendant.
14

15

) No. CV-07-2513-PHX-MHM ) ) ORDER ) ) ) ) ) ) ) ) )

16

17

Currently pending be fore the Court are Defendants Joseph M. Arpaio, Maricopa

18 County, and the Maricopa County Sheriff’s Office’s Motion to Dism iss (Dkt.#39.), and

19 Plaintiffs Manuel de Jesus Ortega Melendres, Jessica Quitugua Rodriguez, David Rodriguez,

20 Velia Meraz, Manuel Nieto, Jr., and Som os America’s Motion for an Expedited Rule 16

21 Conference. (Dkt.#49.) After reviewing the record and holding oral argum ent, the Court

22 issues the following Order.

23

I. Standard

24

A Rule 12(b)(6) m otion tests the legal sufficiency of the claim s asserted in the

25 complaint. A Rule 12(b)(6) dism issal is proper only where the re is either a “lack of a

26 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal

27 theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The Ninth

28 Circuit has stated that “[t]he issue is not whether a plaintiff's success on the merits is likely

1 but rather whether the claimant is entitled to proceed beyond the threshold in attempting to

2 establish his claims.” De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). The Court

3 must determine whether or not it appears to a certainty under existing law that no relief can

4 be granted under any set of facts that might be proved in support of plaintiffs’ claims. Id.

5

Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires “a short and

6 plain statement of the claim showing that the pleader is entitled to relief.” 5A Charles A.

7 Wright & Arthur R. Miller, Federal Practice and ProcedureSection 1356 (1990). The notice

8 pleading standard set forth in Rule 8 establishes “a powerful presumption against rejecting

9 pleadings for failure to state a claim.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th

10 Cir. 1997). Therefore, a district c ourt does not dismiss a complaint for failure to state a

11 claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support

12 of his claim which would entitle him to relief.” Conley v. Gibson , 355 U.S. 41, 45-46

13 (1957); see also U.S. v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

14

II. Background

15

This case concerns allegations tha t deputies from the Maricopa County Sheriff’s

16 Office (“MCSO”) have bee n profiling, targeting and ultim ately stopping and detaining

17 persons based on their race in violation of the Fourth and Fourteenth Amendments to the

18 United States Constitution, Title VI of the Civil Rights Act, and Article II, § 8 of the Arizona

19 Constitution. Defendants have responded to these claims by filing a motion to dismiss the

20 case for lack of jurisdiction and for failure to state a claim upon which relief could be

21 granted. Specifically, Defendants have asserted that the organization Somos America lacks

22 Article III standing and cannot proceed as a Plaintiff in the instant lawsuit, and that the

23 claims of the remaining individual Plaintiffs Ortega Melendres, J. Rodriguez, D. Rodriguez,

24 Meraz, and Nieto all fail as a matter of law. Defendants have also argued that as a 42 U.S.C.

25 § 1983 municipal defendant Maricopa County cannot under be he ld liable for the alleged

26 violation of Plaintiffs’ constitutional rights. Lastly, Defendants contend that the MCSO is

27

28

- 2 -

1 a non-jural entity, and as such, is not capable of suing or be ing sued in its own nam e.1

2 Because all well-plead allegations in Plaintiffs’ First Amended Complaint must be taken as

3 true for the purpose of ruling on a motion to dismiss, the Court will briefly discuss the factual

4 allegations made by each named Plaintiff. See Smith v. Jackson, 84 F.3d 1213, 1217 (9th

5 Cir. 1996).

6

A. Manuel de Jesus Ortega Melendres

7

According to Plaintiffs’ Com plaint, Ortega Melendres is a Mexican national who

8 possesses a valid U.S. Visa and a perm it issued by the United States Departm ent of

9 Homeland Security (“DHS”). On September 26, 2007, around 6:15 a.m., Ortega Melendres

10 was one of several passengers in a car that was being driven around Cave Creek, Arizona.

11 The driver of the vehicle was a Caucas ian man, but the passengers, including Ortega

12 Melendres, were by physical appearance all Latino men. The car was pulled over by MCSO

13 deputies, at which time the driver was toldthat he was being stopped for speeding– although

14 no citation was ultimately issued. The deputies the n asked Ortega Melendres to produce

15 identification. Ortega Melendres provided all ofthe identification that he was carrying in his

16 wallet, which included a valid U.S. Visa with his fingerprint and photograph—valid through

17 August 23, 2016, his Mexican Federal Voter Registration card, which also included his

18 fingerprint and photograph, and a copy of the DHS permit with a stamp showing its validity

19 through November 1, 2007.

20

After producing these three form s of identification, the deputies asked Ortega

21 Melendres to exit the vehicle, where he was subject to a pat down search. The deputies then

22 reached into Ortega Melendres’ pockets and removed various items, including a small bottle

23 of skin lotion. Ortega Melendres was then handcuffed and placed in the back of a MSCO

24

25

1 While Defendants have also argued that Sheriff Arpaio and the MCSO are entitled

to qualified im munity, under Ninth Circuit case law, “qualified im munity is only an

26 immunity from a suit for damages, and does not provide immunity from suit for declaratory

27

or injunctive relief.” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007). After Plaintiffs amended their complaint to request only prospective injunctive relief, qualified im munity

28 was no longer available to Defendants.

- 3 -

1 vehicle. Ortega Melendres was transportedto a MCSO facility in Cave Creek and placed in

2 a holding cell. While Ortega Melendres was confined to the holding cell, which lasted for

3 approximately four hours, he a lleges that he was neither advised of the crim e that he had

4 allegedly committed, nor provided with any processing documentation.

5

After the four hour detention, the arresting officers placed Ortega Melendres back into

6 handcuffs and transported himto downtown Phoenix, where he was handed over to officials

7 from the United States Immigration and CustomEnforcement (“ICE”). At the ICE building,

8 Ortega Melendres was again placed in a holding cell, this time for one hour. With Sheriff’s

9 deputies present, ICE officials asked Ortega Melendres to produce valid documents regarding

10 his presence in the U.S. After briefly glancing over the documents that Ortega Melendres

11 had given MCSO deputies earlier in the day, the ICE official told Ortega Melendres that he

12 was free to leave. Upon release, Ortega Melendres was not given any information relating

13 to his nearly nine hour detention, other than a case number.

14

B. David and Jessica Rodriguez

15

On December 2, 2007, David and Jessica Rodriguez, who are husband and wife, were

16 leaving Lake Bartlett, Arizona with their twochildren. While driving, the Rodriguez’ passed

17 a sign that they thought read “Road Damaged.” At the same time, the Rodriguez’ could see

18 that road ahead had been washed out by recent rains. They also noticed two MCSO vehicles

19 located on the opposite side of the road. After the Rodriguez’ along with two other

20 vehicles—a motorcycle and a sedan—had drivenpast the road sign, the deputies pulled over

21 all three vehicles.

22

According to the Complaint, the driver of the m otorcycle and sedan were let go in

23 short order without a visible exchange of any docum entation. When a MSCO deputy

24 approached the Rodriguez’ vehicle, they were asked to produce a valid driver’s license,

25 vehicle registration, proof of insurance, and a socia l security card. After Mrs. Rodriguez

26 asked the deputy why it was necessary to present a social security card during a routine

27 traffic stop, the deputy answered that it was “standard procedure.” The deputy then asked

28 Mr. Rodriguez whether he had seen a sign marked “Road Closed.” Mr. Rodriguez answered

- 4 -

1 that he had only seen a “Road Damaged” sign. According to the Complaint, the Rodriguez’

2 later discovered that there was indeed a “Road Closed” sign, but it was located on a portion

3 of the road that they had not yet traveled upon.

4

The deputy took Mr. Rodriguez’ inform ation and returne d to his vehicle. While

5 waiting for the deputy to return, the Rodriguez’ noticed that additional drivers continued to

6 be pulled over, and fromwhat they could see,these drivers were being given oral warnings.

7 When the deputy returned, Mrs. Rodriguez askedif they, like the other drivers, could receive

8 a warning. The deputy declined. When Mrs. Rodriguez told the deputy that it appeared as

9 though they were being targeted because of their race, the Rodriguez’ were given a citation

10 for failure to obey a traffic control devise. After being advised that they were free to leave,

11 and driving to the exist of the Lake Bartlett preserve, the Rodriguez’ finally saw the “Road

12 Closed” sign. The Rodriguez’ pulled to the side of the road where Mr. Rodriguez was able

13 to speak with several drivers of other vehiclethat had been pulled over in the same location

14 by MCSO deputies. According to the Complaint, none of those drivers were asked to produce

15 a social security card, nor had any of them received a citation. The Rodriguez’ also allege

16 that all of these other drivers were Caucasian.

17

C. Velia Meraz and Manuel Nieto, Jr.

18

Around March 28, 2008, Meraz and Nieto drove a vehicle from their family’s auto

19 repair business to a nearby gas station/convenience store. The windows of the car were down

20 and Meraz was singing along to Spanish language music playing in the car. As they pulled

21 into the parking lot, Meraz and Nieto noticed that there was a MCSO vehicle parked behind

22 another vehicle located at one of the gas pumps. They also noticed that a MCSO deputy was

23 speaking with two men who were in handcuffs. The deputy then yelled over to Meraz and

24 Nieto to leave. Meraz asked why. At thatpoint, the deputy walked over and accused Meraz

25 and Nieto of disturbing the peace—to which Meraz remarked that she was only singing along

26 to music. The deputy repeated the request toleave, while warning Meraz and Nieto that they

27 could be arrested for disorderly conduct. Meraz agreed the two of them would leave, but

28

- 5 -

1 before doing so she asked for the deputy’s badge number. The deputy then spoke into his

2 radio, apparently signaling other officers in the area to the scene.

3

As Meraz and Nieto pulled out of the parking lot, they noticed a motorcycle officer

4 coming down the road. The deputy, still located next to the gas pump, signaled to the officer

5 on the motorcycle to follow their vehicle. Nieto, who was apparently driving, noticed that

6 the motorcycle officer along with three other MSCO vehicles were now behind him . The

7 motorcycle officer signaled for Nieto to pull over and get out of the car. In response, Neito

8 dialed 911 to report that he was being harassed by the MCSO for no apparent reason. Since

9 Nieto’s family business was no more than 50 yards away, he pulled over into the auto store’s

10 parking lot. At that tim e, the four MCSO vehicles descended on them , blocking off the

11 street. After MCSO deputies cam e out of their vehicles with weapons raised, an offic er

12 grabbed Nieto and pulled him out of the car, pressing him face first against his car, placing

13 his arms behind his back and putting himinto handcuffs. A deputy asked Nieto whether he

14 possessed a driver’s license, to which he replied that he did.

15

The commotion attracted people from inside Nieto’s family’s auto repair shop. Mr.

16 Nieto’s father then came from out of the shop and told the officers that the shop was his and

17 that Nieto and Meraz were his children, and that they were both U.S. citizens— at which teim

18 the MCSO deputies backed down and withdrew their weapons. Once Nieto’s identification

19 was processed, he and Meraz were released without receiving a citation. Nieto and Meraz

20 believe that they were targeted because they are Latino and that the incident was part of a

21 larger immigration sweep being conducted by the MCSO in the Cave Creek, Arizona area

22 at the time.

23

III. Plaintiffs’ Claims Under the Fourth Amendment

24

The Fourth Am endment protects individuals against unreasonable searches and

25 seizures. Terry v. Ohio , 392 U.S. 1, 9 (1968). “Whenever a police officer accosts an

26 individual and restrains his or her freedomto walk away” that person has been seized within

27 the meaning of the Fourth Amendment. Murillo v. Musegades, 809 F. Supp. 487, 498 (W.D.

28 Tex. 1992). The length and sc ope of detention m ust be ju stified by the circum stances

- 6 -

1 authorizing its initiation. See Terry, 392 U.S. a t 16. C onsistent with the Fourth

2 Amendment, law enforcement officer may conduct a brief investigatory stop or seizure when

3 an officer has reasonable suspicion “supported by articulable facts that criminal activity may

4 be afoot.” United States v. Sololow, 490 U.S. 1, 7 (1989). An investigatory seizure based

5 on reasonable suspicion must be brief and must last no longer than necessary for the officer

6 to investigate the situation with the aim of either confirm ing or dispelling his or her

7 suspicion. See United States v. Urrieta, 520 F.3d 569, 578-79 (6th Cir. 2008); United States

8 v. Valdez, 267 F.3d 395, 397 (5th Cir. 2001). In addition, an officer may frisk or pat down

9 an individual during an investigatory stop onlywhere there are specific and articulable facts

10 that the individual is armed. See Terry, 392 U.S. at 21, 27.

11

A full custodial arrest, on the other hand, m ust be based on probable cause. See

12 generally, McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). “Probable cause exists

13 where the facts a nd circumstances within the officers’ knowledge and of which they had

14 reasonably trustworthy inform ation are sufficient in them selves to warrant a m an of

15 reasonable caution in the belief that an offensehas been or is being committed by the person

16 to be arrested.” Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979).

17

There is no bright line rule to determine when an officer has reasonable suspicion or

18 probable cause. Instead, both are measured by analyzing the totality of the circum stances

19 surrounding the encounter. See Cortez, 449 U.S. at 418. The Suprem e Court has

20 determined that under a totality of the circum stances analysis lower courts are prohibited

21 from adopting a “divide and conquer” approach, whereby each individual factor cited by the

22 officer to support his assessment is viewed in isolation, and accorded no weight if susceptible

23 to an innocent explanation. Id.at 274. Along similar lines, the Supreme Court has noted that

24 law enforcement officers in assessing the likelihood of criminal or suspicious activity often

25 rely upon specialized training and experience to “make inferences fromand deductions about

26 the cumulative information available to them that might well elude an untrained person.”

27 United States v. Arvizu, 534 U.S. 266, 273 (2002). “[T]he Court has emphasized that even

28 when factors considered in isolation from each other are susceptible to an innocent

- 7 -

1 explanation, they may [to the discerning eye] collectively amount to [probable cause or]

2 reasonable suspicion.” United States v. Berber-Tinoco, 510 F.3d 1083,1087 (9th Cir. 2007).

3

With respect to reasonable suspicion, it is a less demanding standard than probable

4 cause, but still requires an objective justification for the detention. See United States v.

5 Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). The officer in question

6 needs to be able to “articulate more than an inchoate . . . suspicion or [a] hunch of criminal

7 activity.” Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 145 (2000)). Instead, “reasonable

8 suspicion exists when an officer is aware of specific, articulable facts which, when

9 considered with objective and reasonable inferences, form a basis for particularized

10 suspicion.” Id. (citing United Sta tes v. Cortez , 449 U.S. 411, 418 (1981) (em phasis in

11 original)). The Ninth Circuit has repeatedly“rejected profiles that are likely to sweep many

12 ordinary citizens into a generality of suspicious appearance.” Montero-Camargo, 208 F.3d

13 at 1129-30 (citing United States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir. 1992)).

14

Within the immigration context, it unquestioned that ICE agents and, if applicable,

15 local law enforcem ent agencies, have the right to investigate and if necessary arrest

16 individuals who are illegally present within the United States; their actions are however

17 always circumscribed by the Fourth Amendment. See United States v. Brignoni-Ponce, 422

18 U.S. 873, 885-87 (1975) (holding that under theoFurth Amendment law enforcement officers

19 may, when based upon reasonable suspicion, “quetsion [an individual]about their citizenship

20 and immigration status, and [] may ask them to explain suspicious circumstances, but any

21 further detention or se arch must be based on consent or probable cause.”). Reasonable

22 suspicion in the immigration enforcement setting must therefore also be individualized and

23 focused on the particular person being stopped. United States v. Salina,s940 F.2d 392, 394

24 (9th Cir. 1991). “Whe re . . . the m ajority (or any substantial num ber) of people share a

25 specific characteristic, that characteristic is of little or no pr obative value in such a

26 particularized and context-specific analysis.” Montero-Camargo, 208 F.3d at 1131. Courts

27 cannot “approve the wholesale seizure of miscellaneous persons . . . in the absence of well-

28 founded suspicion based on particular, individualized and objectively observable factors

- 8 -

1 which indicate” that the person is indeed an illegal alien. Id.at 1132 (quoting United States

2 v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir. 1994)).

3

With respect to the role played by race inthis process, the Ninth Circuit has found that

4 an individual’s race, standing alone, is not an appropriate factor for assessing reasonable

5 suspicion under the totality of the circumstances. In the immigration enforcement setting,

6 the Ninth Circuit has been even more specific, holding that “Hispanic appearance is of little

7 or no use in determ ining which particular individuals among the vast Hispanic populace

8 should be stopped by law enforcement officials on the lookout for illegal aliens.” Ida.t 1134.

9 In this vein, the Ninth Circuit has held:

10 The likelihood that in an area in which the majority—or even a substantial part—of the population is Hispanic, any given person of Hispanic ancestry is in fact an alien,
11 let alone an illegal alien, is not high enoughto make Hispanic appearance a relevant factor in the reasonable suspicion calculus. As we have previously held, factors that
12 have such a low probative value that no reasonable officer would have relied on them to make an investigative stop, must be disregarded as a matter of law.
13 Id. at 1132. Rather than relying upon racial generalizations, immigration enforcement
14 officials must make what the Ninth Circuit has referred to as “permissible deductions;”
15 meaning, logical inferences about apparent crim inal activity that are predicated upon
16 objectively verifiable evidence. See Berber-Tinoco, 510 F.3d at 1088 (quoting Cortez,
17 449 U.S. at 419-20). With this background in mind, the Court will now turn to analyze
18 the factual events which constitute Plaintiffs’ well-plead Complaint.
19 With respect to Plaintiff Ortega Melendres, Defendants argue in their Motion to
20 Dismiss that because the MCSO deputy had probable cause to pull over the car in which
21 Ortega Melendres was a passenger for speeding, MCSO deputies were thereby entitled
22 to arrest Ortega Melendres and detain himfor approximately nine hours. This argument
23 is baseless, ignoring requirements that criminal suspicion be individualized. Contrary to
24 Defendants’ assertion, the Complaint plainly sets forth several cognizable violations of
25 Mr. Ortega Melendres’ rights under the Fourth Amendment.
26 First, assuming all facts alleged by Ortega Melendres are true, MCSO deputies had
27 no more than reasonable suspicion to temporarily detain the driver of the car to conduct
28

- 9 -

1 a brief investigatory stop regarding an apparent traffic violation. Once MCSO deputies

2 began to question Ortega Melendres in an apparent attem pt to inquire into his

3 immigration status, that encounter needed to be supported by additional indices of

4 criminal suspicion. See Brendlin v. California, 551 U.S. 249 (2007) ( “When a police

5 officer makes a traffic stop, the driver of the car is seized within the m eaning of the

6 Fourth Amendment. The same is true of a passenger.”)2. Fromthe face of the Complaint,

7 it does not appear that there were “specific and articulable facts” to suggest that Ortega

8 Melendres was engaged in any type of criminal activity when deputies initially engaged

9 him. There are certainly no facts present in the Complaint that would permit the Court

10 to make a reasonable inference that Ortega Melendres should have been under suspicion

11 of being an illegal alien when the officers first approached the car. At best, the deputies

12 had reasonable suspicion to believe that som eone other than Ortega Melendres had

13 committed the offense of speeding. This fallfsar short of justifying an immigration based

14 investigatory stop of Ortega Melendres.

15

The Complaint states an additional Fourth Amendment violation that occurred

16 when Ortega Melendres was placed into full custodial arrest without probable cause. As

17 mentioned above, by questioning Ortega Melendres while he was a passenger in a car that

18 had been stopped for a traffic violation, MCSO deputies seized Ortega Melendres without

19 specific and articulable facts that crim inal activity was afoot. Notwithstanding that

20 Fourth Amendment violation, once Ortega Melendres provided MCSO deputies with

21 sufficient immigration documents—including a U.S. Visa containing a finge rprint and

22

23

2Ortega Melendres was seized with the meaning of the Fourth Amendment because

a reasonable person in Ortega Melendres’ position would not have felt free to leave the car 24 and disengage with the deputies. SeeUnited States v. Washington, 490 F.3d 765, 769 (9th

25 Cir. 2007) (“A person is seized if taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he
26 was not at liberty to ignore the police presence and go about his business.”) (quoting Florida

27

v. Bostick, 501 U.S. 429, 437 (1991) (internal quotations om itted)). See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A]reasonable person would have believed that he

28 was not free to leave.”).

- 10 -

1 picture, a DHS permit, and a Mexican Federal Voter Registration Card with picture and

2 fingerprint—MCSO deputies we re not justified in placing Ortega Melendres in full

3 custodial arrest for violating U.S. immigration laws. If, as Defendants argue, this Court

4 were to sanction the action alleged in the Com plaint as a matter of law, then sta te law

5 enforcement officials would be capable of arresting any lawful non-citizen of Hispanic

6 heritage who presented a U.S. Visa and other seem

ingly valid im migration

7 documents—irrespective of any additional indices of suspicion.3

8

The Court will next turn to the Fourth Amendment claims of Plaintiffs D. and J.

9 Rodriguez. With respect to their contentions, even though the initial encounter between

10 the Rodriguez family and the MCSO was based on reasonable suspicion that the car had

11 violated Arizona S tate law by driving on a road closure, the Com plaint sufficiently

12 alleges that the scope and duration of the investigatory stop was exceeded when deputies

13 requested Mr. Rodriguez’ social security card in an apparent attempt to inquire into the

14 Rodriguez family’s immigration status. On its face, the Complaint adequately states that

15 such a request was not “standard procedure” for all routine traffic stops conducted by the

16 MCSO, since none of the other drivers on the same road closure were asked to produce

17 a social security card. And nothing in the Complaint suggests that a reasonable officer

18 could have concluded that the Rodriguez’ wereillegal aliens, based solely on the fact that

19 they drove past a sign marked “Road Closed” or “Road Damaged.” As previously noted,

20 Hispanic physical appearance by itself never gives rise to reasonable suspicion that the

21 person seized is violating U.S. immigration law. Again, given the procedural posture of

22 this case, any external analysis regardnig the surrounding circumstances of the stop would

23 be inappropriate for the Court to consider.

24

25 3It is important to keep in mind that at this stage of the proceedings the Court is only
26 resolving a Motion to Dism iss, where all factual allegations ma de in Plaintiff Ortega

27

Melendres’ Complaint are treated as true. It would be inappropriate at this stage of the proceedings for the Court to consider evidence external to the Com plaint, such as the

28 training, experience and observations of the arresting officers.

- 11 -

1

With respect to Plaintiffs Meraz and Nieto, the Court will similarly permit their

2 Fourth Amendment claims to proceed beyond this initial stage. The Court cannot resolve

3 as a matter of law the legality of Meraz and Nieto’s seizure without first resolving many

4 fact intensive questions. Such questions include whether Meraz and Nieto complied with

5 the deputies instructions to leave the scene, whether such instructions were reasonable,

6 whether Nieto im mediately pulled over after being signaled to do so by a MCSO

7 motorcycle, and whether deputies were justified in drawing their weapons on Meraz and

8 Nieto. The Court will therefore take up this issue again on sum mary judgment, after

9 discovery has closed, and the Parties have been given the opportunity to bring forth

10 additional information.

11

It is worth noting, however, that unlike Plaintiffs Ortega Melendres and D. and

12 J. Rodriguez, there is no evidence in the Complaint to suggest that the investigatory stop

13 of Meraz and Nieto was initiate d or extended in order to inquire into the im migration

14 status of the two Plaintiffs. Furtherm ore, Plaintiffs’ claim that Meraz and Nieto were

15 released after their father identified them as U.S. Citizens has no bearing on the Fourth

16 Amendment inquiry. The only question under the Fourth Amendment is whether MCSO

17 deputies had an objectivebasis to briefly detain Meraz and Nieto; an officer’s subjective

18 beliefs—including alleged biases relating to a suspect’s race or national origin—play no

19 role in the Fourth Amendment analysis. See Whren v. United States, 517 U.S. 806, 813

20 (1996) (noting that an inquiry under the Fourth Amendment is wholly objective, and that

21 claims related to an officer’s subjective intentions are only cognizable under the Equal

22 Protection clause of the Fourteenth Amendment).

23

In Sum, Defendants’ Motion to Dism iss for failure to sta te a claim under the

24 Fourth Amendment is denied.

25 IV. Plaintiffs’ Claims Under the Equal Protection Clause

26

“The Constitution prohibits selective enforcem ent of the law based on

27 considerations such as race.” Whren , 517 U.S. at 813. Unde r the Equal Protection

28 Clause of the Fourteenth Am endment, a law enforcem ent officer’s discrim inatory

- 12 -

1 motivations can give rise to a constitutional violation even where the unequal treatment

2 occurred during an otherwise lawful criminal detention. Farm Labor Org. Comm. V.

3 Ohio State Highway Patrol, 308 F.3d 523, 533 (6th Cir. 2002).

4

The Parties do not agree as to what isrequired to successfully state a § 1983 claim

5 for selective enforcement of criminal laws in violation of the Equal Protection Clause.

6 Plaintiffs contend that they only need to demonstrate that Defendants’ conduct had both

7 a discriminatory purpose and a discriminatory effect. Rodriguez v. Cal. Highway Patro,l

8 89 F. Supp. 2d 1131, 1140-41 (N.D. Cal. 2000). On the other hand, Defendants argue

9 that “[t]o establish a discrim inatory effect” in a selective enforcem ent case, Plaintiffs

10 must also show that similarly situated individuals were treated differently. Rosenbaum

11 v. City & County of San Francisco , 484 F.3d 1142, 1152-53 (9th Cir. 2007) (quoting

12 United States v. Armstrong, 517 U.S. 456, 465 (1996)). Defendants note that this is the

13 same legal standard that is required for selective prosecution cases brought under the

14 Equal Protection clause.4 At this stage of the litiga tion, the Court will not resolve the

15 question of whether Plaintiffs m ust prove that sim ilarly situated individuals of a non-

16 minority group were treated differently than the named Plaintiffs, who are all Hispanic.

17 This is because Plaintiffs’ selective enforcement claims withstand Defendants’ Motion

18 to Dismiss under either construction of law.

19

With respect to whether Plaintiffs have sufficiently plead a discriimnatory purpose,

20 the Complaint is replete with references to acts of intentional discrim ination by

21

22

4Plaintiffs respond by arguing that where a discriminatory purpose is manifest, a claimant does not need to also show that similarly situated members of non-minority groups

23 were treated differently. SeePyke v. Cuomo, 258 F.3d 107, 108-09 (2d Cir. 2001) (holding

that plaintiffs could plead a "theory of discriminatory motivation underlying afacially neutral 24 policy . . . [without] show[ing] the disparate tre atment of other sim ilarly situated

25 individuals."). Plaintiffs also claimthat the Court should not conflate selective enforcement cases with selective prosecution cases, since a selective prosecution claim implicates
26 concerns related to prosecutorial discretion, and absent clear evidence to the contrary, courts

27

presume that prosecutors have properly discharged their duties. Armstrong, 517 U.S. at 464. “Law enforcement officers, in contrast, never have been afforded the same presumption of

28 regularity.” Rodriguez, 89 F. Supp. 2d at 1141.

- 13 -

1 Defendants against Plaintiffs on the basis of race. Exam ples of such intentional

2 discrimination include allegations that Defendant Arpaio m ade a public statement that

3 physical appearance alone is sufficient to question an individual about their immigration

4 status, that MCSO’s crime suppression sweeps have been allegedly targeted at areas

5 having a high concentration of Hispanics, and that the MCSO has used volunte ers to

6 assist in these crim e sweeps who have known anim osity towards Hispanics and

7 immigrants.

8

With respect to whether Plaintiffs have sufficiently plead a discriminatory effect,

9 “a government program that sets out to discriminate intentionally in its enforcement of

10 some neutral law or policy will rarely if ever fail to achieve its purpose.” Doe v. Vill. of

11 Mamaroneck, 462 F. Supp. 2d 520, 543 (S.D.N.Y. 2006). In addition, the Copmlaint also

12 contains claims that Defendants’ policies and practices have treated sim ilarly situated

13 persons differently. First, the Com plaint makes a general allegation–which the Court

14 takes as true for the purpose of ruling on the instant Motion—that Caucasian drivers and

15 passengers have been treated differently by the MCSO and other Defendants, since

16 Caucasian drivers have been stopped at much lower rates than similarly situated Hispanic

17 drivers and passengers. (¶32) Allegations of disparate treatment are also present in the

18 claims of the named Plaintiffs. For example, Ortega Melendres alleges that the Caucasian

19 driver of the car in which he was a passenger was not questioned in a similar manner or

20 with a similar purpose. Likewise, the Rodriguez’ Plaintiffs allege that they were able to

21 speak with the other drivers who drove past the road closure near Lake Bartlett, Arizona,

22 all of whom were Caucasian, and none of them had been asked by MCSO deputies to

23 present their social security card. Furthermore, none of the Caucasian drivers allegedly

24 received a citation for driving on a closed ro ad. With respect to Meraz and Nieto, the

25 Complaint alleges that once their father identified them as U.S. Citizens, the MCSO

26 deputies released Nieto from custody and left the scene. These facts are m ore than

27 sufficient to show a discriminatory purpose and effect on the part of Defendants at this

28 preliminary stage of the litigation.

- 14 -

1

Defendants’ Motion to Dism iss for failure to state a claim under the Equal

2 Protection Clause of the Four teenth Amendment will therefore be denied as to all

3 Plaintiffs.

4 V. Plaintiffs’ § 1983 Municipal Liability Claim

5

Under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691-94 (1978),

6 municipal liability attaches where a plaintiff’s alleged constitutional deprivation was the

7 product of a policy or custom of the local government. See Fogel v. Collins, 531 F.3d

8 824, 834 (9th Cir. 2008). “For purposes of liability under Mone,lal policy is a deliberate

9 choice to follow a course of action . . . m ade from among various alternatives by the

10 official or officials responsible for establishing final policy with respect to the subject

11 matter in question.” Id. (quoting Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002)

12 (per curiam) (internal quotations om itted)). Whether a state official is a final policy

13 maker for purposes of m unicipal liability is a question of state law that is to be

14 determined by the district court. See Streit v. County of Los Angeles, 236 F.3d 552, 560

15 (9th Cir. 2001). When determ ining whether an individual has final policym aking

16 authority, courts ask whether the individual at issue has authority “in a particular area, or

17 on a particular issue.” McMillian v. Monroe County, 520 U.S. 781, 785 (1997).

18

In the absence of an express local policy, a plaintiff m ay demonstrate that there

19 is a well settled custom or practice by the m unicipality which produced the alleged

20 constitutional violation. See Navarro v. Block , 72 F.3d 712, 714-15 (9th Cir. 1996).

21 Allegations of random acts are generally insufficient to establish a local custom. Id. at

22 714. If a plaintiff can sufficiently prove the ex istence of a local custom, they need not

23 also show that final policy makers were aware of or sanctioned the custom in question.

24 Id. at 714-15.

25

Here, Defendants argue that Defendant Sheriff Arpaio is not a final policy maker

26 for the County of Maricopa with respect to law enforcement issues. Without citation to

27 relevant case law, Defendants contend that Arizona statutes, specifically, A.R.S.

28 §11-251(30)-(31), vest sole final decision m aking power on all m atter relating to

- 15 -

1 Maricopa County with the Maricopa County Board of Supervisors. Defendants claim that

2 if Arpaio possesses any final policy m aking authority, it is only with respect to the

3 MCSO, not Maricopa County. Plaintiffs counter by citing to Flanders v. Maricopa

4 County, 203 Ariz. 368 (Ct. App. 2002) and Guillory v. Greenlee Coun,ty2006 U.S. Dist.

5 LEXIS 71926 (D. Ariz. Sept. 28, 2006), both of which held that Arizona Counties could

6 be held liable for the discretionary acts of its Sheriff in the context of jail m anagement

7 and law enforcement policy. With respect towhether Sheriffs are final policy makers for

8 Arizona Counties in the context of cr iminal law enforcem ent, Guillory went on to

9 specifically hold:

10 The Sheriff is an enumerated officer of the Defendant County. 11-401(A)(1). As a matter of law, the County is liable for policies m ade by the Sheriff, pursuant to his
11 designated powers and duties as provided for by sta tute: A.R.S. § 11-441. See e.g., Flanders, 54 P.3d at 847 (holding county liable because the sheriff is a county officer
12 whose duties regarding jail operations are fixed by law, A.R.S. § 11-441(5)).

13 Section 11-441(A)(2) provides that the Sheriff shall arrest and ta ke before a magistrate for examination all persons who attempt to commit or who have committed
14 a public offense. The purpose of this duty is the prompt and orderly administration of criminal justice, including the Sheriff's discretionary investigatory determination of
15 when enough evidence has been obtained to make an arrest. Cf Arizona v. Monaco, 207 Ariz. 75, 83 P.3d 553, 558-59 (Ariz. App. 2004) (explaining the statute does not
16 create a constitutional right to be arrested upon first discovery of crim inal activity because sheriff must be permitted to exercise discretion to conduct investigation until
17 enough evidence is obta ined for a conviction). This m akes the Sheriff the final policymaker regarding criminal investigations.
18 Under A.R.S. § 11-444, actual and necessary expenses of the Sheriff must be allowed
19 and paid by the County. The Court finds that this fiscal independe nce further demonstrates that the Sheriff is the designated and final policymaker for the County
20 regarding the needs of its officers for the prom pt and orderly adm inistration of criminal justice . . ..
21 Guillory, 2006 U.S. Dist. LEXIS 71926 at *11-13. In the absence of precedent to the
22 contrary, the Court is inclined to follow this line reasoning—particularly when the
23 Arizona statute cited by Defendants to support their point is inapposite5. The County of
24

25

26

5 A.R.S. § 11-251 (30)-(31) describes the power of the Board of Supervisors in broad

27

terms, and the statute does not speak to the preci se issue in this case. In fact, the statute is completely silent as to the respective power and responsibilities of a Sheriff under Arizona

28 state law.

- 16 -

1 Maricopa will therefore remain in the instant lawsuit as a municipal defendant pursuant

2 to § 1983.

3 VI. Maricopa Country Sheriff's Office as a Non-Jural Entity

4

Defendants also contend that the MCSO is a non-jural entity, incapable of suing

5 or being sued in its own name. The Court is aware that this issue is very much unsettled

6 within the District of Arizona, and that Arizona State Courts have declined to address the

7 same issue. See Williams v. City of Tempe, 2006 U.S. Dist. LEXIS 14518, *8 (D. Ariz.

8 March 27, 2006) (“There is no per se rule that police departments are not jural entities.

9 In fact, there is no consensus within the District of Arizona as to whether the Maricopa

10 County Sheriff's Office is a jural entity.”); see also Flanders, 203 Ariz. at 379. On the

11 one hand, a sister court within the District of Arizona, in a lengthy and well reasoned

12 opinion, determined that the MCSO was in fact a non-jural entity, since it does not posses

13 a legal identity separate and apart from that of Maricopa County. Wilson v. Maricopa

14 County, 2005 U.S. Dist. LEXIS 28021 (D. Ariz. Novem ber 15, 2005). On the other

15 hand, Plaintiffs have cited to several cases where the MCSO has been amenable to suit,

16 as both plaintiff and defendant. See Maricopa County Sheriff’s Office v. Maricopa

17 County Employee Merit Sys. Comm’n, 211 Ariz 219 (2005); W. Valley View, Inc. v.

18 Maricopa County Sheriff’s Office, 216 Ariz. 225 (Ct. App. 2007); Patterson v. Maricopa

19 County Sheriff’s Office, 117 Ariz. 153 (Ct. App. 1993). Plaintiffs additionally argue that

20 because the MCSO constitutes a “program or activity,” which receives federal funds

21 under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-4a-(1)(A), it must be

22 subject to suit under the statute to enjoin any unlawful use of those funds. Because the

23 Title VI issue was not addressed by Defendants—who chose not to file a Reply brief in

24 this case—and because the MCSO has acted asa plaintiff as recently as 2005, the Court

25 will not dismiss the MCSO as a non-jural entity.

26 VII. Somos America’s Article III Standing

27

Lastly, Defendants challenge the Article IIIstanding of the organizational Plaintiff

28 Somos America, arguing that it failed to sufficiently allege an injury-in-fact to one of its

- 17 -

1 members, and that the interests it se eks to protect are not relevant to its core purpose.

2 Under Ninth Circuit case law, however, the Court need not reach this issue. “The

3 general rule applicable to federal court suitswith multiple plaintiffs is that once the court

4 determines that one of the plaintiffs has standing, it need not decide the standing of the

5 others.” Preminger v. Peake, 536 F.3d 1000, 1006 (9th Cir. 2008) (quoting Leonard v.

6 Clark, 12 F.3d 885, 888 (9th Cir. 1993)). In the instant case, it is undisputed that

7 Plaintiffs Ortega Melendres, D. Rodriguez, J. Rodriguez, Meraz and Nieto have Article

8 III standing. Because their claims have not been dismissed and are instead proceeding

9 forward in this lawsuit, the Court need not inquire into the standing of Somos America

10 either.

11

Accordingly,

12

IT IS HEREBY ORDEREDdenying Defendants’ Motion to Dismiss. (Dkt.#39.)

13

IT IS FURTHER ORDERED denying as m oot Plaintiffs’ Motion for an

14

Expedited Rule 16 Conference. (Dkt.#49.)

15

DATED this 10th day of February, 2009.

16

17

18

19

20

21

22

23

24

25

26

27

28

- 18 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiff,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendant.

)

14

)

)

15

No. CV-07-2513-PHX-MHM ORDER

16

17 Currently pending before the Court is Dfeendants Sheriff Joseph M. Arpaio, Maricopa
18 County, and the Maricopa County Sheriff's Office's Motion for Recusal. (Dkt.#63.) After
19 reviewing the relevant docum ents and determining oral argument unnecessary, the Court
20 issues the following Order.
21 I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
22 Having already issued two substantive Orders in this case (Dkt.##25, 60.), the Court
23 is intimately familiar with the underlying facts and sees no reason to go through them now
24 in great detail. On December 12, 2007, Plaintiffs Manuel de Jesus Ortega Melendres, Jessica
25 Quitugua Rodriguez, David Rodriguez, Velia Meraz, Manuel Nieto, Jr., and Sooms America
26

27

28

1 filed suit—on behalf of themselves and all others similarly situated1—against Defendants

2 pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Title

3 VI of the Civil Rights Act, and Article II, § 8 of the Arizona Constitution alleging racial

4 profiling and unlawful detention of persons of Hispanic appearance and/or descent during

5 Defendants’ attempt to enforce federal immigration laws. On January 3, 2008, Defendants

6 moved to dism iss the Com plaint; Plaintiffs subsequently sought leave to a mend.

7 (Dkt.##12,17.) On September 5, 2008, the Court granted leave to amend and denied as moot

8 Defendants’ motion to dismiss. (Dkt.#25.) Thereafter, Defendants renewed their dismissal

9 motion. On February 10, 2009, after holding oral argument, the Court denied Defendants’

10 renewed motion to dismiss on the merits. See Melendres v. Arpaio, 598 F. Supp. 2d 1025

11 (D. Ariz. 2009); (Dkt.#60.) On February 23, 2009, thirteen days after the Court’s Order was

12 entered, Defendants moved to recuse the Court under both 28 U.S.C. § 144 and 28 U.S.C.

13 § 455.

14

In support of their Motion for Recusal, Defendants subm itted the affidavit of Mr.

15 David Hendershott, Chief of the Maricopa County Sheriff’s Office (“MCSO”), as well as

16 supporting exhibits. Plaintiffs responded in opposition with a declaration from Mr. Aaron

17 Lockwood, an attorney with the law firm of Steptoe and Johnson, along with supporting

18 exhibits. The factual background, as reflected in the filings made by the affiant and declarant,

19 is as follows.

20

The Court has an identical twin sister, Janet Murguia . Janet Murguia is currently

21 President and CEO of the National Council of La Raza (“NCLR”). NCLR is the largest

22 national Latino civil rights organization in the United States. Janet Murguia previously

23 served as Deputy Director of Legislative Affairs to President William J. Clinton, and as

24 Executive Vice Chancellor for University Relations of the University of Kansas.

25 Furthermore, one of the Court’s older brothers, Ram on Murguia, an attorney in private

26

27

1Plaintiffs have filed a “Motion to Certify the Class,” and that Motion is currently

28 pending with the Court. (See Dkt.#93.)

- 2 -

1 practice in Kansas City, Kansas, has also been affiliated with NCLR, having served on the

2 organization’s Board of Directors, including a term as its Chairman.

3

Defendants contend that it was not until February 11, 2009—the day after the Court

4 ruled against them in its first potentially dispositive Order—that they became aware of the

5 Court’s relationship with her sister and her sister’s connection to NCLR. According to

6 Defendants, on February 11, 2009 thePhoenix Business Journalpublished an article entitled,

7 “Federal Court sides with ACLU against Arpaio in round 1 of profiling case.” Among other

8 things, this article mentioned that Janet Murguia is “president and CEO of the National

9 Council of La Raza, a leading Hispanic advocacy group.” (Dkt.#63, Exhibit 1.) That same

10 day, an online version of the Phoenix New Times published an article commenting on the

11 Court’s Order. Among other things, the New Times article noted that the Court is the “[f]irst

12 Latina judge appointed to the U.S. District Court in Phoenix.” (Id.at Exhibit 2.) Similarly,

13 on February 12, 2009, The Arizona Republic ran a story in its local section concerning the

14 instant case, in which it discussed the Court’s personal background, along with that of her

15 sister. (Id.)

16

Through their affiant, Defendants contend that after these and other m edia sources

17 publicized the Court’s personal background, including her sister’s work at NCLR,

18 Defendants were contacted by m embers of the public—who were apparently looking to

19 express their disappointm ent with the Cour t’s ruling in the instant case. According to

20 Defendants, it was through these public comments that they were first alerted to the Court’s

21 personal history. Defendants also claim public reaction to the Court' s February 10, 2009

22 Order was alarming, since, according to Defendants, the public appeared to be more focused

23 on the relationship between the Court and her sister than on the underlying m erits of the

24 action. To this end, Defendants have submitted five ‘reader comments’ that were posted on

25 websites belonging to the The Arizona Republic and the Phoneix Business Journal. These

26 reader comments were posted alongside online versions of the newspapers’ aforementioned

27 February 11, 2009 articles. Defendants contend that these five reader comments typify the

28 sentiments communicated to them by members of the public, and that these selected reader

- 3 -

1 comments underscore what Defendants perceive to be the public’s reaction to Court’s

2 continued role in this case. Defendants’ proffered reader comments include the following:

3

• “Of course this Judge will let the lawsuit stand. Her sister is the President of

4

La Raza. Can you say CONFLICT OF INTEREST!”

5

• “They [The Arizona Republic] seem to have left out that Judge Murguia is the

6

sister of the head of La Raza. Kind of im portant fact to leave out, don’t you

7

think?”

8

• “Judge Murguia … is only making her sister’s job easier.”

9

• “Wrong is just WRONG…. I would have made the same ruling and MY sister

10

is not connected to La Raza.”

11

• “[Judge] Murguia is the twin sister of Janet Murguia, president and CEO of the

12

National Council of La Raza, a leading Hispanic advocacy group. This judge

13

should be impeached for not recusing herself. Peter Kozinets should be fired

14

by the plaintiffs for tainting their lawsuit by getting a judge with such an

15

obvious conflict of interest to the case. If they ever had a shred of legitimate

16

claim, this blows it away.”

17

Defendants additionally claim that while researching the Court’s background the y

18 came upon a 2004 newspaper article published in the Kansas City Star. This article noted

19 that the Court and Janet Murguia are the youngestof six children, and that the Court and her

20 siblings constitute “one big chain,” and “[i]f not for one, the chain would be broken.” (See

21 Dkt.#63, ¶ 11.) The article also describes the relationship between the Court and her

22 identical twin sister as “close,” reporting that they “talk constantly,” and speak “to each other

23 several times a week.” (Id.)

24

Questioning Defendants’ factual representations, Plaintiffs responded with their own

25 submission. Specifically, Plaintiffs point out that on December 11, 2007, the day before the

26 instant case was filed, The Arizona Republic—which is the State of Arizona’s largest daily

27 circulation newspaper—published a front page sotry detailing the Court’s sibling relationship

28 with Janet Murguia. Because this article contains quotes fromSheriff Arpaio as well as the

- 4 -

1 Maricopa County Attorney, and because the article focused on another high profile federal

2 lawsuit involving many of the same Defendants, Plaintiffs argue that the article contradicts

3 Defendants’ stated position that they were unaware of the Court’s background until February

4 11, 2009. (Dkt.#70, Exhibit A.) Plaintiffs furt her note that this story wa s picked up and

5 reported nationally by the Associated Press. (Id. at Exhibit B.)

6

With respect to Janet Murguia’s work with NCLR, Defendants allege that NCLR has

7 continually offered public comments about the facts of this case, including published articles

8 and speeches by Janet Murguia herself. For example, according to Defendants, NCLR is on

9 record as “strongly oppos[ing] efforts to m ake state and local police responsible for the

10 enforcement of federal im migration laws.” (See id. at Exhibit 7.) Si milarly, according to

11 Defendants, NCLR has issued statem ents claiming that the local enforcem ent of federal

12 immigrations laws is “having a serious negative impact on Latino communities,” and that

13 “delegation of immigration authority is likely to result in racial profiling, police misconduct,

14 and civil rights violations.” (Id. at ¶ 15.)

15

Defendants have also subm itted evidence that NCLR has a Phoenix office, and

16 therefore has a direct presence in Maricopa County. (Id.at ¶ 19.) Defendants also note that

17 NCLR’s website directs individuals who believe that their rights have been violated to

18 contact one of NCLR’s affiliate organizations. Among the organizations listed as affiliates

19 are the American Civil Liberties Union (“ACLU”) and the Mexican American Legal Defense

20 and Education Fund (“MALDEF”). Both the ACLU and MALDEF, while not parties to this

21 case, are providing legal representation to the named Plaintiffs.

22

Among the litany of reasons Defendants submit to support their recusal motion, one

23 concerns a recent public awareness campaign launched by NCLR, “We Can Stop the Hate.”

24 (See www.wecanstopthehate.org.) The We Can Stop the Hate cam paign contains a

25 prominent picture of Janet Murguia, and links to several of her public speeches. Specifically,

26 Defendants point to a February 4, 2009 article aavilable on the website. This article addresses

27 actions taken by Sheriff Arpaio and the Maricopa County Sheri ff’s Office (“MCSO”).

28 Although the actions of Sheriff Arpaio and Marci opa County addressed in the article appear

- 5 -

1 to be unrelated to the instant lawsuit, 2 Defendants point out that disparaging statem ents

2 directed towards Sheriff Arpaio and MCSO are included in the online publication. Exapmles

3 of such statements include the following: “[ i]n true Arpaio form , his office sent a press

4 release to the media inviting them to this event,proving that he’s more interested in drawing

5 attention to himself than actually doing his job.” (Dkt.#63, at ¶ 17; Exhibit 9.) Am ong an

6 assortment of epithets, Sheriff Arpaio is called “a relentlessly self-promoting caricature of

7 a sheriff (ever closer to ‘I’mnot a real Sheriff,I just play one on TV’ territory), not an actual

8 law enforcement official. The m arch is yet another stunt to distract people from his

9 incompetent, lawsuit-riddled folly of a departm ent.” (Id.) The article further refers to

10 members of the MCSO as “Arpaio and his thugs.” (Id.)

11

The Court notes that after independently reviewing the We Can Stop the Hate

12 campaign’s website, it encountered numerous other articles relating to Sheriff Arpaio and the

13 MCSO. For reasons that are altogether unc lear, these articles were not m ade part of

14 Defendants’ factual subm ission. Interestingly, two such articles directly address the

15 underlying facts of the instant case. Given thenature of the assertions that Defendants have

16 raised against the Court in their recusal motion, the absence of these highly relevant articles

17 from Defendants’ factual submission is somewhat puzzling. The first article encountered by

18 the Court is dated January 20, 2009 and entitled “Join a Call for an Investigation of Sheriff

19 Arpaio.” In this article, NCLR asks m embers of the public to support a public call for an

20 immediate investigation by thefederal government into the legality of theagreement between

21 U.S. Immigration and Customs Enforcement and MCSO, which permits MCSO to work with

22 federal law agencies to aid in the enforcement of federal immigration laws. This agreement

23

24

25

2Although the article refers to a “parade” of “hundreds of detained im migrants in

shackles through the streets of Phoenix,” which seemingly implicates and casts aspersions

26 on Defendants immigration enforcement policy, the thrust of the article is concerned with

27

Sheriff Arpaio’s genera l treatment of detained prisoners, rather than the legality of an immigration detention and whether such detentions were predicated upon constitutional

28 violations. (Id.)

- 6 -

1 is referred to as the “§ 287(g)” agreem ent.3 In the instant lawsuit, Plaintiffs’ claim

2 Defendants have violated their civil rights in the course of carrying out their activities under

3 the § 287(g) agreem ent, and Plaintiffs seek to enjoin Defendants from enforcing federal

4 immigration laws pursuant to the 287(g) agreement.

5

The second article independently encountered by the Court is dated October 22, 2008

6 and is entitled “Sheriff Joe Strikes Again.”4 In this article, NCLR refers to Sheriff Arpaio

7 as “a man who has made a career of humiliating prisoners, harassing Latinos of every variety,

8 wasting taxpayer dollars with dubious results, and having a less than stellar respect for civil

9 rights and due process.” (Id. ) The article goes on to characterize Sheriff Arpaio as

10 “unrepentant, arrogant, and monumentally disingenuous.” (Id.) It also addresses the precise

11 legal and factual issues of the instant lawsuit. Spe cifically, this article alleges that Sheriff

12 Arpaio and MCSO deputies have engaged in acts of racial profiling. The article states that

13 “Arpaio claims he does not know what racial profiling is since he can' t possibly define

14 something he's never engaged in. Here' s a hint, Joe: the stuff you' re doing to Latinos in

15 Arizona—the ACLU noted in July that ‘Arpaio has made no secret that he believes physical

16 appearance alone is sufficient reason to stop and question individuals regarding their

17 immigration status’—that's racial profiling.” (Id.)

18

Another item in Defendants’ factual submission concerns an April 16, 2008 speech

19 by Janet Murguia entitled “Conventional Wisdom.” This speech is also available on the We

20 Can Stop the Hate website. (Id. at ¶ 18; Exhibit 10.) While Janet Murguia’s speech refers

21

22

3

23

See We Can Stop the Hate, http://www.wecanstopthehate.org/site/latest/join_the_call_for_an_investigation_of_sherif

24 f_arpaio (last visited June 1, 2009.)

25

4

See We Can Stop the Hate,

26 http://www.wecanstopthehate.org/site/latest/sheriff_joe_strikes_again (last visited June 1,

27 2009.)

28

- 7 -

1 to “hate groups and extremists pulling the levers and turning the wheels,” these comments

2 were not directed towards any of the Defendants, and no reasonable person could infer that

3 the speech was in any sense about them. In fact, the “Conventional Wisdom” speech, for all

4 practical purposes, appears to be completely unrelated to the instant case, other than the fact

5 that it highlights Janet Murguia and NCLR’s involvement in Latino civil rights issues. (Id.)

6

Lastly, Defendants point to Plaintiff Som os America’s website, which lists the

7 organization’s political and social interests. (See Dkt.#63, ¶ 21.) Defendants argue that

8 Somos America’s website demonstrates that it shares a common ideology with NCLR, and

9 presumably with the Court’s sister. Defendants lastly state that Somos America’s website

10 contains a link to Janet Murguia’s “Conventional Wisdom” speech. (Id.) .

11 II. LEGAL STANDARD

12

Two statutes govern the recusal of district judges: 28 U.S.C. § 144 and 28 U.S.C. §

13 455(a)-(b) . Section 144 applies when a party toa proceeding believes that the district judge

14 “has a personal bias or prejudice either against him or in favor of any adverse party[.] ”

15 28 U.S.C. § 144. “Section 144 expressly conditions relief upon the filing of a time ly and

16 legally sufficient affidavit.” United Sta tes v. Sibla , 624 F.2d 864, 867 (9th Cir. 1980)

17 (citations omitted). Specifically, the statute provides:

18

The affidavit shall state the facts and the reasons for the belief that bias or

prejudice exists, and shall be filed notless than ten days before the beginning

19

of the term at which the proceeding is to be heard, or good cause shall be

shown for failure to file it within such time. A party may file only one such

20

affidavit in any case. It shall be accom panied by a certificate of counsel of

record stating that it is made in good faith.

21

28 U.S.C. § 144. When a party files a tim ely and legally sufficient affidavit pursuant to §

22

144 that plainly sets forth a compelling case for recusal, the district judge “shall proceed no

23

further therein, but another judge shall be assigned to hear such proceeding.” Id; .Sibla, 624

24

F.2d at 867. However, “if the motion and affidavit required by [§] 144 [are] not presented

25

to the judge, no relief under [§] 144 is available.” Sibla, 624 F.2d at 868.

26

Section 455 has two recusal provisions. The first provision, subsection (a), states that

27

“[a]ny justice, judge, or magistrate of the United States shall disqualify himself [or herself]

28

- 8 -

1 in any proceeding in which his [or her] impartiality might reasonably be questioned.”

2 28 U.S.C. § 455(a). Subsection (b) provides that any justice, judge, or magistrate shall also

3 disqualify themselves under the following situations:

4

5

(1) Where he has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding;

6

* * *

7

(4) He knows that he, individually or as a fiduciary, or his spouse or m inor

8

child residing in his household, has a financial interest in the subject matter in

controversy or in a party to the proceeding, or any other interest that could be

9

substantially affected by the outcome of the proceeding;

10

* * *

11

(5) He or his spouse, or a person w ithin the third degree of relationship to

12

either of them, or the spouse of such a person:

13

* * *

14

(iii) Is known by the judge to have an interest that could be substantially

15

affected by the outcome of the proceeding;

16 28 U.S.C. § 455.
17 Unlike section 144, section 455 “sets forth no procedural requirements.” Sibla, 624
18 F.2d at 867-68. Instead, that section is directedtowards the judge, rather than the parties, and
19 is self-enforcing on the part of the judge. Id. Moreover, “section 455 modifies section 144
20 in requiring the judge to go beyond [a] section 144 affidavit and consider the merits of the
21 [recusal] motion pursuant to section 455[].” Id. at 868. The recusal standards under § 144
22 and § 455 a re identical, and decisions interpreting one section are controlling in the
23 interpretation of the other. Id.
24 IV. DISCUSSION
25 Because Defendants have moved to recuse the Court under both § 144 and multiple
26 sub-sections of § 455, the Court will address each of these claims in turn. Before turning to
27

28

- 9 -

1 the merits of Defendants’ individual contentions, the Court will first address whether

2 Defendant’s recusal motion has been timely filed.

3

A. Whether Defendants’ Motion is Untimely

4

Recusal motions brought under either § 144 and § 455 must be filed in a tim ely

5 manner. See 28 U.S.C. § 144(a) (motions “must be made in a timely fashion”); Davies v.

6 Commissioner, 68 F.3d 1129, 1131 (9th Cir. 1995) ( motions under § 455 must also “be made

7 in a timely fashion”). The recusal statute “si not intended to give litigants a veto power over

8 sitting judges, or a vehicle for obtaining a judge of their choice.” United States v. Cooley,

9 1 F.3d 985, 993 (10th Cir. 1993). Moreover, “where the facts are known before a legal

10 proceeding is held, waiting to file . . . a m otion until the court has ruled against a party is

11 untimely.” Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997).

12

Plaintiffs contend that the instant motion to recuse is untimely and has been brought

13 in bad faith, since this case was first assigned to the Court in Decebmer 2007 and Defendants

14 waited for over a year before m oving for recusal. Plaintiffs cite to exam ples where other

15 courts have rejected recusal motions when the delays at issue involved appreciably shorter

16 time periods than here. See e.g., United States v. Simmons, 1997 U.S. Dist. LEXIS 22658,

17 *17 (E.D. Cal. July 28, 1997) (“foreclos[ing] relief” for a 10-month delay); Singer v.

18 Waldman, 745 F.2d 606, 608 (10th Cir. 1984) (denying a recusal motion filed over one-year

19 after the complaint).

20

Plaintiffs also take issue with Defendants’ assertion of prior ignorance regarding the

21 Court’s family background. Plaintiffs argue that Defendants’ contentions strain all credulity

22 and should be rejected. Ac cording to Plaintiffs, the Court’s background, including her

23 sister’s position with NCLR, wa s a matter of public record as far back as 2001, when the

24 Washington Post printed an article discussing the Court’s relationship with her twin sister.

25 Furthermore, Plaintiffs have submitted a December 2007 front page article fromThe Arizona

26 Republic, which details the Court’s family history, including Janet Murguia’s work at NCLR.

27 Notably, Plaintiffs also point to the fact that this article quoted both Sheriff Arpaio and the

28 Maricopa County Attorney at length. Plaintiffs contend that because the article was focused

- 10 -

1 on MCSO’s implementation of a controversial and well-known statewide law sanctioning

2 Arizona employers who hire illegal workers, Defendants must have read the article and been

3 aware of its contents. Plaintiffs a rgue that from the surrounding circumstances one could

4 reasonably infer that Defendants have intentionally held on to this information, and are now

5 seeking to recuse the Court after having lost the first round of substantive briefing. In other

6 words, Plaintiffs have accused Defendants of knowing about the Court’s sister and NCLR,

7 and attempting to use this information as a proverbial ace in the hole, to be pulled out and

8 played when it made convenient trial strategy to do so.

9

Plaintiffs also contend tha t if the Court is unwilling to m ake a determination that

10 Defendants possessed actual knowledge regarding the Court’s background around the time

11 the lawsuit was filed, then Defendants should at least be charged with ‘constructive

12 knowledge’ of all facts that were readily available and commonly known during that same

13 period of time. See Drake v. Birmingham Bd. of Edu., 476 F. Supp. 2d 1341, 1347 (N.D.

14 Ala. 2007) (re jecting a recusal m otion on tim eliness ground where a party could have

15 discovered through reasonable diligence that the judge was a deacon in the same church as

16 plaintiff and her husband). This would, of c ourse, include knowledge that the Court has a

17 twin sister who serves as President and CEO of NCLR.

18

In their reply brief, Defendants adamantly deny that they intentionally waited to file

19 their recusal motion until after the Court had ruled against them on their renewed motion to

20 dismiss. Instead, Defendants claim that they were ge nuinely unaware of the Court’s

21 background during the early stages of the litigation. According to Defendants, the Court’s

22 February 10, 2009 ruling is relevant to the timing of their recusal motion only insofar as the

23 Order was the catalyst for local and national m edia reporting, after which members of the

24 public allegedly began to contact Defendants’ offices. Defendants claim that, in actuality,

25 their recusal motion was brought within days of discovering the Court’s relationship with her

26 sister. According to Defendants, the Court’s Order played little role in the tim ing of their

27 motion because they were not expecting to win the motion anyway. As Defendants note,

28 there is nothing particularly unusual about a district court denying a m otion to dismiss

- 11 -

1 brought under Fed. R. Civ. P. 12(b)(6), particularly when the facts are heavily disputed, as

2 they are here. Defendants invoke the Ninth Circuit holding that “[i]t is axiomatic that the

3 motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.”

4 See Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997).

5

The Court finds that serious questions exist as to the veracity of the representations

6 made by Defendants, their affiant, and defense counsel as to whether Defendants were aware

7 of the Court’s relationship with her twin sister prior to the February 10, 2009 Order. The

8 Court agrees with Plaintiffs that the tim ing of Defendants’ m otion was bound to raise

9 significant questions as to whether the fili ng constitutes a bad faith litigation tactic,

10 particularly in light of the December 2007 front page article inThe Arizona Republic, which

11 discussed the Court’s personal history and includes quotes from a key Defendant and

12 counsel. The Court further agrees that under the circ umstances it seems implausible that

13 Defendants were unaware of the Court’s siste r’s role at NCLR, and were not at least on

14 notice that there m ight be a fam ilial relationship between Ja net Murguia and the Court.

15 Indeed, Defendants' own argum ents themselves undermine their claim to reasonable

16 ignorance. Noting that the standard for recusal under 28 U.S.C. § 455(a) is applied by

17 considering “a reasonable person with knowledge of all the facts,” Taylor v. Regents of

18 Univ. of Cal. , 993 F.2d 710, 712 (9th Cir. 1993), cert. de nied, 510 U.S. 1076 (1994),

19 Defendants argue that such a reasonable person would know about Janet Murguia and the

20 activities and interests of NCLR and would question the Courst'impartiality based upon that

21 knowledge. At the same time, Defendants assert that they themselves were not aware that

22 the Court had a twin sister who is the Presiednt and CEO of NCLR until some 15 months into

23 the litigation. Effectively, then, Defendants ask this Court to find that they were less aware

24 of the relevant facts than a “reasonable person” would have been. This strains credulity,

25 especially in light of the public record described earlier and the Defendants'participation in

26 the public debate surrounding the issues that underlie this case. Nevertheless, there is no

27 direct evidence conclusively demonstrating that Defendants or their counsel have m ade a

28

- 12 -

1 factual misrepresentation to the Court— notwithstanding the improbability of Defendants’

2 claims.

3

Overall, the law supports the denial of Defendants’ recusal m otion as untime ly.

4 However, because the Court must abide by an unwavering commitment to the perception of

5 fairness in the judicial process, it will not dney the petition on the basis of timeliness and will

6 instead address the substantive questions raised by the request for recusal.

7

B. Whether The Court Is Actually Biased Against Defendants Under §

455(b)(1)

8

Defendants’ first substantive argument is that, pursuant to § 455(b)(1), the Court is

9

actually and personally biased against Defendants. The moving party carries a “substantial

10

burden” of overcoming the presumption that a district court is free from bias. United States

11

v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006). Under § 455(b)(1), actual bias is defined

12

as “a personal animus or malice that the judge harbors against [a party] of a kind that a fair-

13

minded person could not entirely set aside when judging certain persons or causes.” Hook

14

v. McDade, 89 F.3d 350, 355 (7th Cir. 1996). Recusalfor actual bias is required only if the

15

moving party can prove by “com pelling evidence” that “a reasonable person would be

16

convinced the judge was biased.” Id.

17

Defendants set forth their bias argum ent by asserting, without reference to any

18

evidence whatsoever, that the Court “has a natural, personal bias in favor of Plaintiffs, as well

19

as [a] corresponding, natural prejudice against Defendants.” (Dkt.#63, at p. 14.) This bare

20

bones assertion, even in com bination with sim ilar statements peppered throughout

21

Defendants’ motion, falls well short of the “compelling evidence” standard promulgated by

22

the Seventh Circuit in Hook . See Hook, 89 F.3d at 355. As Pla intiffs argue in their

23

opposition brief, Defendants can point to nothing the Court has ever done to suggest that it

24

holds an opinion of any party that is wrongful or inappropriate.

25

Moreover, Defendants, in particular Maricopa County and Sheriff Arpaio, are frequent

26

litigants before this Court on a wide variety of cvi il matters. It is not an overstatement to say

27

that the Court has presided over a countless number of cases involving these Parties, and it

28

- 13 -

1 has ruled in Defendants’ favor on scores of their dispositive motions. The Court can think of

2 no other case involving either Maricopa Countyor Sheriff Arpaio where it has been accused

3 of harboring a “personal animus or malice” towards either one of them. See Hook, 89 F.3d

4 at 355. In fact, as recently as September 2008, the Court presided over a bench trial where

5 Sheriff Arpaio was the only named Defendant. See Mitchell v. Arpaio, CV-06-1963-PHX-

6 MHM; 2008 U.S. Dist. LEXIS 80179 (D. Ariz . Sept. 19, 2008). After reviewing all

7 admissible evidence in that case, which included live in-court testimony given personally by

8 Sheriff Arpaio, the Court ruled in the Sheriff’s favor, holding that “Defendant [was]entitled

9 to judgment dismissing the . . . Com plaint with prejudice.” Id. at * 16. Certainly, Sheriff

10 Arpaio’s victory in the Septem ber 2008 Mitchell bench trial, along with m any other

11 successfully defended civil actions before this Court, undercuts any claim of actual bias

12 towards him or any of the other Defendants. See Alexander v. Primerica Holdings, 10 F.3d

13 155, 163-64 (3d Cir. 1993) (noting that there is heightened concern regarding judicial recusal

14 in a bench trial where the court is “deciding each and every substantive issue at trial”).

15

In light of the record before the Cour t, Defendants’ “natural bias” contention could

16 easily be interpreted as an argument that this Court’s alleged bias somehow flows from her

17 racial heritage. Obviously, such an argument would be unwarranted and baseless. Beyond

18 that, the idea that an Hispanic judge should never preside over a controversial case concerning

19 alleged acts of racial profiling purportedly committed against Hispanics is repugnant to the

20 notion that all parties are equal before the law, regardless of race. SePelessy v. Ferguson, 163

21 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither

22 knows nor tolerates classes among citizens.”).5 Given the absence of any factual foundation

23

24

5In their reply brief, Defendants proclaimthat the Court’s race played no role in their

25 recusal motion, and that they are not contesting whether a Hispanic judge should ever sit on a case concerning Hispanic civil rights, only thatthis Court should not sit on this case given
26 the nature of her sister’s work and the public positions advocated by her employer. (Dkt#.73

27

at p. 2.) However, Defendants main brief does not appear to be quite as measured as their reply. For example, Defendants, for reasons that are both unstated and unknown, quoted in

28 bold the following passage from an article found in the Phoenix New Times: “Hmm - we

- 14 -

1 supporting Defendants’ claim of bias, and given the Court’s extensive history of presiding

2 over disputes involving Sheriff Arpaio, MCSO and Maricopa County in a neutral and

3 impartial manner, the Court does not see how any reasonable attorney could set forth an

4 accusation of actual bias. As the Second Circuit stated, in upholding the im position of

5 sanctions under Rule 11 of the Federal Rules of Civil Procedure against an attorne y, the

6 “suggestion that a judge cannot adm inister the law fairly because of the judge' s racial and

7 ethnic heritage is extrem ely serious and should not be m ade without a factual foundation

8 going well beyond the judge’s m embership in a particular racial or ethnic group.” See

9 MacDraw, Inc. v. CIT Group Equip. Fin., Inc.,138 F.3d 33, 37 (2d Cir. 1998).

10

The Court therefore rejects the unsupported assertion that it is actually biased against

11 Maricopa County, Sheriff Arpaio or MCSO, in this or any other case. Further, the Court

12 admonishes counsel for Defendants that in all future pleadings he should adhere scrupulously

13 to the requirements of Fed. R. Civ. P. 11(b) or be prepared to face sanctions for failing to do

14 so.

15

C. Whether The Court Has An Interest That Could Be Substantially Affected

By The Outcome Of These Proceedings Under § 455(b)(4)

16

Under § 455(b)(4), a judge must recuse herself if “individually or as a fiduciary . . .

17

[the court has] a financial interest in the subject matter in controversy or is a party to the

18

proceeding, or any other interest that could be substantially affected by the outcom e of the

19

proceeding.” 28 U.S.C. § 455(b)(4).

20

Defendants contend that the Court’s interest in the well being of her sister constitutes

21

an “other interest” within the m eaning of § 455(b)(4), since a victory on the m erits for

22

Plaintiffs would, according to Defendants, help to advance NCLR’s stated social and political

23

goals, and, in turn, advance Janet Murguia’s career. Plaintiffs respond by arguing that courts

24

have narrowly defined “other interests” to include only financial or pecuniary interests of

25

26

27

can’t but wonder what the first Latina judge appointed to the U.S. District Court in Phoenix thinks of the idea that ‘physical appearance alone’ should merit a police investigation.” (See

28 Dkt.#63 at p. 4.)

- 15 -

1 some variety, see e.g., In re Virginia Elec. & Power Co. , 539 F.2d 357, 367-68 (4th Cir.

2 1976), and that a purported interest in the career advancement of one’s sibling does not square

3 with any accepted interpretation of the statute. SeeGuardian Pipeline, L.L.C. v. 950.80 Acres

4 of Land, 525 F.3d 554, 557 (7th Cir. 2008); In re New Mexico Natural Gas Antitrust Litig,.

5 620 F.2d 794, 796 (10th Cir. 1980). Defendants, in reply, cite to In re Virginia Elec. & Power

6 Co., arguing that Plaintiffs’ reliance upon that caseis misplaced, since in that case the Fourth

7 Circuit specifically stated:

8

Unlike [the term] ‘financial interest’ [found in § 455(b)(4),]the term‘any other

interest’ [also found in § 455(b)(4)] is not defined in terms of ownership or in

9

any other manner. It is not easy to conclude what the term means. But it must

have been the congressional intent to m ake an interest of lesser de gree than

10

ownership disqualify. That would seem to be so for otherwise there would be

no purpose in defining financial interest in te rms of ownership and failing to

11

apply such a limitation on any other interest.

12 In re Virginia Elec. & Power Co., 539 F.2d at 367 (emphasis added).

13

With respect to Defendants novel interpretation of § 455(b)(4), the Court does not

14 accept that a sibling relationship can constitute an ‘interest’ within the meaning of the recusal

15 statute. Notwithstanding Defendants’ argument, the language of Virginia Elecd. iscusses ‘any

16 other interest’ in term s of the degree of ownership over som ething that is financial or

17 proprietary in nature. See alsoE. & J. Gallo Winery v. Encana Energy Serv., Inc,.2004 U.S.

18 Dist. LEXIS 29380, *13-15 (E.D. Cal. Feb. 20, 2004) (citing to Virginia Ele

c. and

19 characterizing an ‘other interest’ as decidedly financial, albeit one that is indirect or remote

20 in nature). Moreover, the Court is not aware of any case law that would tend to support

21 Defendants’ proffered reading. The Court will not endorse an untethered expansion of the

22 recusal statute to the point where a litigant canengage in a broad based fishing expedition to

23 dig up potentially disqualifying ‘interests’ that a judge m ay be accused of having in a

24 particular case. The Court therefore agrees with Plaintiffs that the term‘any other interests’

25 should be interpreted as being lim ited to financial or pecuniary interests, whether by

26 ownership or some other means.

27

Defendants go on to claim that even if the Court we re to apply the more restricted

28 interpretation of § 455( b)(4) advocated by Plaintiffs—that the Court’s interest must involve

- 16 -

1 “an investment or other asset whose value depends on the outcome, or some other concrete

2 financial effect”—recusal would still be warranted. (SeeDkt.#70 at p. 10.) This, according

3 to Defendants, is because an adverse ruling herewould likely cause an appreciable drop in the

4 amount of “public donations” to NCLR, since “the positions, causes and relationships it

5 advances and develops [may not be bearing]fruit in society’s executive, legislative, or judicial

6 branches of government.” (See Dkt.#72 at p. 8.)

7

There is nothing in the record, however, to support Defendants’ speculation tha t the

8 Court’s sister’s career or her organization would be materially affected by the outcome of the

9 proceedings. Similarly, there is nothing in the record to suggest that the Court has an interest

10 in her sister’s well being that would somehow be inconsistent with the fair resolution of this

11 case, or that the Court has a personal stake in the advancem ent of her sister’s career that

12 would create an untenable conflict of interest. Furthermore, even if a victory for Plaintiffs here

13 would somehow help to advance Janet Murguia’s interests, nothing in the record suggests that

14 the Court itself would derive any type of financial, proprietary or otherwise tangible benefit

15 from her sister’s potential career advancement. Defendants’ theory that NCLR might stand

16 to lose “public donations” depending on the outcome of this case is not actionable under the

17 relevant sub-section of the recusal statute, since § 455(b)(4) is directed towards interests held

18 by the Court, not its siblings or its siblings’ employer.6

19

20

6There is one final issue under § 455(b)(4 ) which, in an abundance of caution, the

Court must raise, even though it was not addresse d by either of the Parties. This issue is

21 whether the Court is a potential m ember of Plaintiffs’ proposed class, and if so, whether

22

recusal is required. In their First Amended Complaint, Plaintiffs redefined their proposed class to include the following individuals: “all Latino persons who, since January 2007, have

23 been or will be in the future, stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County,
24 Arizona.” (See Dkt.#18 at p. 24.) Although the Court can be fairly characterized as a “Latino

25 person,” it has not, admittedly, been “stopped, detained, questioned or searched by MCSO agents” since Janua ry 2007. Moreover, the Court does not foresee being stopped,
26 questioned, detained or searched in the near future, but must concede that it always remains

27

a theoretical possibility, even if remote. While the Court is mindful of the Ninth Circuit’s admonition that “no man can be the judge in his own case [or] try cases where he has an

28 interest in the outcome,” Exxon Corp. v. Heinze , 32 F.3d 1399, 1403 (9th Cir. 1994), the

- 17 -

1

Thus, the Court has no conceivable interest in this case that would serve as a grounds

2 for recusal under § 455(b)(4).

3

D. Whether The Court’s Sister Has An Interest That Could Be Substantially

Affected By The Outcome Of This Lawsuit Under § 455(b)(5)(iii)

4

Under § 455(b)(5)(iii), recusal is mandated where “a person within the third degree of

5

relationship . . . [i]s known by the judge to have an interest that could be substantially affected

6

by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). The phrase “third degree of

7

relationship” has been to interpreted to include a judge’s siblings. See generally Harris v.

8

Champion, 15 F.3d 1538, 1571 (10th Cir. 1994) (finding that § 455(b)(5)(iii) should apply to

9

the district court’s uncle).

10

Pursuant to this sub-section, Defendants broa dly assert that the Court’s sister has

11

“ideological, political, social and activist interests” in this lawsuit that are contrary to

12

Defendants’ interests. (See Dkt.#63 at p. 5.) In response, Plaintiffs point to the Seventh

13

Circuit case of SCA Serv. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977), which held that a

14

partner’s interest in the reputation and goodwill of his law firm fell within § 455(b)(5)(iii).

15

Id. Plaintiffs argue that the connection between a business’s reputation and goodwill and the

16

interests of one of its owners are obviously financial in nature, whereas “ideological, political,

17

social and activist interests” are obviously not. As such, Plaintiffs argue that the definition

18

of ‘interests’ under § 455(b)(5)(iii) should be co-extensive with the m eaning of ‘interests’

19

under § 455(b)(4). Plaintiffs note that Defendants have cited no examples where courts have

20

defined the term interests differently under § 455(b)(4) a nd § 455(b)(5)(iii). See e.g.,

21

Guardian Pipeline, L.L.C., 525 F.3d at 557.

22

23

Court is not presently a m ember of Plaintiffs’ propose d class and cannot state with any 24 degree of certainty whether it will become a member in the future. In any event, even under

25 the unlikely scenario that the Court becomes an unnamed class member, its interest in the outcome of the case would likely be de minimis and too insubstantial to necessitate recusal.

26 See In re New Mexico Natural Gas Antitrust Litig. , 620 F.2d 794, 796 (10th Cir. 1980)

27

(holding that the district court’s recusal under § 455(b)(4) was unwarranted where the judge, like all other consumers in New Mexico, may have benefitted from a lower gas and electric

28 bill in a class action lawsuit brought against a statewide utility company).

- 18 -

1

The Court agrees with Plaintiffs. It is not at all clear how the word interests could be

2 given two different meanings in the same statute, when used in a nearly identical context. See

3 Ratzlaf v. United States, 510 U.S. 135,143 (1994) (“A term appearing in several places in a

4 statutory text is generally read the sam e way each tim e it appears.”). Thus, if the term

5 interests is to be given a consistent meaning throughout § 455, then Defendants have failed

6 to show how the Court’s sister has an interest in the instant lawsuit that can be reasonably

7 characterized as financial or proprietary in nature. And as previously stated, “ideological,

8 political, social and activist” interests are not generally recognized as actionable.

9

Additionally, Defendants have not even suggested, m uch less explained, how any

10 interest, even under the rejected “social, political, or id eological” standard, m ight be

11 “substantially” affected by the outcom e of this case, particularly when the degree of any

12 potential impact on the interests of the Court’s sister or NCLR seems indirect at best. Neither

13 the Court’s sister, nor her employer, are parties in this case, employed by a party in this case,

14 or have a direct affiliation with a party in this case or with their counsel. It is far too

15 speculative to suggest that because Janet Murguia and NCLR might arguably share common

16 values or pursue the same political or social goals as Plaintiffs and their counsel, that they

17 might be substantially affected by the outcome of this case. SeeESPN, 767 F. Supp. at 1080.

18

The Court therefore rejects § 455(b)(5)(iii) as a basis for recusal in this case.

19

20

E. Whether The Court’s Impartiality Might Reasonably Be Questioned under

21

§455(a)

22

The more difficult question presented by thismotion is whether the Court’s impartiality

23 might reasonably be questioned under 28 U.S.C. §455(a). The standard for recusal under

24 §455(a) is “whether a reasonable person with knowledge of all the facts would conclude the

25 judge's impartiality might reasonably be questioned.” Taylor v. Regents of Univ. of Cal,.993

26 F.2d 710, 712 (9th Cir. 1993), cert. denied, 510 U.S. 1076 (1994).

27

The Court is acutely aware that it owes an independent duty to uphold the integrity of

28 the judicial system, see Liljeberg v. Health Serv. Acquisition Corp,.486 U.S. 847, 860 (1988)

- 19 -

1 (recognizing that the purpose of § 455(a) is “to promote public confidence in the integrity of

2 the judicial process by avoiding even the app earance of impropriety whenever possible”),

3 even when a party’s pleadings are bombastic and its position relies upon inflammatory and

4 meritless forms of argumentation. This Court will not dodge the critical question of whether

5 its continued role in this case is appropriate unde r the circumstances, even though it would

6 have been entirely justified in denying De fendants’ recusal motion on timeliness grounds

7 alone.

8

Two competing concerns govern the Court’s decision on the merits of this question.

9 First, of course, “[t]he test for recusal under [§ 455(a)]asks “whether a reasonable person with

10 knowledge of all the fac ts would conclude the judge’s im partiality might reasonably be

11 questioned.” Taylor, 993 F.2d at 712. Critically, “the judge’s actual state of mind, purity of

12 heart, incorruptibility, or lack of partiality are not the issue.” Nichols v. Alley, 71 F.3d 347,

13 351 (10th Cir. 1995) (internal quotations and c itations omitted). The test is purely an

14 objective one, which focuses on “whether a reasonable person perceives a significant risk that

15 the judge will resolve the case on [any] basis other than the merits.” In re Mason, 916 F.2d

16 384, 385 (7th Cir. 1990); Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (“The

17 inquiry is whether a reasonable person would have a reasonable basis for questioning the

18 judge’s impartiality, not whether the judge is in fact impartial.”).

19

It must be noted that in the recusal context, a reasonable person m eans a

20 “well-informed, thoughtful observer,” as opposed to a “hypersensitive or unduly suspicious

21 person.” In re Mason, 916 F.2d at 386. Thus, to the extent that the selected reader coments

22 left on the Phoenix Business Journal and The Arizona Republic websites have been offered

23 by Defendants to exemplify the public’s reaction to the Court’s continued involvement in this

24 case,7 that position is rejected. Judges m ust decide whether to re cuse themselves “not by

25

26

7Of course, not all of the comments cited by the Defendants supported their contention

27

that the public’s reaction to the Court’s February 10, 2009 Order was one of suspicion and mistrust. See e.g. these comments: “Wrong is just WRONG . . . I would have made the same

28 ruling and MY sister is not connected to La Raza”; and “[t]his judge, like any judge in her

- 20 -

1 considering what a straw poll of the only partly informed man-in-the-street would show[,]but

2 by examining the record facts and the law, and then deciding whether a reasonable person

3 knowing and understanding all the relevant facts would recuse the judge.” In re Drexel

4 Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). “Articles and features in the

5 media suggesting im propriety cannot act as a barom eter” of the reasona ble person. TV

6 Commc’ns Network, Inc. V. ESPN, Inc. , 767 F. Supp. 1077, 1080 (D. Colo. 1991).

7 Obviously, no Court should perm it anonymous bloggers to wield a veto power over its

8 participation in any case.

9

Second, courts have “a strong duty to sit” when there is no legitimate reason to recuse.

10 Clemens v. U.S. Dist. Ct. For the Cent. Dist. of Cal. , 428 F.3d 1175, 1179 (9th Cir. 2005).

11 A judge should not recuse himor herself based “on unsupported, irrational, or highly tenuous

12 speculation; were he or she to do so, the prci e of maintaining the purity of appearance would

13 be the power of litigants or third parties to exercise a negative veto over the assignm ent of

14 judges.” In re United States, 666 F.2d 690, 694 (1st Cir. 1981).

15

As the Parties acknowledge in their filings, this is a high profile case, one that is not

16 likely to be free from controversy, regardle ss of who is presiding over it. The issue of

17 whether Maricopa County, Sheriff Arpaio and MCSO ought to be enforcing federal

18 immigration laws elicits strong feelings, both within the local Phoenix community as well as

19 across the nation. Further, allegations of violations of Constitutional rights often arouse

20 strong public passions. These passions ar e no doubt shared by both those who allege the

21 violations and those who dispute them . The Court also recogniz es the controversial and

22 sensitive nature of the immigration issue generally within the country. Nothing in this set of

23 circumstances would, by itself, warrant recusal under the appropriate standard.8

24

25 position, simply upheld the legal standard for a motion to dismiss. There were enough facts

alleged to let the case go to the next step.” 26

27

8In the Court's view this case is not about whether sound public policy—which is set

by the political branches and not by the courts—fa vors having a local Sheriff and his

28 deputies enforce federal immigration laws. If it were, this case would never have withstood

- 21 -

1

Nonetheless, the Court recognizes its somewhat unique position, in that the Cour t’s

2 twin sister plays a prom inent public role in advocating policy positions that diam etrically

3 oppose those taken by Defendants. At the same time, the statute does not require the Court

4 to recuse itself from a m atter merely because a case concerns Hispanic civil rights, our

5 nation’s immigration policy, or some related matter. Section 455(a) does not require such a

6 cautious approach on the part of a judge, and the Court must be careful to avoid allowing her

7 sister’s public profile to serve as a proxy fora race-based recusal challenge. Also providing

8 context to this inquiry is the rather unremarkable yet often overlooked proposition that “[a]

9 district judge is not a sterile creature who dons judicial robes without any prior contacts in the

10 community but rather is very likely to be aman or woman with a broad exposure to all kinds

11 of citizens of all shades of persuasion and background.” United States v. Suren , 1992 U.S.

12 App. LEXIS 38216, *16 (9th Cir. Aug. 18 1992) (Mem orandum Opinion) (quoting In re

13 Searches Conducted on March 5, 1980, 497 F. Supp. 1283, 1290 (E.D. Wis. 1980) (internal

14 citations omitted)).

15

Both Parties devote a great deal of space in their briefs to arguing over the proper

16 interpretation of two leading U.S. Supreme Court cases dealing with recusal motions brought

17 under § 455(a): Microsoft v. United State,s530 U.S. 1301 (2000) and Cheney v. United States

18 Dist. Ct., 541 U.S. 913 (2004). Microsoftconcerned whether Chief Justice Rehnquist should

19 have recused himself from a c ase where his son, a lawyer who represented Microsoft in

20 potentially related anti-trust matters, might have stood to gain froma favorable ruling towards

21 the company. Id. at 1301-02. After rejecting the possibility that his son might have an

22 interest that could be substantially affec ted by the outcome of the case, the Chief Justice

23 addressed whether his continued involvement created the appearance of impropriety. Id.

24

25 even the flimsiest motion to dismiss. Instead, this lawsuit concerns only whether Defendants

26 have violated Plaintiffs' rights under the Fourth Amendment, Fourteenth Amendment, and

27

the Arizona State Constitution, while carrying out their otherwise lawful duties to enforce federal immigration laws. The Court has notbeen asked to pass judgment on the wisdom of

28 the § 287(g) authorization, nor would it do so if asked.

- 22 -

1 Ultimately, Chief Justice Rehnquist decided against recusal. In so doing, he noted that a

2 “decision by this Court as to Microsoft’s antitrust liability could have a significant effect on

3 Microsoft’s exposure to antitrust suits in othercourts . . . [but][e]ven our most unremarkable

4 decision interpreting an obsc ure federal regulation m ight have a significant im pact on the

5 clients of our children who practice law.” Id.at 1303. The Chief Justice went on to comment

6 on the Supreme Court’s unique institutional role, stating:

7 8 9 10 Id.

[I]t is im portant to note the negative im pact that the unnecessary disqualification of even one Justice may have upon our Court. Here—unlike the situation in a Distric t Court or a Court of Appeals—there is no way to replace a recused Justice. Not only is the Court deprived of the participation of one of its nine members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court.

11

Cheney involved an attem pt to force the recusal of Justice Scalia from a case

12 concerning whether the executive branch was required to disclose the identity of persons who

13 had served on the Vice President’s energy task force. SeeCheney, 541 U.S. at 914-16. The

14 substance of the recusal motion focused on a hunting trip that Justice Scalia had taken with

15 Vice President Cheney and others. At issue, among other things, was that the host of the trip

16 had ties to the energy industry and that members of the hunting party, including Justice Scalia,

17 had traveled to their final destination on the Vice President’s government-issued airplane. Id.

18 In deciding against recusal, Justice Scalia stated that media commentary constituting “a blast

19 of largely inaccurate and uninformed opinion cannot determine the recusal question.” Id. at

20 924. Justice Scalia further commented that recusal might be advisable, “if I were sitting on

21 a Court of Appeals,” where the recused judge’splace on the panel “would be taken by another

22 judge and the case would proceed normally.” Id. at 915. Echoing the sentiments of Chief

23 Justice Rehnquist, Justice Scalia opined that the Suprem e Court operated quite differently,

24 since, “[t]he Court proceeds with eight Justices, raising the possibility that, by reason of a tie

25 vote, it will find itself unable to resolve the sgi nificant legal issue presented by the case.” Id.

26

The helpfulness of the Microsoftand Cheney opinions is debatable in this case. Chief

27 Justice Rehnquist’s Memorandum, although quite informative in its analysis of when a close

28 family member’s potential interest in a case m ight cast aspersions on a judge’s a pparent

- 23 -

1 neutrality, is the writing of only one Justice. It is not the opinion of the Court. As such,

2 Microsoft is not binding precedent. Sim ilarly, Justice Scalia’s Mem orandum in Cheney

3 discussing his personal friendship with Vice President Cheney and the media’s coverage of

4 their hunting trip, is non-precedential.

5

More importantly, those cases do not deal with the recusal of a trial court judge. When

6 a federal district court judge recuses herself from a case, another judge can easily step into her

7 place. Because every district court judge has taken the same oath to faithfully apply the law,

8 which includes applying binding precedent from the U.S. Supreme Court as well as the law

9 of the relevant circuit, very little prejudice results from a district court judge’s recusal. On

10 the other hand, as Chief Justice Rehnquist and Justice Scalia have observed, the U.S. Suprem

11 Court is sui generis, or one of a kind. There are only nine members, and when one recuses,

12 only eight will sit. As was noted, the votes of at least five Justices are required to overturn a

13 lower court opinion. Therefore, when that body is short one or more of its members, there is

14 a substantial risk that an im portant legal issue will go com pletely unresolved, without a

15 majority opinion. No other case, certainly not one fromthe federal district court, presents an

16 analogous situation.

17

One of the focal points of the Parties’ arguments in this case is the notion that a judge

18 might be seen as unwilling to take a position inconsistent with her sibling’s ideological,

19 political or social interests. Defendants argue that a reasonable observer, one who is apprised

20 of all the facts, m ight assume that siblings, like the Court and her sister, share com mon

21 pursuits, points of view or even political ideology. Defendants further claimthat siblings who

22 are personally close are likely to influence each other’s thinking, even indirectly. When the

23 siblings are twins, no less identical twins, according to Defendants, the likelihood of

24 confusion is even greater. Plaintiffs respond by arguing that people frequently disagree with

25 their siblings, even with their identical twin, on a wide variety of issues and that no reasonable

26 person would question this Court’s ability to do so here. Additionally, the Plaintiffs argue, the

27 mere fact that Janet Murguia is President and CEO of an organization that advocates for the

28 rights of Latinos would not cause a reasonable person to question the Court’s impartiality.

- 24 -

1

In weighing the Parties’ competing views, there is little, if any, guidance from case

2 law. The Parties have not cited to—and the Court is not aware of—a sim ilar case, where

3 nothing more than a sibling’s political or social affiliations could arguably create the

4 appearance of impropriety for a judge under § 455(a). Cognizant that a “reasonable person”

5 is well-informed and thoughtful, the Court agrees with Plaintiffs that no reasonable person

6 would automatically ascribe the views of one sibling to another. It is certainly part of the

7 common experience that brothers and sisters often disagree about all sorts of issues, regardless

8 of how personally close they are or how often they speak on the telephone. There is no reason

9 to believe that this reality would change whenthe siblings are identical twins. A reasonable

10 and impartial observer apprised of all the facts would not conclude that identical twins are

11 more likely to share a common view point or interests than other siblings, much less that a

12 twin who is a judge would be incapable of im partiality. The Court is not aware of any

13 evidence that would tend to show that it has been unduly influenced by her sister’s political

14 or social views. Moreover, there is no proof tha t the Court, in light of her sister’s stated

15 positions, would be hesitant to rule against Plaintiffs, if the law so required. That the Court’s

16 identical twin is on record as opposing the enforcement of federal immigration laws by Sheriff

17 Arpaio and MCSO does not by itself mandate the Court’s recusal under § 455(a). If the only

18 grounds for recusal were Janet Murguia’s role as President and CEO of NCLR and the public

19 comments that she has m ade pursuant to that role , the Court's inquiry would stop there.

20 However, this is not the case, as the Court must also address the issue of the We Can Stop the

21 Hate website, which was launched by NCLR whilethe Court’s sister was serving as President

22 and CEO as a cam paign to addre ss acts of discrim ination against Latino com munities

23 throughout the United States.

24

Whether the Court's impartiality might reasonably be questioned based on the content

25 of these internet-based articles is a difficultissue. Obviously, the Court has no connection to

26 the We Can Stop the Hate campaign. There is also nothing in the record to suggest that the

27 Court’s sister is the author of the offending articles or that she had any personal involvement

28

- 25 -

1 in their publication. Yet, the Court is m indful that it m ust be vigilant to avoid even the

2 slightest appearance of impropriety.

3

Without question, these articles greatly disparage MCSO deputies and persona lly

4 attack Sheriff Arpaio. As has been previous ly pointed out, these a rticles refer to Sheriff

5 Arpaio as a “relentlessly self-promoting caricature,” who has “less than stellar respect for civil

6 rights and due process,” and who is “unrepentant, arrogant, and omnumentally disingenuous.”

7 With respect to the MCSO, its deputies are re ferred to as “thugs,” while the departm ent is

8 generally characterized as a “lawsuit-riddled folly” of an agency, among other things. In the

9 context of a motion for recusal, when comments like these originate from a website that is

10 associated with the Court’s sister or the organization that she leads, they cannot be taken

11 lightly.

12

Besides being insulting, the We Can Stop the Hate online a rticles speak directly to

13 MCSO’s decision to enforce federal immigration laws pursuant to its § 287(g) authority. In

14 fact, these articles specifically assert that MC SO has failed to adequately safeguard basic

15 constitutional rights through its de partmental procedures, and that MCSO deputies have

16 engaged in wide-spread acts of racial profiling and have blatantly violated the Fourth

17 Amendment rights of detained im migration suspects by predicating stops on “physical

18 appearance alone.” The instant litigation sets out to dete rmine these exact questions, i.e.,

19 whether the Fourth and Fourteenth Amendment rights of Latino persons in Maricopa County

20 have been violated.9

21

In applying the objective standard of § 455(a), the Court believes that whether a

22 reasonable person apprised of all relevant facts would question its im partiality based on

23 circumstances surrounding the publication of theWe Can Stop the Hate website is a close call.

24

25

9The Court must also note that a prominent picture of Janet Murguia sits immediately

adjacent to each We Can Stop the Hate online article. Even though the picture is correctly

26 labeled as belonging to Janet Murguia and not the Court, the Court seeks to avoid the risk of

27

confusing the Court’s picture with that of her sibling. The Court umst consider the possibility that a reasonably well-inform ed and impartial observer might mistake the Court for her

28 identical twin sister.

- 26 -

1 On the one hand, the views of the Court’s sister and her organization cannot be fairly ipmuted

2 to the Court, and there is nothing in the record to support an inference that the Court would

3 be unwilling to issue a ruling contrary to her sister’s publicly-held positions. On the other

4 hand, much of the com mentary contained in the articles is highly disparaging of specific

5 Defendants in this case, and the website takes a strong stand on disputed factual amtters lying

6 at the heart of the litigation.

7

The United States Court of Appeals for the Ninth Circuit has instructed that when a

8 case is close, the balance should tip in favor of recusal. United States v. Holland, 519 F.3d

9 909, 911 (9th Cir. 2008) (quoting United States v. Dandy , 998 F.2d 1344, 1349 (6th Cir.

10 1993)). No Court should tolerate even the slightest chance that its continued participation in

11 a high profile lawsuit could taint the public’s perception of the fairness of the outcom e.

12 Certainly, this Court is unwilling to take such a rsi k. Thus, because at the district court level

13 all doubts should be resolved in favor of recusal when the issue is close, strictly on the sole

14 issue remaining—whether the Court’s im partiality might reasonably be questioned under

15 Section 455 (a)—the Court, in an abundance of caution, will recuse itself from this matter.

16 Accordingly,

17

IT IS HEREBY ORDERED granting Defendants’ Motion for Recusal. (Dkt.#63.)

18

IT IS FURTHER ORDERED directing that the Clerk reassign this case to another

19 judge in the District of Arizona by random lot.

20

DATED this 15th day of July, 2009.

21

22

23

24

25

26

27

28

- 27 -

 </s> 1 WO

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 MANUEL DE JESUS ORTEGA ) No. 07-CV-02513-PHX-GMS

MELENDRES, et al.,

)

10

) ORDER

Plaintiffs,

)

11

)

vs.

)

12

)

)

13 MARICOPA COUNTY, et al.,

)

)

14

Defendants.

)

)

15

)

16

17

Pending before the Court is the Motion to Stay Proceedings of Defendant Maricopa

18 County (“the County”) (Dkt. # 105); the Responses in Opposition filed by Plaintiffs (Dkt. #

19 114) and Defendants Joseph M. Arpaio, Sheriff of Maricopa County, a nd the Maricopa

20 County Sheriff’s Office (“MCSO”) (Dkt. # 115); the County’s Reply (Dkt. # 122); and the

21 Amicus Curiae Brief of the United States, which argues that a stay is not necessary (Dkt. #

22 113-1). The Court has also received the Motion for Leave to File a Supplemental Brief of

23 Sheriff Arpaio and the MCSO. (Dkt. # 134.)For the following reasons, the Court denies the

24 motion to file a supplemental brief and denies the motion to stay.1

25

26

1Plaintiffs, Arpaio, and the MCSO have requested oral argument. Those requests are

27 denied because the parties have thoroughly di scussed the law and the evidence, and oral

argument will not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. 28 Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991).

1

BACKGROUND

2

The factual and procedural history of this case has been spelled out at length in

3 previous orders (see, e.g., Dkt. # 60), and it will not be recapitulated here. Plaintiffs have

4 sued Defendants Arpaio, the MCSO, and the County for alleged violations of their federal

5 and state constitutional and statutory rights. (Dkt. # 26.) Plaintiffs are Hispanic citizens of

6 either the United States or Mexico, each of whom has been stopped and detained at som e

7 point by MCSO officers, and Somos America, an immigrant advocacy group. Plaintiffs seek

8 both a declaration that Defendants have engaged in discriminatory and illegal practices and

9 an injunction preventing Defendants from engaging in such practices in the future.2

10

DISCUSSION

11

One of the motions pending when this case was reassigned s(ee Dkt. ## 63, 138, 144)

12 was the County’s request that this matter be stayed pending resolution of an investigation of

13 the MCSO and Sheriff Arpaio by the United States Department of Justice (“DOJ”). (Dkt.

14 # 105.) After briefing on this m otion was completed, Defendants Arpaio and the MCSO

15 requested leave to file a supplem ental brief on the m atter. (Dkt. # 134.) The Court will

16 address these motions in turn.

17 I. Motion for Stay

18

The County argues that the Court should stay this matter for reasons of convenience

19 to itself and to other par ties. “[T]he power to stay proceedings is incidental to the power

20 inherent in every court to control the disposition of the causes on its docket with economy

21 of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S.

22 248, 254 (1936). In deciding whether to stay a case, the Court should generally consider five

23 factors:

24

(1) the interest of the plaintiffs in proceeding expeditiously with

this litigation or any particular aspect of it, and the potential

25

prejudice to plaintiffs of a delay; (2) the burden which any

26

27

2The named Plaintiffs seek this re lief on behalf of them selves and others who are

similarly situated. A m otion for class certification is currently pending before the Court.

28 (Dkt. # 93.)

- 2 -

1

particular aspect of the proceedings may impose on defendants;

(3) the convenience of the court in the management of its cases,

2

and the efficient use of judicial resources; (4) the interests of

persons not parties to the civil litigation; and (5) the interest of

3

the public in the pending civil and criminal litigation.

4 Keating v. Office of Thrift Supervision, 45 F.3d 322, 325 (9th Cir. 1995). Upon consideration

5 of these factors as they apply to this case, the Court concludes that a stay is not appropriate.

6

(1) The Non-Moving Parties’ Interests in Proceeding Expeditiously

7

Plaintiffs argue that their interest in proceeding expeditiously with this litigation will

8 be greatly compromised if the Court grants astay. (Dkt. # 114.) Defendants Arpaio and the

9 MCSO likewise argue that they would be burdened by a sta y because it would delay their

10 ability to clear themselves of Plaintiffs’ claims. (Dkt. # 115.) Both are correct. Plaintiffs

11 have a strong interest in resolving their claim s expeditiously and in vindic ating any

12 constitutional or statutory violations to which they may have been subjected. See Harris v.

13 United States, 933 F. Supp. 972, 976 (D. Idaho 1995) (recognizing the im portance of “the

14 Plaintiff’s interest in an expeditious resolution of his civil dispute”)K; laver Constr. Co., Inc.

15 v. Kan. Dep’t of Transp., No. 99-2510, 2001 WL 1000679, at *2-3 (D. Kan. Aug. 23, 2001)

16 (recognizing a “plaintiff’s interest in s eeking vindication for alleged constitutional

17 violations” and denying a request for a stay). Defendants have an equally strong interest in

18 expeditiously clearing themselves of serious allegations of illegal activity.See Kemin Foods

19 v. Pigmentos Vegetales , 384 F. Supp. 2d 1334, 1343 (S.D. Iowa 2005) (explaining that

20 “serious allegations” can prejudice a party, that “i[]t is reasonable that [a party]seeks to clear

21 up these allegations as soon as possible,” and finding that this consideration weighed against

22 granting a stay). Moreover, the fact that Plaintiffs here seek injunctive relief against ongoing

23 and future harmfurther counsels against a stay.See Lockyer v. Mirant Corp., 398 F.3d 1098,

24 1112 (9th Cir. 2005) (finding that a stay was not warranted where, “[un]like the plaintiffs in

25 [other cases], who sought only damages for past harm, the [plaintiff] seeks injunctive relief

26 against ongoing and future harm.”).

27

The County argues that, despite these burdens, the other parties will actually be

28 benefitted by a stay because the DOJ investigation will help to simplify this case. (Dkt. #

- 3 -

1 105 at 8-9.) For the reasons discussed below in factor three, however, it is doubtful that the

2 DOJ investigation will necessarily overlap with the issues of this case sufficient to prove

3 markedly beneficial. Even if they did, the length of the stay proposed by the County

4 undercuts any such utility. “Generally, stays should not be indefinite in natureD.”ependable

5 Highway Express, Inc. v. Navigators Ins. Co. , 498 F.3d 1059, 1066 (9th Cir. 2007). The

6 County requests that this matter be stayed “pending the outcome of the [DOJ]investigation”

7 (Dkt. # 105 at 12), but, as the United States poinstout, its investigation “only began in March

8 2009” and “it is prem ature and impossible to predict the timeline or the outcom e of [its]

9 investigation” (Dkt. # 113-1 at 3). Because it is impossible for even the United States to

10 predict when there will be an outcome to the DOJ investigation, any stay the Court were to

11 issue contingent upon such outcome would be indefinite.

12

That reality does not change simply because any party is “free to petition this Court

13 to lift or modify the stay” if “the investigation proves excessively long and does not yield

14 cost-saving benefits.” (Dkt. # 122 at 8-9.) The absence of certainty about the nature and

15 length of the DOJ’s investigative process, and the possibility that the DOJ would not seek

16 to disclose the details of an ongoing investigation, suggest that such a stay would ultimately

17 serve no purpose. Moreover, the County’s argument misplaces the burden of demonstrating

18 that a stay is proper. “A stay should not be granted unless it appears likely the other

19 proceedings will be concluded within a reasonable time . . . .” Leyva v. Certified Grocers of

20 Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979). The County has not even attepmted to establish

21 any such likelihood. Thus, this factor weighs against a stay.

22

(2) The Burden on the County

23

The County argues that it will be burdened if it is forced to proceed with this

24 litigation. However, “if there is even a fair possibility that the stay for which [a partyp]rays

25 will work damage to some one else,” then “the suppliant for a stay m ust make out a clear

26 case of hardship or inequity” to justify staying the case. Landis, 299 U.S. at 255. The

27 County first argues that it would be burdened if the case is not stayed because “[t] he

28 plaintiffs’ allegations are fact intensive” and “are not likely to be resolved without extensive

- 4 -

1 discovery and other protracted investigative processes.” (Dkt. # 105 at 9.) Nevertheless, the

2 mere litigation of a case, even a complex one, is not so burdensome as to justify staying that

3 case. Lockyer, 398 F.3d at 1112 (“[B]eing required to defend a suit, without more, does not

4 constitute a ‘clear case of hardship or inequity’ within the meaning of Landis.”) (quoting 299

5 U.S. at 255). If it were otherwise, a stay would be available simply upon request.

6

The County also suggests that it would be burdened by having to litigate this case and

7 cooperate with the DOJ investigation at the same time. (Dkt. # 105 at 10.) However, it is

8 not clear that the County itself would play a major role in the DOJ’s investigation, for that

9 investigation appears directed at Sheriff Arpaio and the MCSO. S(ee Dkt. # 105 Ex. A.) The

10 County offers no reason to believe that it would be significantly burdened by responding to

11 the DOJ’s investigation and participating in thislawsuit. The County thus has not articulated

12 the “clear case of hardship” necessary to justify a stay of this case. See Landis, 299 U.S. at

13 255. Therefore, this factor weighs against a stay.

14

(3) The Efficient Use of Judicial Resources

15

The bulk of the County’s argume nt is directed to the notion that staying this case

16 makes the best use of judicial resources under the reasoning that the matters at issue in this

17 case and the DOJ’s investigation are the same. Specifically, the County argues that “[t]he

18 results of the [DOJ’s] investigation will inevitably assist the parties and the Court in

19 structuring their litigation activities in this case, and could even obviate the need for further

20 litigation in the event the [DOJ]effectively provides the plaintiffs the relief they are seeking

21 here.” (Dkt. # 105 at 8.)

22

Plaintiffs are seeking a judicial de termination that certain activities undertaken by

23 Defendants violate the Fourth and Fourteenth Amendments to the United States Constitution;

24 Article II, Section 8 of the Arizona Constitution; and Title VI of the Civil Rights Act of

25 1964. (Dkt. # 26.) These claim ed violations are based on alleged racial profiling and

26 discriminatory treatment of Hispanic persons through illegal stops, detentions, questioning,

27 searches, and arrests. (Id.) The DOJ’s investigation, on the other hand, is being undertaken

28 pursuant to provisions of the Violent Crime Control and Law Enforcement Act, the Omnibus

- 5 -

1 Crime Control and Safe Streets Act, and Title VI of the Civil Rights Act. (Dkt. # 105 Ex.

2 A at 1.)

3

To be sure, the DOJ undertook its investigation with particular purposes in mind, but

4 it is powerless to make judicial determinations for the benefit of either party. While there

5 may be som e overlap on legal and factual issues between this case and the DOJ’s

6 investigation, the fact that the DOJ’s investigation is only in its formative stages means that

7 there is simply no way to know whether that investigation will be coextensive with this case.

8 The United States ha s opined that, in its view, “[t] he United States’ and the Melendres

9 private plaintiffs’ causes of action are distinct.” (Dkt. # 113-1 at 3.) Thus, the DOJ does not

10 appear to be tailoring its investigation to the claims of these specific Plaintiffs. It also seems

11 plain from the way the DOJ has described its investigation that it will not focus on alleged

12 violations of the Arizona Constitution, which are among Plaintiffs’ claims. (See Dkt. # 105

13 Ex. A.) Even if the DOJ were to tailor its investigation to Plaintiffs’ claim s, however, the

14 focus of the DOJ investigation could change over tim e, or the DOJ could term inate its

15 investigation for any num ber of reasons, or the DOJ’s ultim ate findings could be

16 inconclusive. In any of these cases, there would have been no benefit to the stay and the

17 parties would have needlessly suffered the harm of delay.

18

Finally, the Court disagrees that granting the stay would “obviate the need for further

19 litigation.” (Dkt. # 105 at 8.) Even if the DOJ were to pursue precisely the line of legal

20 argument that Plaintiffs advance, this case would still not necessarily be resolved. Plaintiffs

21 could disagree with the DOJ and seek to bring their claim s in a judicial forum , and

22 Defendants could likewise disagree with the DOJ and choose to have their day in court. The

23 scope of the County’s argument concedes as much. (See Dkt. # 122 at 3-4.)

24

Because there are insufficient indicia that this case and the DOJ investigation are the

25 same, or that resolution of the latter would dispose of the forme r, the Court rejects the

26 County’s argument that staying this case throughout the pendency of the DOJ investigation

27 would make the best use of judicia l resources. Judicial resources would be better spent

28

- 6 -

1 resolving this case in a tim ely fashion, rather than suspending litiga tion that has been

2 proceeding for over a year and a half. Thus, this factor weighs against a stay.

3

(4) The Interests of Non-Parties

4

The County’s argument regarding the interests of non-parties is that the Court should

5 stay this m atter out of deference to the DOJ’s e xecutive branch investigation under the

6 doctrine of the separation of powers. The County rests its entire argum ent on Kurtz v.

7 Kennickell, 622 F. Supp. 1414 (D.D.C. 1985). InKurtz, a taxpayer sued the Public Printer,

8 the Secretary of the Treasury, and the Treasurer of the United States, challenging their use

9 of public funds for the publication of com pilations of prayers offered by Congressional

10 Chaplains. Id. at 1415. Rather than rule on the plaintiff’s Establishment Clause challenge,

11 the court, citing a num ber of considerations, dismissed the case without prejudice. Id. at

12 1420. In doing so, the court em phasized that the case was near-moot because most of the

13 prayer compilations had already been distributed, the House of Representatives had

14 discontinued the practice of printing such prayers, and the Chairman of the relevant Senate

15 Committees had voiced his desire to terminate the Senate publications once the matter was

16 brought before his committees. Id. at 1418-19. The plaintiff in Kurtz was simultaneously

17 pursuing just such a petition before the Senate, and he even suggested that the Senate “imght

18 well be able to act on it before a court decision could be announced.”Id. at 1419. The court

19 also relied on the fact that the Senate, as amicus curiae, “strongly urge[d]that [it]be provided

20 with an opportunity to consider whether it will driect the printing of future collections of the

21 Chaplain’s prayers.” Id. Reasoning that the challenged practice was “undergoing significant

22 modification so that its ultimate form cannot be confidently predicted,” the court declined

23 to rule on the plaintiff’s claim s in order to avoid the “problem s inherent in judicial

24 involvement in the inner workings of Congress.” Id. at 1419-20.

25

This case is distinguishable from Kurtz. Far from being near-moot, the issues in this

26 case are not close to being resolved by any non-judicial action. It is not even clear that the

27 DOJ’s investigation could resolve Plaintiffs’ claims, much less is it apparent that any such

28 resolution is both likely and im minent. Moreover, Plaintiffs are not seeking any kind of

- 7 -

1 relief from the DOJ that would satisfy their claim s. Indeed, the activity Plaintiffs have

2 challenged is not controlled by the DOJ (the coordinate federal branch), but rather is being

3 implemented by state actors. The DOJ is simply investigating the matter to determine if it

4 should take any independent action with respect to those state actors. Thus, the “problems

5 inherent in judicial involvement in the inner workings of Congress” are not present. See id.

6 Finally, unlike the Senate in Kurtz, the DOJ here is not seeking any deference, m uch less

7 does it “strongly urge[]” that the Court delay this case. To the contrary, the United States is

8 of the opinion that a stay is neither necessary nor desirable for any of the parties involved.

9 (Dkt. # 113-1 at 3.) The DOJ investigation is seeking the cooperation of Sheriff Arpaio and

10 the MCSO, and the United States explains that it “does not intend, through the conduct of its

11 investigation, to delay, interfere with, or limit a private plaintiff’s rights or abilities to seek

12 timely redress in a private cause of action.” I(d.) Thus, unlikeKurtz, granting a stay will not

13 avert a “ head on c onfrontation[] between the life-tenured branch and the representative

14 branch[.]” 622 F. Supp. at 1420 (quoting United States v. Richardson, 418 U.S. 166, 188

15 (1974)). The doctrine of the separation of powers therefore does not sugge st that a stay is

16 proper. The County offers no other argument as to how staying this case would benefit non-

17 parties, and it does not appear to the Court thatthere would be any such benefit. Thus, this

18 factor does not weigh in favor of a stay.

19

(5) The Interests of the Public

20

The parties do not discuss the interests of the public. However, the Court notes that

21 the public has a strong interest not only in the resolution of litigation, see Wyatt ex rel.

22 Rawlins v. Sawyer, 190 F.R.D. 685, 692 (M.D. Ala. 1999) (“[Th]e public’s primary interests

23 in this matter [include] ensuring that the parties continue to make progress toward resolution

24 of this case . . . .”), but also in making sure that such resolution is expeditious, see Digital

25 Equip. Corp. v. Currie Enters,. 142 F.R.D. 8, 14 (D. Mass. 1991) (“The public has an interest

26 in . . . the prompt resolution of civil cases . . . .”). A stay of the kind proposed here would

27 compromise these interests. Thus, this factor weighs against the granting of a stay.

28

- 8 -

1

In sum, all of the factors that carry weight counsel against granting the requested stay.

2 Thus, the Court will deny the County’s request to stay this case.

3 II. Motion to File a Supplemental Brief

4

Defendants Arpaio and the MCSO have requested leave to file a supplemental brief

5 on this issue. (Dkt. # 134.) They offer this m otion for the sole purpose of providing the

6 Court with an article from National Review Online. The Court will limit its considerations

7 in this case to: (1) legal authority, (2) adm issible facts, and (3) argum ent based on legal

8 authority and/or admissible facts. The proposed supplement constitutes none of the above,

9 and it does not assist the Court in the resolution of this issue. The Court therefore denies the

10 request for leave to file a supplemental brief.

11

CONCLUSION

12

The County has not provided a sufficient basis on which the Court could stay this case

13 pending the outcome of the DOJ investigation.

14

IT IS THEREFORE ORDERED that the County’s Motion to Stay Proceedings

15 (Dkt. # 105) is DENIED.

16

IT IS FURTHER ORDEREDthat the Motion for Leave to File a Suppleemntal Brief

17 of Defendants Arpaio and the MCSO (Dkt. # 134) is DENIED.

18

DATED this 13th day of August, 2009.

19

20

21

22

23

24

25

26

27

28

- 9 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 MANUEL DE JESUS ORTEGA ) No. CV-07-2513-PHX-GMS

MELENDRES, et al.,

)

10

) ORDER

Plaintiffs,

)

11

)

vs.

)

12

)

)

13 MARICOPA COUNTY, et al.,

)

)

14

Defendants.

)

)

15

)

16

17

Pending before the Court is the Motion for Judgment on the Pleadings of Defendants

18 Joseph M. Arpaio and the Maricopa County She riff’s Office (“MCSO”) (Dkt. # 90),

19 Plaintiffs’ Motion for Class Certification (Dkt. # 93), and Sheriff Arpaio and the MCSO’s

20 Motion for Leave to File Surreply and to Strike (Dkt. # 97). For the following reasons, the

21 Court denies the Motion for Judgment on the Pleadings, denies without prejudice the Motion

22 for Class Certification, and denies as m oot the Motion for Leave to File Surreply and to

23 Strike.1

24

25

26

1Both Plaintiffs and Defendants have requested oral argument. Those requests are

27 denied because the parties have thoroughly di scussed the law and the evidence, and oral

argument will not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. 28 Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991).

1

BACKGROUND

2

In this case, Plaintiffs have sued Sheriff Arpaio, the MCSO, and Maricopa County

3 (“the County”) for alleged violations of the oFurth and Fourteenth Amendments to the United

4 States Constitution; Article II, Section 8 of the Arizona Constitution; and Title VI of the Civil

5 Rights Act of 1964. (Dkt. # 26.) Plaintiffs are Som os America, an immigrant advocacy

6 group, and five Latino individuals, a ll of whom are either United States citizens or are

7 lawfully present in the United States. Each of the individual Plaintiffs has be en stopped,

8 detained, questioned, and/or searched by MCSO officers, allegedly in violation of their

9 constitutional and statutory rights. According to the allegations in Plaintiffs’ Complaint, in

10 each of these instances the MCSO officers were acting pursuant to an officially-sanctioned

11 policy, pattern, and practice of racially profiling, targeting, or otherwise discrim inating

12 against Latinos. Plaintiffs allege that this policy, pattern, and practice is manifested not only

13 on an impromptu basis, but also through “a series of massive so-called ‘crime suppression

14 sweeps.’” (Id. at 3.)

15

The details of each individual Plaintiff’s encounter with MCSO officers is discussed

16 in more detail in the Court’s prior Orderdenying Defendants’ motion to dismiss. (See Dkt.

17 # 60 at 2-6.) In brief, Plaintiff Manuel de Jesus Ortega Melendres was allegedly questioned,

18 searched, seized, handcuffed, and detained for several hours after the car in which he was a

19 passenger was stopped for speeding. The Caucasia n driver of the car was never issued a

20 citation, and no apparent justification existed for detaining Ortega Melendres. He was

21 released hours later after an immigration official examined his visa.

22

Plaintiffs David and Jessica Rodriguez were allegedly stopped, detained, and

23 questioned by MCSO officers after driving on a damaged road. They were asked to provide

24 more identification than was requested of Caucasian drivers. Also, they were issued a

25 citation for not obeying a “road closed” sign, while the Caucasia n drivers following them

26 were not. Plaintiffs deny, however, that there was such a sign on the stretch of road along

27 which they had traveled.

28

- 2 -

1

Plaintiffs Velia Meraz and Manuel Nieto, Jr., encountered an MCSO officer at a gas

2 station where the officer was interrogating two handcuffed suspects. When Plaintiffs Meraz

3 and Nieto pulled into the gas station, the officer directed themto leave. Plaintiffs allege that

4 they agreed to leave, but first asked for the foficer’s badge number, at which point he radioed

5 for backup. Plaintiffs Meraz and Nieto then drove away, but they were pursued by MCSO

6 officers and eventually pulled over in the parking lot of Nieto’s family business. Mr. Nieto

7 was pulled from the car and detained, but he was released after producing identification. He

8 was not issued a citation.

9

In each of these episodes, Plaintiffs assert that they were targeted because they are

10 Latino. Plaintiffs thus seek, on behalf of them selves and all others sim ilarly situated, a

11 declaration that Defendants have engaged in racial profiling and discriminatory treatment of

12 Latino persons through illegal stops, detentions, questioning, searches, and arrests. Plaintiffs

13 also seek to enjoin De fendants from continuing to engage in discrim inatory practices.

14 Plaintiffs do not seek monetary damages.

15

DISCUSSION

16

The Court will address each of the three pending motions in turn.

17 I. Motion for Judgment on the Pleadings

18

A. Legal Standard

19

“[T]he Court’s role given the present procedural posture of the case is not to comment

20 upon the validity of [Plaintiffs’] claims but rather to decide if Plaintiffs ha ve alleged facts

21 which if proved might entitle them to some or all of the relief they seek.” Rodriguez v. Cal.

22 Highway Patrol, 89 F. Supp. 2d 1131, 1142 (N.D. Cal. 2000). Thus, a motion for judgment

23 on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) “is prope rly granted

24 when, taking all the allegations in the non-moving party’s pleadings as true, the moving party

25 is entitled to judgment as a matter of law.” Fajardo v. County of Los Angeles, 179 F.3d 698,

26 699 (9th Cir. 1999). Pleadings are to be “construe d in the light m ost favorable to the

27 nonmoving party.” Living Designs, Inc. v. E.I. Dupont de Nemours & Co. , 431 F.3d 353,

28 360 (9th Cir. 2005). In ruling on a motion for judgment on the pleadings, the Court cannot

- 3 -

1 consider evidence outside the pleadings unless the Court treats the m otion as a motion for

2 summary judgment pursuant to Federal Rule Civil Procedure 56. Fed. R. Civ. P. 12(d).

3

B. Analysis

4

Defendants Arpaio and the MCSO a rgue that judgment on the pleadings should be

5 entered in their favor because Plaintiffs lack Article III standing to seek equitable remedies.

6 (Dkt. # 90 at 4-8.) Article III of the Unite d States Constitution requires that a party be

7 advancing an actual case or controversy to invokethe jurisdiction of the federal courts. U.S.

8 Const. art. III, § 2, cl. 1 (extending the federal judicial power to various types of “Cases” and

9 “Controversies”); Flast v. Cohen, 392 U.S. 83, 94 (1968) (“[T]he judicial power of federal

10 courts is constitutionally restricted to ‘cases’and ‘controversies.’”). The case-or-controversy

11 doctrine has many facets, but in the context ofa party seeking injunctive relief it requires that

12 the party be “likely to suffer future injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 105

13 (1983). Specifically, a plaintiff requesting an injunction against the repetition of past

14 unconstitutional conduct must “establish a real and immediate threat” that he will again be

15 subjected to the challenged conduct. See id.

16

The requirements for seeking equitable remedies are similar to those for establishing

17 standing under Article III. See id. at 103 (explaining that Article III’s case-or-controversy

18 considerations “obviously shade into those determining whether the complaint states a sound

19 basis for equitable relief”) (quotingO’Shea v. Littleton, 414 U.S. 488, 499 (1974)). To state

20 a claim for equitable relief, a plaintiff m ust establish “the likelihood of substantial and

21 immediate irreparable injury,” as well as “the inadequacy of remedies at law.” O’Shea, 414

22 U.S. at 502. Like Article III standing, the firstprong of this test “cannot be met where there

23 is no showing of any real or immediate threat that the plaintiff will be wronged again.”

24 Lyons, 461 U.S. at 111. Where a future injury is merely “speculative,” and there is not “a

25 sufficient likelihood that [the plaintiff]will again be wronged in a similar way,” the Supreme

26 Court’s ruling in Lyons “requires a finding that this prerequisite of equitable relief has not

27 been fulfilled.” Id.

28

- 4 -

1

Thus, the essential question in this case is whether Plaintiffs’ Com plaint pleads a

2 sufficient likelihood of future injury to establish standing to seek equitable remedies. The

3 Ninth Circuit’s decision in Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999),

4 is instructive on this point. In that case,two Latino plaintiffs brought a class action against

5 officials of the United States Border Patrol, alleging that they had been improperly stopped

6 as part of the defendants’ “roving patrol operations.”Id. at 1039. The plaintiffs sought both

7 a declaration that the Border Patrol’s operations involved systemic violations of the United

8 States Constitution a s well as an injunction prohibiting the allegedly unconstitutional

9 conduct. Id.

10

On appeal, the Ninth Circuit concluded that the plaintiffs had sufficiently asserted a

11 cognizable injury under Article III because they “did nothing illegal to prompt the stops by

12 the Border Patrol.” Id. at 1041. Reasoning that Lyons was focused on those instances in

13 which a plaintiff’s misconduct itself leads to the challenged activity, the Ninth Circuit

14 concluded that the Lyons rule is “based on the plaintiff’s ability to avoid engaging in illegal

15 conduct.” Id.; see also Armstrong v. Davis, 275 F.3d 849, 865 (9th Cir. 2001) (citingLyons

16 for the proposition that “standing is inappropriate where the future injury could be inflicted

17 only in the event of future illegal conduct by the plaintiff”). Bec ause the plaintiffs in

18 Hodgers-Durgin “engaged in entirely innocent conduct,” they had sufficiently established

19 a case-or-controversy within the meaning of Article III. 199 F.3d at 1041. The Hodgers-

20 Durgin court also noted that, unlike Lyons, there was no “string of contingencies necessary

21 to produce an injury.” Id. at 1041-42. Whereas future injury inLyons “would have required

22 another stop by the police, followed by post-stop behavior culminating in a chokehold,” in

23 Hodgers-Durgin “another stop of the sort alleged by plaintiffs would itself constitute further

24 injury.” Id. at 1042. Thus, the Ninth Circuit found that Article III standing existed. Id.

25

Like the plaintiffs in Hodgers-Durgin, Plaintiffs here assert in their Complaint that

26 they did nothing illegal to prompt the stops, detentions, and other challenged activity. While

27 Defendants argue that “Plaintiffs adm it or tacitly acknowle dge that their encounters with

28 MCSO deputies were preceded by, or were the result of, violations of State or local law”

- 5 -

1 (Dkt. # 90 at 6-7), the Court disagrees. Plaintiffs make no explicit admission of wrongdoing.

2 In fact, the Com plaint plainly alleges that Plaintiffs di d “nothing wrong” and that

3 Defendants’ agents acted “without adequate cause.” (See, e.g., Dkt. # 26 at 5, 23.) As for

4 whether the facts described in the Complaint could be construed as a “tacit” admission that

5 Plaintiffs violated the law, on a Rule 12(c) motion the Court construes the Complaint in the

6 light most favorable to Plaintiffs. Living Designs, 431 F.3d at 360. Plaintiffs Ortega

7 Melendres, Meraz, and Nieto were not even isseud citations, and Plaintiffs David and Jessica

8 Rodriguez dispute that the “road closed” signthey were cited for ignoring was posted along

9 the stretch of road on which they had traveled. Fromthis, the Complaint could plausibly be

10 read to allege that Plaintiffs did nothing illegal to warrant the actions of MCSO officer s.

11 Moreover, like Hodgers-Durgin, and unlike Lyons, there is no “string of continge ncies”

12 necessary to reproduce the alleged injury. See Hodgers-Durgin, 199 F.3d at 1041-42. Just

13 as another stop, search, or interrogation would have itself constituted further injury in

14 Hodgers-Durgin, so too would that conduct constitute the repeated injury here. Plaintiffs

15 would not have to take any action, such as offering resistance, to reproduce the injury. See

16 Lyons, 461 U.S. at 105-06.2

17

Even viewed through the lens of the requirme ents for equitable relief, judgment would

18 still not be appropriate at this tim e. In Hodgers-Durgin, the evidence established that the

19 named plaintiffs drove hundreds of miles each week in close proximity to the Border Patrol,

20 yet each had been stopped only once in ten years. 199 F.3d at 1044. “Based on plaintiffs’

21 own factual record,” the court held, “it is not sufficiently likely that [the plaintiffsw]ill again

22 be stopped by the Border Patrol.” Id. (emphasis added). Thus, the plaintiffs in Hodgers-

23 Durgin were unable to show the likely recurrence required to establish standing.

24

25 2Defendants correctly argue that the mere fact that this case is brought as a purported
26 class action cannot remedy deficient standing. See LaDuke v. Nelson, 762 F.2d 1318, 1325

27

(9th Cir. 1985). However, for the reasons described above, the named Plaintiffs have made sufficient allegations to establish standing. Thus, Defenda nts’ argument does not justify

28 granting judgment on the pleadings.

- 6 -

1

Here, by contrast, there is no factual record on which the Court could rely in making

2 such a determination. District courts within this circuit have recognized that Defendants’

3 arguments are more properly raised when courts have the benefit of an evidentiary record

4 (such as on summary judgment or upon an application for a preliminary injunction), rather

5 than at this early stage in the proceedings. See, e.g., Rodriguez, 89 F. Supp. 2d at 1142

6 (denying a motion to dismiss equitable claims in a racial profiling case because “the Court

7 based its decision in Lyons on a full evidentiary record, not the untested allegations of the

8 complaint,” and reasoning that “Plaintiffs are entitled to discovery to attempt to establish an

9 evidentiary basis for their claims for injunctive relief”); Bassette v. City of Oakland, No. C-

10 00-1645, 2000 WL 33376593, at *6 (N.D. Cal. Aug. 11, 2000) (finding, in a case in which

11 plaintiffs sought an injunction against racial profiling, that dismissal of equitable claims for

12 failure to show a realistic threat of future injury was premature before development of a full

13 evidentiary record). As these cases point outL, yons, Hodgers-Durgin, and the other relevant

14 authorities were all decided with the benefit of an evidentiary record.

15

In the absence of such a record, the Court m ust look to the Com plaint, take its

16 allegations as true, and construe those allegations in the light m ost favorable to Plaintiffs.

17 See Fajardo, 179 F.3d at 699;Living Designs, 431 F.3d at 360. The Complaint alleges that,

18 at least as of 2007, Defendants have had an official policy, pattern, and practice of stopping,

19 questioning, searching, and sometimes arresting Latino persons without probable cause or

20 reasonable suspicion, simply on the basis of their race. The Complaint alleges that the

21 challenged conduct occurs not only as a general practice, but also through widespread and

22 ongoing “crime suppression swe eps.” The allegation that MCSO deputies were acting

23 pursuant to such a widespread, ongoing, and officially-sanctioned policy, practice, or pattern

24 of conduct lends special weight to the likelihood of future harm. See Armstrong, 275 F.3d

25 at 861 (explaining that one of the ways in which plaintiffs can “demonstrate that [an] injury

26 is likely to recur” is to “demonstrate that the harmis part of a pattern of officially sanctioned

27 behavior”) (internal quotations, ellipsis, and brackets omitted); Rodriguez, 89 F. Supp. 2d at

28 1142 (finding that plaintiffs who were seeking declaratory and injunctive relief for alleged

- 7 -

1 racial profiling survived a motion to dismiss and relying on the fact that, unlike Lyons, the

2 plaintiffs “allege[d] a pattern and practice of illegal law enforcement activity”); cf. Nelsen

3 v. King County, 895 F.2d 1248, 1254 (9th Cir. 1990) (“In those circumstances where we, or

4 the Supreme Court, have found standing to exist for a threat of future harm , it has

5 consistently been determined that some systematic pattern, repetition or relationship exists.”);

6 LaDuke, 762 F.2d at 1324 (distinguishing Lyons and relying in part on the district court’s

7 finding that “the defendants engaged in a standard pattern of officially sanctioned officer

8 behavior [that was] violative of the plaintiffs’ constitutional rights”). The Complaint in this

9 case illustrates these allegations with three instances in which five Plaintiffs were subjected

10 to the challenged conduct. UnlikeHodgers-Durgin, there is no evidence that these Plaintiffs,

11 though long exposed to MCSO scrutiny under the laleged policy, have nevertheless been left

12 alone, see 199 F.3d at 1044, nor is there any other evidence on which the Court could find

13 the Complaint’s assertions merely speculative. Thus, Plaintiffs’ Complaint is sufficient, in

14 the absence of an evidentiary record to the conrtary, to allege a real and immediate threat that

15 Plaintiffs will again be wronged in a similar way.3

16

The Ninth Circuit has fram ed requests for declaratory relief as being subje ct to an

17 analogous ripeness requirement. See id. (“In suits seeking both declaratory and injunctive

18 relief against a defendant’s continuing practices, the ripeness requirement serves the same

19 function in limiting declaratory relief as the imminent-harm requirement serves in limiting

20 injunctive relief . . . . ‘A claim is not ripe for adjudication if it rests upon contingent future

21 events that may not occur as anticipated, or indeed may not occur at all.’”) (quoting Texas

22 v. United States, 523 U.S. 296, 300 (1998)). Thus, Plaintiffs’ request for a declaration that

23 Defendants have acted illegally survives for the same reason that Plaintiffs’ request that the

24

25 3Defendants also argue that Plaintiffs’ decision not to seek a tem porary restraining
26 order in this case “constitutes a tacit adm ission by them that they cannot dem onstrate the

27

immediacy and direct/substantial elem ents necessary for the issuance of an injunction.” (Dkt. # 90 at 8.) Defendants cite no authority for this proposition, and it does not logically

28 follow. Thus, the Court will make no such inference.

- 8 -

1 Court enjoin such actions survives. See Rodriguez, 89 F. Supp. 2d at 1142 (finding that

2 claims for declaratory and injunctive relief brought by plaintiffs alleging a pattern and

3 practice of racial profiling survived a motion to dismiss for the same reasons).4

4

Defendants also invoke principles of federalismin arguing that the Court should grant

5 judgment on the pleadings. (Dkt. # 90 at 9.) Inthis context, respect for federalismis tied to

6 the exercise of equitable powers. “In exercising their equitable powers federal courts must

7 recognize ‘the special delicacy of the adjustment to be preserved between federal equitable

8 power and State administration of its own law.’” Lyons, 461 U.S. at 112 (quotingStefanelli

9 v. Minard, 342 U.S. 117, 120 (1951)). Thus, “recognition of the need for a proper balance

10 between state and federal authority counsels restraint in the issuance of injunctions against

11 state officers engaged in the adm inistration of the states’ crim inal laws in the absence of

12 irreparable injury which is both great and immediate.” Id. (citing O’Shea, 414 U.S. at 499).

13

Thus, principles of fe deralism counsel restraint in the granting of injunctive relief

14 against state agencies. At this early stage in the litigation, however, principles of federalism

15 do not dictate that the Court should term inate this case. Just as it is em phatically the

16 province and duty of the judiciary to say what the law is, Marbury v. Madison, 5 U.S. (1

17 Cranch) 137, 177 (1803), so too is it emphatically the province and duty of the judiciary to

18 vindicate the law where it has been violated,see Coolidge v. New Hampshire, 403 U.S. 443,

19 454 (1971) (“It is the duty of courts to be watchful for the constitutional rights of the citizen,

20 and against any stealthy encroachments thereon.”) (quoting Boyd v. United States, 116 U.S.

21 616, 635 (1886)); Bank of Hamilton v. Dudley’s Lessee , 27 U.S. (2 Pe t.) 492, 524 (1829)

22

23 4In their reply brief, Defendants argue for the first time that Plaintiffs have failed to
24 allege a sufficient injury-in-fact under the Fourth Am endment. (Dkt. # 108 at 5-6.) The

25 Court need not consider argum ents raised for the first tim e in a reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Regardless, Defendants’ argument is predicated
26 upon the notion that Plaintiffs have admitted that their encounters with MCSO deputies were

27

preceded by violations of state or local law. ( See Dkt. # 108 at 5.) Because, as explained above, the Court disagrees with that characterization of Plaintiffs’ Complaint, Defendants’

28 argument is unavailing.

- 9 -

1 (“The judicial department of every governm ent is the rightful expositor of its laws; and

2 emphatically of its supreme law.”).

3

This principle requires enjoining constitutional violations that are likely to reoccur,

4 even if the subject of the injunction is a state agency entitled to r espect, deference, and

5 latitude in conducting its own affairs. E.g., Armstrong, 275 F.3d at 879 (affirm ing the

6 injunction of a state prison board’s unconstitutional activities); see Hawkins v. Comparet-

7 Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001) (recognizing the federalismconcerns inherent

8 in enjoining a county sheriff’s use of stun belts but nevertheless finding standing because the

9 plaintiff had demonstrated the likelihood of future injury); cf. LaDuke, 762 F.2d at 1325

10 (“[T]he federal judiciar y has been vested with the ultim ate authority to determ ine the

11 constitutionality of the actions of the other branches of the federal government. While the

12 co-equal branches of the federal government are entitled to the widest latitude in the dispatch

13 of their own internal affairs, the executive branch has no discretion with which to violate

14 constitutional rights.”) (internal citations, quotations, and brackets omitted). Principles of

15 federalism are not offended by a court perform ing this essential function – “to conclude

16 otherwise would be to suggest that federal courts never ought to be concerned with the

17 activities of state agencies under any circumstances.” Rodriguez, 89 F. Supp. 2d at 1142.5

18

Taking all of Plaintiffs’ assertions as true, there are allegations of unconstitutional

19 conduct that, if proved, could merit equitable relief. Thus, judgment on the pleadings is not

20 appropriate at this time.

21 II. Motion for Class Certification

22

Plaintiffs make a motion for class certification (Dkt. # 93), which Defendants oppose

23 on a variety of grounds. (Dkt. ## 96, 100.) However, the Court need not resolve all of the

24 arguments for and against class certification at this time. As explained by the Supreme Court

25 in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), courts generally should resolve questions

26

27

5Because of this ruling, the Court need not resolve Plaintiffs’ argument that principles

28 of federalism are not implicated here. (See Dkt. # 98 at 16.)

- 10 -

1 of standing before addressing class certification, for “this or any other Article III court must

2 be sure of its own jurisdiction before getting to the m erits.” Id. at 831. The Fibreboard

3 Court announced an exception to that rule only where class certification issues are

4 prerequisites to standing. See id. (resolving class certification without first resolving

5 standing because “the class certification issues are . . . ‘logically antecedent’ to Article III

6 concerns, and themselves pertain to statutory standing, which may properly be treated before

7 Article III standing”) (internal citations omitted).

8

The Ninth Circuit has confirmed that Fibreboard did not change the general rule that

9 standing issues should be resolved before class certification. See Easter v. Am. W. Fin., 381

10 F.3d 948, 962 (9th Cir. 2004) (“The district court correctly addressed the issue of standing

11 before it addressed the issue of class certification. . . .Fibreboard does not require courts to

12 consider class certification before standing.”). Other courts have similarly recognized that,

13 with limited exceptions, a party’s standing should be resolved before class certification.See

14 In re Eaton Vance Corp. Sec. Litig. , 220 F.R.D. 162, 165-66 (D. Mass. 2004) (collecting

15 post-Fibreboard cases and explaining that “standing is an inherent prerequisite to the class

16 certification inquiry” that must be analyzed prior to class certification issues); Clark v.

17 McDonald’s Corp., 213 F.R.D. 198, 204 (D.N.J. 2003) (noting that Fibreboard merely

18 announced “an exception to the usual rule that standing is a threshold question that must be

19 decided prior to class certification issues” and explaining that “the [Fibreboard] exception

20 treating class certification as the antecedent consideration doensot apply if the standing issue

21 would exist regardless of whether the nam ed plaintiff filed his claim alone or as part of a

22 class”).

23

The principle that standing should generally be decided before class certification does

24 not conflict with the rule that courts should determ ine whether to c ertify a suit as a class

25 action “[a]t an early practicable time.” See Fed. R. Civ. P. 23(c)(1)(A). The Ninth Circuit

26 has long-recognized that making such a determination may not be “practicable” until after

27 discovery has taken place. See Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th

28 Cir. 1977) (“The propriety of a class action cannot be determ ined in some cases without

- 11 -

1 discovery . . . .”) (quoting Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975)).

2 “Whether or not discovery will be perm itted in a case of this nature lies within the sound

3 discretion of the trial court.” Kamm, 509 F.2d at 209.

4

Here, as the Court’s discussion of the m otion for judgment on the pleadings makes

5 clear, whether Plaintiffs have standing to seek the equitable remedies for which they demand

6 relief is a n important question that cannot be ultimately resolved in the absence of an

7 evidentiary record. Whether Plaintiffs can establish standing in this case depends on whether

8 they can show a policy, pattern, or practice of racial discrimination sufficient to permit the

9 Court to make findings that Plaintiffs are personally subject to the likelihood of future harm.

10 See Armstrong, 275 F.3d at 861 (“Where a court, through its specific factual findings ,

11 documents the threat of future harm . . . the possibility of recurring injury ceases to be

12 speculative, and standing is appropriate.”) (emphasis added and internal quotations omitted).

13 The Court can only m ake such findings after at least some discovery has taken place.

14 Plaintiffs do not argue, and it does not appear, that class certification is in any way a “logical

15 antecedent” to standing in this case. See Fibreboard, 527 U.S. at 831. Were the Court to

16 certify a class, and later determine that Plaintiffs do not have standing to advance this suit,

17 the Court would have inappropriately ruled on a matter over which it lacks jurisdiction. See

18 In re Merrill Lynch & Co., Inc., Research Reports Sec. Litig., 375 B.R. 719, 724 (S.D.N.Y.

19 2007) (“Under Article III’s standing requirement, ‘if the plaintiff loses standing at any time

20 during the pendency of the proceedings in the district court . . . theamtter becomes moot, and

21 the court loses jurisdiction.’”) (quoting Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 69

22 (2d Cir. 2001)). For these reasons, it would be premature for the Court to certify a class

23 while this essential question remains open to dispute. The Court therefore denies Plaintiffs’

24 motion for class certification without prejudice to its being reasserted once the question of

25 Plaintiffs’ standing has been resolved.

26 III. Motion for Leave to File a Surreply and to Strike

27

Defendants Arpaio and the MCSO seek leave to file a surreply on the omtion for class

28 certification. (Dkt. # 97 at 4.) The local rules make no provision for the filing of surreplies,

- 12 -

1 see LRCiv 7.2, and the issues currently pending before the Court have been adequately

2 briefed. The Court therefore denies the request to file a surreply. Defendants Arpaio and the

3 MCSO also m ove the Court to strike various portions of Plaintiffs’ m otion for class

4 certification. (Dkt. # 97 at 5.) In light of the Court’s decision to deny the motion for class

5 certification at this time, Defendants’ motion to strike is moot. It is therefore denied.

6

CONCLUSION

7

For the reasons described above:

8

IT IS HEREBY ORDERED that the Motion for Judgm ent on the Pleadings of

9 Defendants Arpaio and the MCSO (Dkt. # 90) is DENIED.

10

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Class Certification (Dkt.

11 # 93) is DENIED without prejudice to its being reasserted once the issue of standing is

12 resolved.

13

IT IS FURTHER ORDERED that the Motion for Lea ve to File Surreply and to

14 Strike of Defendants Arpaio and the MCSO (Dkt. # 97) is DENIED.

15

DATED this 21st day of August, 2009.

16

17

18

19

20

21

22

23

24

25

26

27

28

- 13 -

 </s> Case 2:07-cv-02513-GMS Document 194 Filed 10/13/09 Page 1 of 1

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres, et al. ) ) No. CV 07-02513-PHX-GMS

10

Plaintiffs,

) ) ORDER

11

vs.

)

)

12 Joseph M. Arpaio, et al.,

)

)

13

Defenda

nts.

)

)

14

) )

15

)

)

16

17

Pending before the Court is a J oint Motion and Stipul ation of Plaintiffs and

18 Defendant Maricopa County to Dism iss Maricopa County Without Prejudice (Dkt. #

19 178). After consideration, and good cause appearing,

20

IT IS HEREBY ORDERED dismissing Defendant Maricopa County from this

21 action without prejudi ce. Pl aintiffs and De fendant Maricopa County shall bear their
own attorneys’ fees and c osts regarding Plaintiffs’ claims against Defendant Maricopa 22
County only, but not regardin g Plaintiffs’ claims against Defendants Joseph M. Arpaio 23
and Maricopa County Sheriff’s Office. 24
Dated this 13th day of October, 2009. 25

26

27

28

 </s> 1 WO

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendants.

)

14

)

)

15

No. CV-07-02513-PHX-GMS ORDER

16

Pending before the Court is Defendants’ Motion for Protective Order Re: The

17 Exclusion of Non-P arty United S tates Department of Justice from the Depositions of

18 Defendants Arpaio and MCSO Witnesses, (Dkt. # 197), Defendants’ Motion For Expedited

19 Ruling on that Motion, (Dkt. # 198), and the United States’s Motion for Leave to File

20 Amicus Curiae Memorandum of Law Regarding Defendants’ Motion for Protective Order

21 (Dkt. # 199). For the reasons explained below, the Motion for Expedited Ruling and the

22 Motion for Leave to File Am icus Curiae Memorandum are granted as is the Motion for

23 Protective Order.

24

In granting the Defendants’ Protective Order, the Court wishes to clarify what is, and

25 what is not at issue. What is not at i ssue is the ability of th e United States to obtain

26 transcripts and videotapes of the depositions as soon as they are available. Defendants’

27 counsel has avowed in Defendants’ Reply in Support of Their Motion For Protective Order

28 that “defendants’ counsel will prom ptly provide [transcripts and videotapes of all of the

1 depositions to the United States Department of Justice] within a day of their receipt by his

2 office.” (Dkt. # 207 at 5). What is at issue then, is whether the United States, as non-party

3 to this lawsuit, has a right to be present during the actual depositions themselves.

4

Both parties agree that because the De fendants’ brought the Motion for Protective

5 Order they have the burden of establishing “good cause” to exclude the United States from

6 the deposition, pursuant to the requirem ents of Federal Rules of Civil Procedure 26(c).

7 While the Court is unpersuaded by most of the arguments put forth by the parties on either

8 side of the question, the Court is persuaded that good cause e xists to exclude the United

9 States both by legal precedent and by the realities presented by the present lawsuit.

10

First, as a matter of general law and practice, the United States as a non-party to this

11 lawsuit, has no legal right to be present while the deposition is being taken. As the Supreme

12 Court has observed in a related setting: “pretrial depositions . . . are not public components

13 of a civil trial. Such proceed ings were not open to the public at com mon law . . . And, in

14 general, they are conducted in private as a matter of common practice.” Seattle Times Co.

15 v. Rhinehart, 467 U.S. 20, 33 (1984);see also Amato v. City of Richmond,157 F.R.D. 26, 28

16 (E.D. Va. 1994) (holding that “public policy and concerns for judicial econom y strongly

17 militate against allowing [the press] to attend the depositions.”), Kimberlin v. Quinlan, 145

18 F.R.D. 1, 2, (D.D.C. 1992) (holding that depositions are not open to the public and denying

19 press attendance); Times Newspapers Ltd. V. McDonnell Douglas Corp. 387 F. Supp. 189,

20 197 (C.D. Cal. 1974) (holding that “neither the public nor representatives of the press have

21 a right to be present” at the taking of a deposition); 8 Wright and Miller, Federal Practice

22 and Procedure § 2041 (1992 Supp.). To the extent the Departm ent of Justice bases its

23 argument for access to the depositions on the assertion that such a right exists in the public

24 generally, the Department of Justice is incorrect.

25

Further, as the parties apparently agree, this case is one in which there is considerable

26 public interest, and in which members of the public and the media might desire to attend the

27 depositions if such attendance were possible. Such attendance, in the Court’s view, would

28 detract from the ability of the parties to conduct orderly depositions and obtain the testiomny

- 2 -

1 necessary to proceed with this action without the deponents and the lawyers being distracted

2 by attempts to play to the media, the general public, or perhaps the Department of Justice.

3

Nor does the United States present a convincing case that it should be uniquely

4 distinguished from the rest of the general public in being allowed to attend the depositions.

5 It is not a party to this case, nor has it sought to intervene. All parties concede tha t it is

6 conducting a parallel investigation of the Sheriff’s office for “alleged patterns or practices

7 of discriminatory police practices and unconstitutional searches and seizures as we ll as

8 national origin discrimination” in which the Sheriff is not cooperating. It further seem s

9 apparent to this Court that the discovery in this case could prove to be relevant to such an

10 inquiry. Nevertheless, as has already been discussed in previous m otions and orders, this

11 lawsuit is not a vehicle through which the Department of Justice (“DOJ”) may conduct its

12 separate investigation to the extent that investigation presents different questions of law or

13 fact than those presented by this case. To the extent the DOJ will have virtually

14 contemporaneous access to the transcripts and videotapes taken in this case it will have

15 access to the information generated by this litigation that may prove relevant to its own. But,

16 assuming that the issues discussed at the deposition are lim ited to those presented by this

17 case, the DOJ presents no convincing reason why its attendance at the depositions thseemlves

18 would be m ore advantageous than having contem poraneous access to the deposition

19 transcripts and videotapes.

20

The Court thus concludes that the DOJ’s preesnce could be a distraction to the parties

21 and the witnesses, could invite the parties to probe beyond the issues presented by this case,

22 and presents no sufficient basis on which to vary the general practice of limiting attendance

23 at depositions to the parties and witnesses involved. Therefore,

24

IT IS HEREBY ORDERED granting the United States’ Motion for Leave to File

25 Amicus Curiae Memorandum of Law (Dkt. # 199).

26 / / /

27 / / /

28

- 3 -

1

IT IS FURTHER ORDERED granting Defendants’ Motion For Protective Order

2 (Dkt. # 197), and its Motion For Expedited Ruling on the Motion (Dkt. # 198).

3

DATED this 28th day of October, 2009.

4

5 6 7 8 9 10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 4 -

 </s> Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 1 of 13

1 WO

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres, et )

al.,

)

10

)

Plaintiff,

)

11

)

vs.

)

12

)

)

13 Joseph M. Arpaio, et al.,

)

)

14

Defendants.

)

_________________________________ )

15

No. CV-07-2513-PHX-GMS ORDER

16

17

Pending before the Court is Plaintiffs’ Motion for Sanctions ( Dkt. # 227). In it

18 Plaintiffs ask that the Court: (1) m ake adverse inference findings about th e contents of

19 documents destroyed by the Maricopa County Sheriff’s Office (“MCSO”) with the extent

20 of those adverse inferences to be determ ined either at sum mary judgment or at trial; (2)

21 preclude the Defendants from presenting evidence of a “zero tolerance” approach in

22 conducting immigration violation suppression patrols with the extent of that preclusion being

23 determined at sum mary judgment or at trial; (3) authorize the r edeposition of MCSO’s

24 witnesses at MCSO’s expense; and (4) award Plaintiffs their attorneys’ fees and costs

25 incurred in bringing this motion. At oral argument on the motion, and at the consent of both

26 parties, a few additional discovery matters were raised and resolved.

27

After a review of the Motion, Response, Reply and the associated exhibits the Court

28 grants the Motion in part as follows.

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 2 of 13

1

BACKGROUND

2

Plaintiff Melendres filed his putative class action complaint initiating this case on

3 December 12, 2007. That initial com plaint is broad-based. In it, Melendres “seeks to

4 remedy and stop illegal, discriminatory and unauthorized enforcement of federal immigration

5 laws against Hispanic persons in Maricopa County, Arizona.” Plaintiff also seeks damages

6 for his unla wful arrest and detention. Com plaint at ¶ 1. (Dkt. # 1). Plaintiff sought to

7 represent a class of “all individuals of Hispanic descent who reside, are em ployed, attend

8 school and travel within Maricopa County.” Id. at ¶ 67. The complaint alleges that these

9 class members have been “subjected to a rbitrary, racially-discriminatory stops, detention,

10 arrests and/or searches conducted by Defendants. Each putative class m ember has been

11 subjected to stops, detentions, interrogations and/or searches without any re asonable

12 articulable suspicion or probable cause that such class member had committed a crime or was

13 engaged in criminal activity.” Id. at ¶ 68.

14

In addition to Melendres’s arrest, which occurred on Septem ber 26, 2007, the

15 complaint specifically referred to and challenged the Sheriff’s special operations1 that had

16 taken place in the Towns of Cave Creek on September 27, 2007, Queen Creek on October

17 4, 2007, an additional incident occurring in Cave Creek on Decem ber 8, 2007, and the

18 enforcement operations at Pruitt’s Furniture Store in Phoenix. Melendres alleged that the

19 Defendants’ enforcement policies constituted racial-profiling and violated a number of the

20 rights secured to the m embers of the putative class by the United States and Arizona

21 Constitutions and viola ted other provisions of federal law. The com plaint requested

22 declaratory and injunctive relief and compensatory, consequential and punitive damages.

23

After Melendres filed his initial putative class action com plaint, the Defendants

24 conducted a number of additional special opera tions. On July 16, 2008, Plaintiffs lodged

25 their First Amended Complaint. This complaint dropped the request for all damages and

26

27

1Plaintiff refers to these operations as “crim e suppression sweeps” while the

Defendants refer to them as “saturation patrols.” The Court will refer to themas the special

28 operations.

- 2 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 3 of 13

1 added new Plaintiffs and allegations pe rtaining to the additional special operations that

2 Defendants had conducted in the interim.

3

On July 21, 2008, new counsel for Plaintiffs wrote a letter to counsel for Defendants

4 in this matter. In the letter, Plaintiffs’ counsel dem anded the preservation of all MCSO

5 records that had to do with: (1) the Cave Creek and Queen Creek patrols; (2) any additional

6 MCSO immigration patrols that had occurred since the initial complaint was filed; and (3)

7 any “subsequent ‘crime suppression operation’” that occurred or would occur thereafter. The

8 request specifically included a request for relevant “Departmental Reports,” “communication

9 records, including CAD and MDT reports,”“any com munications from . . . MCSO patrol

10 cars, officers or volunteers” any[“]emails, memoranda and other communications pertaining

11 to planning, execution and results for any of the listed “crime suppression” operations” and

12 “reports or analyses of these operations.”

13

Counsel for Defendants im mediately thereafter transmitted this request to Deputy

14 Chief Jack MacIntyre, his contact within the MCSO. By affidavit, however, Deputy Chief

15 MacIntyre has avowed to this Court that, “I must have simply, albeit regrettably, forgot to

16 forward [the demand for documents] to others at the MCSO.” Thus, he did nothing to retrieve

17 or place a hold on the requested docum ents. He believes, however, that the dem and for

18 documents was implemented pursuant to the Arizona Public Information Request that was

19 sent by Plaintiffs’ counsel to the MCSO on the sam e date that Plaintiffs sent the litigation

20 hold to Defense counsel.

21

Deputy Chief MacIntyre is correct that on July 21, 2008, pursuant to the Arizona

22 Public Records Act, Ariz. Re v. Stat. § 39-121 (2008), (“PIR request”) Plaintiffs’ counsel

23 made a virtually identical request for information directly to the MCSO’s Public Information

24 Officer Captain P aul Chagolla. In anothe r affidavit filed in conjunction with MCS O’s

25 response to this motion, the then-commander of the Legal Liaison Section within the MCSO,

26 Lieutenant Doris “Dot” Culhane, indicates that the P IR request was forwarded to her by

27 Captain Chagolla. Lieutenant Culhane does not discuss any attem pt by the Legal Liaison

28 Office to retain or retrieve documents prior to the date she received Plaintiffs’ PIR request

- 3 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 4 of 13

1 from Captain Chagolla. The Legal Liaison office treated the PIR request pertaining to future

2 immigration violation patrols as a litigation hold request.

3

Lieutenant Culhane avows in her affidavit that she believes that the appropriate units

4 within MCSO were instructed that, as they generated documents responsive to the request,

5 they were to preserve those docum ents. Sh e further testified, however, that she is not

6 “knowledgeable about, or familiar with” the stat sheets prepared dur ing the course of the

7 immigration violation patrols, she “therefore does not know what they are or what they

8 comprise.” She concludes, however, that “Legal Liaison’s instruction to MCSO units,

9 including the HSU [Human Smuggling Unit], to keep and preserve docum ents relating to

10 future saturation patrols would have been a general instruction and would not have

11 specifically referred to or mentioned, ‘stat sheets’.”

12

This litigation continued as did the spe cial operations conducted by the MCSO.

13 During the course of the litigation, formal discovery requests, and inquiries about responsive

14 information were exchanged. Plaintiffs formally requested the above documents in a Rule

15 34 document request on February 25, 2009. Am ong their other responses, Defendants

16 provided eight individual stat sheets that had been prepared during the course of a January

17 2008 special enforcement operation.

18

On September 10, 2009, Plaintiffs again inquired as to the apparent lack of certain

19 categories of documents in response to its prevoi us requests. In the absence of any response,

20 Plaintiffs again wrote Defendants inquiring about responsive docum ents on September 30

21 and on October 20, 2009. The m atter came up before the Court at the pretrial scheduling

22 conference that occurred on October 21, 2009. At that time, Defense counsel indicated that

23 Defendants had produced all responsive documents in their possession to the Plaintiffs.

24

Six days later, Sergeant Manny Madrid a supervisor in the HSU, which directed and

25 coordinated the illegal immigration suppression sweeps, was deposed. At that deposition

26 Sergeant Madrid testified tha t he had never been told by anybody to preserve docum ents

27 pertaining to illegal im migration suppression operations and, as a result had routinely

28 shredded stat sheets he had received by officers participating in such operations. He had

- 4 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 5 of 13

1 done so as recently as several weeks earlier. Further, he testified that he deleted emails that

2 were on his computer regarding such operations fromhis “deleted” and “sent” folders when

3 he would receive notice that his allocated space on the hard drive was full.

4

In conjunction with this motion, the other supervisors of the HSU, Lieutenant Joseph

5 Sousa and Sergeant Brett Palmer, have submitted affidavits in which they aver that prior to

6 November of 2009, they had never been informed that HSU must keep the stat sheets from

7 the illegal immigration suppression operations, and that otherwise it would not have been

8 their standard practice to do so once the data from the stat sheets was recorded on shift

9 summaries for a particular operation.2 The parties have further submitted excerpts from the

10 deposition of Lie utenant Sousa in which he testifies that he was not instructed until

11 November 2009 that he was to save all emails regarding all immigration violation patrols.

12 Prior to that time, he provided the emails that he had not purged when they were requested

13 by the attorneys.

14

When Sheriff Arpaio was deposed in mid-December he testified that he didnot recall

15 being instructed to retain or provide documents pertaining to the immigration enforcement

16 activities of the MCSO. He indicated he did maintain an immigration file in his office that

17 he had not yet provided in this litigation.

18

ANALYSIS

19

Plaintiffs request that the Court sanction Defendants for their destruction of

20 documents. The Court has inherent power to impose such sanctions. Medical Laboratory

21 Mgt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 824 (9th Cir.

22 2002); Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) . Appropriate sanctions

23 include any one or m ore of the following: (1) dism issing claim s; (2) drawing adverse

24 inferences about the contents of the docum ents destroyed; (3) exc luding testimony and

25 evidence; and (4) awarding fees and costs. Leon v. IDX Systems Corp., 464 F.3d 951, 958

26

27

2Lieutenant Charles Siemens has similarly submitted an affidavit in which he testifies

that the stat sheets that were used with HSU during his participation in its operations were

28 not typically maintained.

- 5 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 6 of 13

1 (9th Cir. 2006); Glover, 6 F.3d at 1329; In re Napster, Inc. Copyright Litigation, 462 F.

2 Supp. 2d 1060, 1070-78 (N.D.Cal. 2006).

3

A party seeking sanctions based on the spoliation of evidence must demonstrate the

4 presence of three elem ents: “(1) That the party having control over the evidence had an

5 obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with

6 a culpable state of mind and (3) that the destroyed evidence was relevant to the party’s claim

7 or defense such that a reasonable trier of fact could find that it would support that claim or

8 defense.” Napster, 462 F. Supp.2d at 1078; Zubulake v. UBS Warburg LLC, 229 F.R.D.

9 422, 430 (S.D.N.Y. 2004); see also Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d

10 Cir. 2001).

11 I. The Legal Standard For Sanctions

12

A. MCSO Has Destroyed Documents It Had An Obligation To Preserve.

13

1. Stat Sheets

14

Defendants concede that as of July 21, 2008, they had an obligation to preserve the

15 individual “stat sheets” that were c ompleted by MCSO deputies or volunteers during the

16 special immigration enforcement operations that are the focus of Plaintiffs’ claims against

17 Defendants. They further concede that they destroyed those “stat sheets” and that they are

18 not recoverable. The first of the three elements has thus been established as it pertains to the

19 “stat sheets” created or still in existence after July 21, 2008.

20

“As soon as a potential claim is identified, a litigant is under a duty to preserve

21 evidence which it knows or reasonably should know is relevant to the action.”Napster, 462

22 F. Supp. 2d at 1067;see also Zubulake v. UBS Warburg LLC2, 20 F.R.D. 212, 218 (S.D.N.Y.

23 2003). Plaintiffs assert that given that law, Defendants were required to place a litigation

24 hold on all relevant documents in their possession, including any stat sheets created during

25 enforcement operations, immediately after receiving the initial class action complaint. While

26 apparently agreeing that they were under an obligation to preserve documents relating to the

27 complaint from the date it was originally filed, Defendants argue that the scope of the

28 original complaint did not adequately put them on notice sufficiently to require the

- 6 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 7 of 13

1 preservation of the stat sheets. Thus, while they concede that they were under an obligation

2 to preserve any stat sheets that they destroyed after July 21, 2008, they argue that they were

3 under no obligation to preserve any stat sheets that may have been destroyed prior to that

4 date.

5

2. Email Communications

6

Both Lieutenant Sousa and Sergeant Madrid testified that they had deleted em ails

7 from their work areas that pertained to the speciaiml migration enforcement operations. They

8 both testified that although they thoroughly responded to periodic requests for docum ents

9 from attorneys and others during the course of this litigation that included their em ail

10 communications, they had never been informed until November 2009 that they were to retain

11 all of their communications pertaining to the special operations a t issue. As a result, they

12 deleted some of those communications up until they were informed in November of 2009 that

13 they must not do so.

14

At oral argument on this motion, Defendants detailed their ongoing efforts to recover

15 any emails relating to the special operations at issue that m ay have been purged from the

16 MCSO information management system, but presently available through any backup files

17 or systems. Defendants acknowledge that electronic com munications purged prior to

18 October 31, 2009, are not recoverable. Nevertheless, depending upon the treatment of the

19 email by the sender or the recipient, a purged communication may have been retained on the

20 system and thus still be recoverable through the backup systems. Defendants acknowledge

21 that they are in the process of examining a large number of documents recently obtained from

22 the back-up systems of the MCSO, after the deletion of responsive docum ents became

23 apparent. Defendants acknowledge that additional documents appear to exist, and will

24 be provided to Plaintiffs as they are identified. They further cite the affidavits and

25 depositions of Lieutenant Souza and Sergeant Madrid to assert, however, that after the

26 recoverable electronic com munications are provided, they do not believe that any

27 communications of any substance relating to the special operations will have been withheld.

28 Nevertheless, Defendants acknowledge that the MCSO purged email communications that

- 7 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 8 of 13

1 were responsive to both the July 21, 2008 letterasnd Plaintiffs document production requests,

2 and they will not be able to affirm atively demonstrate that all such em ails have been

3 recovered or provided to Plaintiffs.

4

3. Sheriff Arpaio’s Immigration File

5

Defendants also acknowledge in response to Plaintiffs’ arguments that Sheriff Arpaio

6 identified at his deposition that he kept an immigration file that had not been previously

7 provided to the Plaintiffs, but that had beencalled for by their July 21, 2008 letter and in their

8 subsequent discovery. Defendants avowed that they have now provided those documents to

9 the Plaintiffs.

10

B. MCSO’s Negligence is A Sufficient Basis on Which to Award Sanctions.

11

A finding of fault or sim ple negligence is a sufficient basis on which a Court can

12 impose sanctions against a party that has destroyed doc uments. Unigard Sec. Ins. Co. v.

13 Lakewood Eng’g & Mfr’g Corp.,982 F.2d 363, 369 n.2 (9th Cir. 1992);Residential Funding

14 Corp. v. De George Fin. Corp.,306 F.3d 99, 107 (2d Cir. 2002) ( “A ‘culpable state of imnd’

15 for purposes of a spoliation inference includes ordinary negligence.”).

16

In his affidavit, Deputy Chief MacIntyre insists tha t his oversight in failing to

17 communicate the litigation hold within the MCSO was a good faith mistake. Although he

18 does assert that he was under the press of many obligations, to his credit he does not assert

19 that this excuses his failure to communicate the litigation hold. He sets forth in his affidavit

20 his normal procedure in responding to litigation holds, and further sets forth that, after

21 investigation, he does not believe that he followed that procedure in this case.

22

The Court need not determine whether Deputy Chief MacIntyre acted in bad faith to

23 determine that his conduct amounts to sufficient fault on the part of the MCSO to justify a

24 sanction against it resulting from the destruction of relevant m aterials that was caused, in

25 part, by that failure. Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557

26 (N.D. Cal. 1987) (holding that “[i]t is no defense to suggest, as the defendant attempts, that

27 particular employees were not on notice. To hold otherwise would perm it an agency

28 corporate officer or legal department to shield itself from discovery obligations by keeping

- 8 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 9 of 13

1 its employees ignorant.”); Cf. New Times v. Arpaio, 217 Ariz. 533, 541, 177 P.3d 275, 283

2 (App. 2008) (holding tha t “[i]f public entities could be excused from providing public

3 records merely be being inattentive to requests, then access to the records would be easily

4 frustrated.”).

5

Nor does the Court find that the affidavit of Lieutenant Culhane sufficient to defeat

6 the imposition of sanctions. In her affidav it Lieutenant Culhane does not state that the

7 litigation hold was com municated. She states that she believes that the Legal Liaison

8 division followed its standard practice, a nd thus would have com municated the litigation

9 hold. Nevertheless, in light of the deposition testim ony of Lieutenant Sousa , Sergeant

10 Madrid, and Sheriff Arpaio that they never received, or do not recall receiving, instructions

11 to preserve documents and emails, the court finds that no litigation hold was communicated

12 to them.

13

Even if it was, Lieutenant Culhane’s affidavit suggests that it was “a general

14 instruction,” and as such would have lacked the specificity necessary to com municate to

15 MCSO divisions that the y needed to retain their “stat sheets” pertaining to the special

16 operations at issue here. Apparently if any instruction in fact took place it was so general

17 that it failed to be m emorable to Sheriff Arpaio, Lieutena nt Sousa or Sergeant Madrid.

18 Defendants provide no witnesses who testify to receiving instruction about a litigation hold.

19

It is true that the doc uments requested by Pla intiffs’ counsel did not specifically

20 mention “stat sheets.” Nevertheless, the description of the documents requested by Plaintiff

21 was specific enough that if reasonably communicated, it would have resulted in the retention

22 of the stat sheets. Further the description of docum ents sought specifically and explicitly

23 asked for emails pertaining to the special operations. Yet the witnesses whose testiomny was

24 offered on this m otion do not rem ember any MCSO com munication directing them to

25 preserve stat sheets or email communications until November 2009.

26

Based on the above facts, the Court finds that no communication of the litigation hold

27 was made within the MCSO, and that even if some such communication were made, it was

28 not a sufficient communication to specify the content of documents subject to the hold. In

- 9 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 10 of 13

1 either case, the failure was, at a minimum, negligent and constitutes sufficient fault to justify

2 the imposition of sanctions.

3

C. The Destroyed Evidence Was Relevant To A Claim or Defense.

4

At oral argum ent counsel for the Defendants acknowledged that in light of the

5 testimony concerning a zero tolerance policy that may have been implemented by the MCSO

6 in conducting its special operations, the individual stat sheets could have provided relevant

7 information to a claim or defense. The Defendants further c onceded that electronic

8 communications within the MCSO pertaining to the special operations would be relevant and

9 discoverable information. The Court concurs with this assessment.

10 II. Sanction(s) and Their Appropriate Scope

11

A. Stat Sheets In Existence Or Created After July 21, 2008.

12

In this matter, it is uncontested that with a single exception3, the stat sheets either in

13 existence or c reated after July 21, 2008 were destroyed and that the Defendants had an

14 obligation to preserve and provide those stat sheets to Plaintiffs. The information contained

15 on the individual stat sheets would have been re levant to the claim s of Plaintiffs and/or

16 defenses of Defendants. The Court has found at least negligence on the part of Defendants

17 in failing to preserve those stat sheets. While the issue of whether Defendants acted in bad

18 faith may be relevant to whether sanctions are im posed for the destruction of other

19 documents, the Court need not determine whether Defendants acted in bad faith to determine

20 that a sanction or sanctions is appropriate for the destruction of the stat sheets that existed on

21 or after July 21, 2008.

22

In a case in which the contents of documents can not be ascertained, Courts should

23 “draw the strongest allowable inferences in favor of the aggrieved party.” Nat’l Ass’n of

24 Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987). In this case,

25 although the information the individual stat sheets would have provided is not ascertainable,

26

27

3 Defendants did find and produce during the course of this litigation eight individual

28 stat sheets from a January 2008 special operation.

- 10 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 11 of 13

1 the categories of information contained in the stat sheets is known. Therefore, while the fact

2 finder may draw inferences about the contents of the destroyed stat sheets that are adverse

3 to Defendants, those inferences are restricted to the types and categories of information that

4 could have possibly been gleaned from the stat sheets. Because the stat sheets contained

5 various categories of inform ation that may be relevant to the claim s and defenses of the

6 parties, at the close of discovery Plaintiffs will file with the Court suggested possible

7 inferences concerning the contents of the destroyed stat sheets. Defendants will be allowed

8 to comment on the appropriateness of the proffered inferences before any specific inferences

9 are authorized as a sanction.

10

B. Email Communications

11

Defendants admit that they have purged email communications that are related to the

12 special operations. They further admit that for any period prior to October 31, 2009, they

13 cannot recover docum ents that we re purged from the system . Nevertheless, electronic

14 documents that were separately saved by a user during the course of their existence on the

15 system may be recovered from the system for dates prior to October 31, 2009. Defendants

16 are now in the process of securing fromtheir back-up systems all retrievable documents that

17 may contain information sought by Plaintiffs. Plaintiffs argue that once they have copmleted

18 this process few, if any, relevant documents will prove to be unrecoverable. Especially in

19 light of the additional documents yet to be provided to Plaintiffs by Defendants, the Court

20 is currently incapable, and may thereafter remain incapable, of ascertaining whether and what

21 documents purged by Defendants have been retrieved and provided to Plaintiffs.

22

Because appropriate sanctions must be tailored to the type and degree of docum ent

23 destruction, and the motives for that destruction,Chambers v. NASCO, Inc.,501 U.S. 32, 33

24 (1991); Napster, 462 F.Supp.2d at 1078 (holding that the court m ust “impose the ‘least

25 onerous sanction’ given the extent of the o ffending party’s fault and the prejudice to the

26 opposing party”), the Court will not determine appropriate sanctions for the destruction of

27 e-mail communication until Defendants have provided to Plaintiffs: (1) a description under

28 oath of the steps Defendants have taken to recover all responsive comunications from their

- 11 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 12 of 13

1 information management system and its back-ups; (2) a complete list of the new documents

2 that have been recovered and the dates of the docum ents recovered; (3) the sources from

3 which the additional documents were recovered; (4) the inherent limitations on Defendants

4 search for documents that are imposed by Defendants document retention systems; and (5)

5 the components in that system.

6

If a sum mary affidavit or affidavits are filed under oath by Defendants’ counsel

7 describing the retrieval process, he will identify with specificity his sources of information

8 for those affidavits. Defendants will provide such documents and information to Plaintiffs

9 by March 4, 2010. The parties will appear for a status hearing onMarch 19, 2010 at 9:30

10 a.m. for the Court to determine the extent supplemental depositions will be authorized based

11 either on the newly-provided documents or the adequacy of the process through which those

12 newly-provided documents were obtained, and who will bear the cost of those depositions.

13

C. Documents Destroyed Prior to July 21, 2008.

14

The Court has read the initial complaint which seems to the court to be broad-based,

15 the July 21, 2008 letter from Plaintiffs’ counsel, a nd the affidavits of Deputy Chief

16 MacIntyre and Lieutenant Culhane concerning the steps they believe were taken, or not

17 taken, to im plement a litigation hold within the MCSO after July 21, 2008. Prior to

18 determining whether the scope of the sanctions to be imposed in this matter should extend

19 to the destruction of documents that occurred prior to July 21, 2008, however, the Court will

20 evaluate the adequacy of the supplem ental documents to be provided by Defendants to

21 Plaintiffs as well as any evidence relating to the scope of any litigation hold actually

22 implemented by Defendants after the initial complaint was filed, and any documents retained

23 pursuant to that hold. These materials are to be provided to Plaintiffs by March 4, 2010.

24

D. Sheriff Arpaio’s Immigration File

25

Defendants have provided Sheriff Arpaio’s Immigration file that was responsive to

26 their previous discovery requests and not provided prior to Sheriff Arpaio’s deposition.

27 Pursuant to Fed. R.Civ. P. 37, and the Court’s inherent power, the Court orders that Plaintiffs

28 may redepose Sheriff Arpaio concerning the newly-provided documents. Defendants will

- 12 -

Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 13 of 13

1 pay the cost for the court reporter and will pay the reasonable costs inc urred by one of

2 Plaintiffs’ counsel to prepare for and take the deposition.

3

Therefore, for the reasons stated above,

4

IT IS HEREBY ORDERED granting Plaintiffs Motion for Sanctions (Dkt. # 227)

5 to the extent that Defendants have destroyed stat sheets that were in existence or came into

6 existence after July 21, 2008 with the appropriate adverse inferenc e(s) to be drawn to be

7 determined after discovery closes.

8

IT IS FURTHER ORDERED that on or before March 4, 2010 Defendants shall

9 provide to Plaintiffs: (1) a description under oath of the steps Defendants have taken to

10 recover all responsive communications from their information management system and its

11 back-ups; (2) a complete list of the new documents that have been recovered and the dates

12 of the documents recovered; (3) the sources from whic h the additional docum ents were

13 recovered; (4) the inherent limitations on Defendants search for documents that are imposed

14 by Defendants document retention systems; (5) the components in that system; and (6) any

15 evidence relating to the scope of any litigation hold actually im plemented by Defendants

16 after the initial complaint was filed, and any documents retained pursuant to that hold.

17

IT IS FURTHER ORDERED setting a Status Conference on this m atter with the

18 parties on March 19, 2010 at 9:30 a.m. At the Status Conference the Court will determine

19 what additional discovery is a ppropriate in light of the newly provided docum ents and

20 materials, any appropriate limits on that additional discovery, and who will pay for it. The

21 Court will also consider the outstanding Touhy motion at that time.

22

IT IS FURTHER ORDERED that Plaintiffs m ay redepose Sheriff Arpaio

23 concerning the contents of his im migration file not previously provided to Plaintiffs.

24 Defendants will pay the cost for the court reporter and will pay the reasonable costs incurred

25 by one of Plaintiffs’ counsel to prepare for and take the deposition.

26

DATED this 11th day of February, 2010.

27

28

- 13 -

 </s> Case 2:07-cv-02513-GMS Document 278 Filed 03/01/10 Page 1 of 2

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8 Manuel de Jesus Ortega Melendres, et al.

CIV-07-02513-PHX-GMS

9 10 v.

Plaintiff,

ORDER

11 Joseph M. Arpaio, et al.,

12

Defendants.

13

14

Having considered the Unopposed Motion for a Protective Order (Dkt. # 275), and

15 good cause appearing,

16

IT IS HEREBY ORDEREDthat the Immigration and Customs Enforcement (ICE)

17 may disclose to the parties’ counsel documents subject to thePrivacy Act, 5 U.S.C. § 552(a),

18 and documents containing personal identifying information covered by the law enforcement

19 privilege, subject to the following Protective Order.

20

PRIVACY ACT ORDER

21

1. Pursuant to 5 U.S.C. § 552a(b)(11), a nd subject to the conditions described

22 below, ICE is authorized to release to the parties’ counsel government records containing

23 Privacy Act protected information which was subpoenaed by each party. ICE may disclose

24 this information contained within the documents to the parties’ counsel without obtaining

25 prior written consent of the individuals to whom those records pertain and such disclosure

26 shall not violate the Privacy Act.

27

2. The parties shall take reasonable steps to protect the privacy interests of the

28 third-party individuals contained within the documents. These documents shall be used by

Case 2:07-cv-02513-GMS Document 278 Filed 03/01/10 Page 2 of 2

1 the parties only for purposes of litigating th is case, including any subsequent appeals.

2 Persons receiving copies of protected documents, or the contents of protected documents,

3 subject to this Protective Order, shall not use such documents or other information for any

4 other purpose. At the conclusion of this litig ation, including any subsequent appeals, the

5 parties’ counsel will retrieve all copies of the documents thatthey have provided to staff or

6 experts and destroy the copies or return themto the United States Attorney’s Office for the

7 District of Arizona care of AUSA Ann E. Harwood or her designee. If the documents that

8 are retrieved by counsel are destroyed, c ounsel shall so notify AUSA Harwood or her

9 designee in writing.

10

3. If the p arties intend to file documen ts containing personally identifiable

11 information in the Court file or use them as exhibits to depositions, they shall take steps to

12 protect the privacy of the individuals iden tified in these record s through redaction of

13 personally identifying information as required by the District of Arizona, Electronic Case

14 Filing Administrative Policies and Procedures Manual, § I(E), Privacy (Jan. 25, 2008) and

15 Rule 5.2 of the Federal Rules of Civil Procedure. Prior to the filing or use of these

16 documents as exhibits to depositions, or at trial, the parties shall confer with and provide a

17 redacted copy of the document to AUSA Harwood.

18

4. The United States and specifically, ICE, and its officers, em ployees, or

19 attorneys, shall not bear any responsibility orliability for any unauthorized disclosure of any

20 documents obtained by counsel under this Privacy Act Orde r, or of any inform ation

21 contained in such documents.

22

5. This Order does not constitute any ruling on the questio n of whether any

23 particular document or category of inform ation is properly di scoverable and does not

24 constitute any ruling on any potential o bjection to the discoverability, relevance, or

25 admissibility of any record, other than objections based on the Privacy Act and/or the law

26 enforcement privilege in regards to personally identifiable information.

27

DATED this 1st day of March, 2010.

28

2

 </s> 1 WO

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres, et. Al)., No. 07-02513-PHX-GMS

)

10

Plaintiff,

) ORDER

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et. al.,

)

13

)

Defendant.

)

14

)

)

15

16

Pending before the Court is Defendants’ Touhy Motion to Compel the United States

17 Department of Hom eland Security (and/or the United States Im migration and Custom s

18 Enforcement) To Produce Two Documents And Tender Five Witnesses For Deposition and

19 Defendants’ Separate Motion to Extend the Fact-Discovery Cut-Off Date For the Lim ited

20 Purpose of Conducting DHS/ICE-Related Deposition Discovery. (Dkt. # 247). After

21 consideration, the Motion is granted in part, denied in part, and deferred in part.

22

The Court grants that part of the De fendants’ Motion tha t seeks to extend fact

23 discovery deadlines for the purpose of deposing the five witnesses identified in Defendants’

24 Touhy request and/or obtaining their testim ony concerning the two doc uments that

25 Defendants seek in that sam e Touhy request. New specific deadlines will be established

26 during the Court’s status conference with the parties scheduled to occur on March 19, 2010.

27 Although it does appear to the Court that the Motion to Extend could have been asserted with

28 more alacrity, Defendants have, nevertheless, timely sought the extension given the various

1 reversals in the position of the United States Government with respect to the discovery

2 sought by Defendants in this case.

3

At any rate, it appears that the discovery deadlines must be extended so that Plaintiffs

4 can evaluate the additional discovery to be provided by the Defendants, and the extent to

5 which still additional discovery m ay be nece ssary in light of the unavailability and/or

6 destruction of documents in the Defendants’ possession. And, while the Court does not

7 believe that Defendants should benefit from an extension tha t their own conduct has

8 necessitated, Defendants’ request for extension to provide for the discovery they tim ely

9 sought in their Touhy Motion has merit in its own right, and a short extension will allow both

10 Plaintiffs and Defendants to maximize their ability to best present the merits of their relative

11 positions to the Court at trial, which is in the best interest of the parties and the public.

12

In its Response to Defendants’ Touhy Motion, the United States indicates that it has

13 provided the documents sought in the Motion and has agreed to provide its two current

14 agents for deposition, and assist, to the extent feasible, in providing its three former agents

15 to be deposed in this matter. To the extent that Defendants seek such relief in their Motion,

16 therefore, the Motion is moot. Nevertheless, the United States indicates that it does not agree

17 to provide the current or form er agents to testify at deposition until it has reviewed

18 documents (it indicates approximately 38,000), prior to the depositions to ensure that the

19 deponents do not testify to information that may be protected as law enforcement sensitive.

20 Further, prior to the occurrence of the depositions, Defendants’ counsel agreed to provide “a

21 more detailed description of the areas of inquiry to assure” that the witnesses would not be

22 questioned about privileged or protected a reas. Thus, the United States indicates that the

23 deposition of the current or former agents could not be scheduled prior to April 2010.

24

Contrary to the Defendants assertion in their Reply, there is nothing in the Response

25 of the United States that indicates it intended to voluntarily provide to the Defendants the

26 38,000 documents that it needed to review prior to sc heduling the depositions of the five

27 agents. Nor is there anything to suggest to this Court that Defendants Touhy request to the

28 United States was broad enough to cover those documents. Thus, the United States is under

- 2 -

1 no current obligation to provide the 38,000 documents to the parties in this litigation unless

2 it has otherwise agreed to do so.

3

Nor does the United States in its Response agre e to waive the m ore detailed

4 description of areas of deposition inquiry that Defense Counsel agreed to provide. Therefore,

5 the parties and the Unite d States may arrive at a deposition schedule for the five agents

6 identified in Defendants’ Touhy Motion prior to the March 19th status conference. Indeed

7 the Court suggests that they do so. But the Court will not require the United States to

8 schedule the depositions for a date prior to receiving the “more detailed description of areas

9 of inquiry” by the Defendants, or the review of the additional docum ents that it deem s

10 necessary. While the Court does not intend to provide the United S tates with more than a

11 reasonable amount of time to accomplish such tasks, and will set such a deadline at the

12 March 19 status conference, it will not set a dateby which such tasks will be completed prior

13 to the March 19 status conference between the parties and the United States. The Court does,

14 however, Order that Defendants provide the “more detailed description of cases of inquiry

15 prior to March 19.

16

To the extent that the Motion requests that the Court order that the five form er

17 government agents be provided at trial, the Court defers a ruling on this part of the Motion

18 until the depositions have been taken and relevnat and admissible testimony of the agents has

19 been identified. Therefore,

20

IT IS HEREBY ORDERED:

21

1. Granting the Motion to extend fact discovery deadlines for the purpose of

22 deposing the five witnesses identified in Defendant’s Touhy request and/or obtaining their

23 testimony concerning the two documents that Defendants seek in that same Touhy request

24 only;

25

2. Denying the Touhy Motion to the extent that it is moot; and

26 / / /

27

28

- 3 -

1

3. Deferring any ruling on which, if any, of the five witnesses m ust be made

2 available by the government for the trial of this matter.

3

4. Directing that Amin Aminfar, counsel for the United States be present at the

4 status conference scheduled for March 19, 2010 at 9:30 a.m.

5

DATED this 1st day of March, 2010.

6

7

8

9

10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 4 -

 </s> Case 2:07-cv-02513-GMS Document 289 Filed 03/22/10 Page 1 of 2

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres, et al., ) No. CV-07-2513-PHX-GMS

)

10

Plaintiffs,

) ORDER

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendants.

)

14

)

)

15

16

On March 19, 2010, the Court held a Status Conference. At the Status Conference the

17 Court made the following determinations.

18

IT IS HEREBY ORDERED granting Plaintiffs’ Motion for Clarification (Dkt. #

19 267) which it elected to trea t as a Motion for Reconsideration. The Court will award

20 Plaintiffs’ reasonable attorneys’ fees incurred in bringing their Motion for Sanctions upon

21 Plaintiffs’ compliance with LRCiv. 54.2.

22

IT IS FURTHER ORDERED reaffirming that, except as otherwise ordered by the

23 Court, the Case Management Order is in force and discovery is closed. The Court vacates

24 the current deadlines for the submission of expert reports.

25

The matters pertaining to Defendants’ Touhy requests to the governm ent were

26 addressed. Defendants are authorized to pursue the depositions of the five individuals

27 specified in their Touhy motions.

28

Case 2:07-cv-02513-GMS Document 289 Filed 03/22/10 Page 2 of 2

1

A representative of Maricopa County represented to the Court that Defendants will

2 be provided with the supplemental electronic documents from the back-up files maintained

3 by the County within the parameters specified by the parties to this litigation no later than

4 April 11, 2010 . Defendants will review these documents and disclose to Plaintiffs all

5 relevant documents prior to June 11, 2010.

6

A follow-up Status Conference is set for July 16, 2010 at 9:30 a.m. Prior to the

7 Status Conference the parties will consult on the additional discovery that they deem

8 necessary in light of the newly-identified and disclosed documents. No later than July 13,

9 2010, the parties will inform the Court as to: (1) the additional discovery that they agree is

10 necessary; and (2) their respective positions with respect to the remaining desired discovery

11 on which they cannot agree.

12

MCSO makes an oral request to file a Mo tion for an Order to Show Cause against

13 Maricopa County concerning the lately-identified documents. The Court grants the request

14 for the Defendants to file such a motion but further indicates that while some discovery may

15 be appropriate as to the reason for the delay in providing the m ost recent docum ent

16 disclosure, the Court will not make this case a forum for satellite litigation. The Court will,

17 at any rate, not likely rule on any such motion prior to the July 16, 2010 Status Conference

18 in which any remaining discovery is considered and authorized. Counsel is further advised

19 to consider and consult with his clients concerning the possible ethical ram ifications of

20 bringing such a motion in light of his past representation of Maricopa County in this action.

21

The Court denies without prejudice the request that the Court determine who has the

22 right to possess or have access to the docum ents that are currently in the possession of

23 Maricopa County.

24

Defendants’ Motion to Require a Representative of Maricopa County’s OET to Attend

25 the March 19, 2010 Scheduling Conference (Dkt. # 283) is denied as moot.

26

DATED this 22nd day of March, 2010.

27

28

- 2 -

 </s> 1 WO

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendants

)

14

)

)

15

No. CV-07-2513-PHX-GMS ORDER

16

Pending before this Court is Defendants’ Motion for An Order To Show Cause and

17 Allowing Defendants’ Leave to Take Ad ditional Discovery (Doc. 337) and Maricopa

18 County’s Motion to Strike Sheriff’s Motion ForOrder to Show Cause and For Leave to Take

19 Additional Discovery (Doc. 350). For the reasons set forth below, Defendants’ Motion for

20 An Order to Show Cause is denied, and the County’s Motion to Strike Sheriff’s Motion is

21 denied as moot.

22

BACKGROUND

23

The pertinent facts pertaining to this motion are set forth in affidavits provided by the

24 parties in support of, and in response to, the above motions. They include the affidavits of

25 Timothy J. Casey, Stacey Marie Haggart, and Shelly L. Bunn. Certain additional affidavits

26 filed previously in this matter, such as the affidavits of Jack McIntyre, Manuel Madrid, Dot

27 Culhane, Joseph Sousa, Brett Palm er and a separate affidavit of Tim othy J. Casey also

28 provide relevant facts and also have been reviewed by this Court in deciding the present

1 motion. Because the facts attest ed to in the affidavits that are relevant are not seriously

2 disputed, and seem to be consistent with each other, the Court assumes their accuracy.

3

In this class action, Plaintiffs challenge certain operations of the Maricopa County

4 Sheriff’s Office (“MCSO”) as being subject to, or influenced by, racial profiling. It was

5 originally brought almost three years ago in December 2007. Although the Sheriff and the

6 MCSO are the present defendants in this action, Plaintiffs originally also named Maricopa

7 County as a Defendant. All Defendants were originally represented by Tim Casey of

8 Schmitt, Schneck, Smyth & Herrod, P.C.

9

When the lawsuit was originally f iled in Decem ber 2007, Mr. Casey had

10 communications with the MCSO concerning documents and evidence that it should retain

11 in light of the lawsuit. On July 21, 2008 Plaintiffs’ new counsel sent to Mr. Casey a

12 litigation hold letter that further outlined categories of documents pertaining to the operations

13 of the Sheriff’s office that, in light of this litigation, the MCSO was required to m aintain.

14 Plaintiffs also filed a contemporaneous public records request with the MCSO to obtain the

15 same material.1

16

Mr. Casey, in his turn immediately forwarded the Plaintiff’s litigation hold letter to

17 Deputy Chief Jack McIntyre of the MCSO to implement the litigation hold. Mr. Casey also

18 copied Jean Bowman and Christopher Keller with his e-m ail to Deputy Chief McIntyre.

19 Deputy Chief McIntyre, however, neglected to pass along the instruction to secure and

20 preserve the specified documents within the MCSO.

21

Plaintiffs formally requested documents in a Rule 34 document request on February

22 25, 2009. On March 11, 2009, Maricopa County obtained separate counsel in this action.

23 Mr. Casey remained counsel for the MCSO in the action. As discovery continued, Plaintiffs

24

25

1 The affidavit of Dot Culhane sets forth the MCSO’s efforts to com ply with the

public records request under Arizona law. As this court determined in its order of February

26 12, 2010, however, based on the initial deposition testimony of Sheriff Arpaio and Officer

27

Madrid, and the affidavits of Lieute nant Joseph Sousa and Sergeant Brett Palm er, no litigation hold of such documents was effectively communicated within the MCSO. Doc.

28 261.

- 2 -

1 inquired as to the apparent lack of certain categories of documents in response to its previous

2 requests. They were assured by MCSO that all responsive docum ents had been provided.

3 On September 10, 2009, Plaintiffs again inquired as to the apparent lack of certain categories

4 of documents in response to its previous requests.

5

Shortly, thereafter, the parties filed a stipulation to dismiss Maricopa County fromthis

6 litigation, and the County was in fact dismissed.

7

On September 30 and October 20, 2009, Plaintiffs again wrote Defendants inquiring

8 whether they had received all the documents responsive to their litigation hold. The matter

9 again came up before the Court at the pret rial scheduling confer ence that occurred on

10 October 21, 2009. At that time, Defense counsel again indicated that Defendants had

11 produced all responsive documents in their possession to Plaintiffs. At that time, this Court,

12 in light of the already-protracted nature of this case, imposed a limited schedule in which

13 additional discovery could be accomplished.

14

Six days later, on October 27, 2009, in the deposition of Sergeant Manny Madrid a

15 supervisor in the Hum an Smuggling Unit (“HSU”) of the MCSO, Plaintiffs learned that

16 Defendants had been destroying the statistic sheets of individual officers that were involved

17 in the special enforcement operations. These statistic sheets were subject to the July 2008

18 litigation hold. Because Sergeant Madrid also testified to not being aware of a litigation

19 hold, and of further deleting e-mails from his system that may have been subject to that hold,

20 counsel for Defendants thereafter began working with Chief Brian Sands and the Deputy

21 Chief of MCSO’s Technology Bureau, Shelly Bunn to retrieve the deleted e-m ails to the

22 extent possible.

23

On November 5, 2009, Chief Bunn e-mailed Jon Carder at Maricopa County’s Office

24 of Enterprise Technology (“OET”) with a requesto “[p]lease provide email for the following

25 Sheriff’s Office em ployees. The request is for an attorney.” The nam es of six MCSO

26 employees was attached. As the resulting e-mail chain between Chief Bunn and Mr. Carder

27 illustrates, Chief Bunn never set forth the facts pertaining to the need to resurrect files that

28 had been the subject of a litigation hold deliveredto the MCSO a year and a half earlier and,

- 3 -

1 on which, the MCSO had failed to act and which were subsequently deleted. She only

2 discussed the need “to retain” the e-mail of specified employees. Chief Bunn further failed,

3 on follow-up inquiry by the OET, to designate the scope of the material needed pursuant to

4 the original litigation hold, or that the litigation hold resulted from the present lawsuit.

5

On November 20, 2009, Plaintiffs filed a request for sanctions in this lawsuit based

6 principally upon Sergeant Madrid’s de position testimony. Defendants responded on

7 December 11, 2009. In Defendants’ response they included the affidavits of Lieutenant

8 Sousa and Sergeant Palmer, both of whom indicated that they had deleted e-mails that may

9 have pertained to suppression operations and that they had never been instructed to amintain

10 these e-mails as a part of a litigation hold or otherwise.

11

When he was deposed later that m onth in December 2009, Sheriff Arpaio further

12 indicated that he had maintained an immigration file that had not been disclosed, nor was he

13 aware that any such documents were subject to a litigation hold in this lawsuit.

14

On February 4, 2010, this Court held a hearing pertaining to the omtion for sanctions.

15 Wade Swanson, the Director of Maricopa County Office of General Litigation Services, was

16 present. During that hearing this Court reviewed with Defendants the requirements it would

17 impose on Defendants to ascertain tha t all available responsive docum ents that could be

18 retrieved would be retrieved. This Court ordered Defendants to provide Plaintiffs with: “(1)

19 a description under oath of the steps Defendants have taken to recover all responsive

20 communications from their information management system and its back-ups; . . . (4) the

21 inherent limitations on Defendants search for docum ents that are imposed by Defendants

22 document retention systems; and (5) the components in that system.”

23

On March 2, 2010, OET informed the MCSO that it had, pursuant to a litigation hold

24 in another matter, backed up all of MCSO’s files since August 2008, apparently including

25 those sought in the litigation hold in this case.

26

Contemporaneously with discovering this inform ation pertaining to the sepa rate

27 litigation hold, MCSO requested fromthis Court leave to file a Motion for an Order to Show

28 Cause why Maricopa County should not be held in contempt for its failure to earlier disclose

- 4 -

1 the documents. The Court authorized the filing of the m otion which was filed in August,

2 2010.

3

ANALYSIS

4

In its Response and Separate Motion to Strike, the County asserts that this is a matter

5 that should be resolved betw een the MCSO and the County pursuant to separate county

6 dispute resolution procedures. It further asserts that the MCSO misrepresents to the Court

7 MCSO’s awareness and use of the OET within the County to place litigation holds on

8 categories of inform ation relating to other m atters that would have provided responsive

9 information in this case, but had never been explored by the MCSO. The Court need not

10 address these arguments to deny the MCSO’s motion.

11

The motion invites this Court to take up a collateral dispute between the MCSO and

12 the County, which has been a non-party to thisaction for over a year, regarding which entity

13 between them should be ar the budgetary expense of retaking depositions in this m atter

14 necessitated by the MCSO’s deletion of electronic files that were retained by the County in

15 other litigation.

16

Nevertheless, in its motion, the MCSO offers no reason for this Court to conclude that

17 the County was aware, prior to February 4, 2010, of the sc ope of MCSO’s deletion of

18 documents that were the subject of a litigation hold in this lawsuit, and that were

19 independently in the County’s possession. It offers no affidavit or suggestion that adismsible

20 evidence exists that would dem onstrate that the MCSO com municated to the County the

21 scope of its need to provide documents that were subject to a litigation hold that the MCSO

22 never implemented, and the scope of the needed recovery effort. Shelly Bunn’s indication

23 to OET that the MCSO needed the e-mails of specified employees was not sufficient to put

24 OET on notice that any recovery of past e-mails, let alone a recovery of a year and a half,

25 was being requested. The MCSO offers no suggestion that the County would have been

26 independently aware of the scope of MCSO’s destruction of documents prior to February 4,

27 2010.

28

The Court will not exercise its contempt power to hold the County in contempt based

- 5 -

1 on the MCSO’s argum ent that the County was under an obligation in this m atter to

2 independently research files held pursuant to a separate litigation hold, in response to non-

3 specific document production requests by Plaintiffs for MCSO documents in this matter a

4 year earlier. Although the Plaintiffs requested docum ents of all Defenda nts “relating to

5 MCSO’s crime suppression operations,” the MCSO offers no credible suggestion that the

6 County was in contempt for not searching the documents that it was holding pursuant to a

7 separate litigation hold in another m atter, especially when its MCSO co-defendants

8 presumably had the documents, had a greater ability to identify them, and had indicated to

9 Plaintiffs that such documents had been fully provided.

10

Even assuming that Mr. Swanson was aware of the separate litigation hold when he

11 attended this Court’s hearing on February 4, aswell as the scope of the documents requested

12 in this matter, OET informed the MCSO of the existence of the separate documents within

13 a month. Seeing as the MCSO was itself still inthe process of seeking to discover the extent

14 of document destruction and the possibilities of restoration at that time, this is not a sufficient

15 delay, under the circumstances, on which the Court would exercise its contempt power, nor

16 would a more timely response have prevented the need to redepose the witnesses involved.

17

Even accepting all reasonable inferences in favor of the movant, the MCSO provides

18 no convincing suggestion that there is any discoverable evidence and thus any reason to

19 permit further discovery on an issue that is collateral to this litigation, and which has already

20 commanded considerable time and generated considerable affidavit testimony which does

21 not, on the whole, support MCSO’s request to hold collateral contepmt hearings or additional

22 discovery. As the County points out, should there be an issue as to whether the County

23 should reimburse the MCSO for the economic sanctions to be entered against the MCSO in

24 this case, including the costs of redeposing witnesses, the MCS O may pursue such relief

25 pursuant to the procedures set forth by Maricopa County.

26

IT IS THEREFORE ORDERED denying Defendants’ Motion for An Order To

27 Show Cause and Allowing Defendants’ Leave to Take Additional Discovery (Doc. 337).

28

IT IS FURTHER ORDEREDdenying as moot Maricopa County’s Motion to Strike

- 6 -

1 Sheriff’s Motion For Order to Show Cause and For Leave to Take Additional Discove ry

2 (Doc. 350).

3

DATED this 23rd day of November, 2010.

4

5 6 7 8 9 10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 7 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendants.

)

14

)

)

15

No. CV-07-2513-PHX-GMS ORDER

16

17

On the afternoon of March 29, 2011 the Court held a telephonic conference with the

18 parties concerning three ongoing discovery disputes.

19

The first pertained to Plaintiffs’ desire to file with the Court, in conjunction with a

20 partially or wholly dispositive m otion for summary judgment, documents that have been

21 produced by Defe ndants pursuant to a confidentiality order. Pursuant to Ninth Circuit

22 precedent, defendant bears the burden of establishing that there is a compelling reason to file

23 such documents under seal. Pintos v. Pac. Creditors Ass’n , 504 F.3d 792, 801 (9th Cir.

24 2007) (citing Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006);

25 Foltz v. State Farm Mut. Auto Ins. Co. , 331 F.3d 1122, 1135-36 (9th Cir. 2003)). “This

26 standard derives from the com mon law right ‘to inspect and copy public records and

27 documents, including judicial records and documents.’ To limit this common law right of

28 access, a party seeking to seal judicial records must show that ‘compelling reasons supported

1 by specific factual findings outweigh the gene ral history of access and the public policies

2 favoring disclosure.’” Id. (quoting Kamakana, 447 F.3d at 1178) (alteration and internal

3 citations omitted). See also San Jose Mercury News v. U.S. District Court, 187 F.3d 1096,

4 1102 (9th Cir. 1999). This higher standard applies because the resolution of a dispute on

5 the merits “is at the heart of the interest inensuring the ‘public’s understanding of the judicial

6 process and of significant public events.’” Kamakana, 447 F.3d at 1179 (citation omitted).

7

Defendants indicate they can have his motion on file seeking to require Plaintiffs to

8 file the confidential documents under seal within two weeks from the date of the telephonic

9 conference. Therefore, Defendants will fileany such motion by April 12. If Defendants do

10 not file such a motion by that time, Plaintiffs may file the documents with the Court publicly.

11 If Defendants do timely file a motion seeking to require the filing of the docum ents under

12 seal, and the Court has not ruled on the motion by the time that Plaintiffs are required to file

13 their dispositive motion or motions, then Plaintiffs shall lodge such documents with the Court

14 under seal pending the Court’s ruling on the motion.

15

Second, Plaintiffs also requested a privilege log detailing those documents that have

16 been withheld fromproduction dueto the attorney-client privilege or work-product immunity

17 (collectively hereafter referred to as “prvileged communications”) asserted as a result of any

18 counsel’s work on this lawsuit. Plaintiffs are norm ally entitled to such privilege logs

19 pursuant to the requirements of Fed. R. Civ. P. 26(b)(5). Defendants assert that due to the

20 volume of documents disclosed in this case and the discovery protocol used to disclose those

21 documents, it had requested waiver of this requirement from Plaintiffs in correspondence of

22 July last year. It argues that it received essentially no response to such a request and hence

23 has not provided the privilege logs. It further asserts that given the inclusive back-up nature

24 of the documents provided, the documents that were withheld fromproduction contain many

25 attorney-client and work-product privileged communications that have nothing to do with

26 this lawsuit, but have to do with other matters on which Defendants obtained legal counsel.

27 Because in withholding docum ents it made no attempt to distinguish between privileged

28 communications that resulted fromthis litigation, as opposed to privileged communications

- 2 -

1 that were otherwise contained in the documents provided, it would have to renew such an

2 effort for all of the approximately 43,000 documents that it withheld from production.

3

Plaintiffs contested any assertion by Defendants that they had abandoned their request

4 for a privilege log and the Court required the parties to provide it with their comunications

5 pertaining to this issue. After having reviewed the correspondence between the counsel, it

6 is apparent to the Court that Plaintiffs have not abandoned their request for a privilege log

7 as it pertains to privileged communications that arose out of this lawsuit. Further, it appears

8 that Defendants have made at least some attempts to be responsive to Plaintiffs requests in

9 this respect, with some allowances resulting from the previous withdrawal of counsel. The

10 Court notes, however, that even Mr. Casey’s July 2010 correspondence did not propose a

11 complete waiver of any privilege logs in this matter. Therefore, Defendants shall provide

12 Plaintiffs with a privilege log of all “carve ou”t materials to the extent those materials reflect

13 any counsel’s work on this lawsuit. The

privilege log need not list privileged

14 communications that arose from matters that do not relate to this litigation.

15

The third dispute was resolved by the parties as a result of counsel for De fendants’

16 representations to the Court.

17

IT IS THEREFORE ORDERED that Defendants shall file by April 12, 2011 any

18 motion for a protective order demonstrating “compelling reasons” why Plaintiffs should be

19 compelled to file documents it has received fromDefendants under seal in conjunction with

20 its dispositive motion.

21

IT IS FURTHER ORDERED that should no such m otion be filed Plaintiffs m ay

22 then publicly file the documents it has received fromDefendants in conjunction with its case

23 dispositive motion.

24

IT IS FURTHER ORDEREDthat if Defendants have timely filed such a motion and

25 the Court has not ruled on the motion prior to the deadline for filing case dispositive motions

26 established in this matter, Plaintiffs shall lodge such documents and any parts of any motion

27 based upon them under seal, pending the Court’s ruling on Defendants’ motion.

28

IT IS FURTHER ORDERED that Defendants will provide Plaintiffs with a

- 3 -

1 privilege log of all docum ents in the carve-out that have been withheld because they

2 constitute privileged communications relating to this matter by May 31, 2011.

3

DATED this 31st day of March, 2011.

4

5 6 7 8 9 10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 4 -

 </s> Case 2:07-cv-02513-GMS Document 461 Filed 06/08/11 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Manuel de Jesus Ortega Melendres, et al.,)

9

)

Plaintiffs,

)

10

)

v.

)

11

)

Joseph M. Arpaio, et al.,

)

12

)

Defendants.

)

13

)

)

14

No. CV-07-2513-PHX-GMS ORDER

15

Pending before the Court is Plaintiffs’ Motion for Attorneys’ Fees and Costs (Doc.

16 412), and Response and Reply thereto. After review and consideration,

17

IT IS HEREBY ORDERED granting the Motion and awarding ACLU attorneys’

18 fees in the am ount of $2,002.00 and Covington & Bu rling attorneys’ fees in the am ount of

19 $70,000.00 and $22,705.00 in costs.

20

DATED this 8th day of June, 2011.

21

22

23

24

25

26

27

28

 </s> Case 2:07-cv-02513-GMS Document 448 Filed 06/01/11 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Manuel de Jesus Ortega Melendres, et al.,

9 10 vs.

Plaintiffs,

11 Joseph M. Arpaio, et al.

12

Defendants.

No. CV-07-2513-PHX-GMS ORDER

13

14

15

Based on Defendants Joseph M. Arpaio and the Maricopa County Sheriff’s Office’s

16 Motion to File under Seal their Supplem ental Statement of F acts re: Testim ony of ICE

17 Witnesses in Support of th eir Motion for Summary Judgmen t (Doc. 414), and good cause

18 appearing,

19

IT IS HEREBY ORDERED di recting the Clerk of the Co urt to file under seal

20 Defendants’ lodged S upplemental Statement of Facts re: Testimo ny of ICE Witnesses in

21 Support of their Motion for Summary Judgment (Doc. 415).

22

Dated this 1st day of June, 2011.

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiff,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, in his individual )

13 capacity as Sheriff of Maricopa County, )

Arizona,

)

14

)

Defendant.

)

15

)

)

16

No. CV-07-2513-PHX-GMS ORDER

17

18

Pending before the Court are Defendants’ Motion for Sumary Judgment (Doc. 413),

19 Plaintiffs’ Renewed Motion for Sanctions, (Doc. 416), Plaintiffs’ Renewed Motion for Class

20 Certification (Doc. 420), Plaintiffs’ Motion for Partial Summary Judgment (Doc. 421), and

21 Defendants’ Motion for Leave to File Sur-Reply. (Doc. 469). A hearing on these motions is

22 scheduled for Thursday, December 22, at 10:00 a.m . This Order supplements the Court’s

23 previous order discussing issue s are to be the subject of oral argum ent. (Doc. 477). The

24 parties should be prepared to discuss, or address in their suppleemntal briefing, the following

25 two issues:

26

1) Defendants have argued that the class should not be certified in part because it is

27 overbroad. Parties have been asked to discuss whetherMartinez-Medina v. Holder, ___ F.3d

28 ___, ___ 2011 WL 855791 at *6 (9th Cir. 2001) suggests that Defendants would receive

1 qualified immunity for any Fourth Amendment damages claim prior to the issuance of the

2 decision. Parties are hereby further asked to beprepared to discuss whether civilians stopped

3 after the de cision in Martinez-Medina would be able to m ake valid Fourth Am endment

4 claims for damages. If they believe such claims would not be barred by qualified immunity,

5 parties should be prepared to discuss whether certifying a class as to the Fourth Amendment

6 claims would deny those potential Plaintiffs the right to recover such damages.

7

2) Further, parties are asked to address whether, should no Fourth Amendment class

8 be certified, the Court may issue injunctive relief for the Fourth Amendment claims in light

9 of United States v. Arizona, 641 F.3d 339 (9th Cir. 2011).

10

Dated this 9th day of December, 2011.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

 </s> Case 2:07-cv-02513-GMS Document 462 Filed 06/08/11 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres, et ) No. CV 07-2513-PHX-GMS

al.,

)

10

) JUDGMENT ON ATTORNEYS FEES

Plaintiff(s),

)

11

)

vs.

)

12

)

)

13 Joseph M. Arpaio, et al.,

)

)

14

Defendant(s).

)

)

15

16 Pursuant to the Order dated June 8th 2011 (doc. 461), judgment is entered for
17 Plaintiffs and against Defe ndants. Awarding ACLU Attorneys’ fees in the am ount of
18 $2,002.00 and Covington & Bur ling Attorneys’ fees in the amount of $70,000.00 a nd
19 $22,705.00 in costs.
20

21 JUDGMENT ENTERED THIS 8th day of June
22

23

RICHARD H. WEARE

24

District Court Executive/Clerk

25

s/Kathy Gerchar

Deputy Clerk

26

27

28

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, in his individual )

13 capacity as Sheriff of Maricopa County, )

Arizona, et al.,

)

14

)

Defendants.

)

15

)

)

16

No. CV-07-2513-PHX-GMS ORDER

17

18 Pending before the Court is Plaintiffs’ Renewed Motion for Sanctions. (Doc . 416).
19 Oral arguments were held on December 22, 2011. For the reasons stated below, Plaintiffs’
20 motion is granted and the Court will pe rmit the finder of fact at trial to draw adverse
21 inferences based on the destruction of documents by the Defendants.
22 As further expla ined below, Plaintiffs seek only injunctive relief and have not
23 requested a jury trial. At oral argument, both parties agreed that the Court will likely be the
24 finder of fact at trial. In light of the discretion with which it should use inherent power, the
25 Court reserves the right to alter the inferences or issue further permissive inferences as the
26 need arises during the course of this litigation.
27

28

1

BACKGROUND

2

This putative class action civil rights suit alleges that the Maricopa County Sheriff’s

3 Office (“MCSO”) engages in a policy or practice of racial profiling. (Doc. 26 ¶ 2). The

4 background facts relevant to the sanctions m otion, in which num erous emails and “stat

5 sheets”1 responsive to Plaintiffs’ discovery requests were destroyed by Defendants, can be

6 found in the Court’s earlier order granting sanctions. (Doc. 261). Since that order was issued,

7 the Maricopa County Office of Enterprise Technology (“OET”) announced that it had in its

8 possession a database of MCSO emails dating back to August, 2008 which it had archived

9 pursuant to a litigation hold in an unrelated case. (Doc. 283, Ex. 1(C)). Defendants agreed

10 to provide Plaintiffs with a “carve-out” of the data recovered by OET, which contained all

11 of the archived MCSO emails except those containing the names of attorneys representing

12 MCSO in various m atters. (Doc. 330). The carve-out contained num erous emails which

13 would have been responsive to the discovery requests but which had not been provided by

14 MCSO, ninety-two of which Plaintiffs include as exhibits to their omtion for partial summary

15 judgment. (Doc. 450 at 1).

16

DISUCSSION

17 1. Legal Standard

18

A party engages in spoliation when it destroys documents even though it “had some

19 notice that the docum ents were potentially relevant to the litigation before the y were

20 destroyed.” U.S. v. Kitsap Physicians Service, 314 F.3d 995, 1001 (9th Cir. 2002) (internal

21 quotations omitted). Once it determines that a party has destroyed evidence, the Court has

22 an inherent power to issue sanctions, including to order the finder of fact “that it may infer

23 that the spoiled or destroyed evidence would hvae been unfavorable to the responsible party.”

24

25 1 “Stat sheets” are forms on which deputies of the MCSO record their patrol activities.
26 Deputies record the total num ber of stops, contacts, and arrests m ade during a tour. Stat

27

sheets may also allow deputies to document the type of arrest made, such as a drug arrest, a DUI arrest, a warrant arrest, or an arrest of a suspected illegal alien. ( See Doc. 235, Ex.

28 9(A)–11).

- 2 -

1 Medical Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F. 3d 806, 824 (9th Cir. 2002). In

2 fashioning an adverse inference instruction, a court should consider whether the party

3 seeking an instruction has shown “(1) that the party having control over the evidence had an

4 obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with

5 a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim

6 or defense such that a reasonable trier of fact could find that it would support that claim or

7 defense.” In re Napster, Inc. Copyright Litigation, 462 F. Supp. 2d 1060, 1078 (N. D. Cal

8 2006) (internal quotations omitted).

9

An organization is put on notice that evidence must be preserved, for the purposes of

10 the Napster test, “[a]s soon as a potential claimis identified.” 462 F. Supp. 2d at 1067. When

11 an organization is put on notice, notice is imputed to its employees, in order to prevent “an

12 agency, corporate officer, or legal departm ent [from shielding] itself from discovery

13 obligations by keeping its e mployees ignorant.” Nat’l Ass’n of Radiation Survivors v.

14 Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987)c;f. New Times v. Arpaio, 217 Ariz. 533, 541,

15 177 P.3d 275, 283 (App. 2008) (“If public entities could be excused from providing public

16 records merely by being inattentive to requests, then access to the records would be easily

17 frustrated.”). If, however, documents are not available “because of the inadvertent loss of the

18 evidence” before a party had notice of a lawsuit, an adverse inference instruction is not

19 merited. Medical Lab, 306 F.3d at 825;see also Marceau v. Int’l Bhd. of Elec. Workers, 618

20 F. Supp. 2d 1127, 1174 (D. Ariz. 2009) (destruction of duplicate copies of docum ents

21 pursuant to company policy a year before a lawsuit was filed m ay constitute “an innocent

22 reason” for loss).

23

Once a court has determined that documents were destroyed after a party was put on

24 notice that they should be preserved, “a party’s m otive or degree of fault in destroying

25 evidence is relevant to what sanction, if any, is im posed.” Napster, 462 F. Supp. 2d at

26 1066–67. “[A] finding of ‘bad faith’ is not a prerequisite” to a district court’s imposition of

27 an adverse inference. Glover v. BIC Corp,. 6 F.3d 1318, 1329 (9th Cir. 1993) (citingUnigard

28 v. Lakewood, 982 F.2d 363, 368–70 n.2 (9th Cir. 1993)). When a party on notice

- 3 -

1 intentionally destroys, rather than accidentally loses, that evidence, it is a “willful” spoliator

2 even if it did not intend to deprive an opposing party of relevant evidence. Leon v. IDX

3 Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) (destruction was willful whe n a party

4 “knew he was under a duty to preserve [evidence], but intentionally deleted many files and

5 then wrote a program to write over the deleted documents”).

6

“Because of their very potency, inherent powers must be exercised with restraint and

7 discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). While a court may take the

8 degree of culpability into account when fashioning an adverse inference, it neverthelessumst

9 “impose the ‘least onerous sanction’ given the extent of the offending party’s fault and the

10 prejudice to the opposing party.” Napster, 462 F. Supp. 2d at 1078 (quoting Schmid v.

11 Milwaukee Elec. Tool Corp. , 13 F.3d 76, 79 (3d Cir. 1994). In particular, a n adverse

12 inference should “not interfere with that party’s right to produce other relevant evidence.”

13 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

14 2. Analysis

15

Plaintiffs issued two separate and adequate requests that Defendants preserve

16 documents relevant to this litigation, and Defendants nevertheless destr oyed responsive

17 documents. On July 21, 2008, counsel for Plaintiffs wrote a letter to counsel for Defendants

18 in this matter demanding preservation of MCSOrecords regarding MCSO special operations.

19 (Doc. 227, Ex. E). On the same day that they wrote to counsel for the Defendants, Plaintiffs’

20 counsel made a virtually identical request for inform ation directly to the MCSO’s Public

21 Information Officer pursuant to the Arizona Public Records Ac t. A.R.S. § 39-121 (2008).

22 (Doc. 235, Ex. 3(B)) (“PIR request”). Neith er letter resulted in a litigation hold. MCSO

23 Deputy Chief Jack MacIntyre acknowledged that he took no action regarding the first letter,

24 and MCSO Lieutenant Doris “Dot” Culhane sta ted that if she took any action at all in

25 response to the second, it was only to issue a “general instruction.” (Doc. 235, Exs. 3, 4).

26 Moreover, emails deleted by MCSO officers and recovered by OET deomnstrate that officers

27 in fact had actual notice of the suit. Lieutenant Sousa received and forwarded a press release

28 announcing this litigation, in an email to other officers requesting documentation of a named

- 4 -

1 Plaintiff’s arrest. (Doc. 417, Ex. 2–3). As ofJuly 16, 2008, MCSO had notice that documents

2 relating to special operations were “potentially relevant to the litigation.” Kitsap, 314 F.3d

3 at 1001.

4

Defendants intentionally destroyed the documents. They state that they “inadvertently

5 and innocently discarded the stat sheets,” but do not contest that the sheets were shredded,

6 rather than lost. (Doc. 445). Moreover, Defendants do not contest that MCSO officers

7 intentionally deleted emails, as stated in deposition testimony. (Doc. 227, Ex. A). Because

8 Defendants had notice that the em ails and stat sheets were relevant to the litigation, a nd

9 subsequently destroyed them, permissive adverse inferences are justified even if Defendants

10 did not intend to deprive Plaintiffs of relevant evidence. Leon, 464 F.3d a t 959; see also

11 Glover, 6 F.3d at 1329.

12

This court has already found that adverse inferences will be issued regarding the stat

13 sheets because they were destroyed with a culpable state of m ind and because “[ t]he

14 information contained in the individual stat sheets would have been relevant to the claims of

15 Plaintiffs and/or defenses of Defendants.” (Doc. 261 at 10). Regarding em ails, in an order

16 issued before the OET database was recovered, this Court wrote that the decision to issue

17 inferences and to define their scope would be m ade based upon the efforts m ade by

18 Defendants to recover lost documents, the sources from which documents were recovered,

19 and the content of recovered docum ents. (Doc. 261 at 11–12). Since the em ails that were

20 provided by the OET carveout in large measure obviated the necessity to search for more lost

21 documents, the inferences will instead be crafted based upon the content of the recovered

22 email.

23

A. Stat Sheets

24

The MCSO stat sheets allow individual officers to capture data regarding the number

25 of contacts and types of arrests that they m ake during a particular tour. (Doc. 235, Exs.

26 9–11). Some of the sheets also allow deputies to m ark the num ber of a rrests made of

27 suspected illegal aliens. (Id.). The stat sheets identify officers, but do not offer a means by

28 which an officer can note the race or ethnicity of the people stopped during a patrol. (Id.).

- 5 -

1

Chief Brian Sands has stated that documentation of officer activity is the best evidence

2 that an officer in fact engaged in a “zero tolerance” policy, stating that “the end results at the

3 end of the day speak for themselves, how many arrests were made, how many contacts were

4 made, that type of thing.” (Doc. 453, Ex. 14 at 122, ln 15–17). MCSO has destroye d

5 numerous stat sheets that could have shown whether officers in fact e ngaged in a zero

6 tolerance a policy. Indeed, the few stat sheets that were not shredded show significant

7 variations between the number of stops and arrests conducted by individual officers during

8 special operations, including some sheets showing officers conducted very few stops during

9 a long shift while allegedly enforcing a “zero tolerance” policy. (Doc. 419, Ex. 27). One

10 MCSO officer, when presented with a stat sh eet detailing an officer’s activity during a

11 special operation, confirmed that it documented fewer stops than a “zero tolerance” policy

12 would suggest. (Doc. 419, Ex. 29). Plaintiffs are therefore granted the following permissive

13 adverse inferences:

14

1) The finder of fact may infer that the stat sheets would have suggested that officers

15

involved in special operations did not follow a “zero tolerance” policy requiring them

16

to stop all traffic offenders.

17

2) The finder of fact may infer that the stat sheets for special operations would have

18

included a significantly higher num ber of arrests in the categories “Illegal Alien

19

turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on state charges”

20

than records documenting ordinary patrol activity.

21

B. MCSO Emails

22

After OET provided its recovered Database to Defendants, Defendants gave Plaintiffs

23 a “carveout” containing MCSO emails except for those that include the names of attorneys

24 representing MCSO. (Doc. 330). Many of the emails deleted by MCSO were present in the

25 OET carveout, which preserved emails on OET’s backup tapes as of “some date in August,

26 2008.” (Doc. 283, Ex. 1(C)). Although Plaintiffs have used num erous emails from the

27 carveout to argue the merits of their case, additional material is unrecoverable, and adverse

28 inferences will be issued regarding this lost m aterial. Some of the m aterial from Sheriff

- 6 -

1 Arpaio’s immigration file, which was providedin its entirety and therefore will not be subject

2 to adverse inferences, also sheds light on the nature of the deleted emails.

3

MCSO officers received and circulated requests that the department conduct special

4 operations based upon criteria other than criminal activity. Some of these communications

5 were found in Sheriff Arpaio’s file, while others were found in the OET carveout. Sample

6 communications from the public include requests that MCSO conduct special operations in

7 Sun City because the writer heard employees of a restaurant speaking Spanish, that MCSO

8 operate in Surprise because the writer observed “dozens of day workers” there, and that it

9 send officers to Mesa because the writer observed day laborers, “m ost of whom, I would

10 believe to be here illegally.” (Doc. 428, Exs. 25–26, 28). Subsequently, MCSO conducted

11 special operations in the locations specified in the communications. (Doc. 453 ¶ 65–68). At

12 least two emails refer to a file or collection of citizen requests, although no such file was

13 provided during discovery. (Doc . 417, Ex. 14; Doc. 451, Ex. 38). Som e communications

14 obtained in discovery reference previous emails that were never produced. (Doc. 418, Ex.

15 21). In addition, the carveout included racially derogatory emails circulated among MCSO

16 officers and volunteer posse members. (Doc. 431, Exs. 94–115).

17

Defendants were on actual notice of this lawsuit by July 16, 2008, and the carveout

18 captured emails present on the OET system as of som e day in August 2008. Although

19 Plaintiffs offer no good reason to suppose that the complete nature and type of the possibly

20 missing documents are not of the sam e nature as those in the carveout, they have

21 demonstrated that documents remain missing. Moreover, the content of the recovered emails

22 could constitute circumstantial evidence of discriminatory intent by MCSO. Therefore, at

23 trial, the following inferences will be allowed:

24

1) The finder of fact m ay infer that MCSO maintained a file of citizen com plaints

25

making requests for special operations.

26

2) The finder of fact may infer that MCSO received and circulated citizen complaints

27

prior to August 31, 2008 requesting that MCSO officers conduct special operations

28

to enforce im migration-related law in areas where MCSO later conducted such

- 7 -

1

operations.

2

3) The finder of fact m ay infer that at least som e of the citizen com munications

3

described above com plained about “Mexicans,” “day laborers,” or “illegal

4

immigrants” but did not provide a description of any criminal activity.

5

CONCLUSION

6

Plaintiffs made two separate and sufficient requests to MCSO that it retain documents,

7 and MCSO neve rtheless destroyed responsive stat sheets and em ails. Plaintiffs will be

8 granted permissive adverse inferences regarding both the stat sheets and the em ails. The

9 Court reserves the right to issue further permissive inferences at or before trial as necessary.

10

IT IS THEREFORE ORDERED:

11 Defendants’ Renewed Motion for Sanctions (Doc. 416) is granted in part, and Plaintiffs

12 will be entitled to the following adverse inferences at trial:

13

a) The finder of fact may infer that the stat sheets would have suggested that officers

14

involved in special operations did not follow a “zero tolerance” policy requiring them

15

to stop all traffic offenders.

16

b) The finder of fact may infer that the stat sheets for special operations would have

17

included a significantly higher numbe r of a rrests in the categories “Illegal Alien

18

turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on state charges”

19

than records documenting ordinary patrol activity.

20

c) The finder of fact m ay infer that MCSO maintained a file of citizen complaints

21

making requests for special operations.

22

d) The finder of fact may infer that MCSO received citizen complaints prior to August

23

31, 2008 requesting that MCSO officers conduct special operations to enforce

24

immigration-related law in areas where MCSO later conducted such operations.

25

e) The finder of fa ct may infer that some of the citizen com munications described

26

above complained about “Mexicans,” “day laborers,” or “illegal immigrants” but did

27

not provide a description of any criminal activity.

28

The Court reserves the right to issue further permissive inferences at or before trial

- 8 -

1

as necessary.

2

Dated this 23rd Day of December, 2011

3

4

5 6 7 8 9 10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 9 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, in his individual )

13 capacity as Sheriff of Maricopa County, )

Arizona, et al.,

)

14

)

Defendants.

)

15

)

)

16

)

No. CV-07-2513-PHX-GMS ORDER

17

18

Pending before the Court are Defendants’ Motion for Sumary Judgment (Doc. 413),

19 Plaintiffs’ Renewed Motion for Class Certification (Doc. 420), Plaintiffs’ Motion for Partial

20 Summary Judgment (Doc. 421), and Defendants’ Motion for Leave to File Sur-Reply. (Doc.

21 469). At oral arguments on December 22, 2011, Plaintiffs moved for summary judgment on

22 Ortega-Melendres’s Fourth Amendment claims. (Doc. 490). For the reasons stated below,

23 Defendants’ motion for summary judgment is granted in part and denied in part, Plaintiffs’

24 motion for partial summary judgment on the Equal Protection claims is denied, Plaintiffs’

25 motion for summary judgment on the Fourth Amendment claims is granted in part and denied

26 in part, Plaintiffs’ motion for class certification is granted, and Defendants’ motion for leave

27

28

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

2

BACKGROUND

3 1. Factual Background

4

This putative class action civil rights suit alleges that the Maricopa County Sheriff’s

5 Office (“MCSO”) engages in a policy or practice of racial profiling, and a policy stopping

6 persons without reasonable suspicion that criminal activity is afoot, in violation of Plaintiffs’

7 rights under the Fourteenth and Fourth Amendments. (Doc. 26 ¶ 2). Under an agreement with

8 the Department of Immigration and Customs Enforcement (“ICE”), certain MCSO deputies

9 had been certified to enforce federal civil immigration law. (Doc 413, Ex. 5). The agreement

10 between MCSO and ICE ope rated pursuant to section 287(g) of the Im migration and

11 Nationality Act ( “INA”), and the participating officers were therefore said to be 287(g)

12 certified. 8 U.S.C. § 1357(g) (2006). On October 16, 2009, the agreeemnt between MCSO and

13 ICE was modified so that MCSO officers no l onger had authority to enforce federal civil

14 immigration violations in the field, but could continue to do so in the jails. (Doc. 422 ¶ 10).

15 Plaintiffs allege that under the guise of enforcing immigration law, MCSO officers are in fact

16 engaged in a policy of racially profiling Latinos. (Doc. 26 ¶ 3).

17

The five named Plaintiffs were stopped by MCSO officers during three incidents, on

18 September 27, 2007, December 7, 2007, and March 28, 2008. (Id. ¶¶ 53–119). In addition,

19 Somos America (“Somos”), a non-profit m embership organization, claims that it and its

20 members have been harmed by the alleged policy. (Id. ¶ 10). In Count One, Plaintiffs claim

21 that MCSO has violated and is violating the Equal Protection Cla use of the Fourteenth

22 Amendment. (Id. ¶¶ 128–37). In Count Two, they allege that MCSO’s stops of the nam ed

23 Plaintiffs violated the Fourth Am endment, as applied to MCSO through the Fourteenth

24 Amendment. (Id. ¶¶ 138–43). In Count Three, they allege that those same stops also violated

25

26

1 Plaintiffs’ motion for sanctions (Doc. 416) was granted in an order issued earlier

today. (Doc. 493). A discussion of the history of discovery issues in this case is contained

27 in that order.

28

- 2 -

1 the search and seizure protections of Article II, Section 8 of the Arizona State Constitution.

2 (Id. ¶¶ 144–47). In Count Four, they argue that MCSO’s policy violates Title VI of the Civil

3 Rights Act of 1964, which forbids race discrimination in federally funded programs. (Id. ¶¶

4 148–54). Plaintiffs seek certification of a class consisting of “All Latino persons who, since

5 January 2007, have been or will be in the future, stopped, detained, questioned or searched

6 by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area

7 in Maricopa County, Arizona.” (Doc. 420 at 1). Plaintiffs seek only equitable relief, in the

8 form of a declaratory judgment, an injunction against Defendant, attorneys’ fees, and “such

9 other relief as the Court deems just and proper.” (Doc. 26 at 28–29).

10

Defendants now move for summary judgment on all counts. First, they argue that the

11 Plaintiffs are not likely to suffer future injury, and that they therefore lack standing to obtain

12 equitable relief under the test established inCity of Los Angeles v. Lyons, 461 U.S. 95 (1983).

13 (Doc. 413 at 14–17). Next, they argue that the vehicle traffic stops of the named Plaintiffs

14 were supported by probable cause, and that the Fourth Am

endment and Arizona

15 Constitutional claims therefore fail under Whren v. U.S., 517 U.S. 806 (1996). (Doc. 413 at

16 18–22). Finally, they claim that the record shows that MCSO does not engage in intentional

17 discrimination, and that the Fourteenth Amendment and Title VI claims therefore fail. (Doc.

18 413 at 23–31). Plaintiffs seek sum mary judgment on Claim One and Claim Four, a nd

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

20 2. Legal Background

21

In 1952, Congress passed the Immigration and Nationality Act (“INA”), 8 U.S.C. §

22 1101 et seq., which set forth “a com prehensive federal statutory scheme for regulation of

23 immigration and naturalization.” De Canas v. Bica , 424 U.S. 351, 353 (1976). The INA

24 contains both criminal and civil provisions regarding those who either enter the United States

25 without legal authority or enter with legal authority but remain after that authority expires.

26 See, e.g., 8 U.SC. §§ 1302, 1306, 1325 (2006) (crim inal provisions); 8 U.S.C. §§

27 1182(a)(6)(A)(i), 1227(a)(1)(B)–(C) (2006) (civil provisions regarding adm issibility and

28

- 3 -

1 deportation). The Supreme Court, referencing specific criminal provisions of the INA, has

2 written that “entering or rem aining unlawfully in this country is itself a crim e.” I.N.S. v.

3 Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). The crim inal provisions cited in Lopez-

4 Mendoza set forth with partic ularity what actions constitute “entering or rem aining

5 unlawfully.” For example, entering or attempting to enter the United States other than at a

6 legal border crossing is a federal crime. 8 U.S.C. § 1325. A non-citizen who remains within

7 the United States and willfully fails to register or be fingerprinted after thirty days, or who

8 knowingly files a fraudulent application, ha s also committed a federal offense. 8 U.S.C.

9 §§1302, 1306. All aliens over the age of 18, moreover, must carry their registration papers

10 at all tim es, under penalty of a crim inal misdemeanor. 8 U.S.C. § 1304(e). There is no

11 provision in the INA or any other federal law, however, that specifically criminalizes mere

12 presence in the United States without authority to rem ain.2 The Suprem e Court ha s

13 acknowledged that “[a]deportation proceeding is a purely civil action to deterimne eligibility

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

15

Being present in the c ountry without authorization to rem ain “is only a civil

16 violation.” Gonzales v. City of Peoria, 722 F.2d 468, 476 (9th Cir. 1983)overruled on other

17 grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). Nothing inLopez-

18 Mendoza alters this law. In a recent decision, the Ninth Circuit found that a state trooper did

19 not commit an “egregious violation” of the Fourth Amendment sufficient to trigger the

20 exclusionary rule in a civil proceeding because the language oLfopez-Mendoza was such that

21 “a reasonable officer could have interpreted that statem ent to m ean an alien’s unlawful

22 presence in this country is itself a crime.” Martinez-Medina v. Holder, 616 F.3d 1011, 1017

23 (9th Cir. 2010). In am ending and superceding that opinion, the court clarified that

24

25

2 It is also a crime for a person who haspreviously been denied admission, excluded,

26 deported or removed to be present in the United States unless the Attorney General expressly consents to the person’s reapplication for admission or the alien establishes that he was not

27 required to obtain such advance consent. 8 U.S.C. § 1326(a).

28

- 4 -

1 “[a]lthough a reasonable officer could have been confused by these statem ents in Lopez-

2 Mendoza and Martinez . . . a close reading of those cases demonstrates that neither meant to

3 suggest that an alien’s mere unauthorized presence is itself a crime.” Martinez-Medina, ___

4 F.3d ___, 2011 WL 855791, at *6 (9th. Cir. Mar. 11, 2011). The panel went on to epmhasize

5 that “Gonzales’s observation that ‘an alien who is illegally present in the United States . . .

6 [commits] only a civil violation,’ . . . rem ain[s] the law of the c ircuit, binding on law

7 enforcement officers.” Id. (quoting Gonzales, 722 F.2d at 476–77). An alien who “overstays

8 a valid visa or otherwise remains in the country after the expiration of a period authorized

9 by the Departm ent of Hom eland Security,” therefore, although he m ay be subject to

10 deportation, has violated no criminal statute. Martinez-Medina, ___ F.3d at ___, 2011 WL

11 855791, at *5 n.4.

12

Officers enforcing the immigration laws must comply with the Fourth Amendment,

13 which protects the right of the people to be free from“unreasonable searches and seizures.”

14 U.S. CONST. amend IV. Probable cause to arrest a person will flow when “the fac ts and

15 circumstances within the knowle dge of the arresting officers and of which they had

16 reasonably trustworthy information were sufficient to warrant a prudent man in believing that

17 [the person arrested] had committed or was committing an offense.” United States v. Jensen,

18 425 F.3d 698, 704 (9th Cir. 2005). Absent probable cause, when circum stances require

19 “necessarily swift action predicated upon the on-the-spot observations of the officer on the

20 beat,”officers may make brief investigatory seizures based only on reasonable suspicion that

21 “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 20, 30 (1968). An investigatory

22 stop is lawful if an officer “reasonably suspects that the person apprehended is committing

23 or has committed a criminal offense.” Arizona v. Lemon Montrea Johnson, 555 U.S. 323, 326

24 (2009). Stopping a vehicle is usually “analogous to a so-called ‘ Terry stop’”;officers

25 ordinarily may stop a vehicle based on reasonable suspicion of criminal activity. Berkemer

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

27

Federal ICE officers have the power to investigate and enforce both criimnal and civil

28

- 5 -

1 immigration law, including the power to “interrogate any alien or person believed to be an

2 alien as to his right to be or to rem ain in the United States.” 8 U.S.C. § 1357(a)(1).

3 Authorized officers may stop vehicles pursuant to this authority so long as “they are aware

4 of specific articulable facts, together with rational inferences from those facts, that

5 reasonably warrant suspicion that the vehicles contain aliens who m ay be illegally in the

6 country.” U.S. v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). Reasona ble suspicion for a

7 federal officer to stop a car to investigate the immigration status of the occupants depends

8 upon the “totality of the circumstances.” U.S. v. Arvizu, 534 U.S. 266, 277 (2002) (border

9 patrol agent had reasonable suspicion to stop a minivan when (1) it had turned onto a dirt

10 road frequently used by smugglers to avoid a checkpoint, (2) it had slowed when the driver

11 saw the officer, (3) the children sitting in the back began to wave mechanically, and (4) the

12 children had their knees propped up, as though there was cargo beneath them).

13

In considering the totality of the circum stances, however, “an officer cannot rely

14 solely on generalizations that, if accepted, would cast suspicion on large segm ents of the

15 lawabiding population.” U.S. v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir. 2006). Hispanic

16 appearance, for example, is “of such little probative value that it may not be considered as

17 a relevant fac tor where particularized or individualized suspicion is required.” U.S. v.

18 Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000). Moreover, while an inability to

19 speak English is probative of im migration status, it does not supply reasonable suspicion

20 unless “other factors suggest that the individuals are present in this country illegally.”

21 Manzo-Jurado, 457 F.3d at 937. The Ninth Circuit has also held that “individuals’

22 appearance as a Hispanic work crew, inability to speak English, proximity to the border, and

23 unsuspicious behavior,” taken together, do not provide a federal im migration officer

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

25

Local law enforcement officers who have been certified under section 287(g) m ay

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

27 or detention of a liens in the United States.” 8 U.S.C. § 1357(g)(1). They are therefore

28

- 6 -

1 permitted to enforce civil violations of federal immigration law. Officers certified under the

2 287(g) program may make traffic stops based upon a reasonable suspicion, considering the

3 totality of the circumstances, that people in the vehicle are not authorized to be in the United

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

5

Local law enforcement officers, however, do not have the “inherent authority” to

6 investigate civil immigration violations, including status violations.U.S. v. Arizona, 641 F.3d

7 339, 362 (9th Cir. 2011).3 Since the MCSO lost its 287(g) field authority after October 16,

8 2009, the only immigration laws its officers can investigate are federal criminal laws or state

9 laws that have not been enjoined. Gonzales, 722 F.2d at 476–77.

10

Local law enforcement officers, even those not certified under 287(g), are generally

11 not prohibited from investigating and enforcing federal criminal law. Ker v. California, 374

12 U.S. 23, 37 (1963). The Ninth Circuit has held that local law enforceemnt officers, therefore,

13 may investigate and enforce “the criminal provisions of the [INA].” Gonzales, 722 F.2d at

14 477.4 Non-287(g) officers may detain those whomthey have reasonable suspicion to believe

15 have illegally crossed a border in violation of § 1325, fraudulently filed an im migration

16 application under § 1306, failed to carry docum entation of their immigration status under

17 § 1304(e), or committed other criminal immigration violations.

18

Moreover, actual knowledge, let alone suspicion, that an alien is illegally present is

19 not sufficient to form a reasonable belief he has violated federal criminal immigration law.

20

21

3 The Supreme Court has granted a writ of certiorari to review the Ninth Circuit’s

decision. U.S. v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011)c, ert. granted 60 U.S.L.W. 3090

22 (U.S. Dec. 12, 2011) (No. 11-182). The question presented in that case is whether federal

23 laws impliedly preempt four provisions of SB 1070 on their faceI.d. The Supreme Court has not been asked to decide whether states have aninherent authority to enforce civil provisions

24 of the immigration law. At oral argument, Defendants conceded that they had no authority

25 to enforce federal civil immigration law.

26

4 Plaintiffs stated at oral argument that local law enforcement officers do not have the

inherent authority to enforce federal criminal immigration law. They cited no authority for

27 this proposition, which is in conflict with Gonzales, upon which they otherwise rely.

28

- 7 -

1 The Ninth Circuit recently affirmed that “an alien’s ‘admission of illegal presence . . . does

2 not, without m ore, provide probable cause of the criminal violation of illegal entry,’”

3 precisely because the crim inal sections of the INA contain additional elem ents, such as

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

5 application. Martinez-Medina, ___ F.3d ___, 2011 WL 855791, at *6 (quotinGgonzales, 722

6 F.2d at 476–77).5 MCSO officers, none of whomare now 287(g) certified, therefore have no

7 power to detain or investigate violations such as those “regulating authorized entry, length

8 of stay, residence status, and deportation.”U.S. v. Arizona, 641 F.3d at 362. Seizing a civilian

9 pursuant to such a violation, absent reasonable suspicion of crim inal activity, violates the

10 Fourth Amendment.

11

Local law enforcem ent officers can investigate violations of state law, including

12 validly enforceable state laws that involve immigration matters. The State of Arizona, in

13 response to “rampant illegal immigration, escalating drug and human trafficking crimes, and

14 serious public safety concerns,” along with a perceived failure by the federal government to

15 enforce federal immigration law, has passed a number of state laws involving immigration

16 issues. U.S. v. Arizona, 703 F. Supp. 2d 980, 985 (D. Ariz. 2010). Some of the provisions of

17 Senate Bill (“SB”) 1070, one of the laws in question, have been enjoined, but some portions

18 of the law remain valid.

19

Portions of SB 1070 that have not been enjoined allow local law enforceemnt officials

20 to turn ove r those who have b een convicted of a state crim e to federal authorities to

21 determine their immigration status. Ariz. Rev. Stat. (“A.R.S.”) § 11-1051(C)–(F); See U.S.

22 v. Arizona, 703 F. Supp. 2d at 985 (D. Ariz. 2010) (upholding the provisions). Additionally,

23

24 5 The Tenth Circuit has found that officers have probable cause to believe people have
25 crossed a border without authorization when their car was stopped legally, the driver of the
26 vehicle failed to provide a valid driver’s license, the driver and his passenger admitted they were not legally present in the country, and the driver and passenger “indicated they were
27 coming from Mexico.” U.S. v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001).

28

- 8 -

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

2 or moves an unauthorized alien “if the person recklessly disregards” that person’s unlawful

3 status. A.R.S. § 13-2929(A)(1) (2010). However, no one m ay determine the transported

4 alien’s status except for a federal officer or a “law enforcement officer who is authorized by

5 the federal government to verify or ascertain an alien’s im migration status.” A.R.S § 13-

6 2929(D)(1)–(2). Officers without such authorization cannot therefore collect evidence to

7 satisfy a key element of the crime.6

8

In addition, som e Arizona state im migration laws predate SB 1070. The Legal

9 Arizona Workers Act of 2007 allows state courts to suspe nd or revoke the license to do

10 business of a ny employer who knowingly or intentionally em ploys an alien who is not

11 authorized to work. A.R.S. §§ 23-211, 212, 212.01 (2007). It has been held to be

12 constitutional by the Suprem e Court. See Chamber of Commerce of U.S. v. Whiting , 131

13 S.Ct. 1968, 1977 (2011) (upholding the measure). However, the law explicitly provides an

14 enforcement process by which individuals file written complaints to the Attorney General,

15

16

6 SB 1070 also includes provisions prohibiting stopping a vehicle “to hire or pick up

17 passengers for work at a different location ifthe motor vehicle blocks or impedes the normal

movement of traffic,” or for someone to enter a vehicle for such a purpose while the vehicle 18 blocks or impe des traffic. A.R.S. § 13- 2928(A)–(B). These provisions have not been

19 enjoined, but their status remains uncertain. In upholding them, the district court found that “the June 9, 2010, decision of the Ninth Circ uit Court of Appeals in a case contesting a
20 virtually identical local ordinance in RedondoBeach, California forecloses a challenge.”U.S.

21 v. Arizona, 703 F. Supp. 2d at 1000 (citingComite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1184–93 (9th Cir. 2010)). An en banc decision of the

22 Ninth Circuit has since overturned that pa nel decision and found that the Redondo Beach

23

ordinance, Redondo Beach Mun. Code § 3–7.1601(a), is “a facially unconstitutional restriction on speech,” since soliciting work as a day laborer is protected First Amendment

24 activity. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,

940 (9th Cir. 2011) (en banc). It is therefore not clear whether local law enforcemnt officers, 25 including MCSO officers, can enforce A.R.S. § 13–2928(A) or § 13–2928(B). In an

26 unrelated lawsuit, a prelim inary injunction is currently being sought against A.R.S. § 13–2928(A) and § 13–2928(B) based on the en banc ruling in Redondo Beach. See

27 Friendly House, et al. v. Whiting, et al., CV-10-01061-SRB.

28

- 9 -

1 who in turn conducts an investigation before a license is revoked. A.R.S. § 23-212. It has no

2 provisions through which enforc ement actions can be taken against em ployees, and

3 specifically exempts independent contractors from its definition of “employee,” suggesting

4 that it cannot be enforced against those who hire day laborers as independent contractors.

5 A.R.S. § 23-211(3)(b).

6

Since 2005, human smuggling has been an Arizona state crim e. A.R.S. § 13-2319

7 (2010). The human smuggling statute reads: “It is unlawful for a person to intentionally

8 engage in the smuggling of human beings for profit or commercial purpose.” A.R.S. § 13-

9 2319(A). The sta tute defines “sm uggling of hum an beings” as “the transportation,

10 procurement of transportation or use of property or real property by a person or an entity that

11 knows or has reason to know that the person or persons transported or to be transported are

12 not United States citizens, permanent resident aliens or persons otherwise lawfully in this

13 state or have attempted to enter, entered or remained in the United States in violation of law.”

14 A.R.S. § 13-2319(F)(3). In order for the ele ments of the crime to be satisfied, therefore, a

15 person must 1) transport, procure transportation for, or harbor a person, 2) know or have

16 reason to know that the person is not legally in the country, and 3) do so for profit or

17 commercial purpose.7 If a driver does not know or have reason to know that his passengers

18 are not legally in the country, no one has violatedthe statute. If the transportation is not being

19 conducted for profit or a commercial purpose, no one has violated the statute. People who

20 cross the international border at an unauthorized location have violated 8 U.S.C. § 1325, but

21 have not violate d or conspired to violate the hum an smuggling statute unless the other

22

23

7 A current lawsuit in the District Court of Arizona challenges a policy in which “non-

24 smuggler migrants” are “arrest[ed], detain[ed], and punish[ed] . . .for conspiring to transport

themselves.” We are America/Somos America, Coalition of Arizona v. Maricopa Cty. Bd. of 25 Supervisors, ___ F. Supp. 2d. ___, 2011 WL 3629352 (D. Ariz. Aug. 18, 2011, CV-06-

26 02816-RCB). For the purposes of this order, the Court assumes, without deciding, that those who are smuggled may be prosecuted for conspiring to smuggle themselves, so long as all

27 elements of the statute are satisfied.

28

- 10 -

1 elements of A.R.S. § 13-2319 are met.

2

A law enforcement officer must have a reasonable suspicion that the sm uggling is

3 “afoot” to conduct a brief investigatory stop to enforce the human smuggling law. Terry, 392

4 U.S. at 20. Therefore, a n officer must have reasonable suspicion that 1) a person is being

5 transported or harbored, 2) by a person who knows or has reason to know that the person

6 being transported or harbored is not legally present in Arizona or the United States, and 3)

7 that the person is currently being transported or harbored “for profit or commercial purpose.”

8 A.R.S. § 13-2319(A)–(F). The fact that a law enforcement officer suspects, or even knows,

9 that a vehicle passenger is not legally presentin the country does not in and of itself provide

10 reasonable suspicion that the passenger was or is being “sumggled.” Moreover, a passenger’s

11 lack of legal status, standing alone, is in no way probative as to whether the driver is

12 transporting the passenger for profit or commercial purpose. Since “an alien’s ‘admission of

13 illegal presence . . . does not, without more, provide probable cause of the criminal violation

14 of illegal entry,’” knowledge of illegal pr esence, standing alone, can likewise not provide

15 reasonable suspicion or probable cause that the human smuggling statute has been violated

16 sufficient to justify a Terry stop. Martinez-Medina, 2011 WL 855791, at *6.

17

A minor traffic infraction provides officers sufficient probable cause to stop a motor

18 vehicle. Whren v. U.S., 517 U.S. 806, 810 (1996). When officers stop a car for probable

19 cause, the fact that they actually intend to investigate another crim e for which they lack

20 probable cause is irrelevant—the “ulterior motive” does not “serve to strip the agents of their

21 legal justification” to conduct the initial stop. Id. at 813. While an ulterior motive does not

22 remove objective probable c ause for a car stop, neither it nor the initial probable cause

23 provides limitless authority to detain passengers for unrelated crimes or civil violations. This

24 is because while “[t]here is probable cause to believe that the driver has committed a minor

25 vehicular offense, . . . there is no such reason to stop or detain the passengers.”Maryland v.

26 Wilson, 519 U.S. 408, 413 (1997).

27

For any detention to be valid under the Fourth Am endment, “[t]he scope of the

28

- 11 -

1 detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460

2 U.S. 491, 500 (1983). Applied to the car stop context, this principle means that officers may

3 question a driver who has been lawfully stopped if the questioning does “not unreasonably

4 prolong the duration of the stop.”U.S. v. Turvin, 517 F.3d 1097, 1099, 1104 (9th Cir. 2008)

5 (when officer recognized driver as previously a rrested drug dealer, asking for driver’s

6 consent to search a box in the vehicle that “look[ed] very odd” did not prolong the stop).

7 During this questioning, however, “unless the detainee’s answers provide the officer with

8 probable cause to arrest him, he must then be released.” Berkemer, 468 U.S. at 439–440.8

9

Vehicle passengers are legally “seized” based on the reasonable suspicion that

10 provided justification for the stop—an officer “need not have, in addition, cause to believe

11 any occupant of the vehicle is involved in criminal activity.” Lemon Montrea Johnson, 555

12 U.S. at 327. To question or search a passenger beyond the scope of investigating the cause

13 for the original stop, however, an officer needs suspicion particular to that passenger—for

14 example, in order to frisk a passenger, an officer needs reasonable suspicion independent of

15 the reason for the stop that “the person subjected to the frisk is armed and dangerous.” Id.9

16

Local law enforcement officers may therefore not detain vehicle passengers based

17 upon probable cause, or even actual knowledge, without more, that those passengers are not

18

19

8 Defendants’ reliance on Muehler v. Mena, 544 U.S. 93 (2005) for the proposition

20

that “[a] traffic violation provides probable cause to stop the vehicle and to reasonably detain a driver and other occupants of the vehicle,” is unavailing. (Doc. 413 at 5). IMn uehler, there

21 was no traffic stop; rather, Mena was handcuffed and asked about her im migration status while her house was searched for weapons pursuant to a valid warrant.Mueler, 544 U.S. at
22 96. The Supreme Court held that the detention was reasonable in light of the nature of the

23 search, and that an interrogation that did not prolong the search did not c onstitute an independent Fourth Amendment seizure. The officers who asked about Mena’s immigration

24 status were federal immigration officers. Id.

25

9 The Fourth Circuit has held that, without extending the duration of the stop, officers

26 may direct very limited requests to passengers, writing that a “request for identification from passengers falls within the purview of a lawfultraffic stop and does not constitute a separate

27 Fourth Amendment event.” U.S. v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007).

28

- 12 -

1 lawfully in the United States, since such knowledge does not provide officers with reasonable

2 suspicion that the passengers are violating any law that local law enforcement officers can

3 enforce. Martinez-Medina, 2011 WL 855791, at *6. This prohibition holds true even when

4 the car has been reasonably stopped for other cause, such as a traffic violation, because such

5 cause provides “no such reason to stop or detain the passengers.” Wilson, 519 U.S. at 413.

6

Defendants, citing Terry and its proge ny, claim that if an officer has reasonable

7 suspicion that a person has satisfied one significant element of a criminal statute, the officer

8 may stop that person to develop reasonable suspicion that the person has violated the other

9 elements. A line of Ninth Circuit cases has em phasized that since probable cause is an

10 objective standard relying upon the totality of the circum stances, an officer m ay have

11 probable cause to arrest or search when he does not have “probable cause for every element

12 of the offense.” U.S. v. McCarty, 648 F.3d 820, 839 (9th Cir. 2011) (When airport traveler

13 opened his bag and photographs of nude children fell out, TSA did not need probable cause

14 that the photographs m et the precise definition of child pornography in order to ha ve

15 probable cause to search bags further). Nevertheless, officers still need an “objectively

16 reasonable belief that [a person]has committed a crime” before they have probable cause to

17 proceed further. Id. Although “[p]robable cause does not require the same type of specific

18 evidence of each element of the offense as would be needed to support a conviction,A” dams

19 v. Williams, 407 U.S. 143, 149 (1972), officers must have some reliable information that a

20 person has committed a crime, usually including violating its key elements. See, e.g., Gasho

21 v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) (finding that while “an officer need not

22 have probable cause for every element of the offense . . . when specific intent is a required

23 element, the arresting officer m ust have probable cause for that elem ent in order to

24 reasonably believe that a crime has occurred.”). Regardless of whether some crimes contain

25 some elements for which an officer need not have probable cause in order to have probable

26 cause that the crime has been committed, in the immigration context, “an alien’s ‘admission

27 of illegal presence . . . does not, without m ore, provide probable cause of the crim inal

28

- 13 -

1 violation of illegal entry.’” Martinez-Medina, 2011 WL 855791, at *6.

2

To justify a Terry stop, an officer m ust have reasonable suspicion that a crim e is

3 about to be committed, and a person has not com mitted a crime if the necessary elements

4 have not been satisfied. Cf. In re Winship, 397 U.S. 358, 361 (1970) (To convict a person of

5 a crime, a prosecutor must “convince the trier ofall the essential elements of guilt.”) (internal

6 quotation omitted). If the totality of the circumstances do not provide reasonable suspicion

7 that a person is about to commit or is committing a crime, then the officer cannot stop the

8 person. Moreover, an officer cannot conduct aTerry stop in order to acquire the reasonable

9 suspicion necessary to justify the stop itself; the “demand for specificity in the information

10 upon which police action is predicated is the central teaching of [the Suprem e Court’s]

11 Fourth Amendment jurisprudence.” Terry, 392 U.S. at 22 n.18 (collecting cases).

12

Defendants also cite U.S. v. Cortez, 449 U.S. 411 (1981), Scarbrough v. Myles, 245

13 F.3d 1299 (11th Cir. 2001), and a number of cases in which officers frisked individuals for

14 weapons during a legally justified stop, including U.S. v. Orman, 486 F.3d 1170 (9th Cir.

15 2007), Lemon Monrea Johnson , and Terry itself. Cortez involved federal im migration

16 officers stopping a vehicle after an extended field investigation and overnight surveillance;

17 since federal immigration officers may stop vehicles based on reasonable suspicion that

18 passengers have violated federal civil immigration law, there were no criminal elements that

19 needed to be satisfied. U.S. v. Cortez , 449 U.S. at 421–22. Scarbrough was a qualified

20 immunity case. In that case, the court held that Officer Myles had “arguable probable cause”

21 that defendants had committed of a crime, and therefore met the lower standard necessary

22 to be afforded qualified immunity. Scarbrough, 245 F.3d at 1303. It in no way suggests that

23 a Terry stop is justified without reasonable suspicion that a crime has been committed, or that

24 essential elements can remain unsatisfied.10

25

26

10 Cases detailing the standards for conducting a frisk are not relevant to this

27 complaint, and need not be discussed in detail.

28

- 14 -

1

As a matter of law, belief without more that a person is not legally authorized to be

2 in the country cannot constitute reasonable suspicion to believe that he or she has violated

3 the state human smuggling law. The Ninth Circuit has held that actual knowle dge that a

4 person is not lawfully in the country does not provide probable cause that the person has,

5 additionally, crossed the border at an unauthorized place. Martinez-Medina, 2011 WL

6 855791, at *6. If an officer does not have reasonable suspicion that criminal activity is afoot,

7 he does not have reason to detain someone under Terry.

8

DISCUSSION

9 I. Legal Standard

10

Summary judgment is appropriate if the pleadings and supporting documents, viewed

11 in the light most favorable to the non-moving party, “show that there is no genuine issue as

12 to any material fact and that the m oving party is entitled to judgme nt as a matter of law.”

13 FED. R. CIV. P. 56(c). A dispute is genuine “if the evidence is such that a reasonable jury

14 could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

15 242, 248 (9th Cir. 1986). In considering such evidence, “at the summary judgment stage the

16 judge’s function is not himself to weigh the evidence and determine the truth of the matter

17 but to determine whether there is a genuine issue for trial.” Id. at 249.

18

The party m oving for sum mary judgment bears the initial burden to identify the

19 portions of the record “it believes dem onstrate the absence of a genui ne issue of material

20 fact.” F.T.C. v. Stefanchick, 559 F.3d 924, 927 (9th Cir. 2009) (quoting Celotex Corp. v.

21 Cartrett, 477 U.S. 317, 323 (1986)). Should the m oving party meet this burden, the non-

22 moving party then must “set forth, by affidavit or as otherwise provided in Rule 56, specific

23 facts showing that there is a genuine issue for trial.”Horphang Research Ltd. v. Garcia, 475

24 F.3d 1029, 1035 (9th Cir. 2007) (internal quotations om itted). District courts “rely on the

25 nonmoving party to identify with reasona ble particularity the evidence that precludes

26 summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).

27

Affidavits must be made “on personal knowledge, not information and belief” in order

28

- 15 -

1 to be considered a t summary judgment. Taylor v. List, 880 F.2d 1040, 1046 n.3 (9th Cir.

2 1989). Expert testimony may be considered unless it consists of a “legal conclusion.” U.S.

3 v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999). The Ninth Circuit “has refused to find a genuine

4 issue where the only evidence presented is uncorroborated and self-serving testim ony.”

5 Villiarimo v. Aloha Island Air, Inc,. 281 F.3d 1054, 1061 (9th Cir. 2002) (internal quotations

6 omitted).

7 II. Analysis

8

A. Search and Seizure Claims

9

A plaintiff does not have standing to seek injunctive relief, even if he has suffered

10 harm, unless that harm is accompanied by “continuing, present adverse effects.” O’Shea v.

11 Littleton, 414 U.S 488, 496 (1974). Continuing, present adverse effects may be found when

12 a plaintiff demonstrates that there is “a sufficient likelihood that he will again be wronged

13 in a sim ilar way.” Lyons, 461 U.S. at 111. Standing for injunctive relief will not flow,

14 however, if an injury is “contingent upon [plaintiffs’]violating the law.”Spencer v. Kemna,

15 523 U.S. 1, 15 (1998). Plaintiffs have no standing to enjoin police conduct, therefore, if by

16 “conduct[ing] their activities within the law” they will avoid “exposure to the challenged

17 course of conduct.” Lyons, 461 U.S. at 103 (quoting O’Shea, 414 U.S. at 497). To ha ve

18 standing to seek an injunction on their Fourth Amendment claims, Plaintiffs must present a

19 genuine question as to whether they are likely to be seized again in violation of the Fourth

20 Amendment, not merely that the traffic stops are conducted in a discriminatory fashion or are

21 pretextual efforts to enforce other law. See Whren v. U.S., 517 U.S. at 810.

22

In the unique circumstances of this case, Defendants’ assertions about the scope of

23 their authority to stop persons to investigate potential violations of the state sumggling statute

24 establish that plaintiffs a re sufficiently likely to be seized in violation of the Fourth

25 Amendment to provide them with standing to seek injunctive relief. MCSO has conceded

26 that it has no authority, inherent or otherwise, to enforce federal civil immigration law, but

27 now claims the authority to detain persons it believes are not authorized to be in the country

28

- 16 -

1 based on its ability to enforce Arizona’s human smuggling statute. A.R.S. § 13-2319.

2 Defendants claim, therefore, that their authority to stop people to investigate violations of the

3 state human smuggling statute is the sam e as a federal im migration officer’s authority to

4 enforce federal civil im migration law. In supplem ental briefing and at oral argum ent,

5 Defendants asserted that MCSO officers could briefly detain people “based only upon a

6 reasonable suspicion, without more, that the person is not legally present within the United

7 States.” (Doc. 488 at 17).

8

The fact that a person is unlawfully present, without more, does not provide officers

9 with reasonable suspicion that the person is currently being smuggled for profit, nor does it

10 provide probable cause that the person was at some point in the past smuggled for profit. Cf.

11 Martinez-Medina, 2011 WL 855791, at *6. To the extent that Defendants claim tha t the

12 human smuggling statute, or any Arizona or federal criminal law, authorizes them to detain

13 people based solely on the knowledge, let alone the reasonable suspicion, that those people

14 are not authorized to be in the country, they are incorrect as a matter of law.

15

The likelihood that any particular named Plaintiff will again be stopped in the same

16 way may not be high. However, if MCSO detainspeople, as they claima right to do, without

17 reasonable suspicion that they have violated essential elem ents of a crim inal law—either

18 state or federal—exposure to that polic y is both itself an ongoing harm and evidence that

19 there is “sufficient likelihood” that Plaintiffs’ rights will be violated again.Lyons, 461 U.S.

20 at 111. Although some MCSO officers were certified under 287(g) to enforce civil provisions

21 of the federal immigration law during the incidents that gave rise to the complaint, since that

22 authority has been revoked they may no longer do so. In Lyons itself, the court wrote that a

23 victim of police m isconduct could seek an injunction if he could show that departm ent

24 officials “ordered or authorized police officers to act in such manner.” Id. at 106 (emphasis

25 added). MCSO affirmatively alleges that its officers are authorized to stop individuals based

26 only on reasonable suspicion or probable cause that a person is not authorized to be in the

27 United States. This assertion establishes the standing of all nam ed Plaintiffs to seek

28

- 17 -

1 injunctive relief. Further, because this assertoi n is wrong as a matter of law, named Plaintiffs

2 (and all members of the putative class) ar e entitled to partial su mmary judgment on their

3 Fourth Amendment claims, to the extent that Defendants are detaining persons without

4 reasonable suspicion that the state human smuggling statute has been violated. Defendants

5 need not be enjoined fromenforcing federal civil immigration law because they concede that

6 they have no authority to enforce such law.

7

To be granted injunctive relief, a plaintiff must establish four elements. A plaintiff

8 must establish “that he is likely to succeed on tehmerits, that he is likely to suffer irreparable

9 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and

10 that an injunction is in the public interest.”Winter v. Nat’t Res. Def. Council, 555 U.S. 7, 20

11 (2008); see FED. R. CIV. P. 65. The loss of constitutional rights “unquestionably constitutes

12 irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The balance of equities and

13 public interest both favor enforcing class m embers’ Fourth Amendment rights. Injunctive

14 relief is appropriate.

15

To the extent that nam ed Plaintiffs claim a right to additional injunctive relief on

16 summary judgment based on the facts of their individual detentions, those detentions are

17 discussed below.

18

1. Ortega-Melendres

19

On September 19, and September 22, 2007, undercover MCSO deputies went to a

20 church in Cave Creek posing as day laborers. (Doc. 433, Ex. 139). The officers discovered

21 that the church m aintained a sign-in sheet for those looking for wo rk “in order to fairly

22 distribute the jobs among the day laborers.” (Id.). An email to Lieutenant Joseph Sousa of

23 MCSO’s Human Smuggling Unit (“HSU”) detailing the officers’ underc over operation

24 concluded that “[o]n both days, there was no information discovered pertaining to forced

25 labor, human smuggling or possible ‘drop houses.’” ( Id.). On Se ptember 27, MCSO

26 conducted an operation “related exclusively to stopping for probable cause following traffic

27 violations only those vehicles that were observed to have picked up people congregating at

28

- 18 -

1 the church property and that had left the property.” (Doc. 453 ¶ 172).

2

Plaintiff Manuel de Jesus Ortega-Melendres, a Mexican national who was legally in

3 the United States at the time, along with two other men, entered a vehicle from the parking

4 lot. (Doc. 413, Ex. 1 ¶ 14). Deputy DiPietro was participating in the operation, which he

5 understood to be focused on “a church parking lot that had day laborers working from it or

6 being picked up by people.” (Doc. 413, Ex. 4 at 46, ln 22–25). Officers of the HSU who were

7 monitoring the church contacted Deputy DiPietro and told himto follow the vehicle Ortega-

8 Melendres had entered and attempt to develop probable cause to stop it. (Doc. 413, Ex. 1 ¶

9 15). DiPietro followed the truck for a mile and a half, and then pulled it over for traveling

10 above the speed limit. (Doc. 422 ¶ 177). DiPietro spoke to the driver of the vehicle and to the

11 passengers, and formed, in his own words, “reasonable suspicion from that they were day

12 laborers and here illegally.” (Doc. 413, Ex. 4 a t 49, ln 18–20). When asked whether he

13 believed that the passengers had committed any state crime, he stated, “I’mnot sure what the

14 employer sanction laws and when they came into effect or not. But I had reason to believe

15 that they were here illegally.” (Doc. 413, Ex. 4 at 49–501)1.When asked specifically if he was

16 concerned about human smuggling, he stated, “There was a concern of—when I found out

17 that this church was doing this, you know, allowing day laborers to be worked out, there’s

18 a possibility that it could have been some type of human smuggling type of—some type of

19 criminal activity could have been going on out of that parking lot.” (Doc. 413, Ex. 4 at 120,

20 ln 6–11) (emphasis added). DiPietro decided not to give the drive r of the vehicle a traffic

21 ticket, and sum moned Deputy Rangel, who was 287(g) certified and spoke Spanish, to

22 investigate the im migration status of the passengers of the truck, including Ortega-

23 Melendres. (Doc. 413, Ex. 1 ¶¶ 20–22). Defendants and Plaintiffs agree that Melendres

24

25

11 As discussed above, Arizona’s employer sanctions law contains no provision for

26 penalties of any sort levied on employees, rather than employers, and specifically exempts independent contractors from its definition of “em ployee.” See A.R.S §§ 23-211, 212,

27 212.01.

28

- 19 -

1 provided Rangel with his tourist visa, but disagree as to whether he also provided his I-94

2 form. (Doc. 456 ¶ 26). The driver was allowed to leave with a warning.12 (Doc. 422 ¶ 178).

3 After between fifteen and twenty-one minutes of questioning, Ortega-Melendres and the

4 other passengers were taken to an MCSO substation, where they were detained for roughly

5 two hours, and then transported to an ICE Detention and Rem oval Office, where Ortega-

6 Melendres was held for six more hours. (Doc.453 ¶ 185). After he was seen by an ICE agent,

7 Ortega-Melendres was released. (Doc. 453 ¶ 184).

8

It is not clear fromthe record that theHSU officers who first radioed Deputy DiPietro

9 were themselves certified under the 287(g) program to enforce federal im migration law.

10 Assuming that they were, they would only have had reasonable suspicion to stop the vehicle

11 if the facts and reasonable inferences drawn from those facts could “reasonably warrant

12 suspicion that the vehicles contain[ed]aliens who may be illegally in the country.”Brignoni-

13 Ponce, 422 U.S. at 884. They did not stop the vehicle themselves, and instead requested that

14 Deputy DiPietro do so.

15

Defendants assert that in training 287(g) officers, ICE informs them that race or

16 apparent ancestry may be used as one factor in evaluating whether officers have reasonable

17 suspicion to stop an individual, although it cannot be considered the sole factor. (Doc. 452

18 at 15; Doc. 453, Ex. 9 at 19, ln 10–21). Whether or not such information is provided by ICE

19 to local law enforcement officers during their 287(g) training, the law in the Ninth Circuit

20 is clear: “Hispanic appearance is of little or no use in determ ining which particular

21 individuals among the vast Hispanic populace should be stopped by law enforcem ent

22 officials on the lookout for illegal aliens.”Montero-Camargo, 208 F.3d at 1134. Defendants

23 cite Montero-Camargo for the proposition that the courts do not “preclude the use of racial

24 or ethnic appearance as one factor relevant to reasonable suspicion or probable cause,” but

25

26

12 To the extent that Defendants now assert that Deputy DiPietro detained Orgeta

Melendres pursuant to his authority to enfocre Arizona’s human smuggling statute, they offer

27 no explanation why he did not also detain the driver for violating that same statute.

28

- 20 -

1 fail to quote the sentence in its entirety, which limits this use to “when a particular suspect

2 has been identified as having a specific racial or ethnic appearance .” Id. at 1134 n.21

3 (emphasis added). Defendants at no time claim that Ortega-Melendres matched a particular

4 description of a suspect of any specific crime before his vehicle was stopped. Assuming that

5 Ortega-Melendres was dressed as a m ember of a work crew, his appearance would be

6 inadequate to justify a stop. Manzo-Jurado, 457 F.3d at 932.

7

In addition to his dress and his appearance, Ortega-Melendres gathered at an area

8 where day laborers were known to congregate and entered a vehicle with others from the

9 same location. The Ninth Circuit has yet to consider whether this type of behavior provides

10 officers with reasonable suspicion to investigate immigration status, and it is not necessary

11 to consider that question in this Order. The HSU officers who observed Ortega-Melendres

12 enter the vehicle did not stop the vehicle them selves to determine his immigration status;

13 rather they requested that Deputy DiPietrofollow the vehicle and develop probable cause to

14 stop it.

15

Deputy DiPietro stopped the vehicle for traveling 34 miles per hour in a 25 mile per

16 hour zone, but Plaintiffs’ claim does not rest on whether he had probable cause to effect the

17 initial traffic stop. DiPietro him self acknowledges that he dismissed the driver but called

18 Deputy Rangel to investigate the immigration status of the vehicle’s passengers because “I

19 had reasonable suspicion . . . that they wereday laborers and here illegally.” (Doc. 453, Ex.

20 13 at 49, ln 18–21). In their original briefing on the pending motion, Defendants conceded

21 that “Deputy DiPietro had no reason to belie ve that any passengers of the truck had

22 committed any violation of criminal law.” (Doc. 453 ¶ 176). In their supplemental briefing,

23 however, in whic h the Court asked them to respond to specific questions concerning

24 Plaintiffs’ Fourth Amendment claims, they now assert that DiPietro had formed a reasonable

25 suspicion that Ortega-Melendres had violated the hum an smuggling statute and was

26

27

28

- 21 -

1 conspiring to sm uggle himself.13 Even assuming that Ortega-Melendres’s behavior or

2 DiPietro’s conversation with the driver provdi ed reasonable suspicion that Ortega-Melendres

3 was in the United States without authorization, no evidence has been offered suggesting that

4 DiPietro had reasonable suspicion that any other elements of a federal or state crime had been

5 satisfied. See Martinez-Medina, ___ F.3d ___, 2011 WL 855791, at *6 (2011). Previous

6 undercover work by MCSO had revealed no evidence of human smuggling or drop houses,

7 and there is no evidence to suggest probable cause that Ortega-Melendres had previously

8 been transported for profit or commercial purpose. (Doc. 433, Ex. 139). DiPietro’s statement,

9 based on no evidence in the record, that the church m ight possibly have been engaged in

10 human smuggling or other undefined criminal activity, constitutes merely a “inchoate and

11 unparticularized suspicion or ‘hunch’” and did not objectively provide him reasonable

12 suspicion that Ortega-Melendres in particular was committing, or conspiring to commit, any

13 crime. U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 27).

14

Further, that the stop itself m ay have been justified did not provide reasonable

15 suspicion to detain Ortega-Melendres. Officer DiPietro was justified under Whren in

16 stopping the car, and was permitted to question the driver without reasonable suspicion so

17 long as he did “not unreasonably prolong the duration of the stop.T”urvin, 517 F.3d at 1099.

18 During that questioning, however, “unless the detainee’s answers provide the officer with

19 probable cause to arrest him, he must then be released.” Berkemer, 468 U.S. at 439–440.

20

Defendants argue that “it was completely proper for MCSO deputies to make traffic

21 stops of motorists under Arizona law and then call for a 287(g) certified deputy to determine

22

23

13 To the extent that they also claim , relying on Martinez-Medina, that Deputy

24 DiPietro could have reasonably concluded that unauthorized presence in the United States

is a crime, DiPietro’s reasonable but wrong belief would be relevant only in determ ining 25 whether to afford him qualified immunity in a suit for damages. Whether he in fact violated

26 the Fourth Am endment is a purely objective question. See Whren, 517 U.S. 806, 813 (discussing cases that “foreclose any argum ent that the constitutional reasona bleness of

27 traffic stops depends on the actual motivations of the individual officers involved”).

28

- 22 -

1 if someone in the stopped vehicle might be unlawfully in the country.” (Doc. 452 at 11). For

2 this proposition, they cite to the deposition of Alonzo Pena, the Special Agent in Charge for

3 ICE Phoenix. In his deposition, however, Special Agent Pena states that a local officer may

4 call a federal or 287(g) officer to check a detainee’s immigration status, but “that he has to

5 have the legal basis to detain that person on his own state charges.” (Doc. 453, Ex. 1 at 98,

6 ln 8–9). Of course, state officers may summon federal officers to investigate the immigration

7 status of those who have been convicted of state crimes. A.R.S. § 11-1051(C)–(F). However,

8 MCSO had no legal basis under state criminal law on which to detain Ortega-Melendres or

9 the other passengers while Deputy DiPietro called Deputy Ra ngel, nor to detain Ortega-

10 Melendres once MCSO allowed the driver to leave. Passengers in a vehicle are technically

11 seized when the vehicle is stopped, and thus m ay challenge a stop under the Fourth

12 Amendment. Brendlin v. California, 551 U.S. 249, 259 (2007). Any argument, however, that

13 the probable cause used to stop the vehicle provided DiPietro with reasonable suspicion to

14 detain and investigate the passengers in that vehicle is pure bootstrappingI.d. at 413 (“There

15 is probable cause to believe that the driver has com mitted a minor vehicular offense, but

16 there is no such reason to stop or detain the passengers.”). DiPietro ha d no reasonable

17 suspicion that Ortega-Melendres and the other passengers were com mitting, or probable

18 cause that they had committed, any state or federal crime.

19

DiPietro’s stated reason for detaining the passengers was that he suspected that they

20 were in the country without authorization. As a 287(g) certified officer, he had the authority

21 to detain them if this suspicion was reasonable. 8 U.S.C. § 1357(g). Certain m aterial facts

22 that would resolve this question are currently still in dispute. For exapmle, the parties dispute

23 whether the driver provided DiPietro with inform ation adequate to support reasonable

24 suspicion that Ortega-Melendres was not in the country legally, and they dispute whether

25 Ortega-Melendres produced documentation verifying his status to Deptuy Rangel. (Doc. 413,

26 Ex. 1 ¶ 18; Doc. 456 ¶ 26). Therefore, summary judgment in favor of Ortega-Melendres is

27 appropriate to the extent that it enjoins MCSO from

detaining persons for further

28

- 23 -

1 investigation without reasonable suspicion that a crime has been or is being committed. On

2 Ortega-Melendres’s underlying claims, however, granting either party summary judgment

3 would be inappropriate at this juncture.

4

2. Plaintiffs Jessika and David Rodriguez–Claims Two and Three

5

On December 7, 2007, David and Jessika Rodriguez were driving on Bartlett Dam

6 Road when they were stopped by Deputy Matthew Ratcliffe of the MCSO. (Doc. 422 ¶

7 186–87). The road had been closed by the Maricopa County Department of Transportation

8 and a “Road Closed” sign had been posted onit. (Doc. 413, Ex. 1 ¶ 40; Doc 413, Ex. 9). Mr.

9 and Mrs. Rodriguez claim that they approached in a manner that would not have allowed

10 them to see the sign. (Doc. 453 ¶ 189). Deputy Ratcliffe pulled over the vehicle. (Doc. 422

11 ¶ 187). Although the parties disagree as to whether Deputy Ratcliffe asked Mr. Rodriguez

12 for his social security card, it is undisputed that he issued Mr. Rodriguez a citation. (Doc. 453

13 ¶ 193). Deputy Ratcliffe had stopped other vehicles that day; he states that he turned the

14 drivers over to the Tonto National Forest Rangers, while Mr. and Mrs. Rodriguez state the

15 other drivers were only given warnings, not citations. (Doc. 453 ¶¶ 197–98).

16

Since the Rodriguezes were driving on a road that had been closed by the Departemnt

17 of Transportation, Deputy Ratcliffe had probable cause to stop them, whether or not they had

18 seen the sign. See Whren, 517 U.S. at 810. For the purpose s of De fendants’ motion for

19 summary judgment, it must be assumed that Deputy Ratcliffe asked the Rodriguezes for a

20 social security card, not merely for a social security number as Defendants allege. (Doc. 456

21 ¶ 52). Furthermore, for the purposes of this motion, Plaintiffs’ claim that requesting a social

22 security card or number is not standard practice within MCSO when issuing traffic citations

23 may be presum ed. (Doc. 422 ¶ 195). Nevertheless, when a traffic stop is supported by

24 probable cause, “whether the officer’s conduct deviated m aterially from usual police

25 practices” is immaterial for the purposes of Fourth Amendment analysis. Whren, 517 U.S.

26 at 814. The MCSO’s Arizona Traffic Ticket and Complaint form has a space in which to

27 enter a suspect’s social security number, and a social security card is a commonly understood

28

- 24 -

1 document for verifying that num ber. (Doc. 413, Ex. 7). Plaintiffs offer no evide nce

2 suggesting that the Rodriguez stop took any longer than it would have had Deputy Ratcliffe

3 not requested the card. Their claimthat Deputy Ratcliffe enforced the traffic laws selectively

4 in choosing their vehicle to stop and ticket does not bear on the Fourth Aemndment analysis.

5 Whren, 517 U.S. at 813. Moreover, their claimthat Deputy Ratcliffe followed their vehicle

6 after issuing a summons does not state a Fourth Amendment claim, since people “traveling

7 in an automobile on public thoroughfares ha[ve] no reasonable expectation of privacy in

8 [their] movements from one place to another.” U.S. v. Knotts, 460 U.S. 276, 281 (1983).

9

Therefore, partial summary judgment in favor of the Rodriguezes is appropriate to the

10 extent that in enjoins MCSO from detaining persons for further investigation without

11 reasonable suspicion that a crim e has been or is being com mitted. On their rem aining

12 underlying claims, however, the Court grants summary judgment to Defendants.

13

3. Plaintiffs Manuel Nieto and Velia Meraz–Claims Two and Three

14

On March 28, 2008, MCSO officers were conducting special operations in North

15 Phoenix. (Doc. 453 ¶ 200). On tha t date, Manuel Nieto and Velia Meraz drove into a

16 convenience store where MCS O Deputy Charley Arm endariz was standing by another

17 vehicle that he had stopped. (Doc. 422 ¶ 201). Plaintiffs and Defendants disagree about the

18 details of the encounter between Arm endariz, Nieto, and Meraz, but agree that Deputy

19 Armendariz ordered Nieto and Meraz to leave and that he radioed for backup. (Doc. 453 ¶

20 202). By the time backup officers arrived, Nieto and Meraz had in fact left the vicinity of the

21 convenience store. (Doc. 453 ¶ 203). The backup officers pursued Nieto and Meraz’s vehicle,

22 which pulled into the parking lot of a nearby auto repair shop owned by Nieto’s father. (Doc.

23 456 ¶ 87). Plaintiffs and Defendants dispute much of what Nieto, Meraz, and the officers did

24 during the course of this second encounter, but agree that Deputy Michae l Kikes forcibly

25 removed Mr. Nieto from the vehicle and handcuffed him while checking his identification.

26 (Doc. 453 ¶ 212). Mr. Nieto was released fromcustody without being charged. (Doc. 453 ¶

27 213).

28

- 25 -

1

Summary judgment on Nieto and Meraz’s claim would be improper because many

2 material facts are in dispute. (Doc. 456 ¶¶ 70–72, 74–83, 87, 92). Defendants and Plaintiffs

3 disagree about Nieto and Meraz’s behavior when they first pulled into the convenience store

4 near Deputy Armandariz. (Doc. 456 ¶¶ 70–72). They disagree about whether Nieto a nd

5 Meraz immediately obeyed Deputy Arm andariz’s order to leave the area . (Doc. 456 ¶¶

6 74–76). They disagree about the nature of thelater stop by Deputy Kikes and about Nieto’s

7 behavior before he was forcibly removed from the vehicle. (Doc. 456 ¶¶ 87, 92). The parties

8 offer drastically different versions of the stop, each supported by deposition testimony. The

9 disputed facts are material to the question of whether the MCSO officers had probable cause

10 for the initial stop, whether the y had probable cause to rem ove Nieto from the car, and

11 whether they had probable cause to handcuff him.

12

Therefore, partial summary judgment in favor of Nieto and Meraz is appropriate to

13 the extent that in enjoins MCSO from detaining persons for further investigation without

14 reasonable suspicion that a crime has been or is being committed. On their underlying claims,

15 however, granting either party summary judgment would be inappropriate at this juncture.

16

B. Discrimination Claims–Counts One and Four

17

Just as Plaintiffs needed to dem onstrate standing to seek injunctive relief on their

18 Fourth Amendment Claims, so too must they demonstrate a “sufficient likelihood” that their

19 Equal Protection rights will be violated again in order to seek equitable relief on ClaimOne

20 and Claim Four. Lyons, 461 U.S. at 111. Courts have consistently held that a racially

21 discriminatory law enforcem ent policy constitutes ongoing harm , and thereby supports

22 standing to seek an injunction. See LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985);

23 Thomas v. Cty of L.A., 978 F.2d 504, 508 (9th Cir. 1992);Rodriguez v. California Highway

24 Patrol, 89 F. Supp. 2d 1131 (N.D. Cal. 2000); Committee for Immigrant Rights of Sonoma

25 v. Cty. of Sonoma, 644 F. Supp. 2d 1177 (N.D. Cal. 2009). Plaintiffs demonstrate a sufficient

26 likelihood that they will again be wronged when they “do not have to induce a police

27 encounter before the possibility of injury can occur” because stops are the result of an

28

- 26 -

1 “unconstitutional pattern of conduct.” LaDuke, 762 F.2d at 1326. Injunctive relief is

2 appropriate when plaintiffs show that police misconduct “is purposefully aimed at minorities

3 and that such misconduct was condoned and tacitlyauthorised by department policy makers.”

4 Thomas, 978 F.2d at 508. A plaintiff challenging law enforcem ent policies on Equa l

5 Protection grounds must show “both that the . . . systemhad a discriminatory effect and that

6 it was motivated by a discriminatory purpose.” Wayte v. U.S., 470 U.S. 598, 608 (1985);see

7 also Village of Arlington Heights v. Metro. Housing Dev. Corp. , 429 U.S. 252, 264–65

8 (1977) (“[O]fficial action will not be held unconstitutional solely because it results in a

9 racially disproportionate impact.”). Likewise, Title VI authorizes a private right of action

10 only in cases involving intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280

11 (2001). Consideration of race need not be the “dominant or primary” purpose of a policy for

12 it to be discriminatory. Arlington Heights, 429 U.S. at 265. Instead, a finder of fact m ust

13 determine whether a discriminatory purpose was “a motivating factor” in the policy. Id. at

14 266. Plaintiffs may demonstrate that a policy was intentionally discrim inatory if they can

15 show that it “was based in part on reports that referred to explicit racial characteristics.”

16 Flores v. Pierce , 617 F.2d 1386, 1389 (9th Cir. 1980) (Kennedy, J.). Frequent stops of

17 minorities can serve as evidence of a discriminatory policy, but the Ninth Circuit has held

18 that a single stop, even if discrim inatory, does not alone provide sufficient evidence of a

19 discriminatory policy to support standing to seek an injunction. Hodgers-Durgin v. de la

20 Vina, 199 F. 3d 1037, 1044 (9th Cir. 1999).

21

Plaintiffs here provide evidence from which a finder of fact could conc lude that

22 MCSO racially profiles Latinos. Sheriff Arpaio has made public statements that a fact finder

23 could interpret as endorsing racial profiling, such as stating that, even lacking 287(g)

24 authority, his officers can detain people basedupon “their speech, what they look like, if they

25 look like they cam e from another country.” (Doc. 426, Ex. 4 at 274). More over, he

26 acknowledges that MCSO provides no training to reduce the risk of racial profiling, stating

27 “if we do not racial profile, why would I do a training program?” (Doc. 426, Ex. 4 at 41).

28

- 27 -

1

In addition, Sheriff Arpaio keeps a file containing letters and news clippings that a

2 reasonable fact finder could determ ine advocate or support rac ial profiling. Sam ple

3 sentiments include, “Stopping Mexicans to make sure they are legal is not ra cist,” “If you

4 have dark skin, then you have dark skin! Unfortunately, that is the look of the Me xican

5 illegal,” and a person who stated that her mother, who had been profiled during World War

6 II, believed that profiling was “the right thing to do.” (Doc. 427, Exs. 22, 23, 36). Arpaio

7 wrote personal thank-you letters to a num ber of the authors. (Doc. 435, Exs. 184–85 ). In

8 addition, the file contains clippings of letters to the editors of local papers advocating racial

9 profiling that included the following statements: “Call it ‘racial profiling’ but if there are 12

10 million illegals that fit a ‘profile’ then it is what it is,” “I’d say they should be looking for

11 Mexicans,” and “Hooray for profiling.” (Doc 427, Ex. 18; Doc. 428, Ex. 37). Arpaio also

12 underlined key phrases in an email regarding this case which referred to the Honorable Mary

13 Murguia, the original judge in this matter, as “the ‘token’ Hispanic female judge that sits in

14 your so-call [sic] ‘federal’ court in Sand Land,” and suggested that she had made rulings in

15 this case in exchange for “Dinero? Favors? Hum an smuggling money?” He ordered three

16 copies of the email made for himself, and had it forwarded to four other staff members. (Doc.

17 427, Ex. 16).

18

The available documentary evidence could further lead a reasonable finder of fact to

19 conclude that MCSO’s special operations were conducted in response to citizen requests that

20 it engage in law enforcement operations based on race. The department received a number

21 of citizen communications asking MCSO to conduct special operations in places where the

22 writers described Latinos congregating, but did not provide evidence of a crime. (Doc. 428,

23 Exs. 25–26, 28). The letters were forwarded, som etimes by Sheriff Arpaio, to people who

24 planned the special operations, am ong them Chief Brian Sands, with annotations that

25 included phrases such as “for our operations,” and “I will be going to Mesa.” (Id.). MCSO

26 subsequently conducted special operations in the areas described by the letter writers and the

27 Sheriff’s annotations. (Doc. 453 ¶¶ 65–68). Chief Sands stated in a deposition that if Sheriff

28

- 28 -

1 Arpaio instructed him to conduct special operations in a particular location, he would do so.

2 (Doc. 453, Ex. 14 at 75, ln 17) . In addition, MCSO officers, including officers associated

3 with the special operations, circulated em ails that compared Mexicans to dogs, ridiculed

4 stereotypical Mexican accents, and portrayed Mexicans as drunks. ( Doc. 431, Exs. 96, 103,

5 105). From the totality of this evidence, along with the adverse inferences that the finder of

6 fact will be permitted to make at trial, it would be possible for a fact finder to conclude that

7 the MCSO engaged in an intentional policy of racial discrimination.

8

A finder of fact here could determine that MCSO engaged in a policy that had both

9 a discriminatory effect and a discriminatory intent. Defendants challenge Plaintiffs’ expert

10 report supporting discriminatory effect, but fail to show that no reasonable fact finder could

11 credit it. (Doc. 424; Doc. 453 ¶ 233). If a factfinder determines that MCSO had a policy of

12 conducting special operations solely in response to citizen complaints that referred to racial

13 characteristics rather than reports of crim e, as it could based on this evidence, MCSO

14 engaged in intentional discrimination. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private

15 biases may be outside the reach of the law, but the law cannot, directly or indirectly, give

16 them effect.”); see also U.S. v. City of Yonkers , 96 F.3d 600, 612 (2nd Cir. 1996) (“Even

17 assuming . . . that the actions of the m unicipal officials are only responsive . . . the Equal

18 Protection Clause does not permit such actions where racial animus is a significant fact or

19 in the community position to which the city is responding.”).Cf. Watkins v. U.S. Army, 875

20 F.2d 699, 730 (9th Cir. 1989) (“[E] qual protection doctrine does not perm it notions of

21 majoritarian morality to serve as compelling justification for laws that discriminate against

22 suspect classes.”).

23

Further, if a fact finder determines the MCSO operations were conducted based upon

24 the citizen emails and as described publicly by Sheriff Arpaio even after MCSO lost its

25 287(g) authority, Plaintiffs would not be able to prevent being stopped by “conduct[intgh]eir

26 activities within the law.” Lyons, 461 U.S. at 103. They could invite investigation by

27 speaking Spanish in restaurants, by dressing like “day laborers,” or by looking like “they

28

- 29 -

1 came from another country.” (Doc. 428, Exs. 25–26, 28; Doc. 426, Ex. 4 at 274, ln 23).

2 Moreover, the fact that the individual Plaintiffs have not been stopped again during the

3 course of this litigation does not preclude standing to seek injunctive relief. In Hodgers-

4 Durgin, the plaintiffs drove “every day” through a region in which INS officers were

5 patrolling “all over the place.” 199 F.3d at 1044. They lacked standing not because they had

6 only been stopped once in ten years, but more precisely because a single stop provided no

7 evidence that INS had a policy of racial profiling. Id. They had produced no additional

8 evidence that INS racially profiled anyone, a nd the single stop, even if im proper, did not

9 demonstrate that a policy existed. As discusse d above, Plaintiffs here have presented

10 sufficient evidence aside from the stops themselves.

11

If such a policy exists, it presents a “sufficient likelihood” that the named Plaintiffs

12 will suffer ongoing harm. Continued, ongoing harm results from “a pattern or practice of

13 constitutional violations or po licies promoting constitutional violations, including racial

14 profiling.”Committee for Immigrant Rights, 644 F. Supp. 2d at 1195 (N.D. Cal 2009); see

15 also Thomas, 978 F.2d at 508. The named Plaintiffs have standing to seek injunctive relief

16 for their Equal Protection claims.

17

Given the fact that the Plaintiffs i nvolved in the stops have standing, it is not

18 necessary to determine whether Somos America has standing as well. “The general rule

19 applicable to federal court suits with multiple plaintiffs is that once the court determines that

20 one of the plaintiffs has standing, it need not decide the standing of the others.” Preminger

21 v. Peake, 552 F.3d 757, 764 (9th Cir. 2008) (quotingLeonard v. Clark, 12 F.3d 885, 888 (9th

22 Cir. 1993)).

23

The fact that Plaintiffs have demonstrated that there is a genuine issue of material fact

24 as to whether MCSO ha s a racial profiling policy not only grants them standing, but

25 precludes a finding in favor of Defendants’ summary judgment motion with regards to Claim

26 One and Claim Four. However, it would be equally im proper to find for Plaintiffs at this

27 stage. Defendants allege that they do not conisder race when making traffic stops or deciding

28

- 30 -

1 where to conduct special operations. Both Chief Sands and Lieutenant Sousa state that the

2 operations are conducted based upon m ultiple criteria, including crim e data, rather than

3 solely on citizen complaints. (Doc. 453, Ex. 14 at 79, ln 14–22; Doc. 453, Ex. 5 at 88, ln

4 17–22). While the deposition statements by MCSO deputies that they had alternate reasons

5 for conducting operations cannot formthe sole basis for granting summary judgment in their

6 favor, Villiarimo, 281 F.3d at 1061 (no genuine issue exists when “the only evidence

7 presented is uncorroborated and self-serving testimony”) (internal quotations omitted), intent

8 to discriminate is required to establish an equal protection violation, and the states of mind

9 of MCSO officers is therefore relevant to Claim s One and Four. The officers’ statem ents

10 about their inte nt raise sufficient issues of m aterial fact to defeat Plaintiffs’ m otion for

11 summary judgment. Lieutenant Sousa, for exam ple, claims that com plaints of people

12 stepping into the street and littering, wh ile not m entioned in the MCSO’s undercover

13 investigation of the Cave Creek church, were relevant factors in deciding to conduct special

14 operations there on Septem ber 27, 2007. (Doc . 453, Ex. 5 at 100, ln 8–13). Determ ining

15 whether MCSO was relying in some degree upon the citizen complaints that contained no

16 description of criminal activity, and therefore had a policy of racial discriimnation, “demands

17 a sensitive inquiry into suc h circumstantial and direct evidence of intent as m ay be

18 available.” Arlington Heights, 429 U.S. at 266. Such an inquiry is best conducted by a finder

19 of fact at trial, not by the court at summary judg2ment. See Sluimer v. Verity, Inc., 606 F. 3d

20 584, 587 (9th Cir. 2010) (“Credibility determination, the weighing of the evidence, and the

21 drawing of legitimate inferences from the facts are . . . not those of a judge . . . ruling on a

22 motion for summary judgment.”) (quoting Anderson, 477 U.S. at 255).

23

C. Class Certification

24

Plaintiffs move for class certification on allof their claims. A class may not be certified

25 unless it m eets each of the four requirem ents of Rule 23(a), ordinarily referred to as

26 numerosity, commonality, typicality, and adequacy of representation. FED. R. CIV. P. 23(a).

27 In addition, a class action must satisfy at leastone of the three requirements of Rule 23(b), one

28

- 31 -

1 of which is that “the party opposing the class has acted or refused to act on grounds that apply

2 generally to the class, so that final injunctive relief or corresponding declaratory relie f is

3 appropriate regarding the class as a whole.” F ED. R. CIV. P. 23(b)(2). The party seeking

4 certification bears the burden of demonstrating that it has met all of these requirements, and

5 “the trial court m ust conduct a ‘rigorous a nalysis’” to determine whether it has m et that

6 burden. Zinser v. Accufix Research Inst. , 253 F.3d 1180, 1186 (9th Cir. 2001) (quoting

7 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th Cir. 1996)). Defendants claimthat

8 class certification is not appropriate because Plaintiffs lack standing to seek injunctive relief

9 and because their claims fail as a matter of law. (Doc. 444 at 6–7). As discussed above, the

10 named Plaintiffs have established that they have standing to seek injunctive relief on their

11 Search and Seizure claims because MCSO has publicly stated that it may stop persons based

12 solely on a belief that they are not legally present in the country, and on their Equal Protection

13 claims because they have brought forth evidence suggesting that MCSO engages in a policy

14 or practice of racial profiling. LaDuke, 762 F.2d at 1326. Should it be determined after trial

15 that Plaintiffs lack standing to seek injunctive relief on any claim, the class may then be de-

16 certified or partially de-certified. FED. R. CIV. P. 23(c)(1)(C).

17

Defendants do not dispute that Plaintiffs’ proposed class is sufficiently numerous, but

18 claim that Plaintiffs have not dem onstrated commonality, typicality, or adequacy of

19 representation. (Doc. 444 at 7–13). They further claimthat Plaintiffs have not demonstrated

20 that the class satisfies the requirem ents of Rule 23(b)(3). (Doc. 444 at 13–14). Finally,

21 Defendants claim that the proposed class is overbroad. (Doc. 444 at 14–16).

22

To satisfy the commonality prong, class members need not allege that they “have all

23 suffered a violation of the same provision of law,” but their claim s “must depend upon a

24 common contention—for example, the assertion of discrim inatory bias on the part of the

25 same supervisor.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). Although

26 the factual circumstances of the individual stops involving the named Plaintiffs differ, they

27 claim generally that MCSO has a policy of racial profiling, in violation of the Fourteenth

28

- 32 -

1 Amendment, which leads officers to detain individuals without reasonable suspicion thtathey

2 committed a crime, in violation of the Fourth Amendment. (Doc. 26 ¶ 2–4). In a civil rights

3 suit, “commonality is satisfied where the lawsuit challenges a system-wide practice or policy

4 that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th

5 Cir. 2001), abrogated on other grounds by Johnson v. California , 543 U.S. 499 (2005)

6 (citing LaDuke, 762 F.2d at 1332). As other courts have noted, commonality in cases alleging

7 racial profiling is satisfied when “the injuries complained of by the named plaintiffs allegedly

8 resulted from the same unconstitutional practice orpolicy that allegedly injured or will injure

9 the proposed class members.” Daniels v. City of New York, 198 F.R.D. 409, 418 (S.D.N.Y.

10 2001).

11

Likewise, differences in the subjective motivations between MCSO officers conducting

12 stops does not defeat typicality of claim s alleging a depa rtmental policy of violating

13 constitutional rights, whether under the Fourth or the Fourteenth Amendments. “In assessing

14 typicality, the court considers ‘the nature of the claim or defense of the class representative,

15 and not . . . the specific facts fromwhich it arose or the relief sought.’”Winkler v. DTE, Inc.,

16 205 F.R.D. 235, 241 (D. Ariz. 2001) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497,

17 508 (9th Cir. 1992)). Defendants further argue that the individual claims are subject to unique

18 defenses because some officers were acting pursuant to their authority under 287(g) of the

19 INA. (Doc. 444 at 12). It is true that state officers acting pursuant to 287(g) “shall be

20 considered to be acting under color of Federal authority for purposes of dete rmining the

21 liability, and immunity from suit, of the officer or employee in a civil action brought under

22 Federal or State law,” but acting under color ofederal law does not provide theman adequate

23 defense to alleged Constitutional violations. 8 U.S.C. § 1357(g)(8) (2006); see generally

24 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388

25 (1971). At any rate, no MCSO officer has had 287(g) authority since October of 2009, and

26 none could assert this defense going forward; since Plaintiffs seek only prospective relief,

27 these potential defenses are irrelevant. Moreover, MCSO concedes that it believes it has legal

28

- 33 -

1 authority to detain persons, if only briefly, to investigate possible criminal violations based

2 only on a reasonable suspicion that they m ay be in the country without authorization.

3 Plaintiffs’ claims that they were and continue to be subject to an unconstitutional practice or

4 policy by MCSO are typical of class members’ claims.

5

Representation is adequate when named plaintiffs will pursue the action vigorously

6 on behalf of the class and when they have no conflicts of interest with other class members.

7 Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1020 (9th Cir. 1998). Defendants claim that

8 Plaintiffs have a conflict of interest because “the named Plaintiffs lack standing; they lack

9 a valid Fourth Amendment claim under the facts presented; and they lack a valid intentional

10 discrimination claim.” (Doc. 444 at 13). These substantive argum ents are addressed

11 elsewhere in this order, and they lack m erit. The failure of the Rodriguezes’ underlying

12 Fourth Amendment claim does not create a conflict of interest with putative class members,

13 especially when they, like other nam ed representatives, argue that MCSO does not have

14 authority to stop people to the extent that MCSO asserts. Defendants do not cha llenge

15 Plaintiffs’ contention that they will prosecute the case vigorously and on behalf of the class.

16 Plaintiffs have met the requirements of Rule 23(a).

17

Plaintiffs may seek certification under Rule 23(b)(2) “only when a single injunction

18 or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 131

19 S.Ct. at 2557. The rule does not require, as does Rule 23(b)(3), that common issues of law

20 and fact “predominate,” but only that class members “complain of a pattern or practice that

21 is generally applicable to the class as a whole.” Walters v, Reno, 145 F.3d 1032, 1047 (9th

22 Cir. 1988). Moreover, “[ e]ven if som e class m embers have not been injured by the

23 challenged practice, a class may nevertheless be appropriate.” Id. Plaintiffs have alleged a

24 prototypical Rule 23(b)(2) suit, one in which a single injunction or declaratory judgm ent

25 would provide all class members relief fromMCSO’s allegedly unconstitutional policy.Wal-

26 Mart, 131 S.Ct at 2257. Defendants do not challenge Plaintiffs’ argume nt that class

27 certification is proper under Rule 23(b)(2), but instead claimthat Plaintiffs have not met the

28

- 34 -

1 predominance requirement of Rule 23(b)(3). This rule, however, is not applicable to the

2 nature of the class sought to be certified. Walters, 145 F.3d at 1047 (“Although com mon

3 issues must predominate for class certification under Rule 23(b)(3), no suc h requirement

4 exists under 23(b)(2).”). Plaintiffs have dem onstrated that their proposed class m eets the

5 requirements for certification.

6

Finally, Defendants challenge the class as overbroad. (Doc. 444 at 14–16). The rule

7 that class definitions not be overbroad is “designed to protect absentees.” Amchem Prods.,

8 Inc. v. Windsor, 521 U.S. 591, 620 (1997). When a class is certifie d under Rule 23(b)(2),

9 notice need not be given to individual class m embers, and m embers do not have the

10 opportunity to “opt-out” of the litigation. FED. R. CIV. P. 23(c)(2). There remains a risk after

11 a Rule 23(b)(2) certification, therefore, that “individuals who m ay never learn of the

12 pendency of [the] case m ight encounter difficulty in pursuing m eritorious individual

13 litigation in the future, on the basis oflis pendens, res judicata, or collateral estoppel.” Rice

14 v. City of Philadelphia , 66 F.R.D. 17, 21 (E.D. Pa . 1974). Regarding the equitable relief

15 sought by Plaintiffs in Count One and Count Four, such concerns are m itigated and “it is

16 usually unnecessary to define with precision” the members of a 23(b)(2) class.Id. at 19; see

17 also Crawford v. Honig , 37 F.3d 485, 487 n.2 (9th Cir. 1994) (“In a Rule 23(b)(2) class

18 action for equitable relief, the due proc ess rights of absent class m embers generally are

19 satisfied by adequate representation alone.”).

20

The Fourth Amendment class, however, presents an overbreadth issue that the Equal

21 Protection class does not. In considering the preclusive effect of class actions, “the general

22 rule is that a class action suit seeking only declaratory and injunctive relief does not bar

23 subsequent individual damage claims by class members, even if based on the same events.”

24 Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996). Here, however, Ortega-Melendres was

25 originally seeking damages in addition to injunctive relief, and only dropped his dam ages

26 claims in the amended complaint. (Doc. 1 at 20; Doc. 26 at 29–30). Since class emmbers may

27 not opt-out of a 23(b)(2) class, individuals who may have legitimate damages claims against

28

- 35 -

1 MCSO for violating the Fourth Amendment could potentially face difficulty pursuing their

2 claims because courts could find that the class members’ initial damages claims may be res

3 judicata to their suit. No class member other than Ortega-Melendres ever sought damages

4 in this action. Further, the Ninth Circuit has found that class notice, rather than the original

5 complaint, determines whether class actions certified under Rule 23(b)(2) are res judicata

6 to subsequent damages claims. Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir.

7 2000) (“[N]otice in [the earlier suit] was not sufficient under Rule 23 to preclude monetary

8 claims in later suits, for the class in [theearlier suit] was certified and given notice as a Rule

9 23(b)(2) ‘injunction’ class action.”). In other circuits, class actions that have been certified

10 under Rule 23(b)(2), even when they contain ancillary damages claims that are ruled on in

11 litigation, have been found not to bar subsequent dam ages claims by class me mbers who

12 were “not notified that participation in the class action would preclude a subsequent

13 individual damage action.” Wright v. Collins, 766 F.2d 841, 848 (4th Cir. 1985). The class

14 in this case is being certified pursuant to Rule 23(b)(2), and at this point in the litigation no

15 damages claims are being sought. No class is certified as to any dam ages claim and this

16 litigation does not preclude future damages claims against MCSO or its officers.

17

In a case seeking injunctive relief, “[t]he fact that the class includes future members

18 does not render the class definition so vague as to preclude certification.” Probe v. State

19 Teachers’ Retirement Sys., 780 F.2d 776, 780 (9th Cir. 1986). Moreover, the class definition

20 is not overbroad in a case alleging racial discrmi ination when the Plaintiffs, as here, “define

21 the class by the activities of defendants.”Int’l. Molders and Allied Workers’ Local Union No.

22 164 v. Nelson, 102 F.R.D. 457, 464 (N.D. Cal 1983).”14

23

24

14 The class certified in International Molders consisted of “all persons of Hispanic

or other Latin Am erican ancestry, residing or working within the jurisdiction of the San 25 Francisco District Office of the United States Immigration and Naturalization Service (INS)

26 and/or the Livermore Border Patrol Sector, who have in the pa st, are now, or m ay in the future be subjected to the policies, practices and conduct of INS and/or the Border Patrol

27 during the course of INS area control operations directed at places of em ployment.” 102

28

- 36 -

1

The Plaintiffs’ proposed class is therefore certified as “All Latino persons who, since

2 January 2007, have been or will be in the future, stopped, detained, questioned or searched

3 by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area

4 in Maricopa County, Arizona.” As in all cla ss actions, the Court ha s the right to tailor or

5 amend the class definitions should future events suggest that it is appropriate to do so. FED.

6 R. CIV. P. 23(c)(1)(C).

7

D. Motion for Sur-Reply

8

Defendants have filed a motion for leave to file a sur-reply, claiming that Plaintiffs

9 presented new evidence in their reply supporting their partial sum mary judgment motion.

10 (Doc. 469). Since Plaintiffs’ partial summary judgment motion has been denied, Defendants’

11 motion is dismissed as moot.

12

E. Relief

13

Any justification the MCSO had in detaining Ortega-Melendres relied solely on

14 DiPietro’s status as a 287(g)-certified officer, a status that no MCSO officer currently has.

15 Regardless of whether federal law pre-empts specific provisions of SB 1070, “states do not

16 have the inherent authority to enforce the civil provisions of federal immigration law.” U.S.

17 v. Arizona, 641 F.3d at 362. Even knowledge, let alone reasonable suspicion, that a person

18 is not legally in the country does not provide probable cause that the person has violated

19 federal criminal immigration law or state criminal law. Martinez-Medina, ___ F.3d at ___,

20 2011 WL 855791, at *6; A.R.S. § 13-2319(A).

21

Therefore, for the reasons previously stated, the certified class is presently entitled to

22 partial injunctive relief enjoining Defendants from detaining any pe rson based solely on

23 knowledge, without more, that the person is in the country without lawful authority. To be

24 clear, the Court is not enjoining MCSO f rom enforcing valid state laws, or detaining

25 individuals when officers have reasonable suspicion that individuals are violating a state

26

27 F.R.D. at 460.

28

- 37 -

1 criminal law. Instead, it is enjoining MCSO from violating federal rights protected by the

2 United States Constitution in the process of enforcing valid state law based on an incorrect

3 understanding of the law.

4

A policy of detaining people pursuant to laws that MCSO has no authority to enforce,

5 or detaining them without reasonable suspicion that they are violating laws it can enforce

6 constitutes “continuing, present adverse effects” and therefore m erits injunctive relief.

7 O’Shea, 414 U.S at 496. MCSO a nd its officers need not be enjoined from detaining

8 individuals in order to investigate civil violations of federal immigration law, because they

9 concede that they have such authority. MCSO and all of its officers are, however, enjoined

10 from detaining any person based on knowledge, without more, that the person is unlawfully

11 present within the United States. It follows of course that MCSO may not stop any person

12 based on reasonable suspicion or probable cause, without more, that the person is unlawfully

13 present within the United States. Nor may they seek to develop reasonable suspicion that a

14 person is violating state law by detaining themto ask questions in the absence of reasonable

15 suspicion that they are committing a crime.

16

While MCSO officers can, of course, continue to investigate federal and state crimnal

17 law, including immigration-related criminal law, to stop people pursuant to such law, officers

18 must have reasonable suspicion that the person is violating that law, or probable cause that

19 the person has violated that law. MCSO does nothave reasonable suspicion that a person is

20 violating or conspiring to violate the state human smuggling law or any other state or federal

21 criminal law because it has knowledge, without m ore, that the person is in the country

22 without legal authorization.

23

CONCLUSION

24

Plaintiffs are granted partial summary judgment on their Fourth Amendment claims

25 to the extent that they claimMCSO’s stated position that it has the authority to detain persons

26 based on reasonable suspicion, without more, that they are not legally present in the country

27 will cause them future harm. Material questions of fact exist as to whether the underlying

28

- 38 -

1 stops of Ortega-Melendres and Nieto and Meraz were justified under the authority MCSO

2 had at the tim e, so summary judgment on those claim s is inappropriate. The stop of the

3 Rodriguezes was objectively supported by probable cause, and was not prolonged even if

4 Deputy Radcliffe requested their social security cards, so partial sum mary judgment is

5 granted to Defendants on the Rodriguezes’ underlying search and seizure claims.

6

Plaintiffs have demonstrated that there isa genuine issue of fact as to whether MCSO

7 engages in a policy or practice of considering race during its operations. They therefore have

8 standing to seek equitable relief for their equal protection claims, which therefore cannot be

9 dismissed at the summary judgment phase. Because the question of whether MCSO engaged

10 in a policy of intentional discrimination requires credibility determinations best suited to a

11 trial, however, Plaintiffs will also not be granted sumary judgment on their equal protection

12 claims.

13

Plaintiffs have met their burden for class certification under Rule 23. The litigation

14 is certified as a class action, with the following certified class: “All Latino persons who,

15 since January, 2007, have been or will be in the future, stopped, detained, questioned or

16 searched by MCSO agents while driving or sitting in a vehicle on a public roadway or

17 parking area in Maricopa County, Arizona.”

18

Since Plaintiffs’ Motion forSummary Judgment is denied even considering the record

19 presented, there is no need to consider Defendants’ Motion to File a Sur-Reply, which is

20 dismissed as moot.

21

MCSO acknowledges that enforcing immigration law is one of the purposes of the

22 special operations. Local law enforcem ent agencies, such as the MCSO, m ay not enforce

23 civil federal immigration law. Defendants are therefore enjoined fromdetaining individuals

24 in order to investigate civil violations of federal imigration law, including those “regulating

25 authorized entry, length of stay, residence status, and deportation.”U.S. v. Arizona, 641 F.3d

26 at 362. They are further enjoined from detaining any person based on actual knowledge,

27 without more, that the person is not a legal resident of the United States.

28

- 39 -

1

IT IS THEREFORE ORDERED:

2

1) Defendants’ Motion for Sum mary Judgment (Doc. 413) is granted in part and

3 denied in part. Summary judgment is granted with regards to Plaintiffs Jessika and David

4 Rodriguez’s underlying claim s under Claim Two and Claim Three, which are hereby

5 dismissed. Summary judgment is denied with regards to the underlying claims of Plaintiffs

6 Melendres, Nieto, and Meraz under Claim Two and Claim Three. Defendants’ motion for

7 summary judgment is denied with regards to Claim One and Claim Four.

8

2) Plaintiffs’ Motion for Class Certification (Doc. 420) is granted. The litigation is

9 certified as a class action, with the following defined class for the purposes of the equal

10 protection claim: “All Latino persons who, since January, 2007, have been or will be in the

11 future, stopped, detained, questioned or searched by MCSO agents while driving or sitting

12 in a vehicle on a public roadway or parking area in Maricopa County, Arizona.”

13

3) Plaintiffs’ Motion for Partial Summary Judgment on Claim One and Claim Four

14 (Doc. 421) is denied.

15

4) Plaintiffs’ Motion for Summary Judgment on Claim Two and Claim Three (Doc.

16 490) is denied in part as it relates to the underlying claims, and granted in part as it relates

17 to future enforcement actions of the MCSO.

18

4) Defendants’ Motion for Leave to File Sur-Reply (Doc. 469) isdismissed as moot.

19

5) MCSO and all of its officers are herebyenjoined from detaining any person based

20 only on knowledge or reasonable belief, without more, that the person is unlawfully present

21 within the United States, because as a matter of law such knowledge does not amount to a

22 reasonable belief that the person either violated or conspired to violate the Arizona human

23 smuggling statute, or any other state or federal criminal law.

24

25 Dated this 23rd day of December, 2011

26

27

28

- 40 -

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres et al., )

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, in his individual )

13 capacity as Sheriff of Maricopa County, )

Arizona, et al.

)

14

)

Defendants.

)

15

)

)

16

No. CV-07-2513-PHX-GMS ORDER

17

The Court is in receipt of Plaintiffs’ letter dated June 14, 2012. After considering that

18 letter the Court concludes that further action by the Court is necessary. In light of the

19 following facts and the pending trial date, theCourt will schedule a conference to determine

20 whether further proceedings will be necessary before trial.

21

FACTUAL BACKGROUND

22

This lawsuit was filed on December 12, 2007 on behalf of Manuel de Jesus Ortega

23 Melendres and othe rs who allege that the Maricopa County Sheriff’s Office (“MCSO”)

24 engages in a policy of racial profiling in violation of the Fourteenth Amendment. (Doc. 1).

25 The case was originally before the Honorable Mary H. Murguia.Id(.). At that time, Plaintiffs

26 were represented by attorneys fromBallard Spahr Andrews & Ingersoll, LLP. I(d.). On May

27 2, 2008, the attorneys fromBallard Spahr withdrew, and with the consent of Judge Murguia,

28 attorneys from Steptoe & Johnson LLP (the “Stpetoe Attorneys”) weresubstituted. (Doc. 16).

1 On July 15, 2009, Judge Murguia issued an order granting Defendants’ Motion to Recuse.

2 Describing the issue as “a close call,” Judge Murguia found that a reasonable person could

3 question her impartiality because her identical twin sister was the president and CEO of an

4 organization that had published highly disparaging material about one party, and therefore

5 Judge Murguia recused herself. The case was subsequently assigned to this Court. (Doc.

6 144).

7

This Court thereafter conducted various proceedings involving discovery disputes

8 between the parties. Pursuant to these proceedings, on February 10, 2010, the Court issued

9 an order directing Defendants to pay for attorneys fees and costs necessitated by the re-

10 deposition of a number of the representatives of the Defendant. (Doc. 261 at 13).

11

On June 17, 2010, the Steptoe Attorneys withdrew from the case with the Court’s

12 permission, and attorneys from the Redwood Shores, California office of Covington &

13 Burling LLP (the “Covington Attorneys”) were substituted for them. (Doc. 313). When the

14 Covington Attorneys were substituted for the Steptoe Attorneys, the Court considered

15 whether withdrawing from the case was appropriate under 28 U.S.C. § 455(a). This statute

16 requires that “[a]ny justice judge, or magistrate of the United States shall disqualify himself

17 [or herself] in any proceeding in which his [or her] impartiality might reasonably be

18 questioned.” 28 U.S.C. § 455(a) (2006).

19

This is the same requirement set forth in the Code of Conduct for United States Judges

20 and the commentary thereto. The canons state that a judge’s impartiality might reasonably

21 be questioned when the spouse of a person related to the judge is “known by the judge to

22 have an interest that could be substantiallyaffected by the outcome of the proceeding.” Code

23 of Conduct for United States Judges, Ca non 3C(1)(d)(iii). Keith Teel, a partner in the

24 Washington D.C. office, is married to the Court’s sister.

25

The commentaries to the canons note that “[t]he fact that a lawyer in a proceeding is

26 affiliated with a law firm with which a relative of the judge is affiliated does not itself

27 disqualify the judge.” Id., Commentary to Canon 3C(1)(d)(iii). The com mentary affirms,

28

- 2 -

1 however, that the judge should withdra w if the relative is known to have an interest that

2 could be “substantially affected by the outcom e of the proceeding.” Id. The commentary

3 offers no further guidance defining what constitutes an interest substantially affected by the

4 outcome of the proceeding.

5

At the tim e the Court reviewed som e caselaw and som e advisory opinions to

6 determine what would constitute “an interest that could be substantially affected by the

7 outcome of the proceeding.” While emphasizing that such determinations must be made on

8 a case-by-case basis, judicial ethics committees have identified various factors that should

9 be considered in de termining whether a relative has such an interest. While varied, these

10 general factors include whether the relative is a partner in a law fir,mthe size of the law firm,

11 whether the relative would receive a commission, contingency or bonus from the case, the

12 size of the community, the nature of the fee being sought, and the administrative burden of

13 the recusal on the Courts. See, e.g., Colo. Supreme Court Judicial Ethics Advisory Board,

14 Op. 2005-02 (Jun. 3, 2005) (advising withdrawal fromall cases brought by a five-person firm

15 in which the judge’s brother-in-law was an e quity partner in a rural jurisdiction with a

16 closely-knit legal community). Other professional ethics committees have come to similar

17 conclusions, outlining slightly different multi-factor tests but emphasizing that the evaluation

18 must ultimately be made on a case-by-case basis. See, e.g., Ill. Judicial Ethics Comm., Op.

19 94-18 (Aug. 25, 1994) (recommending that a judge consider “1. The nature of the case, in

20 particular its financial or other impact on the relative’s law firm; 2. The relative’s position

21 in the firm as a partner, shareholder, associate, or of counsel; and 3. The size of the firm”),

22 Wisc. Judicial Conduct Advisory Comm. Op. 00-01 (Jan. 18, 2011) (finding that a judge

23 need not withdraw when cases are brought by a firm in which his niece practices).

24

The Court’s brother-in-law, Keith Teel, is and was to the Court’s knowledge, a partner

25 in Covington & Burling’s Washington D.C. office, where he is an ins urance, patent, and

26 product liability litigator who represents tobacco, pharm aceutical, alcohol and other

27 manufacturers and trade associations. See Biography of Keith A. Teel , available at

28

- 3 -

1 http://www.cov.com/kteel.1 When a relative has an ownership interest in a fir,mhe or she has

2 a greater interest in the outcome of a judicial proceeding, than does an associate or an

3 employee of the firm . In most cases this factor is dispositive of whether a r elative has a

4 substantial interest.2 But, as the advisory opinions and common sense dictate, the extent of

5 even a partner’s interest is affected by the size of the firm itself and the extent of its

6 operations, as well as other factors. As the Judicial Ethics Committees of several states have

7 observed, in noting the factors to be considered when determ ining whether a relative’s

8 interest in a case was substantial, “the size of the law firm in question and the number and

9 geographic spread of its offices,” is relevant to this inquiry “with the individual interests of

10 firm members being diluted, under normal circumstances, the greater the size of the firm.”

11 Tenn. Judicial Ethics Comm., Op. 04-01 (Feb. 17, 2004);see also Ill. Advisory Opinion 94-

12 18 (“[I]f the relative is a partner in a two-person la w firm, and the case could generate

13 substantial attorneys’ fees, the relative’s interest is more than de minimis. On the other hand,

14 if the relative is a beginning associate in a 200-person law firm, and the case involves a fee

15 of only a few thousand dollars, the relative’s interest is de minimis. In most cases the facts

16 will fall somewhere between these extremes”), Wash. Ethics Advisory Comm. Op. 88-12

17 (Aug. 30, 1988) (“[t]he size of the firm or the position of the lawyer-spouse as an associate

18 or partner are not in themselves controlling but may be factors to be considered by the judge

19 in determining whether the judge’s impartiality might reasonably be questioned.”); Colo.

20

21

1 Although at one time the Court’s sister was also a member of Covington & Burling,

at the time the Court made its evaluation, and through the present, the Court’s sister had not 22 worked at Covington & Burling for over ten years, and no longer had any interest in the fi.rm

23

2 In 2009, The United States Com mittee on Codes of Conduct issued Advisory

24 Opinion No. 58, in which the Committee “advises that if the relative . . . is an equity partner

in a law firm that represents a party, the judge must recuse,” because it “concludes that an 25 equity partner in a law firmgenerally has ‘an interest that could be substantially affected by

26 the outcome of the proceeding’ in all cases where the law firmrepresents a party before the court.” United States Comm. on Codes of Conduct. Op. 58 (June 2009). The Court was not
27 aware of this advisory opinion at the time of the substitution of the Covington Attorneys.

28

- 4 -

1 Advisory Opinion 05-2 (em phasizing the siz e of the firm as a factor to consider when

2 evaluating whether to withdraw).

3

Covington and Burling is a very large interna tional law firm. At the time the Court

4 looked at its website, it had approximately two hundred and fifty partners and several times

5 more than that number of attorneys who were employed by the firm either as associates or

6 affiliated in “of counsel” positions. In addition to its Redwood Shores and Washington D.C.

7 offices, the firm has offices in Beijing, Brussels, London, New York, San Diego, a nd San

8 Francisco.

9

In this case Plaintiffs seek only injunctive relief and not dam ages. It is the Court’s

10 understanding that, pursuant to statute, Covington m ay seek reim bursement for the

11 reasonable time and costs it expends on Plaintiffs’ behalf only if Plaintiffs are determined to

12 be “the prevailing part[ies]” in this matter. 42 U.S.C. § 1988(b) (2006). Further, Covington

13 is the third national law firm in succession to assum e representation on behalf of the

14 Plaintiffs. Thus, in its consideration, the Court de termined that even if Covington were

15 ultimately determined to be entitled to seek reimbursement of the reasonable attorneys’ fees

16 it expended in this m atter, and even assum ing that Covington’s reim bursement scheme

17 awarded significant com pensation credit outside of its Redwood Shores office for any

18 reimbursement of reasonable expenses awarded to its attorneys in the Redwood Shores

19 office, that am ount would be divided am ong the approxim ately two-hundred and fifty

20 Covington partners as well as any amounts to be paid in bonuses to associates and of counsel

21 attorneys. Even in suc h a best-case scenario for Covington, the Court determ ined that “a

22 reasonable person with knowledge of all the facts,” Pesnell v. Arsenault, 543 F.3d 1038,

23 1043 (9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.

24 1997), would conclude that the interest that the Court’s brother-in-law has in his salary

25 would not be substantially affected by a reimbursement or non-reimbursement of reasonable

26 fees in this case, and would not assume that the Court’s judgment could be affected by the

27 remote possibility of enhancing a relative’s compensation by such a small and speculative

28

- 5 -

1 amount.

2

Courts have not required recusal when a judge or family member has an interest in the

3 litigation that is “remote, contingent, or speculative.”In re Drexel Burnam Lambert Inc,.861

4 F. 2d 1307, 1313 (2d Cir. 1998). The Ninth Circuit affirm ed a decision not to recuse by a

5 judge whose spouse sat on the board of a legal aid society which would benefit from a cy

6 pres distribution. Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011). Other circuits have

7 affirmed denial by district courts of m otions requesting recusal when a judge’s spouse or

8 relative had a connection to a firmrepresenting a party in the litigation.See In re Medtronic,

9 Inc. Sprint Fidelis Leads Products Liability Litigation, 601 F. Supp. 2d 1120 (D. Minn. 2009)

10 (order denying recusal affirm ed where judge’s son was a shareholder in the law firm

11 representing a party but practiced in a different area); ClearOne Communications, Inc. v.

12 Bowers, 643 F.3d 735 (10th Cir. 2011) (order denying recusal affirmed when judge’s spouse

13 was of counsel to the firmthat often represented one of the parties, although the firmdid not

14 represent the party in the matter at hand).

15

Nor could the court in its deliberation identif y any other substantial interest of Mr.

16 Teel that would be affected. Mr. Teel was not in a similar practice group, nor was he in the

17 same office as the attorneys for the firm who were appearing before the Court. He was and

18 is, in fact, officed across the country. Further, to the extent that the Court did not believe that

19 withdrawal was nec essary, it considered not only the fact that it could not identify any

20 interest of Mr. Teel’s that would be substantially affected by the outcome of the case, but

21 also the need for this case to proceed and the possible administrative burden on proceeding

22 if the case was again transferred. Given the emergence of national law firms in this country,

23 and such firms being those willing to undertake Plaintiffs’ representation in this case, and the

24 history of recusal and delay that had already occurred, the Court also determ ined that

25 excessive caution could again unduly delay presentation of the case, or unduly limit the pool

26 of judges available to hear the matter.

27

Based upon this evaluation and the com mentary to the Canon, the Court fe lt that

28

- 6 -

1 withdrawal was not warranted, and continued tohear the case. In making this determination,

2 the Court did not confer with Mr. Teel or Ms. Snow, with whomit has never discussed this

3 issue. Further, however, the Court did not in form the parties of its deliberations. As one

4 ethics committee noted, while the canons “do[] not contain a recommendation, let alone a

5 requirement that judges disclose inform ation regarding disqualification, the Com mittee

6 nevertheless believes that such disclosure is the better practice.” Ill. Judicial Ethics Comm.,

7 Op. 94-18. The Court agrees, and believes it wouldhave been the better course to notify the

8 parties at the time of the substitution of the Covington Attorneys.

9

It is true that the June 14 letter, fildeby Covington when the Redwood Shores lawyers

10 became aware of the Court’s relation to Mr. Tee,lconfirms that Mr. Teel has not had nor will

11 he have involvement with the case. It also removes the possibility that Mr. Teel will have any

12 financial interest, even a speculative or sm all one, in Covington’s representation.

13 Nevertheless, the Court is disinclined to proceed with this m atter without providing all

14 parties the opportunity to take whatever action they deemnecessary to represent the interests

15 of their respective clients given the above inform ation. Because such actions could

16 conceivably take more time than is currentlyavailable before trial, and involve additional or

17 supplemental proceedings, the Court wishesto confer with the parties concerning any actions

18 they may wish to take in light of the aboveinformation. The Court will therefore contact the

19 parties and set a status conference in this matter.

20

DATED this 19th day of June, 2012.

21

22

23

24

25

26

27

28

- 7 -

 </s> Case 2:07-cv-02513-GMS Document 500 Filed 01/13/12 Page 1 of 3

1 Timothy J. Casey (#013492) SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.
2 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540
3 Telephone: (602) 277-7000 Facsimile: (602) 277-8663
4 timcasey@azbarristers.com Counsel for Defendants Joseph M. Arpaio and
5 the Maricopa County Sheriff’s Office

6 Thomas P. Liddy (#019384)

MARICOPA COUNTY ATTORNEY’S OFFICE

7 Civil Services Division

222 N. Central, Suite 1100

8 Phoenix, Arizona 85004

602-506-8066

9 Co-Counsel for Defendants Joseph M. Arpaio and

the Maricopa County Sheriff’s Office

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12

Manuel de Jesus Ortega Melendres, et al.,

13

No. CV 07-02513-PHX-GMS

Plaintiffs,

14 vs.

15 Joseph M. Arpaio, et al.,

16

Defendants.

NOTICE OF APPEAL (INTERLOCUTORY)

17

18

19

20

21

22

NOTICE is given that Defendants Joseph M. Arpaio and the Maricopa County

23 Sheriff’s Office hereby appeal, pursuant to 28 U.S.C. § 1292(a)(1) and Transworld Airlines

24 v. American Coupon Exch., 913 F.2d 676, 680 (9th Cir. 1990), to the United States Court of 25 Appeals for the Ninth Circuit from the District Court’s Order filed December 23, 2011 (Dkt. 26 494), a copy of which is attached to the Civil Appeals Docketing Statement filed 27 concurrently herewith.

28
SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C. Professional Corporation

Case 2:07-cv-02513-GMS Document 500 Filed 01/13/12 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C. Professional Corporation

DATED this 13th day of January, 2012.
SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.
s/Timothy J. Casey______ Timothy J. Casey Schmitt Schneck Smyth Casey & Even, P.C. 1221 E. Osborn Rd., Suite 105 Phoenix, Arizona 85014 Telephone: (602) 277-7000 Facsimile:(602) 277-8663 timcasey@azbarristers.com Counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriff’s Office
CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2012, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
The Honorable G. Murray Snow United States District Court 401 West Washington Street, Phoenix, Arizona 85003-2158
Stanley Young, Esq. Bhanu Sadasivan, Esq. Andrew Carl Byrnes, Esq. COVINGTON & BURLING, LLP 333 Twin Dolphin Road Redwood Shores, California 94065 Counsel for Plaintiffs
Daniel Pochoda, Esq. Annie Lai, Esq. ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, Arizona 85014 Counsel for Plaintiffs
Monica M. Ramirez, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Counsel for Plaintiffs
Nancy Ramirez, Esq. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 634 S. Spring Street, 11th Floor Los Angeles, California 90014 Counsel for Plaintiffs
2

Case 2:07-cv-02513-GMS Document 500 Filed 01/13/12 Page 3 of 3

1 Thomas P. Liddy Deputy County Attorneys, Civil Services Division
2 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
3 Phoenix, Arizona 85004 Co-counsel for Defendants Arpaio and MCSO
4 s/Eileen Henry______
5 Eileen Henry, Paralegal SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SCHMITT SCHNECK SMYTH

3

CASEY & EVEN, P.C.

Professional

Corporation

 </s> Case 2:07-cv-02513-GMS Document 503 Filed 01/17/12 Page 1 of 1

Molly C. Dwyer Clerk of Court

Office of the Clerk United States Court of Appeals for the Ninth Circuit
Post Office Box 193939 San Francisco, California 94119-3939
415-355-8000
January 17, 2012

No.: D.C. No.:
Short Title:

12-15098 2:07-cv-02513-GMS Manuel De Jesus Ortega Melendr, et al v. Joseph M. Arpaio, et al

Dear Appellants/Counsel
A copy of your notice of appeal/petition has been received in the Clerk's office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number shown above has been assigned to this case. You must indicate this Court of Appeals docket number whenever you communicate with this court regarding this case.
Please furnish this docket number immediately to the court reporter if you place an order, or have placed an order, for portions of the trial transcripts. The court reporter will need this docket number when communicating with this court.
The due dates for filing the parties' briefs and otherwise perfecting the appeal have been set by the enclosed "Time Schedule Order," pursuant to applicable FRAP rules. These dates can be extended only by court order. Failure of the appellant to comply with the time schedule order will result in automatic dismissal of the appeal. 9th Cir. R. 42-1.

 </s> Case 2:07-cv-02513-GMS Document 529 Filed 03/26/12 Page 1 of 3

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 v.

)

)

12 Joseph m. Arpaio, et al.,

)

)

13

Defendants.

)

)

14

)

No. CV-07-2513-PHX-GMS ORDER SETTING TRIAL

15

16

A Final Pretrial Conference was held on March 23, 2012. Counsel appeared on behalf

17 of Plaintiffs and Defendants. On the basis of the parties’ written submissions and the hearing,

18

IT IS HEREBY ORDERED:

19

1. Trial to the bench in this matter shall begin on July 19, 2012 at 8:30 a.m.

20

2. Trial shall be held onJuly 19, July 24 - 26, July 31-August 1and, if necessary

21 and merited on August 2. Plaintiffs shall be allotted 20 hours for its case in chief and two

22 hours of rebuttal. Defendants sha ll be allotted 20 hours of trial time. The Court will keep

23 track of each side’s tim e. Opening and closing statem ents, direct examination, and cross-

24 examination shall be counted against the parties’ allotted time.

25

3. The parties’ proposed final pretrial order was approved by theCourt as the final

26 pretrial order in this case. The order shall govern the presentation of evidence and other trial

27 issues, and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, shall be modified

28 only to prevent m anifest injustice. Evidence, objections, legal argum ents, and relief not

Case 2:07-cv-02513-GMS Document 529 Filed 03/26/12 Page 2 of 3

1 requested or identified in the order shall not be available at trial, except to prevent m anifest

2 injustice.

3

4. The Court addre ssed Plaintiffs’ Motion in Lim ine re: Evidence Regarding

4 Alleged MCSO Encounters with Persons Other than the Named Plaintiffs (Doc. 510). Although

5 the Motion is, in large part, well taken, for the reasons set forth on the record at the Final

6 Pretrial Conference, the Motion is denied without prejudice to its renewal on the grounds of

7 undue delay and needless presentation of cumulative evidence under Fed. R. Ev. 403.

8

5. The Court addressed Defendants’ Motion in Limine No. 2: Expert Testimony

9 Regarding Subconscious/Unconscious Bias or Subjective Thought or Motivation (Doc. 511).

10 The motion is granted in part and denied i n part. The alleged unconscious bias of any

11 Defendant will not be adm itted for the purpose of asserting that the Defendants, or any

12 particular Defendant, had the necessary mental state required to prevail on the Plaintiff’s claims

13 due to his or her unconscious bias. Nevertheless, to the extent that Plaintiffs assert that the

14 Defendants’ failure to train to avoid unconscious bias itself is evidence of discriimnatory intent,

15 the motion is denied.

16

6. The Court addressed Defendants’ Motion in Limine No. 3: Citizen Letters and

17 Complaints (Doc. 512). The motion is denied.

18

7. The Court addressed Plaintiffs’ Motion in Limine to Exclude Evidence of U.S.

19 Immigration and Customs Enforcement (ICE)’s Alleged Approval of MCSO Activities Pursuant

20 to 287(G) (Doc. 515). The m otion is granted in part and denied in part . The m otion is

21 granted to the extent that the Court will permit no conclusions by any ICE witness on whether

22 any particular activity of the Defendant, or its practices in general, did or did not constitute

23 racial profiling. Nevertheless, the motion is denied to the extent that the witnesses may offer

24 testimony about any training the MCSO officers that were 287(g) certified received concerning

25 racial profiling, or the facts observed by the ICE agents on which they based a ny such

26 conclusions. Any related objections shall be deferred until trial.

27

28

- 2 -

Case 2:07-cv-02513-GMS Document 529 Filed 03/26/12 Page 3 of 3

1

8. The Court addressed P laintiffs’ Motion in Limine to Exclude Certain U.S .

2 Immigration and Customs Enforcement (“ICE”) Witnesses (Doc. 516). Without objection by

3 Defendants, that motion is granted.

4

9. The Court addressed Plaintiffs’ Motion in Lim ine to Exclude Testim ony of

5 Scott Jeffreys (Doc. 517). Defendants’ disclosure of Mr. Jeffreys is in adequate com pliance

6 with Fed. R. Civ. P. 26(a)(2)(c)(ii). The motion is denied.

7

DATED this 23rd day of March, 2012.

8

9

10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 3 -

 </s> Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 1 of 217

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

)

9 Manuel de Jesus Ortega Melendres, et )

al.,

)

10

Plaintiff(s),

)

11

v.

) )

12 Joseph M. Arpaio, et al.

)

Defenda nts(s).

)

13

)

14

)

No. CV-07-2513-PHX-GMS FINAL PRETRIAL ORDER

15

The following is the Final Pretrial Order to be used for trial.

16 17 A.
18

TRIAL COUNSEL FOR THE PARTIES Include mailing addresses, office phone numbers, fax numbers, and email

19 addresses.

20

Plaintiff(s):

21

Stanley Young (Pro Hac Vice)

22

syoung@cov.com

Andrew C. Byrnes (Pro Hac Vice)

23

abyrnes@cov.com

Covington & Burling LLP

24

333 Twin Dolphin Drive, Suite 700

Redwood Shores, CA 94065-1418

25

Telephone: (650) 632-4700

Facsimile: (650) 632-4800

26

Tammy Albarran (Pro Hac Vice)

27

talbarran@cov.com

David Hults (Pro Hac Vice to be filed)

28

dhults@cov.com

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 2 of 217

1

Covington & Burling LLP

1 Front Street

2

San Francisco, CA 94111-5356

Telephone: (415) 591-6000

3

Facsimile: (415) 591-6091

4

Lesli Gallagher (Pro Hac Vice)

5

lgallagher@cov.com

Covington & Burling LLP

6

9191 Towne Centre Drive, 6th Floor

San Diego CA 92122

7

Telephone: (858) 678-1800

Facsimile: (858) 678-1600

8

Dan Pochoda

9

dpochoda@acluaz.org

James Lyall

10

jlyall@acluaz.org

ACLU Foundation of Arizona

11

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

12

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

13

Cecillia Wang

14

cwang@aclu.org

ACLU Foundation

15

Immigrants’ Rights Project

39 Drumm Street

16

San Francisco, California 94111

Telephone: (415) 343-0775

17

Facsimile: (415) 395-0950

18

Andre I. Segura

asegura@aclu.org

19

ACLU Foundation

Immigrants’ Rights Project

20

125 Broad Street, 18th Floor

New York, New York 10004

21

T: (212) 549-2660

F: (212) 549-2654

22

Nancy Ramirez

23

nramirez@maldef.org

Mexican American Legal Defense and

24

Educational Fund

634 South Spring Street, 11th Floor

25

Los Angeles, California 90014

Telephone: (213) 629-2512

26

Facsimile: (213) 629-0266

27

Anne Lai

annie.lai@yale.edu

28

2

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 3 of 217

1

15 Lyon St. Fl. 2

New Haven, CT 06511

2

Telephone: (203) 432-3928

Facsimile: (203) 432-1426

3

4

Defendant(s):

5

Timothy J. Casey

6

James L. Williams SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.

7

1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540

8

Telephone: (602) 277-7000 Facsimile: (602) 277-8663

9

timcasey@azbarristers.com james@azbarristers.com

10

Thomas P. Liddy

11

MARICOPA COUNTY ATTORNEY’S OFFICE Civil Services Division

12

222 N. Central, Suite 1100 Phoenix, Arizona 85004

13

Telephone: (602) 372-2098 Facsimile: (602) 506-8567

14

liddyt@mcao.maricopa.gov

15 16 B.
17

STATEMENT OF JURISDICTION. 1. Jurisdiction in this case arises from Plaintiffs’ claim of a violation of their

18 constitutional rights pursuant to 42 U.S.C. § 1983. There is jurisdiction under 28 U.S.C.

19 § 1331 and 1343. This Court has jurisdiction over the state law claims pursuant to 28 20
U.S.C. § 1367. This Court has authority to grant declaratory and injunctive relief 21 22 pursuant to 28 U.S.C. § 1343, 2201 and 2202, and to award attorneys’ fees under 42

23 U.S.C. § 1988b.

24
25
C.
26

2. The parties do not dispute jurisdiction. STIPULATIONS AND UNCONTESTED FACTS AND LAW

27

28

3

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 4 of 217

1

1. The following material facts are admitted by the parties and require no

2 proof, although each party intends to supplement these facts with additional facts to be 3 4 proven at trial:

5 1. The Maricopa County Sheriff’s Office (“MCSO”) is a local law enforcement

6 agency that serves Maricopa County.

7 2.
8 3.
9

Maricopa County occupies an area of approximately 9,200 square miles. Maricopa County is divided into six geographical areas, referred to as Districts:

10 District 1, District 2, District 3, District 4, District 6, and District 7.

11 4. District 1 covers the southeast quadrant of the county, including the cities of

12 Chandler, Gilbert, Mesa, and Tempe, the Town of Guadalupe, and portions of the Town 13
of Queen Creek, and the cities of Apache Junction, Scottsdale, and Phoenix, including 14
15 the Ahwatukee Foothills.

16 5. District 2 covers the southwest quadrant of the county, including the rural areas of

17 Buckeye, Laveen, Mobile, Rainbow Valley, and Tonopah, the contract cities of Gila 18
Bend and Litchfield Park, and portions of Avondale, Glendale, Goodyear, and Phoenix. 19
20 6. District 3 covers the northwest quadrant of the county, including the areas of Sun

21 City and Sun City West, the communities of Wittmann, Waddell, Circle City,

22 Morristown, Whispering Ranch, Aguila, Gladden, and the unincorporated neighborhoods 23
surrounding Peoria, Surprise, and Wickenburg. 24
25 7. District 4 includes unincorporated areas of Anthem, Desert Foothills, New River,

26 Cave Creek, Carefree and Tonto Hills and the contract Towns of Cave Creek and

27 Carefree.

28

4

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 5 of 217

1 8. As of 2008, District 6 includes the Town of Queen Creek.
2 9. District 7 includes the town of Fountain Hills and the unincorporated areas of 3 4 Fountain Hills, Tonto Verde and Rio Verde.
5 10. Districts are generally staffed by a District Commander (Captain), Deputy

6 Commander (Lieutenant), uniformed sergeants and patrol deputies, detectives, and

7 administrative staff. 8
11. The MCSO has concurrent jurisdiction with some cities. 9
10 12. The MCSO is also responsible for patrolling the lakes and waterways in the

11 recreational areas within the county. The Lake Patrol Division is responsible for law

12 enforcement services in the recreational areas of Tonto National Forest and Lake 13
Pleasant Regional Park. 14
15 13. The Trails Division has the responsibility for law enforcement services in the

16 recreational and wilderness areas of the Maricopa County Parks.

17 14. The Aviation Division provides airborne law enforcement support to uniformed 18
patrol, Lake Patrol, Search and Rescue operations, narcotics enforcement, extraditions 19
20 and SWAT operations.

21 15. The MCSO also has a K9 unit, which includes approximately 25 canines with

22 various specialties, including narcotics, explosive ordinance, cadaver, and patrol. 23
16. The MCSO has over 3500 employees, consisting of secretarial staff, detention 24
25 officers, and deputy sheriffs.

26 17. The MCSO has over 800 deputies.

27

28

5

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 6 of 217

1 18. Sheriff Joseph Arpaio serves as the head of the MCSO and has final authority
2 over all of the agency’s decisions. 3 4 19. Sheriff Arpaio sets the overall direction and policy for the MCSO.
5 20. Sheriff Arpaio presides directly over a staff of some 15 to 20 members.

6 21. Deputy Chief David Hendershott was Arpaio’s second-in-command until April of

7 2011. 8
22. As Deputy Chief, Hendershott was responsible for supervising all of the MCSO’s 9
10 operations, both on the enforcement and detention sides.

11 23. Chief Brian Sands is Chief of Enforcement and, until April of 2011, reported

12 directly to Deputy Chief Hendershott. 13
24. Paul Chagolla is a Deputy Chief of the MCSO. 14
15 25. The enforcement command comprises two bureaus—patrol and patrol resources.

16 26. The patrol bureau handles standard patrol operations for the entire MCSO.

17 27. When the Arizona legislature passed the state’s human smuggling law in 2005, it 18
provided the MCSO with $1.6 million in funding for enforcement efforts. 19
20 28. The MCSO created a specialized unit to enforce the human smuggling law. This

21 unit was initially called the “Triple I Unit,” which stood for illegal immigration

22 interdiction, and eventually became the Human Smuggling Unit (“HSU”). 23
29. The HSU is also a division within the patrol resources bureau. 24
25 30. The commander of the patrol resources bureau is Deputy Chief David Trombi.

26 31. Chief David Trombi reports to Chief Brian Sands

27

28

6

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 7 of 217

1 32. Starting in September of 2007, Lieutenant Joseph Sousa has been the unit
2 commander for the HSU. Prior to Lieutenant Sousa, Lieutenant Siemens was in charge 3 4 of the HSU.
5 33. Lieutenant Sousa reports to Chief Trombi.

6 34. In June of 2007, Sergeant Manuel Joseph Madrid became a Supervisor, along

7 with Ryan Baranyos, of the HSU. 8
35. Sergeant Brett Palmer is also a Sergeant in the HSU. 9
10 36. Sergeant Madrid supervises six deputies in the HSU, including Deputies Ramon

11 Charley Armendariz, Gabriel Doster, Rock Lopez, Alex Ortega and Ralphaelita

12 Montoya. 13
37. Sergeant Palmer supervises deputies in the HSU as well, including Deputies 14
15 Carlos Rangel, Jesus Cosme, Victor Navarrette, David Joya, Chris Lopez and Brent

16 Komoroski.

17 38. Sergeant Palmer and Sergeant Madrid also co-supervise each other’s personnel. 18
39. Sergeant Palmer and Sergeant Madrid report to Lieutenant Sousa. 19
20 40. In 2007, the MCSO secured an agreement with U.S. Immigration and Customs

21 Enforcement to cross-certify its field personnel to enforce the federal immigration laws

22 under the Immigration and Nationality Act § 287(g), 8 U.S.C. §1357(g). 23
41. Around 2007, the MCSO began conducting operations known as “saturation 24
25 patrols” or “crime suppression operations.”

26 42. During the time that the MCSO possessed authority under 287(g) to enforce

27 federal immigration law, such enforcement also fell into the HSU’s ambit.

28

7

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 8 of 217

1 43. Starting in 2007, 160 MCSO deputies underwent the requisite training and
2 received 287(g) authority. 3 4 44. The HSU grew steadily in size from April 2006, when it consisted of two
5 deputies, through September of 2007, when it consisted of two sergeants, twelve

6 deputies, and four detention officers, under the leadership of a lieutenant.

7 45. Since 2007, the commander of the HSU has been Lieutenant Joseph Sousa. In 8
this capacity, Lieutenant Sousa has three direct reports: two sergeants and an acting 9
10 sergeant.

11 46. The HSU takes part in saturation patrols, working alongside ordinary deputies as

12 well as posse members. 13
47. Lieutenant Sousa has estimated the average manpower involved in saturation 14
15 patrols as ranging between 80 to 100.

16 48. According to some MCSO press releases, some saturation patrols have involved

17 as many as 200 participants. 18
49. Chief Sands is responsible for planning saturation patrol operations, including 19
20 site-selection.

21 50. In making decisions regarding site-selection for saturation patrols, Chief Sands,

22 among other things, consults as needed with subordinate commanders, including the 23
heads of enforcement support, the HSU, and the SWAT unit. 24
25 51. On October 16, 2009, MCSO’s 287(g) agreement with ICE was modified so that

26 deputies no longer had authority to enforce federal immigration laws outside of the jail

27 context.

28

8

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 9 of 217

1 52. The launch of saturation patrols and creation of the HSU cost MCSO significant
2 resources. 3 4 53. In a news Release dated July 20, 2007, Sheriff Arpaio said, of the MCSO, “We
5 are quickly becoming a full-fledged anti-illegal immigration agency.”

6 54. Sheriff Arpaio also stated in the July 20, 2007 News Release that “We have heard

7 the people speak, we understand their frustration and will continue to do all that we can 8
to reduce the number of illegal aliens making their way into the United States and 9
10 Maricopa County.”

11 55. Sheriff Arpaio has an immigration file, a file devoted to the issue of immigration,

12 where he keeps letters from his constituents and press clippings regarding immigration. 13
56. Sheriff Arpaio decides, personally, what goes into his immigration file. 14
15 57. Sheriff Arpaio has also circulated certain of the letters he has received from

16 constituents regarding immigration to Chief Sands and others within the MCSO

17 leadership. 18
58. In its News Releases, the MCSO has referred to the saturation patrols as “crime 19
20 suppression/illegal immigration details.”

21 59. In advance of large saturation patrols, HSU prepares and distributes a planning

22 document titled, “Operations Plan,” “Overall Operations Summary,” or “Incident Action 23
Plan.” 24
25 60. The planning document typically designates a command post for the operation.

26

27

28

9

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 10 of 217

1 61. The MCSO has conducted at least 13 large saturation patrols in which officers
2 from different divisions participate. It has also conducted some smaller saturation patrols 3 4 consisting primarily of HSU units.
5 62. HSU gives the briefing and collects the officer stat sheets at the end of each

6 saturation patrol.

7 63. The MCSO conducted a saturation patrol on September 27, 2007 in Cave Creek. 8
64. The MCSO conducted a saturation patrol on October 4, 2007 in Queen Creek. 9
10 65. The MCSO conducted a saturation patrol on November 14, 2007 in Cave Creek.

11 66. The MCSO conducted a large-scale saturation patrol on January 18-19, 2008,

12 covering 16th to 40th Streets / Indian School to McDowell Roads in Phoenix. 13
67. The MCSO conducted a large-scale saturation patrol on March 21-22, 2008, 14
15 covering 16th to 40th Streets / Indian School to McDowell Roads in Phoenix.

16 68. The MCSO conducted a large-scale saturation patrol on March 27-28, 2008, in

17 the area around Cave Creek and Bell Roads in Phoenix. 18
69. The MCSO conducted a large-scale saturation patrol on April 3-4, 2008 in the 19
20 Guadalupe, Arizona.

21 70. The MCSO conducted a saturation patrol on May 6-7, 2008 in the town of

22 Fountain Hills. 23
71. The MCSO conducted a large-scale saturation patrol on June 26-27, 2008, in 24
25 Mesa, Arizona.

26 72. The MCSO conducted a large-scale saturation patrol on July 14, 2008, in Mesa,

27 Arizona.

28

10

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 11 of 217

1 73. The MCSO conducted a large-scale saturation patrol on August 13–14, 2008, in
2 Sun City and Sun City West. 3 4 74. The MCSO conducted a large-scale saturation patrol on January 9–10, 2009, in
5 the Southwest Valley.

6 75. The MCSO conducted a large-scale saturation patrol on April 23-24, 2009, in

7 Avondale and the Southwest Valley. 8
76. The MCSO conducted a large-scale saturation patrol on July 23-24, 2009, 9
10 Chandler and the Southeast Valley.

11 77. The MCSO conducted a large-scale saturation patrol on September 5-6, 2009, in

12 the area around 35th Avenue and Lower Buckeye Road in Phoenix. 13
78. The MCSO conducted a large-scale saturation patrol on October 16-17, 2009, in 14
15 Surprise and the Northwest Valley.

16 79. The MCSO conducted a county-wide large-scale saturation patrol on November

17 16-17, 2009. 18
80. On or about August 13 & 14, 2008, the MCSO conducted a saturation patrol in 19
20 Sun City.

21 81. On June 26-27, 2008 and July 14, 2008, MCSO conducted large-scale saturation

22 patrols in Mesa. 23
82. Deputy DiPietro, Deputy Rangel, Chief Sands and Lieutenant Sousa believe that 24
25 most day laborers in Maricopa County are Latino or Hispanic.

26 83. Sheriff Arpaio and Chief Sands both acknowledge that being a day laborer is not

27 a crime.

28

11

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 12 of 217

1 84. Chief Sands stated that he could not think of an instance in which the MCSO
2 arrested a day laborer who was not Hispanic. 3 4 85. During saturation patrols, MCSO officers have conducted many stops for minor
5 violations of the traffic code, including minor equipment violations. This departs from

6 MCSO’s traffic stop enforcement priorities during regular patrol.

7 86. Deputy Rangel testified that it is possible to develop probable cause to stop just 8
about any vehicle after following it for about two minutes. 9
10 87. MCSO officers do not receive regular or periodic training on racial profiling or

11 sensitivity.

12 88. The MCSO does not have any system by which supervisors can analyze the race 13
and ethnicity of persons stopped or contacted by its officers. 14
15 89. MCSO deputies are not required to record all encounters or “contacts” made

16 during a shift, particularly with respect to those encounters that do not result in a citation

17 or arrest. 18
90. Sergeant Madrid is typically at the command post during saturation patrol 19
20 operations and is not present at traffic stops.

21 91. Chief Sands, Chief Deputy Hendershott and Lieutenant Sousa each testified that

22 they were not aware of MCSO ever having disciplined an officer for racial profiling. 23
92. Plaintiff Manuel de Jesus Ortega Melendres is a citizen of Mexico. 24
25 93. Mr. Melendres legally entered the United States and visited Maricopa County as a

26 tourist from September 6, 2007 to at least September 27, 2007.

27

28

12

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 13 of 217

1 94. On September 27, 2007, the MCSO Human Smuggling Unit (“HSU”) was in
2 Cave Creek, Arizona investigating a particular church building/parking lot in response to 3 4 citizen complaints.
5 95. HSU conducted surveillance on a particular church and its property and looked

6 for probable cause to stop only those vehicles that were observed to have picked up

7 people appearing to be “day laborers” at the church property and that had left the 8
property. 9
10 96. Prior to the September 27, 2007 operation, the MCSO had sent undercover

11 officers to the Good Shepherd of the Hills Church.

12 97. During the MCSO’s saturation patrol in Cave Creek on September 27, 2007, 13
Manuel de Jesus Ortega Melendres was riding as a passenger in a vehicle pulled over by 14
15 Deputy Louis DiPietro.

16 98. Mr. Melendres testified that, on that same date, he wanted to travel to an

17 unknown location in Scottsdale to take photographs, that he needed a ride there, and that 18
a friend named “Jorge Morales” from Mexico offered to arrange for an unknown person 19
20 in a white colored pickup truck to give him the ride.

21 99. Mr. Melendres sat in the right front seat of the white colored truck, an unknown

22 Caucasian person drove the truck, and Mr. Morales and another unknown person sat in 23
the second row in the extended cab pick-up truck and drove on Cave Creek Road. 24
25 100. Mr. Melendres and the other persons were picked up by the driver of the white

26 colored truck at the church that was under surveillance.

27

28

13

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 14 of 217

1 101. When a surveillance unit observed the white truck stop at the church and pick up
2 Mr. Melendres and three other men, MCSO Deputy Louis DiPietro was assigned to 3 4 follow the truck (in which Mr. Melendres was a passenger) and to look for probable
5 cause to make a traffic stop of the truck.

6 102. Deputy DiPietro testified that he followed the truck for roughly 1.5 miles and

7 observed no equipment violations on the truck and, therefore, “paced” the truck and 8
determined it was speeding (34 mph in a 25 mph zone) and that he believed he had 9
10 probable cause to stop the truck for a violation of the traffic code.

11 103. Deputy DiPietro followed the vehicle that Mr. Ortega Melendres was riding in for

12 about one-and-a-half miles before pulling it over for speeding. 13
104. Deputy DiPietro was, at the time, a 287(g) certified officer. 14
15 105. Deputy DiPietro did not cite the Caucasian driver for speeding or question him

16 further but gave him a verbal warning.

17 106. Deputy DiPietro testified that he called on his radio for a 287(g) MCSO deputy to 18
come investigate the truck occupants. 19
20 107. MCSO Deputy Carlos Rangel testified that he arrived at the traffic stop within

21 one minute of receiving the call for a 287(g) deputy.

22 108. Deputy Rangel was then a 287(g) certified officer. 23
109. Deputy DiPietro told Deputy Rangel that the passengers in the truck did not speak 24
25 English and asked if he would talk to the passengers.

26 110. Deputy Rangel asked the passengers for identification.

27

28

14

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 15 of 217

1 111. The 2007 Memorandum of Agreement between the MCSO and the United States
2 Immigration and Customs Enforcement (“ICE”) provides that a 287(g) deputy has “the 3 4 power and authority to interrogate any alien or person believed to be an alien as to his
5 right to be or remain in the United States (INA § 287(a)(1) and 8 C.F.R. § 287.5(a)(1))…

6 [and] [t]he power to arrest without warrant any alien entering or attempting to

7 unlawfully enter the United States, or any alien in the United States, if the officer has 8
reason to believe the alien to be arrested is in the United States in violation of law and is 9
10 likely to escape before a warrant can be obtained. INA § 287(a)(4) and 8 C.F.R. §

11 287(c)(2).”

12 112. Deputy Rangel, as a 287(g) officer, testified that he looked for what he believed 13
to be ICE approved indicators of unlawful presence in the United States such as the 14
15 questioned person providing him with a foreign identification card, not having any

16 identification documents issued from anywhere in the United States, and the inability to

17 speak the English language. 18
113. Deputy Rangel questioned Mr. Melendres. 19
20 114. Deputy Rangel then instructed the truck’s passengers, including Mr. Melendres,

21 to exit the truck.

22 115. Deputy Rangel began to try to determine whether the passengers were in the 23
United States legally. 24
25 116. Deputy Rangel detained Mr. Melendres with handcuffs and directed that he be

26 delivered to ICE for handling and/or verification of status.

27 117. All of the truck’s passengers were detained.

28

15

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 16 of 217

1 118. The passengers/detainees were taken to an MCSO substation and held for roughly
2 two hours, and then the MCSO transported them to ICE’s Detention and Removal Office 3 4 near Central Avenue and McDowell Road where Mr. Melendres waited in federal
5 detention for six to seven hours for federal officials.

6 119. ICE released Mr. Melendres from detention.

7 120. An ICE agent told Deputy Rangel that ICE released Mr. Melendres because they 8
did not find any evidence that Mr. Melendres was working during his visit to the United 9
10 States, and that he had a valid I-94 Form

11 121. In 2007, Deputy Matthew Ratcliffe was a four-year veteran of the MCSO.

12 122. In 2007 Deputy Ratcliffe worked in the MCSO Lake Patrol Division. The Lake 13
Patrol Division is responsible for policing the recreational areas within Maricopa County 14
15 and the Tonto National Forest.

16 123. Lake Patrol deputies conduct traffic-related patrol duties near the recreational

17 areas, perform searches and rescues and dive missions in the lakes and rivers, and 18
conduct ATV patrols. 19
20 124. On Sunday, December 2, 2007, the Maricopa County Department of

21 Transportation (“MCDOT”), in order to protect the public’s safety, closed the Bartlett

22 Dam Road, the road to Bartlett Lake, because storm damage had caused heavy flooding 23
on it, washed away parts of the road, and left debris on the road. 24
25 125. There was a “Road Closed” sign posted by the MCDOT indicating that the road

26 ahead was closed.

27 126. Deputy Ratcliffe was on regular patrol that day in a marked MCSO SUV

28

16

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 17 of 217

1 127. Neither Deputy Ratcliffe nor anyone from the MCSO conducted a saturation
2 patrol on that date. 3 4 128. In the early afternoon, Deputy Ratcliffe observed a dark colored truck driving
5 toward his parked position on the closed Bartlett Dam Road and then observed that it

6 made a “U-turn” as it approached him and another MCSO officer.

7 129. While the Rodriguez’s were turning around, MCSO deputy Matthew Ratcliffe 8
stopped them for driving on a closed road. 9
10 130. Before deciding to conduct the traffic stop, Deputy Ratcliffe did not see the race

11 of the truck’s driver or of any of the truck’s occupants.

12 Plaintiff David Rodriguez was driving the truck, his wife, Jessika, was sitting in the front 13
right passenger seat, and the Rodriguez’ children were seated in the truck’s back row. 14
15 131. Deputy Ratcliffe asked Mr. Rodriguez for his license, registration, insurance, and

16 Social Security number.

17 132. Deputy Ratcliffe testified that he also asked Mr. Rodriquez for his Social Security 18
number so he could complete the MCSO citation form, which includes a space for 19
20 recording such information.

21 133. The traffic citation form also has a block called “Military Status” but Deputy

22 Ratcliffe did not insist on this information. Other officers do complete this information. 23
134. After obtaining Mr. Rodriguez’ identification, Deputy Ratcliffe asked Mr. 24
25 Rodriguez why he was driving his truck on the closed Bartlett Dam Road.

26 135. Mr. Rodriguez stated that he had been off-roading and was taking the kids down

27 to the lake, and had not seen the sign.

28

17

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 18 of 217

1 136. Mr. and Mrs. Rodriguez asked Deputy Ratcliffe why he asked for David’s Social
2 Security number. 3 4 137. Around the same time as the Rodriguez stop, Deputy Multz also stopped other
5 drivers who were on the same stretch of road.

6 138. Deputy Ratcliffe testified that he told them the social security number was for

7 identification purposes only and to fill in the blanks on the MCSO citation form. 8
139. Deputy Ratcliffe then issued a citation to Mr. Rodriguez for failure to obey a 9
10 traffic control device (i.e., the “Road Closed” sign).

11 140. Upon receipt of the citation, Mr. Rodriguez asked Deputy Ratcliffe what possible

12 effect such a citation would have on his commercial driver’s license, and either Mr. or 13
Mrs. Rodriguez then told Deputy Ratcliff that he/she did not see any other drivers on the 14
15 closed road receiving citations.

16 141. Deputy Ratcliffe responded by telling Mr. and Mrs. Rodriguez that he was only

17 dealing with them and not dealing with other drivers at that time 18
142. Then Mrs. Rodriguez said she felt that Deputy Ratcliffe was engaging in 19
20 “selective enforcement” in issuing the traffic citation to her husband.

21 143. After completing the traffic stop, Deputy Ratcliffe drove behind the Rodriguez’

22 truck as it left the area for roughly two to three miles. 23
144. Deputy Ratcliffe wanted to take photographs of the “Road Closed” sign and the 24
25 “Road Closed Ahead” signs for later defense in court.

26 145. Mr. Rodriguez later pled responsible to the citation.

27

28

18

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 19 of 217

1 146. The MCSO conducted an internal investigation into the Rodriguez stop. MCSO
2 supervisors reviewed what happened and took no issue with the way that Deputy 3 4 Ratcliffe exercised his discretion.
5 147. Deputy Ramon Armendariz is a member of the MCSO HSU and was 287(g)

6 certified in 2008.

7 148. Deputy Armendariz’ first language is Spanish and he is fluent in speaking that 8
language. 9
10 149. On March 28, 2008, the MCSO was conducting a saturation patrol in north

11 Phoenix.

12 150. Deputy Armendariz worked the saturation patrol in the capacity of a patrol officer 13
and his role was to conduct traffic stops and write citations. 14
15 151. Around 2:00 p.m. on March 28, 2008, Deputy Armendariz made a traffic stop of a

16 car on North Cave Creek Road and that car pulled into a convenience mart/gas station

17 located at the southwest corner of North Cave Creek Road and East Nesbit Road. 18
152. Deputy Armendariz was in the course of conducting a traffic stop and had two 19
20 Hispanic individuals detained at the gas station.

21 153. Deputy Armendariz parked his patrol car behind the stopped car.

22 154. The stopped car contained two men, and Deputy Armendariz conducted a radio 23
check on them. 24
25 155. Following his radio check, Deputy Armendariz eventually took the driver into

26 custody.

27

28

19

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 20 of 217

1 156. Deputy Armendariz arrested the car’s driver for driving with a suspended license,
2 placed him in handcuffs, and sat him inside his MCSO patrol car. 3 4 157. For security reasons, Deputy Armendariz also placed handcuffs on the car’s
5 passenger and had the passenger sit down on the front bumper of the MCSO patrol car.

6 158. At that moment a dark colored vehicle pulled into the convenience mart/gas

7 station. 8
159. Deputy Armendariz also called for backup. 9
10 160. After the vehicle left the convenience mart/gas station and was out of Deputy

11 Armendariz’ sight, other MCSO deputies arrived on scene in response to his radio call

12 for assistance. 13
161. Deputy Armendariz identified the vehicle to MCSO motorcycle Deputy Michael 14
15 Kikes and then, according to Deputy Kikes, pointed him in the general direction of the

16 departed vehicle.

17 162. Deputy Beeks, in a patrol car, followed Deputy Kikes. 18
163. Deputy Armendariz returned to the work of safely handling his arrestees. 19
20 164. Deputy Kikes quickly spotted the dark colored vehicle driving on North Cave

21 Creek Road and activated his motorcycle’s lights and siren.

22 165. Deputy Kikes brought Mr. Nieto to the rear of the vehicle, handcuffed, and ran 23
his identification. He found no problems. 24
25 166. MCSO’s Computer Aided Dispatch (CAD) database records information from

26 calls by MCSO officers to central dispatch made during MCSO traffic stops.

27

28

20

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 21 of 217

1 167. The “Incident History” for each traffic stop in the CAD database contains
2 information about the traffic stop, including the date, time, duration, location, 3 4 disposition, and primary officer conducting the traffic stop.
5 168. The CAD database contains information on MCSO officers’ checks of names,

6 dates of birth, licenses, registrations and warrants that are called into dispatch during the

7 traffic stop. 8
169. MCSO officers have indicated it is “standard practice” to call traffic stops they 9
10 initiate into dispatch.

11 170. Prior to stopping a vehicle, MCSO deputies typically call into dispatch and run

12 the license plate. Dispatch typically responds with information including the registered 13
owner of the vehicle. 14
15 171. MCSO “Sign-in Rosters” contain a list of officers who participated on each day

16 of the saturation patrol.

17 172. MCSO saturation patrol “Arrest Lists” contain information about each of the 18
arrests made on a saturation patrol, including the arresting deputy. 19
20 173. The MCSO receives federal funding, including in the form of pass-through

21 grants.

22 174. The MCSO receives federal financial assistance. 23
2. Pursuant to the Court’s Order, the following inferences will be 24 allowed based on this Court’s December 23, 2011 order:
25

26

27

28

21

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 22 of 217

1

a. The finder of fact may infer that the stat sheets would have

2 suggested that officers involved in special operations did not follow a “zero tolerance” 3 4 policy requiring them to stop all traffic offenders.

5

b. The finder of fact may infer that the stat sheets for special

6 operations would have included a significantly higher number of arrests in the categories

7 “Illegal Alien turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on
8 state charges” than records documenting ordinary patrol activity.
9

10

c. The finder of fact may infer that MCSO maintained a file of citizen

11 complaints making requests for special operations.

12

d. The finder of fact may infer that MCSO received and circulated

13 citizen complaints prior to August 31, 2008 requesting that MCSO officers conduct
14

15 special operations to enforce immigration-related law in areas where MCSO later

16 conducted such operations.

17

e. The finder of fact may infer that at least some of the citizen

18 communications described above complained about “Mexicans,” “day laborers,” or
19

20 “illegal immigrants” but did not provide a description of any criminal activity.

21

3.

22 parties:

23

The following issues of law are uncontested and stipulated to by the a. The MCSO acts Under Color of Law. Actions taken by the MCSO

24 with regarding to traffic stops and saturation patrols are taken under the color of a

25 statute, ordinance, regulation, custom, or usage, of a State, pursuant to 42 U.S.C. § 1983.
26 Actions taken by Sheriff Arpaio in his role as Sheriff of the MCSO are also taken under
27

28

22

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 23 of 217

1 the color of a statute, ordinance, regulation, custom, or usage, of a State, pursuant to 42

2 U.S.C. § 1983.

3

4

b.

Arpaio is a final decision maker under Arizona State Law. Sheriff

5 Joseph Arpaio is the final decision maker for Maricopa County, under Arizona state law,

6 in the area of law enforcement, and is responsible for setting and implementing the

7 policies and practices of the MCSO, including but not limited to creating and regulating 8
department policies regarding the stops and arrests and related treatment of individuals 9
10 in motor vehicles in Maricopa County.

11

c. Race cannot be considered as a factor for reasonable suspicion.

12 Under Ninth Circuit law, the race of an individual cannot be considered when 13
determining whether an officer has or had reasonable suspicion in connection with a 14
15 Terry stop, including for immigration investigations. See, e.g., Montero-Camargo, 208

16 F.3d 1122 (9th Cir. 2000).

17

d. Pursuant to federal law, during Mr. Melendres’ visit to Maricopa

18 County he was required to keep with him at all times his B-1/B-2 tourist visa and an I-94
19

20 Form (that allowed him to travel more than 25 miles north of the U.S. border with

21 Mexico).

22

e. A local law enforcement officer certified under the federal

23 government’s 287(g) program may lawfully question and briefly detain a foreign
24

25 national who is unable to produce a visa and/or I-94 Form in order to determine his entry

26 status.

27

28

23

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 24 of 217

1

f. Local law enforcement personnel who are trained and certified

2 pursuant to ICE’s 287(g) program are expressly authorized to investigate and enforce 3 4 federal immigration law, to stop and interrogate any person “believed” to be an alien, as

5 that term is used in 8 U.S.C. § 1357(a)(1), as to his/her right to be or remain in the

6 United States, and to make warrantless arrests if (1) the officer has probable cause to

7 believe that the alien is in the United States in violation of law; and (2) is likely to escape
8 before a warrant can be obtained..
9

10

g. A person visiting the United States with a tourist visa is not lawfully

11 permitted to work for compensation or otherwise have employment.

12

h. If an ICE agent or a 287(g) certified law enforcement officer

13 discovers that a foreign national visiting the United States on a tourist visa is working
14

15 while visiting as a tourist, that foreign national is considered in violation of his or her

16 visa status and may be arrested without warrant if he or she is likely to escape before a

17 warrant can be obtained. 18
i. A 287(g)-certified officer has authority to question persons 19
20 “believed” to be aliens, as that term is used in 8 U.S.C. § 1357(a)(1), to determine

21 whether they were lawfully present in the United States pursuant to 8 U.S.C. § 1357; 8

22 C.F.R. § 287.5, et seq. 23
j. Pursuant to the 2007 Memorandum of Agreement between the 24
25 MCSO and ICE, a 287(g) deputy had the power and authority to interrogate any alien or

26 person believed to be an alien, as that term is used in 8 U.S.C. § 1357(a)(1), as to his

27 right to be or remain in the United States and the power to arrest without warrant any

28

24

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 25 of 217

1 alien entering or attempting to unlawfully enter the United States, or any alien in the
2 United States, if the officer has reason to believe the alien to be arrested is in the United 3 4 States in violation of law and is likely to escape before a warrant can be obtained.
5 D. CONTESTED ISSUES OF FACT AND LAW

6

1. The following are the material issues of fact to be tried and decided:

7

Issue #1: Whether MCSO acted with discriminatory intent.

8 Plaintiffs’ Position:
9

10

Plaintiffs contend that race has been a motivating factor in MCSO’s operations.

11 Sheriff Arpaio made numerous statements expressing racial animus towards Hispanics.

12 He launched his immigration enforcement policies in response to public hostility
13 towards the Hispanic community, and calls from Sheriff Arpaio’s constituents to target
14 15 the Hispanic individuals prompted saturation patrols. Moreover, MCSO officers

16 regularly circulated inappropriate emails mocking persons of Hispanic descent using

17 their county email accounts. MCSO also departs from normal law enforcement practice
18 in ways indicative of discriminatory intent on traffic stops in its efforts to find and arrest
19 20 undocumented immigrants. MCSO does not have an agency-wide written policy

21 concerning racial profiling, nor does it offer any in-house training on racial profiling.

22 And statistical evidence of the discriminatory impact of MCSO operations (summarized

23 below) provides further proof of its intent to racially profile Hispanics.

24

25

Defendants’ Position:

26

Defendants do not act , and have not acted, with discriminatory intent.

27

28

25

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 26 of 217

1

Issue #2: Whether MCSO operations have had a discriminatory effect on

2 Hispanics.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that MCSO operations have had a severe discriminatory effect.

6 Statistical evidence reveals three main findings. First, MCSO officers were more likely

7 to stop Hispanics on saturation patrol days as compared to other days. This finding is 8
very robust. Compared to all other days, Hispanics were 26% to 29.9% more likely to be 9
10 stopped. Compared to dates one week before and after a saturation patrol, Hispanics

11 were 28.8% to 34.8% more likely to be stopped. And compared to dates one year before

12 a saturation patrol day, Hispanics were 36.2% to 39.5% more likely to be stopped. 13
Second, MCSO officers actively working on a saturation patrol were much more likely 14
15 to stop Hispanics than other MCSO officers. Those MCSO officers were 34.1 to 40%

16 more likely to stop Hispanics as compared to officers never involved in saturation patrol

17 operations. Third, stops involving a Hispanic individual were significantly longer than 18
other stops. All else equal, stops involving at least Hispanic surname were 21% to 25% 19
20 longer than stops in which no Hispanic name was checked.

21

Providing further evidence of discriminatory effect are testimony by plaintiffs and

22 other declarants. For example, when MCSO officers stopped the vehicle in which Mr. 23
Ortega-Melendres was traveling, the officers detained Mr. Ortega-Melendres for further 24
25 investigation into his immigration status while the Caucasian driver was released without

26 a citation. When MCSO officers stopped David and Jessika Rodriguez for driving on a

27 road with a “Road Closed” sign, they let other drivers on the same stretch of road pass

28

26

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 27 of 217

1 through without being stopped. Additionally, other class members, including those
2 whom have submitted declarations and are prepared to testify at trial, have had similar 3 4 encounters with the MCSO in which they were treated differently than non-Hispanic
5 individuals.

6

Defendants’ Position:

7

MCSO saturation patrol operations have not had a discriminatory effect on

8

Hispanics. 9

10

11

Issue #3: Whether there is an MCSO pattern, practice, or policy of racial

12 profiling.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend that MCSO indeed has had a practice and policy of racial

16 profiling. As discussed above, the MCSO leadership, including final policymaker Sheriff

17 Arpaio, have made statements equating illegal immigration with Hispanics and/or 18
sanctioning the targeting of Hispanic persons in immigration enforcement operations. 19
20 Further, MCSO personnel, including supervisors, have regularly circulated racially

21 insensitive emails, the MCSO has targeted Hispanics and Hispanic day laborers in their

22 immigration operations, and the MCSO has carried out saturation patrols in response to 23
citizen requests for racial profiling. The regularity and endorsement of these incidents by 24
25 MCSO leadership demonstrates that they have become a pattern and practice of the

26 MCSO. Moreover, and as discussed above, MCSO lacked any written policy, oversight

27

28

27

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 28 of 217

1 or in-house training concerning racial profiling. This lack of policies to combat racial

2 profiling provides further evidence that a pattern and practice of racial profiling existed.

3

4

Defendants’ Position:

5

The MCSO does not have, and did not have, a pattern, practice or policy of racial

6 profiling.

7

8 Issue # 4: Whether Defendants engage in a policy, pattern, or practice that has
9
10 had a discriminatory intent regarding Latinos in motor vehicles in Maricopa County.

11

Plaintiffs’ Position:

12

Plaintiffs contend that, for at least the reasons discussed with respect to issues #1

13

and #3 above, Defendants engage in a policy, pattern, or practice that has had a 14

15 discriminatory intent regarding Latinos in motor vehicles in Maricopa County

16

Defendants’ Position:

17

Defendants do not engage in a policy, pattern, or practice that had a

18 discriminatory intent regarding Latinos in motor vehicles in Maricopa County.
19

20

21

Issue # 5: Whether Defendants engage in a policy, pattern, or practice that has

22 had a discriminatory effect on Latinos in motor vehicles in Maricopa County
23 Plaintiffs’ Position:
24

25

Plaintiffs contend that, for at least the reasons discussed with respect to issues #2

26 and #3 above, Defendants engage in a policy, pattern, or practice that has had a

27 discriminatory intent regarding Latinos in motor vehicles in Maricopa County

28

28

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 29 of 217

1

Defendants’ Position:

2

Defendants do not engage in a policy, pattern, or practice that had a

3

4 discriminatory effect on Latinos in motor vehicles in Maricopa County.

5

6

Issue # 6: Whether the vehicle in which Mr. Melendres was a passenger was

7 stopped for probable cause.
8 Plaintiffs’ Position:
9

10

Plaintiffs contend that the vehicle in which Mr. Melendres was a passenger was at

11 most stopped for pretextual probable cause. Plaintiffs further contend that there is no

12 evidence beyond Deputy DiPietro’s self-serving statement to establish that the vehicle
13 was actually traveling above the posted speed limit.
14

15

Defendants’ Position:

16

Defendants contend that Deputy DiPietro lawfully stopped the vehicle in which

17 Mr. Melendres was a passenger for probable cause. 18

19

20

Issue # 7: Whether Deputy Louis DiPietro had racially discriminatory intent or

21 motive in stopping or detaining Mr. Melendres on September 26, 2007 in violation of his

22 Fourteenth Amendment rights.
23 Plaintiffs’ Position:
24

25

Plaintiffs contend that Deputy Louis DiPietro had racially discriminatory intent or

26 motive in stopping or detaining Mr. Melendres on September 26, 2007 in violation of his

27 Fourteenth Amendment rights. Plaintiffs further contend that even if Deputy DiPietro

28

29

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 30 of 217

1 himself did not have racially discriminatory into or motive in stopping or detaining Mr.

2 Melendres on September 26, 2007, the traffic stop was incident to a policy, pattern or 3 4 practice established by the MCSO with discriminatory intent or motive.

5

Defendants’ Position:

6

Defendants contend that Deputy Louis DiPietro had no racially discriminatory

7 intent or motive, and that there was no MCSO policy, pattern or practice that had
8 discriminatory intent or motive.
9

10

11

Issue # 8: Whether Deputy Carlos Rangel had racially discriminatory intent or

12 motive in questioning Mr. Melendres on September 26, 2007 in violation of his
13 Fourteenth Amendment rights.
14

15

Plaintiffs’ Position:

16

Plaintiffs contend that Deputy Carlos Rangel had racially discriminatory intent or

17 motive in questioning Mr. Melendres on September 26, 2007 in violation of his 18
Fourteenth Amendment rights. Plaintiffs further contend that even if Deputy Rangel 19
20 himself did not have racially discriminatory into or motive in questioning Mr. Melendres

21 on September 26, 2007, the traffic stop and questioning were incident to a policy, pattern

22 or practice established by the MCSO with discriminatory intent or motive.
23 Defendants’ Position:
24

25

Defendants contend that Deputy Carlos Rangel had no racially discriminatory

26 intent or motive, and that there was no MCSO policy, pattern or practice that had

27 discriminatory intent or motive.

28

30

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 31 of 217

1

2

Issue #9: Whether Deputy DiPietro had sufficient information prior to calling for

3

4 an HSU deputy to come check the status of the passengers in a vehicle in which he

5 encountered Mr. Ortega-Melendres suggesting that Mr. Ortega-Melendres was not in

6 country legally.

7

Plaintiffs’ Position:

8

Plaintiffs contend that the driver did not give Deputy DiPietro any such 9

10 information, nor did Deputy DiPietro have any such information before he initiated the

11 stop. After stopping the driver for speeding, Deputy DiPietro gave the driver a verbal

12 warning and did not question him further. Deputy DiPietro took notes of the stop but 13
destroyed them. He did not create any other record of the stop. Further, while 14
15 Defendants may contend that Deputy DiPietro had reasonable suspicion to believe that

16 Mr. Ortega-Melendres was not in the country legally based on the fact that Deputy

17 DiPietro believed him to be a Hispanic day laborer based on the circumstances of the 18
stop, Plaintiffs contend that, even if true, the fact that an individual is Hispanic and 19
20 seeking work as a day laborer is not a sufficient basis for a reasonable suspicion that the

21 individual is not in the country legally.

22

Defendants’ Position:

23 Deputy DiPietro had reasonable suspicion that either Arizona or federal
24

25 immigration law (believed at the time that unlawful presence was a crime) was being

26 violated by Mr. Melendres.

27

28

31

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 32 of 217

1

Issue # 10: Whether Mr. Melendres was racially profiled on September 26, 2007

2 in violation of his Fourteenth Amendment rights.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that Mr. Melendres was racially profiled.

6

Defendants’ Position:

7

Defendants contend that Mr. Melendres was not racially profiled.

8

9

10

Issue #11: Whether Mr. Ortega-Melendres provided documentation verifying his

11 status to Deputy Rangel.

12

Plaintiffs’ Position:

13

Plaintiffs contend that Mr. Ortega-Melendres provided both a valid I-94 Form and 14

15 a tourist visa form to the MCSO officer who questioned him. Plaintiffs further contend

16 that Mr. Ortega-Melendres no longer has the I-94 Form from the relevant time period

17 because he was required to surrender it.
18 Defendants’ Position:
19

20

While Mr. Melendres claims he gave his I-94 Form to the deputy that questioned

21 him at the time of the stop, he has never produced a copy of the I-94 Form that he

22 supposedly had on September 26, 2007. The only I-94 Form Mr. Melendres produced in 23
the litigation does not include or cover the date of his September 26, 2007 stop and 24
25 detention. Mr. Melendres also did not provide the deputy with his tourist visa claiming

26 it was at the place he was staying.

27

28

32

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 33 of 217

1

Issue # 12: Whether Deputy Matthew Ratcliffe had racially discriminatory intent

2 or motive in stopping Mr. and Mrs. Rodriquez on December 2, 2007 in violation of their 3 4 Fourteenth Amendment rights.

5

Plaintiffs’ Position:

6

Plaintiffs contend that Deputy Matthew Ratcliffe had racially discriminatory

7 intent or motive in stopping Mr. and Mrs. Rodriquez on December 2, 2007 in violation 8
of their Fourteenth Amendment rights. Plaintiffs further contend that even if Deputy 9
10 Ratcliffe himself did not have racially discriminatory intent or motive in stopping Mr.

11 and Mrs. Rodriquez on December 2, 2007, the traffic stop and questioning were incident

12 to a policy, pattern or practice established by the MCSO with discriminatory intent or
13 motive.
14

15

Defendants’ Position:

16

Defendants contend that Deputy Matthew Ratcliffe had no racially discriminatory

17 intent or motive in stopping Mr. and Mrs. Rodriquez, and that there was no MCSO
18 policy, pattern or practice that had discriminatory intent or motive.
19

20

21

Issue # 13: Whether Deputy Matthew Ratcliffe had racially discriminatory intent

22 or motive in questioning Mr. Rodriquez on December 2, 2007 in violation of his
23 Fourteenth Amendment rights.
24

25

Plaintiffs’ Position:

26

Plaintiffs contend that Deputy Matthew Ratcliffe had racially discriminatory

27 intent or motive in questioning Mr. and Mrs. Rodriquez on December 2, 2007 in

28

33

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 34 of 217

1 violation of their Fourteenth Amendment rights. Plaintiffs further contend that even if
2 Deputy Ratcliffe himself did not have racially discriminatory intent or motive in 3 4 questioning Mr. and Mrs. Rodriquez on December 2, 2007, the traffic stop and
5 questioning were incident to a policy, pattern or practice established by the MCSO with

6 discriminatory intent or motive.

7

Defendants’ Position:

8

Defendants contend that Deputy Matthew Ratcliffe had no racially discriminatory intent 9

10 or motive in questioning Mr. and Mrs. Rodriquez, and that there was no MCSO policy,

11 pattern or practice that had discriminatory intent or motive.

12

13 Issue # 14: Whether Mr. and Mrs. Rodriquez were racially profiled on
14
15 December 2, 2007 in violation of their Fourteenth Amendment rights.

16

Plaintiffs’ Position:

17

Plaintiffs contend that Mr. and Mrs. Rodriguez were racially profiled on

18 December 2, 2007 in violation of their Fourteenth Amendment rights.
19

20

Defendants’ Position:

21

Defendants contend that Mr. and Mrs. Rodriguez were not racially profiled.

22

23 Issue # 15: Whether Deputy Ratcliffe asked Plaintiff Mr. Rodriguez for his
24
25 Social Security card.

26

Plaintiffs’ Position:

27

28

34

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 35 of 217

1

Plaintiffs contend that Deputy Ratcliffe did ask Mr. Rodriguez for his Social

2 Security card.

3

4

Defendants’ Position:

5

Deputy Ratcliffe did not ask Mr. Rodriguez for his Social Security card.

6

7

Issue # 16: Whether there were factors supporting reasonable suspicion or

8

probable cause to stop the Meraz-Nieto vehicle. 9

10

Plaintiffs’ Position:

11

Plaintiffs contend that the factors did not support reasonable suspicion or

12 probable cause. Deputy Armendariz says he gave Deputy Kikes a description of the 13
vehicle and its occupants, but he did not give a reason to stop Ms. Meraz and Mr. Nieto. 14
15 Deputy Kikes remembers only seeing Deputy Armendariz waving in the direction of the

16 vehicle driven by Mr. Nieto. As Deputy Beeks arrived, he could see that Deputy

17 Armendariz was unharmed. Deputy Armendariz signaled to Deputy Beeks where the 18
vehicle had gone. Deputy Armendariz later relayed to Deputy Beeks that Ms. Meraz and 19
20 Mr. Nieto had committed “no crime” and that there was “no probable cause” to arrest.”

21

Defendants’ Position:

22

Defendants contend that Deputy Kikes stopped the Meraz-Nieto vehicle based on

23 reasonable suspicion, and that reasonable suspicion existed under the circumstances and
24

25 for officer safety to detain Mr. Nieto and handcuff him.

26

27

28

35

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 36 of 217

1

Issue #17: Whether there was sufficient justification for MCSO to remove Mr.

2 Nieto from the car and handcuff him.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that the MCSO officers lacked probable cause to forcibly

6 remove Mr. Nieto from the car at gunpoint and handcuff him. At the time Mr. Nieto was

7 being removed from the car, family members came out of the auto shop and informed 8
the deputies that they were U.S. citizens. Deputy Kikes then handcuffed Nieto, ran his 9
10 identification, and found no problems. To the extent that the MCSO argues that Deputy

11 Kikes only needed reasonable suspicion because the removal from the car and the

12 handcuffing of Nieto were done in connection with a Terry stop, Plaintiffs contend that, 13
in the alternative: 1) Deputy Kikes did not have reasonable suspicion sufficient to justify 14
15 the forceful removing of Mr. Nieto from the car or the handcuffing of Mr. Nieto and/or

16 2) the actions of removing Mr. Nieto from the car and handcuffing him went beyond a

17 Terry stop and did require Deputy Kikes to have probable cause. 18
Defendants’ Position: 19
20 Reasonable suspicion existed under the circumstances and for officer safety to remove n

21 Mr. Nieto from his vehicle and handcuff him.

22

23 Issue # 18: Whether Plaintiffs Nieto and Meraz said and acted in the manner
24
25 described by MCSO Deputy Armendariz.

26

Plaintiffs’ Position:

27

28

36

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 37 of 217

1

Plaintiffs contend that Plaintiffs Nieto and Meraz did not act in the manner

2 described by MCSO Deputy Armendariz.

3

4

Defendants’ Position:

5

Defendants contend that, according to Deputy Armendariz, the female passenger

6 of the Meraz-Nieto vehicle (i.e., Ms. Meraz) started yelling repeatedly in Spanish

7 various direction out her window at Deputy Armendariz’ detainee sitting on the bumper 8
of the patrol car; he ordered Meraz and Nieto to leave his location; Mr. Nieto refused to 9
10 leave his vicinity and to stay out of the way; Ms. Meraz yelled several times that ‘we’re

11 not going anywhere!”; Meraz and Nieto still would not leave; Ms. Meraz started yelling

12 at Deputy Armendariz “fucking Sheriff Joe, fucking Nazi,” and “you guys don't have a 13
right to do this;” and Mr. Nieto tried to exist his vehicle despite the deputy’s instruction 14
15 to leave.

16

17

Issue # 19: Whether Deputy Michael Kikes, Ramon Armendariz, and Douglas

18 Beeks had racially discriminatory intent or motive in stopping Mr. Nieto and Ms. Meraz
19

20 on March 28, 2008 in violation of their Fourteenth Amendment rights.

21

Plaintiffs’ Position:

22

Plaintiffs contend that Deputy Michael Kikes, Ramon Armendariz, and Douglas

23 Beeks had racially discriminatory intent or motive in stopping Mr. Nieto and Ms. Meraz
24

25 on March 28, 2008 in violation of their Fourteenth Amendment rights. Plaintiffs further

26 contend that even if Deputy Michael Kikes, Ramon Armendariz, and Douglas Beeks

27 themselves did not have racially discriminatory intent or motive in in stopping Mr. Nieto

28

37

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 38 of 217

1 and Ms. Meraz on March 28, 2008, the traffic stop and questioning were incident to a

2 policy, pattern or practice established by the MCSO with discriminatory intent or 3 4 motive.

5

Defendants’ Position:

6

Defendants contend that Deputy Michael Kikes, Ramon Armendariz, and

7 Douglas Beeks had no racially discriminatory intent or motive in stopping Mr. Nieto and 8
Ms. Meraz, and that there was no MCSO policy, pattern or practice that had 9
10 discriminatory intent or motive.

11

12

Issue # 20: Whether Mr. Nieto and Ms. Meraz were racially profiled on March

13

28, 2008 in violation of their Fourteenth Amendment rights. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that Mr. Nieto and Ms. Meraz were racially profiled on March

17 28, 2008 in violation of their Fourteenth Amendment rights.
18 Defendants’ Position:
19

20

Defendants contend that Mr. Nieto and Ms. Meraz were not racially profiled.

21

22

Issue # 21: Whether Defendants’ deputies consider race or ethnicity when

23 deciding to make a traffic stop of vehicles on roadways in Maricopa County.
24

25

Plaintiffs’ Position:

26

27

28

38

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 39 of 217

1

Plaintiffs contend that the MCSO and its deputies do consider race or ethnicity

2 when deciding to make a traffic stop of at least certain vehicles on roadways in Maricopa 3 4 County.

5

Defendants’ Position:

6

Defendants contend that they do not consider race or ethnicity when deciding to

7 make a traffic stop. 8

9

10

Issue # 22: Whether Defendants, via Chief Brian Sands, consider race or ethnicity

11 when choosing to conduct saturation patrols or special operations and/or where to

12 conduct them.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend that Defendants, via Chief Brian Sands, as well as others,

16 consider race or ethnicity when choosing to conduct saturation patrols or special

17 operations and/or where to conduct them.
18 Defendants’ Position:
19

20

Defendants contend that they do not consider race or ethnicity when choosing

21 where to conduct saturation patrols or special operations.

22

23 Issue # 23: Whether Defendants, via Chief Brian Sands, allow citizen
24
25 communications, that refer to racial characteristics rather than reports of crime, to serve

26 as a motivating factor to conduct saturation patrols or special operations in a particular

27 location.

28

39

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 40 of 217

1

Plaintiffs’ Position:

2

Plaintiffs contend that Defendants, via Chief Brian Sands, as well as others, allow

3

4 citizen communications, that refer to racial characteristics rather than reports of crime, to

5 serve as a motivating factor to conduct saturation patrols or special operations in a

6 particular location.

7

Defendants’ Position:

8

Defendants contend that they do not allow citizen communications, that discuss 9

10 the race or ethnicity of persons but do not address crime, to serve as a motivating factor

11 to conduct saturation patrols or special operations in a particular location.

12

13 Issue # 24: Whether Deputy Sloup had reasonable suspicion or probable cause to
14
15 detain Jerry Cosio and request his identification and/or social security number on July

16 23, 2009.

17

Plaintiffs’ Position:

18 Plaintiffs contend that Deputy Sloup did not have reasonable suspicion or
19

20 probable cause to detain Jerry Cosio and request his identification and/or social security

21 number on July 23, 2009.

22

Defendants’ Position:

23 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
24

25 all aspects regarding Jerry Cosio.

26

27

28

40

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 41 of 217

1

Issue # 26: Whether Jerry Cosio was racially profiled on July 23, 2009 in

2 violation of his Fourteenth Amendment rights.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that Jerry Cosio was racially profiled on July 23, 2009 in

6 violation of his Fourteenth Amendment rights.

7

Defendants’ Position:

8

This incident is irrelevant to the issues in this case. The MCSO did not racially 9

10 profile regarding Jerry Cosio.

11

12

Issue # 27: Whether the MCSO and its officers had reasonable suspicion or

13

probable cause to stop the vehicle occupied by Julio and Julian Mora on February 11, 14

15 2009.

16

Plaintiffs’ Position:

17

Plaintiffs contend that the MCSO and its officers did not have reasonable

18 suspicion or probable cause to stop the vehicle occupied by Julio and Julian Mora on
19

20 February 11, 2009.

21

Defendants’ Position:

22

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

23 all aspects regarding the Moras.
24

25

26

Issue # 28: Whether the MCSO had reasonable suspicion or probable cause to

27 arrest Julio and Julian Mora with zip ties on February 11, 2009.

28

41

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 42 of 217

1

Plaintiffs’ Position:

2

Plaintiffs contend that the MCSO, and/or its officers, did not have reasonable

3

4 suspicion or probable cause to arrest Julio or Julian Mora with zip ties on February 11,

5 2009.

6

Defendants’ Position:

7

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

8

all aspects regarding the Moras. 9

10

11

Issue # 29: Whether Julio and Julian Mora were racially profiled on February 11,

12 2009 in violation of their Fourteenth Amendment rights.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend that Julio and Julian Mora were racially profiled on February

16 11, 2009 in violation of their Fourteenth Amendment rights.

17

Defendants’ Position:

18 This incident is irrelevant to the issues in this case. The MCSO did not racially
19

20 profile regarding the Moras.

21

22

Issue # 30: Whether Officer Gamboa had reasonable suspicion or probable cause

23 to stop the vehicle occupied by Lorena Escamilla on September 2, 2009.
24

25

Plaintiffs’ Position:

26

Plaintiffs contend that Officer Gamboa did not have reasonable suspicion or

27 probable cause to stop the vehicle occupied by Lorena Escamilla on September 2, 2009.

28

42

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 43 of 217

1

Defendants’ Position:

2

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

3

4 all aspects regarding Lorena Escamilla.

5

6

Issue # 31: Whether Officer Gamboa had reasonable suspicion or probable cause

7 to search Lorena Escamilla’s vehicle on September 2, 2009.
8 Plaintiffs’ Position:
9

10

Plaintiffs contend that Officer Gamboa did not have reasonable suspicion or

11 probable cause to search Lorena Escamilla’s vehicle on September 2, 2009.

12

Defendants’ Position:

13

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 14

15 all aspects regarding Lorena Escamilla.

16

17

Issue # 32: Whether Officer Gamboa used excessive force with respect to Lorena

18 Escamilla on September 2, 2009.
19

20

Plaintiffs’ Position:

21

Plaintiffs contend that Officer Gamboa used excessive force with respect to

22 Lorena Escamilla on September 2, 2009.
23 Defendants’ Position:
24

25

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

26 all aspects regarding Lorena Escamilla.

27

28

43

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 44 of 217

1

Issue # 33: Whether Lorena Escamilla was racially profiled on September 2,

2 2009 in violation of her Fourteenth Amendment rights.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that Lorena Escamilla was racially profiled on September 2,

6 2009 in violation of her Fourteenth Amendment rights.

7

Defendants’ Position:

8

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 9

10 all aspects regarding Lorena Escamilla.

11

12

Issue # 34: Whether the Deputy Russell had reasonable suspicion or probable

13

cause to stop the vehicle occupied by Daniel Magos on December 4, 2009. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that the Deputy Russell did not have reasonable suspicion or

17 probable cause to stop the vehicle occupied by Daniel Magos on December 4, 2009.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding the Magos.

22

23 Issue # 35: Whether the MCSO had reasonable suspicion or probable cause to
24
25 request identification from Mr. Magos’ wife during the traffic stop that occurred on

26 December 4, 2009.

27

Plaintiffs’ Position:

28

44

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 45 of 217

1

Plaintiffs contend that the Deputy Russell did not have reasonable suspicion or

2 probable cause to request identification from Mr. Magos’ wife during the traffic stop that 3 4 occurred on December 4, 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding the Magos. 8

9

10

Issue # 36: Whether Deputy Russell had reasonable suspicion or probable cause

11 to conduct a pat-down search of Mr. Magos during the traffic stop that occurred on

12 December 4, 2009.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend that Deputy Russell did not have reasonable suspicion or

16 probable cause to conduct a pat-down search of Mr. Magos during the traffic stop that

17 occurred on December 4, 2009.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding the Magos.

22

23 Issue # 37: Whether Mr. Magos and/or his wife were racially profiled on
24
25 December 4, 2009 in violation of their Fourteenth Amendment rights.

26

Plaintiffs’ Position:

27

28

45

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 46 of 217

1

Plaintiffs contend that Mr. Magos and his wife were racially profiled on

2 December 4, 2009 in violation of their Fourteenth Amendment rights.

3

4

Defendants’ Position:

5

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

6 all aspects regarding the Magos.

7

8 Issue # 38: Whether the MCSO, and/or its officer(s), had reasonable suspicion or
9
10 probable cause to stop the vehicle occupied by Adolfo Maldonado on March 22, 2008.

11

Plaintiffs’ Position:

12

Plaintiffs contend that the MCSO and its officers did not have reasonable

13

suspicion or probable cause to stop the vehicle occupied by Adolfo Maldonado on 14

15 March 22, 2008.

16

Defendants’ Position:

17

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

18 all aspects regarding Adolfo Maldonado.
19

20

21

Issue # 39: Whether Deputy Ruehle had reasonable suspicion or probable cause

22 to stop the vehicle occupied by Adolfo Maldonado on July 14, 2008.
23 Plaintiffs’ Position:
24

25

Plaintiffs content Deputy Ruehle did not reasonable suspicion or probable cause

26 to stop the vehicle occupied by Adolfo Maldonado on July 14, 2008.

27

Defendants’ Position:

28

46

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 47 of 217

1

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

2 all aspects regarding Adolfo Maldonado. 3

4

5

Issue # 40: Whether Adolfo Maldonado was racially profiled on March 22, 2008

6 in violation of their Fourteenth Amendment rights.

7

Plaintiffs’ Position:

8

Plaintiffs contend that Adolfo Maldonado was racially profiled on March 22, 9

10 2008 in violation of their Fourteenth Amendment rights.

11

Defendants’ Position:

12

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

13

all aspects regarding Adolfo Maldonado. 14

15

16

Issue # 41: Whether Adolfo Maldonado was racially profiled on July 14, 2008 in

17 violation of his Fourteenth Amendment rights.
18 Plaintiffs’ Position:
19

20

Plaintiffs contend that Adolfo Maldonado was racially profiled on July 14, 2008

21 in violation of his Fourteenth Amendment rights.

22

Defendants’ Position:

23 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
24

25 all aspects regarding Adolfo Maldonado.

26

27

28

47

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 48 of 217

1

Issue # 42: Whether Deputy Templeton had reasonable suspicion or probable

2 cause to stop the vehicle occupied by Sergio Villaman on June 27, 2008.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that Deputy Templeton did not have reasonable suspicion or

6 probable cause to stop the vehicle occupied by Sergio Villaman on June 27, 2008.

7

Defendants’ Position:

8

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 9

10 all aspects regarding Sergio Villaman.

11

12

Issue # 44: Whether Deputy Templeton had probable cause to arrest Sergio

13

Villaman during the traffic stop that occurred on June 27, 2008. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that Deputy Templeton did not have probable cause to arrest

17 Sergio Villaman during the traffic stop that occurred on June 27, 2008.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding Sergio Villaman.

22

23 Issue # 45: Whether Sergio Villaman was racially profiled on June 27, 2008 in
24
25 violation of his Fourteenth Amendment rights.

26

Plaintiffs’ Position:

27

28

48

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 49 of 217

1

Plaintiffs contend that Sergio Villaman was racially profiled on June 27, 2008 in

2 violation of his Fourteenth Amendment rights.

3

4

Defendants’ Position:

5

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

6 all aspects regarding Sergio Villaman.

7

8 Issue # 46: Whether the MCSO, and/or its officers, had reasonable suspicion or
9
10 probable cause to stop the vehicle occupied by Lino Garcia on each of four occasions

11 between June and August of 2009.

12

Plaintiffs’ Position:

13

Plaintiffs contend the MCSO and its officers did not have reasonable suspicion or 14

15 probable cause to stop the vehicle occupied by Lino Garcia on each of four occasions

16 between June and August of 2009.

17

Defendants’ Position:

18 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
19

20 all aspects regarding Lino Garcia.

21

22

Issue # 47: Whether the MCSO, and/or its officers, had reasonable suspicion or

23 probable cause to stop and/or detain Lino Garcia on each of four occasions between June
24

25 and August of 2009.

26

Plaintiffs’ Position:

27

28

49

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 50 of 217

1

Plaintiffs contend the MCSO and its officers did not have reasonable suspicion or

2 probable cause to stop and/or detain Lino Garcia on each of four occasions between June 3 4 and August of 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Lino Garcia. 8

9 10 Issue # 48: Whether the MCSO, and/or its officers, had reasonable suspicion or probable

11 cause to ask for multiple forms of identification from Lino Garcia and/or his girlfriend

12 on each of four occasions between June and August of 2009.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend the MCSO and its officers did not have reasonable suspicion or

16 probable cause to ask for multiple forms of identification from Lino Garcia and/or his

17 girlfriend on each of four occasions between June and August of 2009.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding Lino Garcia.

22

23 Issue # 49: Whether Lino Garcia was racially profiled in connection with any one
24
25 of four traffic stops that occurred between June and August of 2009 in violation of his

26 Fourteenth Amendment rights.

27

Plaintiffs’ Position:

28

50

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 51 of 217

1

Plaintiffs contend that Lino Garcia was racially profiled in connection with each

2 of the four traffic stops that occurred between June and August of 2009 in violation of 3 4 his Fourteenth Amendment rights.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Lino Garcia. 8

9

10

Issue # 50: Whether the MCSO, and/or its officers, had reasonable suspicion or

11 probable cause to stop the vehicle occupied by David Vasquez on June 26, 2008.

12

Plaintiffs’ Position:

13

Plaintiffs contend the MCSO and its officers did not have reasonable suspicion or 14

15 probable cause to stop the vehicle occupied by David Vasquez on June 26, 2008.

16

Defendants’ Position:

17

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

18 all aspects regarding David Vasquez.
19

20

21

Issue # 51: Whether David Vasquez and/or his girlfriend were racially profiled on

22 June 26, 2008 in violation of their Fourteenth Amendment rights.
23 Plaintiffs’ Position:
24

25

Plaintiffs contend that David Vasquez and his girlfriend were racially profiled on

26 June 26, 2008 in violation of their Fourteenth Amendment rights.

27

Defendants’ Position:

28

51

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 52 of 217

1

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

2 all aspects regarding David Vasquez and his unnamed girlfriend. 3

4

5

Issue # 52: Whether Andrew Sanchez was racially profiled on April 3, 2008 in

6 violation of his Fourteenth Amendment rights.

7

Plaintiffs’ Position:

8

Plaintiffs contend that Andrew Sanchez was racially profiled on April 3, 2008 in 9

10 violation of his Fourteenth Amendment rights.

11

Defendants’ Position:

12

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

13

all aspects regarding Andrew Sanchez. 14

15

16

Issue # 53: Whether the MCSO and its officers had reasonable suspicion or

17 probable cause to detain Elaine Sanchez on May 28, 2008.
18 Plaintiffs’ Position:
19

20

Plaintiffs contend that the MCSO, and/or its officer, did not have reasonable

21 suspicion or probable cause to detain Elaine Sanchez on May 28, 2008.

22

Defendants’ Position:

23 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
24

25 all aspects regarding Elaine Sanchez.

26

27

28

52

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 53 of 217

1

Issue #54: Whether the MCSO, and/or its officer, used excessive force with

2 respect to Elaine Sanchez on May 28, 2008.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that the MCSO and its officers used excessive force with

6 respect to Elaine Sanchez on May 28, 2008.

7

Defendants’ Position:

8

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 9

10 all aspects regarding Elaine Sanchez.

11

12

Issue # 55: Whether Elaine Sanchez was racially profiled on May 28, 2008 in

13

violation of her Fourteenth Amendment rights. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that Elaine Sanchez was racially profiled on May 28, 2008 in

17 violation of her Fourteenth Amendment rights.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding Elaine Sanchez.

22

23 Issue # 56: Whether the MCSO, and/or its officers, had reasonable suspicion or
24
25 probable cause to stop the vehicle occupied by Garrett Smith on October 16, 2009.

26

Plaintiffs’ Position:

27

28

53

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 54 of 217

1

Plaintiffs contend that the MCSO and its officers did not have reasonable

2 suspicion or probable cause to stop the vehicle occupied by Garrett Smith on October 16, 3 4 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Garret Smith. 8

9

10

Issue # 57: Whether Garrett Smith and/or any of the members of his family were

11 racially profiled on October 16, 2009 in violation of their Fourteenth Amendment rights.

12

Plaintiffs’ Position:

13

Plaintiffs contend that Garrett Smith and/or any of the members of his family 14

15 were racially profiled on October 16, 2009 in violation of their Fourteenth Amendment

16 rights.

17

Defendants’ Position:

18 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
19

20 all aspects regarding Garret Smith and/or his family.

21

22

Issue # 58: Whether the MCSO, and/or its officers, had reasonable suspicion or

23 probable cause to stop the vehicle occupied by Diona Solis and Jaime Florez Sanchez on
24

25 March 8, 2009.

26

Plaintiffs’ Position:

27

28

54

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 55 of 217

1

Plaintiffs contend that the MCSO and its officers did not have reasonable

2 suspicion or probable cause to stop the vehicle occupied by Diona Solis and Jaime 3 4 Florez Sanchez on March 8, 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Diona Solis and Jaime Florez. 8

9

10

Issue # 59: Whether the MCSO, and/or its officers, had reasonable suspicion or

11 probable cause to question Jaime Florez Sanchez regarding his citizenship on March 8,

12 2009.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend that the MCSO and its officers did not have reasonable

16 suspicion or probable cause to question Jaime Florez Sanchez regarding his citizenship

17 on March 8, 2009.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding Diona Solis and Jaime Florez.

22

23 Issue # 60: Whether the MCSO, and/or its officers, had reasonable suspicion or
24
25 probable cause to ask for identification from the children in the vehicle occupied by

26 Diona Solis and Jaime Florez Sanchez on March 8, 2009.

27

Plaintiffs’ Position:

28

55

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 56 of 217

1

Plaintiffs contend that the MCSO and its officers did not have reasonable

2 suspicion or probable cause to ask for identification from the children in the vehicle 3 4 occupied by Diona Solis and Jaime Florez Sanchez on March 8, 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Diona Solis and Jaime Florez and the children. 8

9

10

Issue # 61: Whether Diona Solis, Jaime Florez Sanchez and/or any of the children

11 in the vehicle were racially profiled on March 8, 2009 in violation of their Fourteenth

12 Amendment rights.
13 Plaintiffs’ Position:
14

15

Plaintiffs contend that Diona Solis, Jaime Florez Sanchez and the children in the

16 vehicle were racially profiled on March 8, 2009 in violation of their Fourteenth

17 Amendment rights.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding Diona Solis and Jaime Florez and the children.

22

23 Issue # 62: Whether the MCSO, and/or its officer, had reasonable suspicion or
24
25 probable cause to stop the vehicle occupied by Jorge Urteaga on January 9, 2009.

26

Plaintiffs’ Position:

27

28

56

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 57 of 217

1

Plaintiffs contend that the MCSO and its officers did not have reasonable

2 suspicion or probable cause to stop the vehicle occupied by Jorge Urteaga on January 9, 3 4 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Jorge Urteaga. 8

9

10

Issue # 63: Whether the MCSO, and/or its officer, had reasonable suspicion or

11 probable cause to question Jorge Urteaga regarding his citizenship on January 9, 2009.

12

Plaintiffs’ Position:

13

Plaintiffs contend that the MCSO and its officers did not have reasonable 14

15 suspicion or probable cause to question Jorge Urteaga regarding his citizenship on

16 January 9, 2009

17

Defendants’ Position:

18 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
19

20 all aspects regarding Jorge Urteaga.

21

22

Issue # 64: Whether Jorge Urteaga was racially profiled on January 9, 2009 in

23 violation of his Fourteenth Amendment rights.
24

25

Plaintiffs’ Position:

26

Plaintiffs contend that Jorge Urteaga was racially profiled on January 9, 2009 in

27 violation of his Fourteenth Amendment rights.

28

57

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 58 of 217

1

Defendants’ Position:

2

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

3

4 all aspects regarding Jorge Urteaga.

5

6

Issue # 65: Whether Deputy Thompson had reasonable suspicion or probable

7 cause to stop the vehicle occupied by Leopoldo Arteaga on May 12, 2009.
8 Plaintiffs’ Position:
9

10

Plaintiffs contend that Deputy Thompson did not have reasonable suspicion or

11 probable cause to stop the vehicle occupied by Leopoldo Arteaga on May 12, 2009.

12

Defendants’ Position:

13

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 14

15 all aspects regarding Leopoldo Arteaga.

16

17

Issue # 66: Whether Deputy Thompson used excessive force with respect to

18 Leopoldo Arteaga on May 12, 2009.
19

20

Plaintiffs’ Position:

21

Plaintiffs contend that Deputy Thompson used excessive force with respect to

22 Leopoldo Arteaga on May 12, 2009.
23 Defendants’ Position:
24

25

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

26 all aspects regarding Leopoldo Arteaga.

27

28

58

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 59 of 217

1

Issue # 67: Whether Deputy Thompson and/or the MCSO had reasonable

2 suspicion or probable cause to detain Leopoldo Arteaga on May 12, 2009.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that Deputy Thompson and the MCSO did not have reasonable

6 suspicion or probable cause to detain Leopoldo Arteaga on May 12, 2009.

7

Defendants’ Position:

8

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 9

10 all aspects regarding Leopoldo Arteaga.

11

12

Issue # 68: Whether Leopoldo Arteaga was racially profiled on May 12, 2009 in

13

violation of his Fourteenth Amendment rights. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that Leopoldo Arteaga was racially profiled on May 12, 2009 in

17 violation of his Fourteenth Amendment rights.
18 Defendants’ Position:
19

20

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

21 all aspects regarding Leopoldo Arteaga.

22

23 Issue # 69: Whether Deputy Sedlacek had reasonable suspicion or probable cause
24
25 to stop the vehicle occupied by Anabel Avitia and Carlos Guerra Monge on either of two

26 occasions in October of 2009.

27

Plaintiffs’ Position:

28

59

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 60 of 217

1

Plaintiffs contend that Deputy Sedlacek did not have reasonable suspicion or

2 probable cause to stop the vehicle occupied by Anabel Avitia and Carlos Guerra Monge 3 4 on either of two occasions in October of 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Anabel Avitia and Carlos Guerra Monge. 8

9

10

Issue # 70: Whether Deputy Sedlacek had reasonable suspicion or probable cause

11 to question Guerra Monge with respect to his citizenship on October 16, 2009.

12

Plaintiffs’ Position:

13

Plaintiffs contend that Deputy Sedlacek did not have reasonable suspicion or 14

15 probable cause to question Guerra Monge with respect to his citizenship on October 16,

16 2009.

17

Defendants’ Position:

18 This incident is irrelevant to the issues in this case. The MCSO acted lawfully in
19

20 all aspects regarding Carlos Guerra Monge.

21

22

Issue # 71: Whether Deputy Sedlacek and/or the MCSO had reasonable suspicion

23 or probable cause to detain Guerra Monge on October 16, 2009.
24

25

Plaintiffs’ Position:

26

Plaintiffs contend that Deputy Sedlacek and the MCSO did not have reasonable

27 suspicion or probable cause to detain Guerra Monge on October 16, 2009.

28

60

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 61 of 217

1

Defendants’ Position:

2

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

3

4 all aspects regarding Carlos Guerra Monge.

5

6

Issue # 72: Whether Anabel Avitia and/or Carlos Guerra Monge were racially

7 profiled on October 16, 2009 in violation of their Fourteenth Amendment rights.
8 Plaintiffs’ Position:
9

10

Plaintiffs contend that Anabel Avitia and Carlos Guerra Monge were racially

11 profiled on October 16, 2009 in violation of their Fourteenth Amendment rights.

12

Defendants’ Position:

13

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 14

15 all aspects regarding Anabel Avitia and Carlos Guerra Monge.

16

17

Issue # 73: Whether the MCSO, and/or its officer, had reasonable suspicion or

18 probable cause to stop Sergio Mueller Rangel on July 23, 2009.
19

20

Plaintiffs’ Position:

21

Plaintiffs contend that the MCSO, and/or its officer, did not have reasonable

22 suspicion or probable cause to stop Sergio Mueller Rangel on July 23, 2009.
23 Defendants’ Position:
24

25

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

26 all aspects regarding Sergio Muller Rangel.

27

28

61

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 62 of 217

1

Issue # 74: Whether the MCSO, and/or its officer, had reasonable suspicion or

2 probable cause to question Sergio Mueller Rangel with respect to his citizenship on July 3 4 23, 2009.

5

Plaintiffs’ Position:

6

Plaintiffs contend that the MCSO and its officer did not have reasonable

7 suspicion or probable cause to question Sergio Mueller Rangel with respect to his
8 citizenship on July 23, 2009.
9

10

Defendants’ Position:

11

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

12 all aspects regarding Sergio Muller Rangel. 13

14

15

Issue # 75: Whether the MCSO, and/or its officer, had reasonable suspicion or

16 probable cause to detain Sergio Mueller Rangel on July 23, 2009.

17

Plaintiffs’ Position:

18 Plaintiffs contend that the MCSO and its officer did not have reasonable suspicion
19

20 or probable cause to detain Sergio Mueller Rangel on July 23, 2009.

21

Defendants’ Position:

22

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

23 all aspects regarding Sergio Muller Rangel.
24

25

26

Issue # 76: Whether Sergio Mueller Rangel was racially profiled on July 23, 2009

27 in violation of his Fourteenth Amendment rights.

28

62

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 63 of 217

1

Plaintiffs’ Position:

2

Plaintiffs contend that Sergio Mueller Rangel was racially profiled on July 23,

3

4 2009 in violation of his Fourteenth Amendment rights.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding Sergio Muller Rangel. 8

9

10

Issue # 77: Whether Sergeant Baranyos had reasonable suspicion or probable

11 cause to question Tammy Charles Leija on January 3, 2008.

12

Plaintiffs’ Position:

13

Plaintiffs contend that Sergeant Baranyos did not have reasonable suspicion or 14

15 probable cause to question Tammy Charles Leija on January 3, 2008.

16

Defendants’ Position:

17

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

18 all aspects regarding Tammy Charles Baranyos.
19

20

21

Issue # 78: Whether Tammy Charles Leija was racially profiled on January 3,

22 2008 in violation of her Fourteenth Amendment rights.
23 Plaintiffs’ Position:
24

25

Plaintiffs contend that Tammy Charles Leija was racially profiled on January 3,

26 2008 in violation of her Fourteenth Amendment rights.

27

Defendants’ Position:

28

63

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 64 of 217

1

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

2 all aspects regarding Tammy Charles Leija. 3

4

5

2. The following are issues of law to be determined:

6

Issue #1: Whether Defendants are engaging in discrimination based on race,

7 color and/or ethnicity in violation of the Fourteenth Amendment to the U.S. Constitution
8 and 42 U.S.C. § 1983.
9

10

Plaintiffs’ Position:

11

Plaintiffs contend that Defendants have engaged in a widespread pattern and

12 practice of racial profiling and other racially and ethnically discriminatory treatment in 13
an illegal, improper and unauthorized attempt to enforce state and federal immigration 14
15 laws against large numbers of Latino persons in Maricopa County without regard for

16 actual citizenship or valid immigration status. For the reasons discussed above,

17 Defendants acted with discriminatory intent in a manner that has had a discriminatory 18
effect on Plaintiffs, in violation of the Fourteenth Amendment to the U.S. Constitution 19
20 and 42 U.S.C. § 1983.

21

To the extent any facts remain disputed, plaintiffs summarize those disputes

22 above.
23 Defendants’ Position:
24

25

Defendants’ conduct was not violative of Plaintiffs’ Fourteenth Amendment

26 rights.

27

28

64

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 65 of 217

1

Issue #2: Whether Defendants’ make or have made stops, extensions of stops,

2 interrogations, detentions, searches and/or arrests of the Plaintiffs named in the 3 4 Complaint without probable cause or reasonable, articulable suspicion to believe they

5 have committed a crime or traffic violation (or after they have concluded dealing with

6 the traffic violation) in violation of the Fourth Amendment to the U.S. Constitution and

7 42 U.S.C. § 1983.
8 Plaintiffs’ Position:
9

10

Plaintiffs contend that Defendants widespread use of pretextual and unfounded

11 traffic stops, racially motivated questioning, detention, searches arrests and other

12 mistreatment without probable cause or reasonable, articulable suspicion to believe the 13
targeted individuals have committed a crime or traffic violation (or after they’ve 14
15 concluded dealing with the traffic violation), as exemplified by the specific instances

16 discussed above, is in violation of the Fourth Amendment to the U.S. Constitution and

17 42 U.S.C. § 1983. 18
To the extent any facts remain disputed, plaintiffs summarize those disputes 19
20 above.

21

Defendants’ Position:

22

Defendants’ conduct was not violative of Plaintiffs’ Fourth Amendment rights.

23

24

25

Issue #3: Whether Defendants’ make or have made stops, extensions of stops,

26 interrogations, detentions, searches and/or arrests of Plaintiff class members without

27 probable cause or reasonable, articulable suspicion to believe they have committed a

28

65

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 66 of 217

1 crime or traffic violation (or after they have concluded dealing with the traffic violation)

2 in violation of the Fourth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that Defendants widespread use of pretextual and unfounded

6 traffic stops, racially motivated questioning, detention, searches arrests and other

7 mistreatment without probable cause or reasonable, articulable suspicion to believe the 8
targeted individuals have committed a crime or traffic violation (or after they’ve 9
10 concluded dealing with the traffic violation), as exemplified by the specific instances

11 discussed above, is in violation of the Fourth Amendment to the U.S. Constitution and

12 42 U.S.C. § 1983. 13
To the extent any facts remain disputed, plaintiffs summarize those disputes 14
15 above.

16

Defendants’ Position:

17

Defendants’ conduct is performed according to the law and did not violate

18 Plaintiffs’ rights.
19

20

21

Issue #4: Whether Defendants’ actions are unconstitutional because they violate

22 the rights of Plaintiffs and other similarly situated individuals under Article II, § 8 of the
23 Arizona Constitution.
24

25

Plaintiffs’ Position:

26

27

28

66

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 67 of 217

1

Plaintiffs contend that, by the wrongful conduct described above, Defendants,

2 acting under the color of law, have violated the rights guaranteed to Plaintiffs under 3 4 Article II, § 8 of the Arizona Constitution.

5

To the extent any facts remain disputed, plaintiffs summarize those disputes

6 above.

7

Defendants’ Position:

8

Defendants’ conduct was not violative of Plaintiffs’ rights pursuant to Article II, 9

10 Section 8 of the Arizona Constitution.

11

12

Issue #4: Whether Defendants engaged in race discrimination in violation of Title

13

VI of the Civil Rights Act of 1964 and 42 C.F.R. § 101 et seq. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that Defendant MCSO is a the law enforcement agency for

17 Maricopa County, Arizona and that the MCSO receives federal funding and other 18
financial assistance from the Department of Justice and other federal agencies. Despite 19
20 this, the methods employed by Arpaio, the MCSO and Maricopa County discriminate

21 against individuals based on their race, color and/or ethnicity as described herein.

22 Therefore, Defendants have engaged in race discrimination in violation of Title VI of the
23 Civil Rights Act of 1964 and 42 C.F.R. § 101 et seq.
24

25

To the extent any facts remain disputed, plaintiffs summarize those disputes

26 above.

27

Defendants’ Position:

28

67

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 68 of 217

1

Defendants’ conduct was not violative of Plaintiffs’ rights pursuant to Title VI of

2 the Civil Rights Act of 1964. 3

4

5

Issue # 5: Whether Plaintiffs have standing to obtain the equitable relief they

6 seek.

7

Plaintiffs’ Position:

8

Plaintiffs contend that, for at least the reasons discussed in this Court’s December 9

10 23, 2011 Order, Plaintiffs have standing to obtain the equitable relief they seek.

11

Defendants’ Position:

12

Plaintiffs lack standing to obtain the equitable relief they seek for the reasons

13

stated in Defendants’ Motion for Summary Judgment. 14

15

16

Issue # 6: Whether the class of Plaintiffs should remain certified.

17

Plaintiffs’ Position:

18 Plaintiffs contend that, for at least the reasons discussed in this Court’s December
19

20 23, 2011 Order, the class of Plaintiffs should remain certified.

21

Defendants’ Position:

22

The class of Plaintiffs should be de-certified.

23

24

25

Issue # 7: Whether the testimony of class members and/or evidence of class

26 member alleged incidents with Defendants is admissible.

27

Plaintiffs’ Position:

28

68

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 69 of 217

1

Plaintiffs contend that the testimony of class members and/or evidence of class

2 member alleged incidents with Defendants is admissible as it goes directly to the 3 4 questions of fact and law presented herein with respect to the MCSO’s policy, pattern or

5 practice of racial profiling in violation of the United States Constitution and the Arizona

6 Constitution.

7

Defendants’ Position:

8

Such evidence is inadmissible because it is irrelevant to whether the constitutional 9

10 rights of the named Plaintiffs were violated.

11

12

Issue #8: Whether Officer DiPietro had reasonable suspicion to detain Mr.

13

Ortega-Melendres and whether Deputy Rangel had probable cause to arrest Mr. Ortega14

15 Melendres.

16

Plaintiffs’ Position:

17

Plaintiffs contend that probable cause was absent because Officer DiPietro did not

18 know of any facts prior to detention suggesting that Ortega-Melendres had committed a
19

20 crime. If there is reasonable suspicion to stop a vehicle, “the officer may ask the detainee

21 a moderate number of questions to determine his identity and to try to obtain information

22 confirming or dispelling the officer's suspicions. But the detainee is not obliged to 23
respond. And, unless the detainee's answers provide the officer with probable cause to 24
25 arrest him, he must then be released.” Berkemer at 439-40. In order to arrest or detain

26 Mr. Ortega-Melendres, Deputy Rangel had to have probable cause, and the arrest must

27 have been proper under the Immigration and Nationality Act and implementing

28

69

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 70 of 217

1 regulations. MCSO officers did not have sufficient justification to conduct a warrantless
2 arrest of Mr. Ortega-Melendres. The fact that Deputy DiPietro suspected that Mr. 3 4 Ortega-Melendres was a Hispanic day laborer is not a proper basis for reasonable
5 suspicion or probable cause.

6

Plaintiffs summarize any disputed facts above.

7

Defendants’ Position:

8

Officer DiPietro had reasonable suspicion to detain Mr. Ortega-Melendres and 9

10 Deputy Rangel had probable cause to detain Mr. Ortega-Melendres.

11

12

Issue #9: Whether there was reasonable suspicion or probable cause to stop Ms.

13

Meraz and Mr. Nieto. 14

15

Plaintiffs’ Position:

16

Plaintiffs contend that the MCSO officers lacked reasonable suspicion because

17 there were no facts suggesting that Ms. Meraz and Mr. Nieto had committed a crime or 18
were in the process of committing one. “While ‘reasonable suspicion’ is a less 19
20 demanding standard than probable cause and requires a showing considerably less than

21 preponderance of the evidence, the Fourth Amendment requires at least a minimal level

22 of objective justification for making the stop. The officer must be able to articulate more 23
than an ‘inchoate and unparticularized suspicion or ‘hunch’’ of criminal activity.” 24
25 Illinois v. Wardlaw, 528 U.S. 119, 123-24 (2000) (internal citations omitted). MCSO

26 officers did not meet this standard. If the MCSO officers did not have reasonable

27 suspicion, they also did not have probable cause.

28

70

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 71 of 217

1

Plaintiffs summarize any disputed facts above.

2

Defendants’ Position:

3

4

Deputy Kikes had reasonable suspicion or probable cause to stop Ms. Meraz and

5 Mr. Nieto.

6

7

Issue #10: Whether there was sufficient justification to remove Mr. Nieto from

8

the car and handcuff him. 9

10

Plaintiffs’ Position:

11

Plaintiffs contend that MCSO officers lacked reasonable suspicion or probable

12 cause because, once again, there were no facts suggesting that Ms. Meraz and Mr. Nieto 13
had committed a crime or were in the process of committing one. Probable cause exists 14
15 if at the moment the arrest was made, “the facts and circumstances within [the officers’]

16 knowledge and of which they had reasonably trustworthy information were sufficient to

17 warrant a prudent man in believing that the [defendant] had committed or was 18
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). There was no probable 19
20 cause here. As stated above, to the extent that the MCSO argues that Deputy Kikes only

21 needed reasonable suspicion because the removal from the car and the handcuffing of

22 Nieto were done in connection with a Terry stop, Plaintiffs contend that, in the 23
alternative: 1) Deputy Kikes did not have reasonable suspicion sufficient to justify the 24
25 forceful removing of Mr. Nieto from the car or the handcuffing of Mr. Nieto or 2) the

26 actions of removing Mr. Nieto from the car and handcuffing him went beyond a Terry

27 stop and did require Deputy Kikes to have probable cause.

28

71

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 72 of 217

1

Plaintiffs summarize any disputed facts above.

2

Defendants’ Position:

3

4

Deputy Kikes had reasonable suspicion or probable cause to remove Mr. Nieto

5 from his vehicle and detain him.

6

7

Issue #11: Whether there was reasonable suspicion or probable cause to question

8

and/or detain Jerry Garcia on July 23, 2009. 9

10

Plaintiffs’ Position:

11

Plaintiffs contend that there was not reasonable suspicion or probable cause to

12 question and/or detain Jerry Garcia on July 23, 2009.
13 Defendants’ Position:
14

15

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

16 all aspects regarding this person.

17

18 Issue #12: Whether there was reasonable suspicion or probable cause to stop,
19
20 question and/or detain Julio and Julian Mora on February 11, 2009.

21

Plaintiffs’ Position:

22

Plaintiffs contend that there was not reasonable suspicion or probable cause to

23 stop, question and/or detain Julio and Julian Mora on February 11, 2009.
24

25

Defendants’ Position:

26

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

27 all aspects regarding this person.

28

72

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 73 of 217

1

2

Issue #13: Whether there was reasonable suspicion or probable cause to stop,

3

4 question and/or detain Lorena Escamilla on September 2, 2009.

5

Plaintiffs’ Position:

6

Plaintiffs contend that there was not reasonable suspicion or probable cause to

7 stop, question and/or detain Lorena Escamilla on September 2, 2009.
8 Defendants’ Position:
9

10

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

11 all aspects regarding this person.

12

13 Issue #14: Whether there was reasonable suspicion or probable cause to stop,
14
15 question and/or detain Daniel Magos on December 4, 2009.

16

Plaintiffs’ Position:

17

Plaintiffs contend that there was not reasonable suspicion or probable cause to

18 stop, question and/or detain Daniel Magos on December 4, 2009.
19

20

Defendants’ Position:

21

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

22 all aspects regarding this person. 23

24

25

Issue #15: Whether there was reasonable suspicion or probable cause to stop,

26 question and/or detain Adolfo Maldonado on March 22, 2008.

27

Plaintiffs’ Position:

28

73

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 74 of 217

1

Plaintiffs contend that there was not reasonable suspicion or probable cause to

2 stop, question and/or detain Adolfo Maldonado on March 22, 2008.

3

4

Defendants’ Position:

5

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

6 all aspects regarding this person.

7

8 Issue #16: Whether there was reasonable suspicion or probable cause to stop,
9
10 question and/or detain Adolfo Maldonado on July 14, 2008.

11

Plaintiffs’ Position:

12

Plaintiffs contend that there was not reasonable suspicion or probable cause to

13

stop, question and/or detain Adolfo Maldonado on July 14, 2008. 14

15

Defendants’ Position:

16

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

17 all aspects regarding this person. 18

19

20

Issue #17: Whether there was reasonable suspicion or probable cause to stop,

21 question and/or detain Lino Garcia during the four traffic stops that occurred between

22 June and August of 2009.
23 Plaintiffs’ Position:
24

25

Plaintiffs contend that there was not reasonable suspicion or probable cause to

26 stop, question and/or detain Lino Garcia during the four traffic stops that occurred

27 between June and August of 2009.

28

74

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 75 of 217

1

Defendants’ Position:

2

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

3

4 all aspects regarding this person.

5

6

Issue #18: Whether there was reasonable suspicion or probable cause to stop,

7 question and/or detain David Vasquez on June 26, 2008.
8 Plaintiffs’ Position:
9

10

Plaintiffs contend that there was not reasonable suspicion or probable cause to

11 stop, question and/or detain David Vasquez on June 26, 2008.

12

Defendants’ Position:

13

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 14

15 all aspects regarding this person.

16

17

Issue #19: Whether there was reasonable suspicion or probable cause to stop,

18 question and/or detain Andrew Sanchez on April 3, 2008.
19

20

Plaintiffs’ Position:

21

Plaintiffs contend that there was not reasonable suspicion or probable cause to

22 stop, question and/or detain Andrew Sanchez on April 3, 2008.
23 Defendants’ Position:
24

25

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

26 all aspects regarding this person.

27

28

75

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 76 of 217

1

Issue #20: Whether there was reasonable suspicion or probable cause to stop,

2 question and/or detain Elaine Sanchez on May 28, 2008.

3

4

Plaintiffs’ Position:

5

Plaintiffs contend that there was not reasonable suspicion or probable cause to

6 stop, question and/or detain Elaine Sanchez on May 28, 2008.

7

Defendants’ Position:

8

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in 9

10 all aspects regarding this person.

11

12

Issue #21: Whether there was reasonable suspicion or probable cause to stop,

13

question and/or detain Garrett Smith and/or any of the members of his family on October 14

15 16, 2009.

16

Plaintiffs’ Position:

17

Plaintiffs contend that there was not reasonable suspicion or probable cause to

18 stop, question and/or detain Garrett Smith and/or any of the members of his family on
19

20 October 16, 2009.

21

Defendants’ Position:

22

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

23 all aspects regarding this person(s).
24

25

26

27

28

76

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 77 of 217

1

Issue #22: Whether there was reasonable suspicion or probable cause to stop,

2 question and/or detain Diona Solis, Jaime Florez Sanchez and the children on March 8, 3 4 2009.

5

Plaintiffs’ Position:

6

Plaintiffs contend that there was not reasonable suspicion or probable cause to

7 stop, question and/or detain Diona Solis, Jaime Florez Sanchez and the children on
8 March 8, 2009.
9

10

Defendants’ Position:

11

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

12 all aspects regarding this person(s). 13

14

15

Issue #23: Whether there was reasonable suspicion or probable cause to stop,

16 question and/or detain Jorge Urteaga regarding on January 9, 2009.

17

Plaintiffs’ Position:

18 Plaintiffs contend that there was not reasonable suspicion or probable cause to
19

20 stop, question and/or detain Jorge Urteaga regarding on January 9, 2009.

21

Defendants’ Position:

22

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

23 all aspects regarding this person(s).
24

25

26

Issue #24: Whether there was reasonable suspicion or probable cause to stop,

27 question and/or detain Leopoldo Arteaga on May 12, 2009.

28

77

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 78 of 217

1

Plaintiffs’ Position:

2

Plaintiffs contend that there was not reasonable suspicion or probable cause to

3

4 stop, question and/or detain Leopoldo Arteaga on May 12, 2009.

5

Defendants’ Position:

6

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

7 all aspects regarding this person. 8

9

10

Issue #25: Whether there was reasonable suspicion or probable cause to stop,

11 question and/or detain Anabel Avitia and/or Guerra Monge on October 16, 2009.

12

Plaintiffs’ Position:

13

Plaintiffs contend that there was not reasonable suspicion or probable cause to 14

15 stop, question and/or detain Anabel Avitia or Guerra Monge on October 16, 2009.

16

Defendants’ Position:

17

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

18 all aspects regarding this person(s).
19

20

21

Issue #26: Whether there was reasonable suspicion or probable cause to stop,

22 question and/or detain Sergio Mueller Rangel on July 23, 2009.
23 Plaintiffs’ Position:
24

25

Plaintiffs contend that there was not reasonable suspicion or probable cause to

26 stop, question and/or detain Sergio Mueller Rangel on July 23, 2009.

27

Defendants’ Position:

28

78

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 79 of 217

1

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

2 all aspects regarding this person(s). 3

4

5

Issue #27: Whether there was reasonable suspicion or probable cause to stop,

6 question and/or detain Tammy Charles Leija on January 3, 2008.

7

Plaintiffs’ Position:

8

Plaintiffs contend that there was not reasonable suspicion or probable cause to 9

10 stop, question and/or detain Tammy Charles Leija on January 3, 2008.

11

Defendants’ Position:

12

This incident is irrelevant to the issues in this case. The MCSO acted lawfully in

13

all aspects regarding this person. 14

15

16 E. LIST OF WITNESSES

17

Plaintiff’s Witnesses:

18 1. Witnesses who shall be called at trial:
19

20

a. David Rodriguez; c/o Stanley Young, Esq., Covington & Burling

21 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

22 4700. Fact witness. Mr. Rodriguez will testify to the events of December 7, 2007,
23 including the events surrounding the traffic stop that occurred on that same date in which
24 25 Mr. Rodriguez was involved, the conduct of MCSO officers involved in that same traffic

26 stop, and the events immediately following the same traffic stop.

27

28

79

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 80 of 217

1

b. Manuel Nieto; c/o Stanley Young, Esq., Covington & Burling LLP

2 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 3 4 Fact witness. Mr. Nieto’s will testify to the events of March 28, 2008, including the

5 events leading up to and surrounding the traffic stop that occurred on that same date in

6 which Mr. Nieto was involved, the conduct of MCSO officers involved in that same

7 traffic stop, and the events immediately following the same traffic stop. 8
c. Lydia Guzman; c/o Stanley Young, Esq., Covington & Burling LLP 9
10 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

11 Fact witness. Ms. Guzman will testify regarding her role in SOMOS America, the

12 various reports received by SOMOS America from individuals experiencing alleged 13
discrimination by the MCSO, and her personal observations and experience with the 14
15 crime suppression or saturation patrols conducted by the MCSO.

16

d. Jerry Cosio; c/o Stanley Young, Esq., Covington & Burling LLP

17 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 18
Fact witness. Mr. Cosio will testify regarding the encounter with the MCSO described 19
20 in his declaration of April 6, 2009.

21

Defendants’ objections to Jerry Cosio: relevance.

22

e. Julio Mora; c/o Stanley Young, Esq., Covington & Burling LLP

23 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.
24

25 Fact witness. Mr. Mora will testify regarding the encounter with the MCSO described in

26 his declaration of April 7, 2009.

27

Defendants’ objections to Julio Mora: relevance.

28

80

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 81 of 217

1

f. Julian Mora; c/o Stanley Young, Esq., Covington & Burling LLP

2 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 3 4 Fact witness. Mr. Mora will testify regarding the encounter with the MCSO described in

5 his declaration of April 7, 2009.

6

Defendants’ objections to Julian Mora: relevance.

7

g. Lorena Escamilla; c/o Stanley Young, Esq., Covington & Burling

8

LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 6329

10 4700. Fact witness. Ms. Escamilla will testify regarding the encounter with the MCSO

11 on September 2, 2009 described in her declaration of February 18, 2010.

12

h. Daniel Magos; c/o Stanley Young, Esq., Covington & Burling LLP

13 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.
14

15 Fact witness. Mr. Magos will testify regarding the encounter with the MCSO on

16 December 4, 2009 described in his declaration of January 21, 2010.

17

Defendants’ objections to Daniel Magos: relevance.

18 i. Adolfo Maldonado; c/o Stanley Young, Esq., Covington & Burling
19

20 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

21 4700. Fact witness. Mr. Maldonado will testify regarding the encounter with the MCSO

22 described in his declaration of June 3, 2011.
23 Defendants’ objections to Adolfo Maldonado: relevance.
24

25

j. Sergio Martinez Villaman; c/o Stanley Young, Esq., Covington &

26 Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418,

27

28

81

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 82 of 217

1 (650) 632-4700. Fact witness. Mr. Villaman will testify regarding the encounter with

2 the MCSO on June 27, 2008 as described in his declaration of December 17, 2009.

3

4

Defendants’ objections to Sergio Martinez Villaman: relevance.

5

k. Robert Stewart; c/o Stanley Young, Esq., Covington & Burling LLP

6 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

7 Expert witness. Mr. Stewart will testify regarding his analysis of the policies and 8
practices of the MCSO, as presented in his expert reports of December 22, 2010 and 9
10 February 4, 2011.

11

l. Ralph Taylor; c/o Stanley Young, Esq., Covington & Burling LLP

12 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 13
Expert witness. Mr. Stewart will testify regarding his statistical analysis of traffic stops 14
15 conducted by the MCSO, as presented in his expert reports of December 22, 2010 and

16 February 4, 2011.

17

m. Sheriff Joseph Arpaio; c/o Tim Casey, Esq., Schmitt, Schneck,

18 Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540,
19

20 (602) 277-7000. Fact witness. Sheriff Arpaio will testify regarding MCSO’s policies

21 and practices with respect to officer training, racial discrimination, immigration

22 enforcement and saturation patrols, or crime suppression sweeps, including the planning 23
of and carrying out of saturation patrols, as well as the receipt of citizen complaints in 24
25 connection thereto.

26

n. Lieutenant Joseph Sousa; c/o Tim Casey, Esq., Schmitt, Schneck,

27 Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540,

28

82

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 83 of 217

1 (602) 277-7000. Fact witness. Lieutenant Sousa will testify regarding MCSO’s policies
2 and practices with respect to officer training, racial discrimination, immigration 3 4 enforcement and saturation patrols, or crime suppression sweeps, including the planning
5 of and carrying out of saturation patrols, as well as the receipt of citizen complaints in

6 connection thereto.

7

o. Deputy Chief Brian Sands; c/o Tim Casey, Esq., Schmitt, Schneck,

8

Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540, 9

10 (602) 277-7000. Fact witness. Deputy Chief Sands will testify regarding MCSO’s

11 policies and practices with respect to officer training, racial discrimination, immigration

12 enforcement and saturation patrols, or crime suppression sweeps, including the planning 13
of and carrying out of saturation patrols, as well as the receipt of citizen complaints in 14
15 connection thereto.

16

p. Sergeant Brett Palmer; c/o Tim Casey, Esq., Schmitt, Schneck,

17 Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540, 18
(602) 277-7000. Fact witness. Sergeant Palmer will testify regarding MCSO’s policies 19
20 and practices with respect to officer training, racial discrimination, immigration

21 enforcement and saturation patrols, or crime suppression sweeps, including the planning

22 of and carrying out of saturation patrols, as well as the receipt of citizen complaints in
23 connection thereto.
24

25

q. Deputy Carlos Rangel; c/o Tim Casey, Esq., Schmitt, Schneck,

26 Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540,

27 (602) 277-7000. Fact witness. Deputy Rangel will testify regarding his involvement in

28

83

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 84 of 217

1 saturation patrols and traffic stops, including any of the specific stops identified by
2 Plaintiffs in this case in which he was involved, as well as the general practices of the 3 4 MCSO with respect to officer training and supervision and the general culture of the
5 MCSO.

6

r. Deputy Louis DiPietro; c/o Tim Casey, Esq., Schmitt, Schneck,

7 Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540, 8
(602) 277-7000. Fact witness. Deputy DiPietro will testify regarding his involvement in 9
10 saturation patrols and traffic stops, including any of the specific stops identified by

11 Plaintiffs in this case in which he was involved, as well as the general practices of the

12 MCSO with respect to officer training and supervision and the general culture of the
13 MCSO.
14

15

2. Witnesses who may be called at trial:

16

a. Chief John MacIntyre; c/o Tim Casey, Esq., Schmitt, Schneck,

17 Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540, 18
(602) 277-7000. Fact witness. Chief MacIntyre will testify regarding MCSO’s policies 19
20 and practices with respect to officer training, racial discrimination, immigration

21 enforcement and saturation patrols, or crime suppression sweeps, including the planning

22 of and carrying out of saturation patrols, as well as the receipt of citizen complaints in
23 connection thereto.
24

25

Defendants’ objections to Chief John MacIntyre: relevance.

26

b. Sergeant Manuel Joseph Madrid; c/o Tim Casey, Esq., Schmitt,

27 Schneck, Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ,

28

84

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 85 of 217

1 85014-5540, (602) 277-7000. Fact witness. Sergeant Madrid will testify regarding
2 MCSO’s policies and practices with respect to officer training, racial discrimination, 3 4 immigration enforcement and saturation patrols, or crime suppression sweeps, including
5 the planning of and carrying out of saturation patrols, as well as the receipt of citizen

6 complaints in connection thereto.

7

c. Deputy Ramon Charley Armendariz; c/o Tim Casey, Esq., Schmitt,

8

Schneck, Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 9

10 85014-5540, (602) 277-7000. Fact witness. Deputy Armendariz will testify regarding

11 his involvement in saturation patrols and traffic stops, including any of the specific stops

12 identified by Plaintiffs in this case in which he was involved, as well as the general 13
practices of the MCSO with respect to officer training and supervision and the general 14
15 culture of the MCSO.

16

d. Deputy Matthew Lucas Ratcliffe; c/o Tim Casey, Esq., Schmitt,

17 Schneck, Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 18
85014-5540, (602) 277-7000. Fact witness. Deputy Ratcliffe will testify regarding his 19
20 involvement in saturation patrols and traffic stops, including any of the specific stops

21 identified by Plaintiffs in this case in which he was involved, as well as the general

22 practices of the MCSO with respect to officer training and supervision and the general
23 culture of the MCSO.
24

25

e. Deputy Douglas W. Beeks; ; c/o Tim Casey, Esq., Schmitt,

26 Schneck, Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ,

27 85014-5540, (602) 277-7000. Fact witness. Deputy Beeks will testify regarding his

28

85

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 86 of 217

1 involvement in saturation patrols and traffic stops, including any of the specific stops
2 identified by Plaintiffs in this case in which he was involved, as well as the general 3 4 practices of the MCSO with respect to officer training and supervision and the general
5 culture of the MCSO.

6

f. Deputy Michael Dean Kikes; c/o Tim Casey, Esq., Schmitt,

7 Schneck, Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 8
85014-5540, (602) 277-7000. Fact witness. Deputy Kikes will testify regarding his 9
10 involvement in saturation patrols and traffic stops, including any of the specific stops

11 identified by Plaintiffs in this case in which he was involved, as well as the general

12 practices of the MCSO with respect to officer training and supervision and the general
13 culture of the MCSO.
14

15

g. Suzanne Ashmore; c/o Tim Casey, Esq., Schmitt, Schneck, Smyth

16 & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ, 85014-5540, (602)

17 277-7000. Fact witness. Ms. Ashmore will testify regarding the funding that MCSO
18 receives from the federal government, either directly or through pass-through grants.
19

20

Defendants’ objections to Suzanne Ashmore: relevance, particularly given

21 Defendants’ stipulation regarding MCSO’s receipt of federal money.

22

h. Velia Meraz; c/o Stanley Young, Esq., Covington & Burling LLP

23 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.
24

25 Fact witness. Ms. Meraz will testify to the events of March 28, 2008, including the

26 events leading up to and surrounding the traffic stop that occurred on that same date in

27

28

86

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 87 of 217

1 which Ms. Meraz was involved, the conduct of MCSO officers involved in that same

2 traffic stop, and the events immediately following the same traffic stop.

3

4

i. Jessika Rodriguez; c/o Stanley Young, Esq., Covington & Burling

5 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

6 4700. Fact witness. Ms. Rodriguez will testify to the events of December 7, 2007,

7 including the events surrounding the traffic stop that occurred on that same date in which 8
Ms. Rodriguez was involved, the conduct of MCSO officers involved in that same traffic 9
10 stop, and the events immediately following the same traffic stop.

11

j. Manuel de Jesus Ortega-Melendres; c/o Stanley Young, Esq.,

12 Covington & Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 13
94065-1418, (650) 632-4700. Fact witness. Mr. Ortega-Melendres will testify to the 14
15 events of September 27, 2007, including the events surrounding the traffic stop that

16 occurred on that same date in which Mr. Ortega-Melendres was involved, the conduct of

17 MCSO officers involved in that same traffic stop, and the events immediately following
18 the same traffic stop, including the events during his transfer to and release from ICE.
19

20

k. Lino Garcia; c/o Stanley Young, Esq., Covington & Burling LLP

21 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

22 Fact witness. Mr. Garcia will testify regarding his four separate encounters with the
23 MCSO described in his declaration of December 3, 2010.
24

25

Defendants’ objections to Lino Garcia: relevance.

26

l. David Vasquez; c/o Stanley Young, Esq., Covington & Burling

27 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

28

87

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 88 of 217

1 4700. Fact witness. Mr. Sanchez will testify regarding the encounter with the MCSO on

2 June 26, 2008 described in his declaration of April 3, 2008.

3

4

Defendants’ objections to David Vasquez: relevance.

5

m. Andrew Sanchez; c/o Stanley Young, Esq., Covington & Burling

6 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

7 4700. Fact witness. Mr. Sanchez will testify regarding the encounter with the MCSO on
8 March 8, 2009 described in his declaration of November 13, 2008.
9

10

Defendants’ objections to Andrew Sanchez: relevance.

11

n. Elaine Sanchez; c/o Stanley Young, Esq., Covington & Burling

12 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 63213
4700. Fact witness. Ms. Sanchez will testify regarding the encounter with the MCSO on 14
15 May 28, 2008.

16

Defendants’ objections to Elaine: relevance; non and/or inadequate disclosure of

17 expected testimony. 18
o. Garrett Smith; c/o Stanley Young, Esq., Covington & Burling LLP 19
20 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

21 Fact witness. Mr. Smith will testify regarding the encounter with the MCSO on October

22 16, 2009 described in his declaration of December 29, 2009.
23 Defendants’ objections to Garret Smith: relevance.
24

25

p. Diona Solis; c/o Stanley Young, Esq., Covington & Burling LLP

26 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

27

28

88

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 89 of 217

1 Fact witness. Ms. Solis will testify regarding the encounter with the MCSO on March 8,

2 2009 as described in her declaration of February 22, 2009.

3

4

Defendants’ objections to Diona Solis: relevance.

5

q. Jamie Sanchez; c/o Stanley Young, Esq., Covington & Burling LLP

6 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

7 Fact witness. Mr. Sanchez will testify regarding the encounter with Ms. Solis and the
8 MCSO on March 8, 2009 as described in her declaration of February 22, 2009.
9

10

Defendants’ objections to Jamie Sanchez: relevance.

11

r. Jorge Urteaga; c/o Stanley Young, Esq., Covington & Burling LLP

12 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 13
Fact witness. Mr. Urteaga will testify regarding the encounter with the MCSO on 14
15 January 9, 2009 described in his declaration of February 5, 2010.

16

Defendants’ objections to Jorge Urteaga: relevance.

17

s. Dennis Gilman; c/o Stanley Young, Esq., Covington & Burling LLP

18 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.
19

20 Fact witness. Mr. Gilman will testify regarding the events he witnessed during crime

21 suppression sweeps that he observed in 2009.

22

Defendants’ objections to Dennis Gilman: relevance; non and/or inadequate

23 disclosure of expected testimony.
24

25

t. Blaine Woodruff; c/o Stanley Young, Esq., Covington & Burling

26 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

27 4700. Fact witness. Mr. Woodruff will testify to the events of December 7, 2007,

28

89

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 90 of 217

1 including the events surrounding the traffic stop that occurred on that same date in which

2 Mr. Rodriguez was involved, the conduct of MCSO officers involved in that same traffic 3 4 stop, and the events immediately following the same traffic stop.

5

Defendants’ objections to Blaine Woodruff: relevance; non and/or inadequate

6 disclosure of expected testimony.

7

u. Lew Ruggiero; c/o Stanley Young, Esq., Covington & Burling LLP

8

333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 9

10 Fact witness. Mr. Ruggiero will testify regarding his interview of Blaine Woodruff

11 regarding the events of December 7, 2007, including the events surrounding the traffic

12 stop that occurred on that same date in which Mr. Rodriguez was involved, the conduct 13
of MCSO officers involved in that same traffic stop, and the events immediately 14
15 following the same traffic stop.

16

Defendants’ objections to Lew Ruggiero: relevance; hearsay; non and/or

17 inadequate disclosure of expected testimony. 18
v. Andrew Yahraus; c/o Stanley Young, Esq., Covington & Burling 19
20 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

21 4700. Fact witness. Mr. Yahraus will testify to the events of December 7, 2007,

22 including the events surrounding the traffic stop that occurred on that same date in which 23
Mr. Rodriguez was involved, the conduct of MCSO officers involved in that same traffic 24
25 stop, and the events immediately following the same traffic stop.

26

Defendants’ objections to Andrew Yahraus: relevance; non and/or

27 inadequate disclosure of expected testimony.

28

90

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 91 of 217

1

3. Witnesses who are unlikely to be called at trial:

2

a. Chief David Anthony Hendershott; c/o Tim Casey, Esq., Schmitt,

3

4 Schneck, Smyth & Herrod P.C., 1221 East Osborn Roade, Suite 105, Phoenix AZ,

5 85014-5540, (602) 277-7000. Fact witness. Chief Hendershott will testify regarding

6 MCSO’s policies and practices with respect to officer training, racial discrimination,

7 immigration enforcement and saturation patrols, or crime suppression sweeps, including 8
the planning of and carrying out of saturation patrols, as well as the receipt of citizen 9
10 complaints in connection thereto.

11

b. Leopoldo Arteaga; c/o Stanley Young, Esq., Covington & Burling

12 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 63213
4700. Fact witness. Mr. Arteaga will testify regarding the encounter with the MCSO on 14
15 May 12, 2009.

16

Defendants’ objections to Leopoldo Arteaga: relevance.

17

c. Anabel Avitia; c/o Stanley Young, Esq., Covington & Burling LLP

18 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.
19

20 Fact witness. Mr. Avitia will testify regarding the encounters with the MCSO in October

21 of 2009.

22

Defendants’ objections to Anabel Avitia: relevance.

23 d. Socorro Hernandez Bernasconi; c/o Stanley Young, Esq.,
24

25 Covington & Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA

26 94065-1418, (650) 632-4700. Fact witness. Ms. Bernsasconi will testify regarding her

27 encounters with the MCSO in April of 2009.

28

91

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 92 of 217

1

Defendants’ objections to Socorro Hernandez Bernasconi: relevance; non and/or

2 inadequate disclosure of expected testimony.

3

4

e. Faith Fagaly; c/o Stanley Young, Esq., Covington & Burling LLP

5 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

6 Fact witness. Ms. Fagaly will testify regarding the encounter with the MCSO on July

7 23, 2009. 8
Defendants’ objections to Faith Fagaly: relevance; non and/or inadequate 9
10 disclosure of expected testimony.

11

f. Sylvia Herrera; c/o Stanley Young, Esq., Covington & Burling LLP

12 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 13
Fact witness. Ms. Herrera will testify regarding the April 2009 crime suppression sweep 14
15 in the Town of Guadalupe.

16

Defendants’ objections to Sylvia Herrera: relevance; non and/or inadequate

17 disclosure of expected testimony. 18
g. Tammy Charles Leija; c/o Stanley Young, Esq., Covington & 19
20 Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418,

21 (650) 632-4700. Fact witness. Mr. Leija will testify regarding the encounter with the

22 MCSO described in his declaration of February 11, 2010.
23 Defendants’ objections to Tammy Charles Leija: relevance.
24

25

h. Sergio Mueller Rangel; c/o Stanley Young, Esq., Covington &

26 Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418,

27

28

92

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 93 of 217

1 (650) 632-4700. Fact witness. Mr. Rangel will testify regarding the encounter with the

2 MCSO on July 23, 2009.

3

4

Defendants’ objections to Sergio Mueller Rangel: relevance; non and/or

5 inadequate disclosure of expected testimony.

6

i. Salvador Reza; c/o Stanley Young, Esq., Covington & Burling LLP

7 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700. 8
Fact witness. Mr. Reza will testify regarding the events that he witnessed during the 9
10 following crime suppression sweeps: Feb./March 2008, 32nd Street and Thomas,

11 Phoenix; March 2008, Cave Creek and Bell Roads, Phoenix; June 2008, Mesa; August

12 2008, Sun City; January 2009, Buckeye; July 2009, southeast valley/Chandler; October
13 2009, Surprise.
14

15

Defendants’ objections to Salvador Reza: relevance; non and/or inadequate

16 disclosure of expected testimony.

17

j. Liana Rowe; c/o Stanley Young, Esq., Covington & Burling LLP

18 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.
19

20 Fact witness. Ms. Rowe will testify regarding the events that she witnessed during the

21 following crime suppression sweeps: February/March 2008, 32nd Street and Thomas,

22 Phoenix; March 2008, Cave Creek and Bell Roads, Phoenix. 23
Defendants’ objections to Liana Rowe: relevance; non and/or inadequate 24
25 disclosure of expected testimony.

26

k. Annette Sexton-Ruiz; c/o Stanley Young, Esq., Covington &

27 Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418,

28

93

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 94 of 217

1 (650) 632-4700. Fact witness. Ms. Sexton-Ruiz will testify regarding the events that

2 she witnessed during the following crime suppression sweeps: February/March 2008, 3 4 32nd Street and Thomas, Phoenix; March 2008, Cave Creek and Bell Roads, Phoenix.

5

Defendants’ objections to Annette Sexton-Ruiz: relevance; non and/or inadequate

6 disclosure of expected testimony.

7

l. Elaine Munoz Sanchez; c/o Stanley Young, Esq., Covington &

8

Burling LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, 9

10 (650) 632-4700. Fact witness. Ms. Sanchez will testify regarding the encounter with the

11 MCSO on April 3, 2008.

12

Defendants’ objections to Elaine Munoz Sanchez: relevance; non and/or

13 inadequate disclosure of expected testimony.
14

15

m. Raquel Teran; c/o Stanley Young, Esq., Covington & Burling LLP

16 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-4700.

17 Fact witness. Ms. Teran will testify regarding the events that she witnessed during the 18
following crime suppression sweeps: February 2008, 32nd Street and Thomas, Phoenix; 19
20 January 2009, Town of Buckeye.

21

Defendants’ objections to Raquel Teran: relevance; non and/or inadequate

22 disclosure of expected testimony. 23
n. Sean Whitcomb; c/o Stanley Young, Esq., Covington & Burling 24
25 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

26 4700. Fact witness. Mr. Whitcomb will testify regarding the events that he witnessed

27 during the following crime suppression sweep: April 2009, Town of Guadalupe.

28

94

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 95 of 217

1

Defendants’ objections to Sean Whitcomb: relevance; non and/or inadequate

2 disclosure of expected testimony.

3

4

o. Hector Yturralde; c/o Stanley Young, Esq., Covington & Burling

5 LLP 333 Twin Dolphin Drive, Suite 700, Redwood Shores, CA 94065-1418, (650) 632-

6 4700. Fact witness. Mr. Yturralde will testify regarding his tenure as president of

7 Somos America the events that he witnessed during the following crime suppression
8 sweeps: March 2008 crime suppression sweep, Cave Creek and Bell Roads, Phoenix.
9

10

Defendants’ objections to Hector Yturralde: relevance; non and/or inadequate

11 disclosure of expected testimony.

12 Defendants Witnesses
13 1. Witnesses who shall be called at trial
14

15

a. Manuel de Jesus Ortega Melendres (fact witness), c/o Plaintiffs’

16 counsel. Mr. Melendres is expected to testify regarding the stop/detention involving him

17 that is the subject of this litigation, including but not limited to his admission to 287(g)18
certified MCSO officer Carlos Rangel that he was working in employment in the United 19
20 States when his B1-B2 visa does not permit such employment and that he did not have

21 an I-94 form that would allow him to be 25 miles north of the border, and to testify

22 consistent with his deposition. 23
b. Jessica Quitugua Rodriquez (fact witness), c/o Plaintiffs’ counsel. 24
25 Ms. Rodriquez is expected to testify regarding the stop/detention involving her that is the

26 subject of this litigation, and to testify consistent with her deposition.

27

28

95

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 96 of 217

1

c. David Rodriquez (fact witness), c/o Plaintiffs’ counsel. Mr.

2 Rodriquez is expected to testify regarding the stop/detention that involving him that is 3 4 the subject of this litigation and regarding his guilty plea to MCSO Arizona Traffic

5 Ticket and Complaint 684751 re Failure to Obey a Traffic Control Device, and to testify

6 consistent with his deposition.

7

d. Velia Meraz (fact witness), c/o Plaintiffs’ counsel. Ms. Meraz is

8

expected to testify regarding the stop/detention that involving her that is the subject of 9

10 this litigation, and to testify consistent with her deposition.

11

e. Manuel Nieto, Jr. (fact witness), c/o Plaintiffs’ counsel. Mr. Nieto

12 is expected to testify regarding the stop/detention that involving him that is the subject of
13 this litigation, and to testify consistent with his deposition.
14

15

f. Sheriff Joseph Arpaio (fact witness), c/o Defendants’ counsel.

16 Sheriff Joseph Arpaio is expected to testify regarding his knowledge of the MCSO’s

17 policies, the MCSO prohibition of racial profiling, the ICE-Maricopa County 287(g) 18
program, MCSO’s Human Smuggling Unit, MCSO’s Illegal Immigration and 19
20 Interdiction Unit, internal and external audits of MCSO, issues related to human

21 smuggling and saturation patrols, his receipt of citizen correspondence, his review and

22 forwarding of some of such correspondence and the reasons for the same, the reasons 23
and meaning of his annotations, if any, to such correspondence, why he kept an 24
25 “immigration file;” why he responded to certain letters received from people and what

26 he meant in providing a response; the reason(s) he forward certain letter to Chief Sands

27

28

96

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 97 of 217

1 or others in his office, and other related subjects. He is expected to testify consistent
2 with his depositions. 3 4 Plaintiffs object to the testimony of Sheriff Joseph Arpaio to the extent Defendants
5 intend to have him testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs

6 will concurrently file a motion in limine with regards to the proper scope of testimony

7 regarding ICE.
8 g.
9

Deputy Chief Brian Sands (fact witness), c/o Defendants’ counsel.

10 Deputy Chief Sands is the head of the Enforcement Division within the MCSO and is

11 expected to testify regarding his knowledge of the MCSO’s policies, the MCSO

12 prohibition of racial profiling, the ICE-Maricopa County 287(g) program, training of 13
MCSO deputies and HSU members, ICE training, and issues related to human 14
15 smuggling and saturation patrols. He is further expected to testify regarding his

16 selection of site for saturation patrols, the manner of selecting such sites and the

17 information used to select such sites, and his handling of correspondence and 18
information forwarded to him from Sheriff Arpaio. He is expected to testify consistent 19
20 with his depositions.

21 Plaintiffs object to the testimony of Deputy Chief Brian Sands to the extent Defendants

22 intend to have him testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs 23
will concurrently file a motion in limine with regards to the proper scope of testimony 24
25 regarding ICE.

26

h. Lt. Joe Sousa (fact witness), c/o Defendants’ counsel. Lt. Sousa,

27 MCSO Enforcement Detective, is expected to testify regarding his knowledge of the

28

97

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 98 of 217

1 MCSO’s policies, the ICE-Maricopa County 287(g) program, MCSO’s Human
2 Smuggling Unit, MCSO’s Illegal Immigration and Interdiction Unit, operations plans, 3 4 HSU training and supervision, site selection for saturation patrol, the MCSO prohibition
5 of racial profiling, the handling of tips received from citizens and issues related to

6 human smuggling and saturation patrols. He is expected to testify consistent with his

7 depositions. 8
Plaintiffs object to the testimony of Lt. Joe Sousa to the extent Defendants intend to have 9
10 him testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs will concurrently

11 file a motion in limine with regards to the proper scope of testimony regarding ICE.

12

i. Sgt. Manny Madrid (fact witness), c/o Defendants’ counsel. Sgt.

13

Madrid, an officer in Enforcement Support, is expected to testify regarding the incident 14

15 involving plaintiff Mr. Ortega-Melendres and related issues. He is further expected to

16 testify regarding crime saturation patrols and the execution of same, his training and

17 supervision of HSU members, the MCSO prohibition of racial profiling, and is expected
18 to testify consistent with his depositions.
19

20

j. Sgt. Brett Palmer (fact witness), c/o Defendants’ counsel. Sgt.

21 Palmer is expected to testify regarding the ICE-Maricopa County 287(g) program, the

22 MCSO’s policies and practices and issues related to human smuggling and saturation 23
patrols, his training and supervision of HSU members, the MCSO prohibition of racial 24
25 profiling, and is expected to testify consistent with his depositions.

26 Plaintiffs object to the testimony of Sgt. Brett Palmer to the extent Defendants intend to

27 have him testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs will

28

98

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 99 of 217

1 concurrently file a motion in limine with regards to the proper scope of testimony

2 regarding ICE.

3

4

k.

Deputy Louis DePietro (fact witness), c/o Defendants’ counsel.

5 Deputy DiPietro, an officer in the MCSO SWAT Division, is expected to testify

6 regarding the traffic stop related to plaintiff Mr. Ortega Melendres, the reasons for his

7 detention of the vehicle occupants, including Mr. Melendres, and related issues. He is
8 expected to testify consistent with his depositions.
9

10

l. Deputy Carlos Rangel (fact witness), c/o Defendants’ counsel.

11 Deputy Rangel, a 287(g)-certified MCSO officer in Enforcement Support, is expected to

12 testify regarding the incident involving plaintiff Mr. Ortega-Melendres and related issues 13
and the HSU investigation in the area. He is expected to testify consistent with his 14
15 depositions.

16

m. Deputy Ramon Charley Armendariz (fact witness), c/o Defendants’

17 counsel. Deputy Armendariz is expected to testify that, during a special assignment on 18
March 28, 2008, he made a traffic stop of a vehicle during which a dark-colored SUV 19
20 containing plaintiffs Meraz and Nieto parked directly behind his patrol car and engaged

21 in threatening conduct that presented a security and safety risk to himself and two

22 detainees and caused him to call for law enforcement back-up. He is expected to testify
23 consistent with his depositions.
24

25

n. Deputy Michael Kikes (fact witness), c/o Defendants’ counsel.

26 Deputy Kikes, a MCSO Patrol Officer at MCSO and is expected to testify regarding the

27 incident involving plaintiffs Meraz and Nieto, his hearing of the Armendariz call for

28

99

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 100 of 217

1 back-up, his conclusions from hearing the request for back-up, his identification and

2 following of the Meraz and Nieto vehicle, its non-compliance with his request to stop, its 3 4 subsequent behavior and lack of cooperation, the presence of third parties and the scene,
5 and the cause or reason for the traffic stop and detention. He is expected to testify

6 consistent with his deposition.

7

o. Former MCSO Deputy Douglas Beeks (fact witness), c/o

8

Defendants’ counsel. Deputy Beeks, a former MCSO officer in the Special Enforcement 9

10 Division, is expected to testify regarding the incident involving plaintiffs Meraz and

11 Nieto, his hearing of the Armendariz call for back-up, his conclusions from hearing the

12 request for back-up, Nieto’s behavior, and his actions taken at the scene and his 13
subsequent communication with Deputy Armendariz. He is expected to testify consistent 14
15 with his deposition.

16

p. Deputy Matt Ratcliffe (fact witness), c/o Defendants’ counsel.

17 Deputy Ratcliffe, a MCSO officer in the Lake Division, is expected to testify regarding 18
the incident involving the Rodriguez plaintiffs and related issues, including the cause for 19
20 the traffic stop and detention. He is expected to testify consistent with his deposition.

21

q. Jason Kidd (fact witness, by deposition), ICE, 500 12th Street SW,

22 Washington, DC. 20536. Mr. Kidd is expected to testify concerning his first hand 23
knowledge regarding ICE’s supervision of and communication with the MCSO 24
25 regarding the MOA and the 287(g) program, the results, findings, and conclusions of the

26 ICE/Homeland Security audits of the MCSO/287(g)/MOA program in 2007 and 2008,

27 that Defendants were in compliance with the MOA and federal law and engaged in good

28

100

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 101 of 217

1 and proper law enforcement and not racial profiling, and that if ICE had any concerns

2 whatsoever that Defendants were (or may have been) engaged in racial profiling ICE 3 4 would have acted immediately to stop such activity. He is expected to testify consistent
5 with his deposition.

6

Plaintiffs object to Jason Kidd on the following grounds: Relevance, F.R.E. 403,

7 lack of basis for deposition designation as opposed to live testimony. Plaintiffs will file 8
concurrently a motion in limine with respect to the testimony of Jason Kidd and the 9
10 scope of allowed testimony regarding ICE more generally.

11

r. Alonzo Pena (fact witness, by deposition), ICE, 500 12th Street

12 SW, Washington, DC. 20536. Mr. Pena, a former ICE SAC in Phoenix, is expected to 13
testify concerning his first hand knowledge regarding ICE’s supervision of and 14
15 communication with the MCSO regarding the MOA and the 287(g) program, the results,

16 findings, and conclusions of the ICE/Homeland Security audits of the

17 MCSO/287(g)/MOA program in 2007 and 2008, that Defendants were in compliance 18
with the MOA and federal law and engaged in good and proper law enforcement and not 19
20 racial profiling, and that if ICE had any concerns whatsoever that Defendants were (or

21 may have been) engaged in racial profiling ICE would have acted immediately to stop

22 such activity. He is expected to testify consistent with his deposition. 23
Plaintiffs object to Alonzo Pena on the following grounds: Relevance, F.R.E. 403, 24
25 lack of basis for deposition designation as opposed to live testimony. Plaintiffs will file

26 concurrently a motion in limine with respect to the testimony of Alonzo Pena and the

27 scope of allowed testimony regarding ICE more generally.

28

101

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 102 of 217

1

s. James Pendergraph (fact witness), 16910 Youngblood Road,

2 Charlotte, N.C. 28278. Mr. Pendergraph, a former ICE official, is expected to testify on 3 4 the following subjects: (a) his background, experience, knowledge and training as a

5 professional law enforcement officer and his use as a local sheriff of 287(g) authority in

6 North Carolina and his knowledge and experiences with the same; (b) his role,

7 employment, and position with ICE during the time period pertinent to plaintiffs’ 8
Amended Complaint; (c) his knowledge of the 287(g) agreement between ICE and the 9
10 MCSO; (d) ICE’s supervision of the MCSO and communications with the MCSO; (e)

11 ICE’s program that trains local police in immigration enforcement and the instruction

12 regarding illegal racial profiling; (f) his personal knowledge of, and communications 13
with other ICE officials regarding, the ICE audits of the MCSO in 2007 and 2008 and 14
15 ICE’s findings and conclusions regarding the MCSO law enforcement operations

16 including its saturation patrols and crime suppression sweeps; (g) his observations of the

17 actions of Arpaio and MCSO in compliance with the MOA, federal law, and law 18
enforcement practice; and (h) his observation of part of the MCSO’s crime suppression 19
20 patrol in the Town of Guadalupe and that nothing inappropriate was observed.

21

Plaintiffs object to James Pendergraph on the following grounds: Relevance,

22 F.R.E. 403, and because Plaintiffs were not provided with an opportunity to depose Mr. 23
Pendergraph. Plaintiffs will file concurrently motions in limine with respect to the 24
25 testimony of Mr. Pendergraph and the scope of allowed testimony regarding ICE more

26 generally.

27

28

102

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 103 of 217

1

t. Bennie R. Click (expert witness), P.O. Box 17186, Munds Park,

2 Arizona 86017. Mr. Click is expected to testify consistent with his written report and 3 4 deposition.

5

u. Steven Camarota, Ph.D.(expert witness), 1522 K Street N.W., Suite

6 820, Washington, D.C. 20005. Dr. Camarota is expected to testify consistent with his

7 written report and deposition. 8
Plaintiffs object to the testimony of Steven Camarota to the extent Dr. Camarota 9
10 plans to testify regarding any information received from Scott Jefferys on the following

11 grounds: hearsay, non or inadequate disclosure of testimony.

12

2. Witnesses who may be called at trial

13

a. Lt. Chuck Siemens (fact witness), c/o Defendants’ counsel. Lt. 14

15 Siemens may testify regarding the ICE-MCSO 287(g) program, the MCSO’s policies

16 and practices and issues related to human smuggling and saturation patrols.

17 Plaintiffs object to the testimony of Lt. Chuck Siemens to the extent Defendants intend 18
to have him testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs will 19
20 concurrently file a motion in limine with regards to the proper scope of testimony

21 regarding ICE.

22

b. Deputy Terry Heimgartner (fact witness), c/o Defendants’ counsel.

23 Deputy Heimgartner, an officer in the MCSO SWAT Division, is expected to testify
24

25 regarding the incident involving plaintiff Mr. Ortega-Melendres and related issues

26

27

28

103

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 104 of 217

1

c. Deputy Herbert Rowe, c/o Defendants’ counsel. Deputy Rowe, a

2 MCSO officer in District IV, is expected to testify regarding the incident involving 3 4 plaintiff Mr. Ortega-Melendres and related issues.

5

d. Deputy Cesar Brockman (fact witness), c/o Defendants’ counsel.

6 Deputy Brockman, an officer in the MCSO Enforcement Support Division, is expected

7 to testify regarding the incident involving plaintiffs Meraz and Nieto. 8
e. Sgt. Wes Ellison (fact witness), c/o Defendants’ counsel. Sgt. 9
10 Ellison is the author of document Melendres MCSO 056860-61 and is expected to testify

11 regarding the contents of the same.

12

f. Lt. Fred Aldorasi (fact witness), c/o Defendants’ counsel. Lt.

13

Aldorasi was the recipient of document Melendres MCSO 056860-61 and is expected to 14

15 testify about the handwritten notations he made on such document.

16

g. Frank Sloup (fact witness), c/o Defendants’ counsel. Deputy Sloup,

17 a MCSO Patrol Officer, is expected to testify to his reasons or basis for questioning Mr. 18
Jerry Alfonso Cosio and the legal basis for the arrest of Mr. Cosio to the extent evidence 19
20 regarding Mr. Alfonso is admissible.

21

h. Deputy D. Thompson (fact witness), c/o Defendants’ counsel.

22 Deputy Thompson, a MCSO Patrol Officer, is expected to testify to his reasons or basis 23
for the vehicle stop of Leopoldo Arteaga and for the arrest of Mr. Arteaga to the extent 24
25 evidence regarding Mr. Arteaga is admissible.

26

i. Deputy J. Feagen (fact witness), c/o Defendants’ counsel. Deputy

27 Feagen, a MCSO Patrol Officer, is expected to testify to his reasons or basis for the

28

104

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 105 of 217

1 vehicle stop of Leopoldo Arteaga and for the arrest of Mr. Arteaga to the extent evidence

2 regarding Mr. Arteaga is admissible.

3

4

j. Scott Jefferys (fact witness), c/o Defendants’ counsel. Mr. Jefferys,

5 an employee of Maricopa County working in the MCSO, is the Computer Aided

6 Dispatch (“CAD”) coordinator for the MCSO and is expected to testify regarding his

7 provision of the CAD data to Dr. Steven Camarota and, to the extent necessary or 8
appropriate for foundational or other reasons, regarding the following: (a) how MCSO 9
10 stores information: (b) how Mr. Jefferys compiled and/or prepared the CAD data for

11 analysis by Dr. Camarota; and (c) how Mr. Jefferys analyzed Dr. Taylor’s supporting

12 information from the data supplied by Plaintiffs’ counsel. 13
Plaintiffs object to Scott Jefferys on the following grounds: Relevance, lack of 14
15 and/or inadequate disclosure of witness and/or areas of testimony. Additionally, Mr.

16 Jefferys was not adequately disclosed as an expert and should not be allowed to testify in

17 that regard. Plaintiffs will concurrently file a motion in limine with respect to the
18 testimony of Mr. Jefferys
19

20

k. Captain Ray Jones (fact witness), c/o Defendants’ counsel. Former

21 Captain Jones is expected to testify regarding the ICE- Maricopa County 287(g)

22 program, the MCSO’s policies and practices, and issues related to human smuggling and
23 saturation patrols.
24

25

Plaintiffs object to the testimony of Ray Jones to the extent Defendants intend to

26 have Mr. Jones testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs will

27

28

105

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 106 of 217

1 concurrently file a motion in limine with regards to the proper scope of testimony

2 regarding ICE.

3

4

l.

Deputy J.F. Silva (fact witness), c/o Defendants’ counsel. Deputy

5 Silva is expected to testify regarding the ICE-Maricopa County 287(g) program,

6 MCSO’s policies and practices, and issues related to human smuggling and saturation

7 patrols. 8
Plaintiffs object to the testimony of Ray Jones to the extent Defendants intend to 9
10 have Mr. Silva testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs will

11 concurrently file a motion in limine with regards to the proper scope of testimony

12 regarding ICE.
13 m.
14

Deputy S. Ross (fact witness), c/o Defendants’ counsel. Deputy

15 Ross is expected to testify regarding the ICE-Maricopa County 287(g) program,

16 MCSO’s policies and practices, and issues related to human smuggling and saturation

17 patrols. 18
Plaintiffs object to the testimony of Ray Jones to the extent Defendants intend to 19
20 have Mr. Ross testify regarding ICE as irrelevant and under F.R.E. 403. Plaintiffs will

21 concurrently file a motion in limine with regards to the proper scope of testimony

22 regarding ICE.
23 n.
24

MCSO Deputy W. Ellison, c/o Defendants’ counsel. Deputy

25 Ellison may be called to lay the foundation for, and testify about, Defense exhibit 1007

26 (Melendres MCSO 056860-61) to the extent an objection to the same is made at trial by

27 Plaintiffs.

28

106

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 107 of 217

1

n. To the extent Plaintiffs are permitted to call at trial class members and

2 third parties to testify regarding their interactions and/or traffic stops with MCSO 3 4 personnel, the Defendants may call the following MCSO deputies as fact witnesses to

5 rebut and respond to the testimony of the Plaintiffs’ third party witnesses: Deputies

6 Gamboa, Russell, Ruehle, Templeton, Sedlacek, and Baraynos. Each of these deputies

7 will testify, if needed, to their interactions with the respective third party witness as set
8 forth in their respective testimony.
9

10

Plaintiffs object to each of Deputies Gamboa, Russell, Ruehle, Templeton,

11 Sedlacek, and Baraynos on the grounds of non or inadequate disclosure.

12

3. Witnesses who are unlikely to be called at trial.

13

a. Matthew Allen (fact witness, 400 North 5th Street - 11th Floor, 14

15 Phoenix, AZ 85004. Mr. Allen is an ICE Special Agent in Charge is expected to testify

16 consistent with his prior public statements that the Defendants stayed within the bounds

17 of the Memorandum of Agreement. 18
Plaintiffs object to Matthew Allen on the following grounds: Relevance, F.R.E. 19
20 403, and because Plaintiffs were not provided with an opportunity to depose Mr. Allen.

21 Plaintiffs will file concurrently motions in limine with respect to the testimony of Mr.

22 Allen and the scope of allowed testimony regarding ICE more generally. 23
b. Troy Henley (fact witness, 400 North 5th Street - 11th Floor, 24
25 Phoenix, AZ 85004. Mr. Henley is an acting ICE Special Agent in Charge in charge of

26 investigation for the Arizona office of ICE is expected to testify consistent with his prior

27

28

107

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 108 of 217

1 public statements that the crime suppression patrols conducted by Defendants are under

2 state law and that Defendants acted in compliance with the Memorandum of Agreement.

3

4

Plaintiffs object to Troy Henley on the following grounds: Relevance, F.R.E. 403,

5 and because Plaintiffs were not provided with an opportunity to depose Mr. Henley.

6 Plaintiffs will file concurrently motions in limine with respect to the testimony of Mr.

7 Henley and the scope of allowed testimony regarding ICE more generally. 8
c. Vincent Picard (fact witness), 400 North 5th Street - 11th Floor, 9
10 Phoenix, AZ 85004. Mr. Picard, a spokesman for the Phoenix office of ICE, is expected

11 to testify consistent with his prior public statements that, as of February 14, 2009,

12 Defendants had not violated the 287(g) agreement, that the 287(g) program was working 13
as intended, and that not a single first-hand complaint involving ICE-trained officers in 14
15 Arizona had been filed with the Department of Homeland Security’s Office of Inspector

16 General or any other federal investigative agency.

17

Plaintiffs object to Vincent Picard on the following grounds: Relevance, F.R.E.

18 403, and because Plaintiffs were not provided with an opportunity to depose Mr. Picard.
19

20 Plaintiffs will file concurrently motions in limine with respect to the testimony of Mr.

21 Picard and the scope of allowed testimony regarding ICE more generally.

22

d. Bill Reid (fact witness), address not known. Mr. Reid, a former

23 ICE official who headed the ICE Internal Affairs Division in 2008 and conducted and/or
24

25 directed the 2008 audit of the MCSO MOA/287(g) program, is expected to testify about

26 his role and position at ICE, his role and responsibilities in conducting the 2008 audit of

27 the MCSO MOA/287(g) program, and his conclusions, findings, and opinions reached

28

108

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 109 of 217

1 during that audit, which concluded that there was no problem with Arpaio and the

2 MCSO’s operation under the MOA and 287(g) and there was no racial profiling by the 3 4 MCSO.

5

Plaintiffs object to Bill Reid on the following grounds: Relevance, F.R.E. 403,

6 and because Plaintiffs were not provided with an opportunity to depose Mr. Reid.

7 Plaintiffs will file concurrently motions in limine with respect to the testimony of Mr.
8 Reid and the scope of allowed testimony regarding ICE more generally.
9

10

Each party understands that it is responsible for ensuring that the witnesses it

11 wishes to call to testify are subpoenaed. Each party further understands that any witness

12 a party wishes to call shall be listed on that party’s list of witnesses; the party cannot rely 13
on the witness having been listed or subpoenaed by another party. 14
15 F. LIST OF EXHIBITS

16

1. The following exhibits are admissible in evidence and may be marked in

17 evidence by the Clerk:
18 Trial Exh. No.
19

Description

20 1 21 22 2 23 24 25 5 26 27

Email chain last dated March 11, 2009 re "Three Presidents" (Exhibit 7 to the deposition of Joseph Sousa, taken on October 22, 2010) Email chain, last dated June 13, 2009 re "FW: Thought you'd find this interesting" containing status purported to be from the L.A. Times (Exhibit 5 to the deposition of Brett Palmer, taken on November 9, 2010) Email dated May 29, 2008 re "3511 stuff" and attaching a copy of a "Mexifornia" Driver’s License, Email dated 6/3/2008 forwarding "3511 stuff" (Exhibit 34 to the deposition of Joseph Arpaio, taken on

28

109

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 110 of 217

1

Trial Exh. No.

Description

2

3

November 16, 2010)

4

5 7
6
7
8 11 9
10
11 12 12
13 14 13
15 16 16
17
18 17 19
18 20
21 19 22
23 24 20
25

Email last dated May 1, 2008 re "FW: MORE: Mexican Words of the Day" (Exhibit 22 to the deposition of Brian L. Sands, taken on November 15, 2010) MCSO News Release dated October 21, 2009, "Arpaio: 'We Will Still Use Indicators in the Enforcement of Illegal Immigration Laws'" (ORT 000616-617 / Exhibit 3 to the deposition of Brett Palmer, taken on October 23, 2009) Excerpt from "Workbook: Statutory Authority, ICE Academy" dated Fall 2005 (ORT 000618 / Exhibit 4 to the deposition of Brett Palmer, taken on October 23, 2009) Oct. 30, 2009 email from Palmer to Madrid, Armendariz, Rangel, Sousa (Carveout MCSO 0000431) Email chain last dated July 2, 2008 re "FW: some we haven’t seen yet, just scroll down" attaching image of "No Illegals - No Burritos" (Carveout MCSO 0003188-97, 3205) Email chain last dated July 1, 2008 re "RE: FUNNY MEXICAN WORDS" (Carveout MCSO 0004961-62) Email chain last dated July 2, 2008 re "A RARE PHOTO OF A MEXICAN NAVY SEAL" (Carveout MCSO 0005586-88) Email chain last dated November 12, 2005 re "FW: Guadalupe Handgun revision" and attaching image of "Hispanic Shooting Range" (Carveout MCSO 0006209-10) Dec. 16, 2008 email from Sousa to Rangel, Palmer, Madrid, Armendariz; Jerez reply (Carveout MCSO 0023530)

26 29 27

Email chain last dated June 25, 2008 re "Indian yoga vs. Mexican yoga" (Carveout MCSO 0038846-49)

28

110

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 111 of 217

1

Trial Exh. No.

Description

2

3 30 4 31 5 6 32 7 8 35 9 10 43 11 44 12 13 45 14 15 46 16 47 17 50 18
65 19 20

Email dated September 2, 2008 re "Fw: Mexican Jews" (Carveout MCSO 0103100) Email chain dated December 15, 2008 re "FW: Learn the Mexican Words of the Day" (Carveout MCSO 0132232) Email dated July 10, 2008 re "FW: Word of the Day" attaching Mexican word of the day.doc (Carveout MCSO 0162905-06) Attachment to July 30, 2008 email from Gonzales to Barron-Irby; titled “Brian Sands/Dave Trombi” (Carveout MCSO 0227729-30) Mar. 11, 2009 email from Siemens to Rios, Sousa (Carveout MCSO 0350979) Email chain, last dated September 29, 2009 re "Mexican Engineering at It's Best!!" (Carveout MCSO 0426255-70) Email chain, dated February 24, 2009 re "FW: Mexican words of the day" (Carveout MCSO 0496147-48) Email dated July 22, 2009 re "MEXICAN TEST" (Carveout MCSO 0497277-80) Email chain dated November 3, 2009 re "FW: Mexican Recliners" (Carveout MCSO 0501203-05) MCSO CAD Incident History, Incident # MA07222192 (MCSO CAD Database) MCSO Memorandum re "Complaint on Deputy Matt Ratcliffe" and other complaints against the MCSO with various dates (Melendres MCSO 000001-30)

21

22

23

24

25 66 26
27

MCSO Arizona Ticket and Complaint Form (Melendres MCSO 000004 / Exhibit 6 to the deposition of Matthew Lucas Ratcliffe, taken on October 15, 2009)

28

111

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 112 of 217

1

Trial Exh. No.

Description

2

3 67 4

DHS officer training manual: Powerpoint presentation discussing delegation of authority under 287(g) (Melendres MCSO 000081-104)

5

6

7

8

9

10

11

12 13 68 14 15

Civil Rights file with 287(g) Officer Training Participant Workbook (Melendres MCSO 000179-198 / Exhibit 1 to the deposition of Brett Palmer, taken on October 23, 2009)

16

17 18 69
19

DHS officer training manual: lesson plan re use of race by federal law enforcement (Melendres MCSO 000222-37)

20

21

22 70 23 24

MCSO CAD Incident History 9/27/2007 Incident #MA07181873 (Melendres MCSO 001785-87 / Exhibit 1 to the deposition of Carlos Rangel, taken on October 20, 2009)

25

26

27

28

112

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 113 of 217

1

Trial Exh. No.

Description

2 3 71
4
5
6
7 8 73
74 9 10 75
11

CAD Incident History (MA08054641 MA08054636 MA08054640) and Incident Report (MA08054636) (Melendres MCSO 001811-20 / Melendres MCSO 001811 - Exhibit 9 to Kikes Deposition / Melendres MCSO 001812-14 - Exhibit 12 to Armendariz November 24, 2009 Deposition / Melendres MCSO 001816 - Exhibit 7 to Beeks Deposition / Melendres MCSO 001817-20 - Exhibit 7 to Kikes Deposition) Melendres MCSO 001817–20 Enforcement Support Unit organizational chart (Melendres MCSO 001821) Saturation Patrol Documents 32nd Street and Thomas, January 18-19, 2008 (Melendres MCSO 001822–24)

12 76
13 14 77
15 78 16 79 17
18 19 80
20 21 81
22 23 82
24
25
26 83
27

MCSO Human Smuggling Unit, Shift Summary for Saturation Patrol 12/14/07 at Aguila and surrounding area (Melendres MCSO 014905-07) Saturation Patrol Stats, January 18th, 2008 from 1500 to 2300 (Melendres MCSO 001825) MCSO Crime Suppression / Saturation Patrol Totals (Melendres MCSO 001826) Saturation Patrol Documents 32nd Street and Thomas, March 21-22, 2008; Operation Summary, stat sheet for saturation patrol, arrest list / Handwritten Notes dated 3/21/2008 of arrests (Melendres MCSO 001834–40) MCSO Human Smuggling Unit Shift Summary, for 11/29/2007 in the Area of Broadway and Stapley, Mesa (Melendres MCSO 014898) MCSO Human Smuggling Unit Shift Summary, for 12/5/07 in the Area of Broadway and Stapley, Mesa (Melendres MCSO 014900) Saturation Patrol Documents, Cave Creek and Bell, March 27-28, 2008 / Incident action plan, patrol statistics, personnel sign-in rosters, arrest lists, Mar. 27-28, 2008 at Cave Creek and Bell Rds. in Phoenix (Melendres MCSO 001844-52; Melendres MCSO 014547-48) Stat Sheet for Saturation Patrol 03/28/08 (Melendres MCSO 001848)

28

113

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 114 of 217

1

Trial Exh. No.

Description

2

3 84 4 85 5 6 86 7 87 8 9

MCSO Personnel Sign-In for Cave Creek & Bell, 3/28 (Melendres MCSO 001849–50) Handwritten arrest logs (Melendres MCSO 001851-52 / Exhibit 6 to the deposition of Douglas W. Beeks, taken on October 22, 2009) Saturation Patrol Documents, Guadalupe, April 3-4, 2008 (Melendres MCSO 001853–59) Incident action plan, patrol statistics, personnel sign-in roster, arrest lists, email correspondence to Phoenix, Tempe and Ahwatukee PDs, Apr. 3-4, 2008 in Guadalupe (Melendres MCSO 001853-77)

10 88
11
12 89
13
14 90 15
16
17
18
19

Email dated April 4, 2008 re "Guadalupe Saturation patrol 04/04/08 and stat totals" (Melendres MCSO 001864-65) Saturation Patrol Sign-in Roster for Guadalupe Saturation Patrol 4/3-4/2008 (Melendres MCSO 001866-73) Incident action plan, III Strike Team protocol, officer safety bulletin, aerial photographs and maps of Mesa, supplemental operations plan, stats for last four sweeps, arrest lists, personnel sign-in roster, copy of East Valley Tribune article: “Arpaio plans to sweep Mesa on Thursday,” patrol statistics, June 26-27, 2008 in Mesa (Melendres MCSO 001878-925; Melendres MCSO 014578-79)

20 91
21

Saturation Patrol Documents, Mesa, June 26-27, 2008 (Melendres MCSO 001878–98)

22

23

24

25

26

27

28

114

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 115 of 217

1

Trial Exh. No.

Description

2

3 92 4 5

Illegal Immigration Enforcement Protocols (April 25, Oct. 8, and Oct. 21, 2008) (Melendres MCSO 00188788; Melendres MCSO 014951-53; Melendres MCSO 014966-67)

6

7

8

9

10

11 12 93
13 94
14
15 95
16 17 96
18 97
19
20
21 98 22 99 23
100 24
25 101
26
27

Email dated June 28/2008 re "Mesa Saturation patrol 08/27/08 and stat totals for operation" (Melendres MCSO 001899-1900) MCSO Crime Suppression / Saturation Patrol Arrest List, Mesa Op / 06-26-27, 2008 (Melendres MCSO 001904-20) MCSO Crime Suppression / Saturation Patrol Arrest List for Mesa Op; (Melendres MCSO 001907-914) Form for MCSO Crime Suppression / Saturation Patrol Totals (Melendres MCSO 058706) Saturation Patrol Documents, Mesa, July 14, 2008 / Incident action plan, III Strike Team protocol, officer safety bulletin, aerial photographs and maps of Mesa, July 14, 2008 in Town of Mesa (Melendres MCSO 001926-47) Email dated July 15, 2008 re "Mesa Saturation patrol 07/14/08" (Melendres MCSO 001941) Sign-in Roster, dated 07/14/08 for Operation: MesaOP (Melendres MCSO 001942-46) Saturation Patrol Documents, Food Vendor Detail, Maryvale, July 31, 2008 (Melendres MCSO 00194854) Saturation Patrol Documents, Sun City / Sun City West / US 60 / I-17, August 13-14, 2008 (Melendres MCSO 001970-73)

28

115

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 116 of 217

1

Trial Exh. No.

Description

2

3 102
4
5
6 103 7
104 8
9 107 10

Operation plan, maps of Sun City and Sun City West, patrol statistics, email correspondence, shift summaries, arrest lists, personnel sign-in roster, Aug. 13-14, 2008 in Sun City/Sun City West (Melendres MCSO 001970-98)
Email dated August 15, 2008 re "Sun City Detail 08/13 and 08/14" (Melendres MCSO 001974) MCSO Crime Suppression / Saturation Patrol Arrest List, and Sign-in Roster for Sun City (Melendres MCSO 001978-95) Aug. 5, 2008 internal MCSO email re named plaintiffs in lawsuit (Melendres MCSO 008968)

11

12

13 14 108
15
16 17 109
18 110 19
20 21 111
22
23
24 112
25
26 113
27

Emails dated May 6 & 7, 2008 attaching Shift Summaries of saturation patrols in Fountain Hills (Melendres MCSO 014432-36 / Exhibit 8 to the deposition of Brian L. Sands, taken on December 14, 2009) Email correspondence, patrol statistics, Aug. 19, 2008 in Cave Creek (Melendres MCSO 014458-59) Email originally dated January 11, 2009 re "Interdiction & Crime Suppression Detail 01-102009_Two Day Totals" (Melendres MCSO 01448485) Operations plan, maps of southwest valley, illegal immigration activity and crime statistics for 2008, officer safety bulletin, email correspondence, patrol statistics, personnel sign-in roster, arrest lists, Jan. 910, 2009 in Buckeye (Melendres MCSO 014484-87; MCSO 014632-4)
Email correspondence, patrol statistics, arrest list, Sept. 4, 2008 in Cave Creek (Melendres MCSO 014496-99) Shift summary Jan. 4, 2008 at 24th and Bell Rds. in Phoenix (Melendres MCSO 014512)

28

116

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 117 of 217

1

Trial Exh. No.

Description

2

3 114
4
5
6 7 115
8
9 116 10
117 11

Shift summaries and email correspondence re: patrol statistics, Oct. 2007-Mar. 2008 smaller operations near 32nd/36th St. & Thomas Rd. in Phoenix (Melendres MCSO 014519, 014525, 014533, 014537, 014659, 014663-67, 014672-73, 014678, 014693, 014876-77, 014893, & 014909)
Email dated March 17, 2008 from M. Madrid regarding "36th Street and Thomas stats" (Melendres MCSO 014537 / Exhibit 9 to the Deposition of Joseph Sousa taken on December 10, 2009) Email originally dated 3/22/2008 re "Saturation patrol on 3/22/08" (Melendres MCSO 014541) Email correspondence; patrol statistics, July 8, 2008 in Cave Creek (Melendres MCSO 014586-87)

12 118 13
14 15 119 16 120
17 18 121
19 122 20 21 123
22 124 23

Email originally dated March 28, 2008 re "Saturation patrol stat form 3/28/08-Cave Creek & Bell & totals for the two day operation" (Melendres MCSO 01464445) Shift summary for February 29, 2007 in Avondale (Melendres MCSO 014651-52) Email originally dated November 15, 2007 re "Saturation patrol, 11/15/07" for area of Stapley & Main in Mesa (Melendres MCSO 014670) Email re Nov. 14, 2007 in Cave Creek (Melendres MCSO 014671) Email originally dated September 24, 2007 re "Good Sheppard of the Hills (Cave Creek Church)" (Melendres MCSO 014686) Email originally dated October 22, 2007 re "Fountain Hills Detail" (Melendres MCSO 014691-92) Email from 25th St. and Bell Rd. supporter (Melendres MCSO 014707)

24 125 25 26 126 27

Email originally dated Oct. 11, 2008 re stats of "Saturation Patrol 7th Street and Thunderbird" (Melendres MCSO 014715) Email chain, originally dated September 27, 2007 re "Cave Creek day labors and tip line" (Melendres MCSO 014861 / Exhibit 2 to the deposition of Carlos

28

117

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 118 of 217

1

Trial Exh. No.

Description

2

3

Rangel, taken on October 20, 2009)

4

5 127 6 7
128 8 9 129 10 11 130 12 131 13 14
132 15 16 17

MCSO Enforcement Support Division Operations Plan, Southeast Valley, Human Smuggling Interdiction / Crime Suppression Patrol, for July 2325, 2009 (Melendres MCSO 056999-57001) MCSO Crime Suppression / Saturation Patrol Arrest List, July 23-24, 2009 (Melendres MCSO 057029) Email, originally dated 10/4/2007 re "Queen Creek Detail" from Manuel Madrid (Melendres MCSO 014865-66 / Exhibit 5 to the deposition of Joseph Sousa, taken on December 10, 2009) INTENTIONALLY LEFT BLANK Email dated October 15, 2007, re HSU detail near 36th and Thomas (Melendres MCSO 014876-877 (dup) MCSO 071618 / Exhibit 4 to the October 20, 2009 deposition of Rangel) MCSO Policy & Procedure document, Subject of Traffic Law Enforcement Guidelines, effective 12-2905 (Melendres MCSO 014913-16 / Exhibit 4 to the deposition of Matthew Lucas Ratcliffe, taken on October 15, 2009)

18

19

20 133
21 22 134
23

MCSO Policy and Procedure on Subject Search and Seizure, dated 9-16-06 (Melendres MCSO 014917-25) MCSO Policy and Procedure on Subject Traffic Violator Contacts and Citation Issuance, dated 10-0306 (Melendres MCSO 014926-28)

24 135
25
26
27

Human Smuggling Unit growth time line, April of 2006 - 2007 (Melendres MCSO 014930 / Exhibit 9 to the deposition of Bennie R. Click, taken on March 18, 2011)

28

118

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 119 of 217

1

Trial Exh. No.

Description

2

3 136
4 5 137
6 138
7
8

MCSO's The Briefing Board, Number 08-52, October 21, 2008, re Illegal Immigration Enforcement Protocol (Melendres MCSO 014951-53) MCSO Operation Manual re Human Smuggling Unit Standard Operating Procedures, revised 10-30-08 (Melendres MCSO 014956) MCSO Memorandum re "Enforcement Support Protocol for Response to Human Smuggling Cases" dated April 20, 2006 (Melendres MCSO 014961-65)

9 10 139
11 12 140 13 141
14

MCSO Policy and Procedure on Subject Arrest Procedures, dated 11-03-00 (Melendres MCSO 014968-76) MCSO CAD/RMS codes (Melendres MCSO 01501214) Model Lesson Plan: Laws of Arrest (Melendres MCSO 015055-87)

15 142 16 17 18 19 143 20 21 144 22 23
145 24 25 146 26 27 28

Arizona Peace Officer Standards and Training Board, 585-Hour Basic Curriculum, Model Lesson Plan, Lesson Title: Search and Seizure 2.3, dated July 2006 (Melendres MCSO 015088-112 / Exhibit 6 to the deposition of Bennie R. Click, taken on March 18, 2011) Arizona Peace Officer Standards and Training Board, Model Lesson Plan: Cultural Awareness (Melendres MCSO 015258-306) Arizona Peace Officer Standards and Training Board, 585-Hour Basic Curriculum, Model Lesson Plan, Lesson Title: Traffic Citations 4.2, Revised March 2008 (Melendres MCSO 015180-15201)
MCSO Operation Clean House, Date of Operation 2/11/09 (Melendres MCSO 015468-84) Enforcement Support Division, Operations Plan, Southwest Valley, Human Smuggling Interdiction / Crime Suppression Patrol January 9-10, 2009 (Melendres MCSO 015553–59 / Exhibit 6 to the Initial Expert Report of Ralph B. Taylor)
119

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 120 of 217

1

Trial Exh. No.

Description

2

3 147
4
5 148 6
7
8
9 10 149
11 150 12
13

Email dated January 11, 2009 re "Interdiction & Crime Suppression Detail 01-10-2009_Two Day Totals" for area of Southwest Valley, and attaching stats for January 9-10 (Melendres MCSO 015560-65) January 9-10, 2009 Sign-in Roster for Operation: Southwest Valley and MCSO Interdiction Patrol for Human Smuggling / Crime suppression Totals (Melendres MCSO 015566-77 / Exhibit 7 to the Initial Expert Report of Ralph B. Taylor (MCSO 15566 15569) / Exhibit 8 to the Initial Expert Report of Ralph B. Taylor (MCSO 015576-15577) MCSO III Strike Team statistics (Melendres MCSO 016218)
MCSO Operational Manual, Human Smuggling Unit Standard Operating Procedures, Revised on 10-30-08 (Melendres MCSO 016219-20)

14

15

16 152 17
18 153 19
156 20 21 164
22
23 165 24
25 166 26
27 167

MCSO Policy & Procedure document, Subject of Code of Conduct, dated 08-20-99 (Melendres MCSO 016296-309) MCSO Arizona Ticket and Complaint Form (Melendres MCSO 016857, 16918) 287(g) Personnel Assignments (Melendres MCSO 021382-84) Enforcement Support Division, Operations Plan, Southwest Valley, Human Smuggling Interdiction / Crime Suppression Patrol April 23-24, 2009 (Melendres MCSO 056976–82) Email dated April 25, 2009 re "Interdiction & Crime Suppression Detail 04-23 & 04-24 2009_Two Day Totals" (Melendres MCSO 056983) MCSO Crime Suppression / Saturation Patrol Arrest List, April 23-24, 2009 (Melendres MCSO 05698890) Sign-in Roster, dated 04-23 and 04-24-2009 for

28

120

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 121 of 217

1

Trial Exh. No.

Description

2

3
4 168 5
6
7 169 8
9 10 170
11 171
12 13 172
14 173
15
16 174
17
18
19 175
20
21 176
22
23
24 177
25 178 26 179
27 180

Operation: West Valley (Melendres MCSO 05699198) Enforcement Support Division Operation Intel, Southeast Valley, Human Smuggling Interdiction / Crime Suppression Patrol, July 2009; Arrest Lists; Email dated July 25, 2009 re summary of Crime Suppression Patrol (Melendres MCSO 057002–57028) Enforcement Support Division Operations Plan, Durango/35th Avenue Corridor, Human Smuggling Interdiction / Crime Suppression Patrol, September 56, 2009 (Melendres MCSO 057030-34) Sign-in Roster and Arrest Lists, dated September 5-6, 2009 (Melendres MCSO 057035-45) Email dated September 7, 2008, re "Crime Suppression Shift Summary Totals" (Melendres MCSO 057046-47) MCSO Internal Investigations Policy & Procedure (Melendres MCSO 057566-70)
Email dated October 15, 2009 subject "Effective Immediately" re deputies who are 287g certified to cease actions (Melendres MCSO 058704-705) Enforcement Support Division Operations Plan, Northwest Valley, Human Smuggling Interdiction / Crime Suppression Patrol, October 16-17, 2009. Arrest Lists, Sign-in Rosters, email with totals (Melendres MCSO 058708–30) Email originally dated May 29, 2009 re "Saturation patrol 05/29/09" in District II (Melendres MCSO 059523-24) Enforcement Support Division Operations Plan, Maricopa County, Human Smuggling Interdiction / Crime Suppression Patrol, November 16-18, 2009 (Melendres MCSO 059649–54) Sign-in Roster, November 16, 2009 (Melendres MCSO 059656-59) MCSO Arrest List (Melendres MCSO 059660-62) Sign-in Roster, November 17, 2009 (Melendres MCSO 059664-65) MCSO Arrest List (Melendres MCSO 059666-67)

28

121

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 122 of 217

1

Trial Exh. No.

Description

2

3 181 4 5 182 6
183 7 8
184 9 10 11 186 12 13 190 14

MCSO Interdiction patrol for human smuggling / Crime suppression Totals, November 16-17, 2009 (Melendres MCSO 059668, 59689) MCSO Interdiction patrol for human smuggling / Crime suppression Totals, November 16, 2009 (Melendres MCSO 059668-59688) MCSO News Brief, dated April 5, 2008 re "Guadalupe Crime Suppression Operation Complete" (Melendres MCSO 068349) MCSO News Release, dated March 29, 2007 "Arpaio Deploys First of 160 Deputies & Officers in Comprehensive Fight Against Illegal Immigration" (Melendres MCSO 068373-74) MCSO News Release dated July 8, 2008 "Sheriff's Deputies Saturate Cave Creek in Crime Suppression Operation" (Melendres MCSO 068331) Complete file re IA investigation into Mayor Phil Gordon’s letter, IA #2008-083 (Melendres MCSO 069274-359)

15

16 191 17
18
19 192 20
21
22 194
23
24 196 25 26 199
27

Email chain, last dated September 4, 2007 re "FW: ak" containing attachment of The Mexican 300 video (Melendres MCSO 069381-82 / Exhibit 5 to the deposition of Carlos Rangel, taken on November 8, 2010) Email dated November 20, 2007 from Manuel Madrid, "Saturation Patrol 36th Street and Thomas 11/21/07" (Melendres MCSO 069550 / Exhibit 5 to the deposition of Manuel Joseph Madrid, taken on October 20, 2010) Oct. 3, 2008 email to Hendershott, Sands; forwarded to Palmer, Rangel, Madrid, Armendariz (Melendres MCSO 070577) March 14, 2008 email from Sousa to various (Melendres MCSO 070839-40) Jan. 8, 2008 email from Sousa to various RE "Stats" and attaching HSU status as of 01-08-08 (Melendres MCSO 071352-53)

28

122

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 123 of 217

1

Trial Exh. No.

Description

2

3 200
4 5 201
6

May 6, 2008 email from Sousa to Plata RE "New Protocol put in place for ICE" (Melendres MCSO 071789-90) Aug. 14, 2007 letter from SAC Pena to State Rep. Miranda; Arpaio forwards to Sands, Hendershott, and others (Melendres MCSO 071805-07)

7

8

9 207 10 210
11

INTENTIONALLY LEFT BLANK Listing of comments made by Arpaio to May's statements, 4/16/2008 (Melendres MCSO 072766-68)

12 213 13
215 14
15 219
16
17 18 221
19
20 224
21 22 240
23 244 24
25
26 250 27

MOA between MCSO and ICE (Melendres MCSO 073327-42) Email dated January 21, 2009 to The Class West re "Requested response by Sheriff from Paula", thanking them for support (Melendres MCSO 074146) Email chain, last dated 10/4/2007 "FW: Corner of Queen Creek & Ellsworth" re day laborers (Melendres MCSO 075244-47 / Exhibit 30 to the deposition of Joseph Arpaio, taken on November 16, 2010) Letter dated June 27, 2008 from Richard H to Chief Gascon (Melendres MCSO 075284 / Exhibit 14 to the deposition of Joseph Arpaio, taken on November 16, 2010) July 25, 2009 Arpaio notes on conversation with Matt Allen (Melendres MCSO 075444-45) July 25, 2008 letter from Arpaio to Sharon Murphy (Melendres MCSO 076133)
Letter dated May 24, 2008 from Jack S to Sheriff Joe (Melendres MCSO 076195 / Exhibit 22 to the deposition of Joseph Arpaio, taken on November 16, 2010)
Letter dated June 24, 2008 to Chief George Gascon from Sheriff Arpaio (Melendres MCSO 076995)

28

123

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 124 of 217

1

Trial Exh. No.

Description

2

3 265
4 5 266
6 267
7 268 8
269 9 10 270
11 271
12 272 13
273 14 15 274
16 275 17 276 18 19 277 20 278
21 279 22
23
24 280 25
281 26 27 282
28

Operations Plan for Nov. 16-18, 2009, attached to Nov. 10, 2009 email from Sousa to Palmer, Sands Melendres MCSO 078443-50 Sept. 22, 2009 Shift Summary by Madrid (Melendres MCSO 078551) Operations Plan attached to Oct. 14, 2009 email from Palmer to Sousa (Melendres MCSO 078678-85) Feb. 13, 2009 email from Palmer to Mr. Pacheco (Melendres MCSO 078945-46) July 17, 2009 email from Palmer to Sousa (Melendres MCSO 079204-05) Oct. 19, 2007 email from Ross to Sousa et al. (Melendres MCSO 080278-81) Sept. 12, 2007 email from Siemens to McCall (Melendres MCSO 080382-86) June 18, 2007 email from Baranyos to Stevens (Melendres MCSO 080471) Jan. 3, 2008 email from Baranyos to Sousa and various (Melendres MCSO 080669) Sept. 19, 2008 email from Sousa to Palmer (Melendres MCSO 080707-08) Apr. 8, 2008 email from Trombi to Sousa (Melendres MCSO 080768) Jan. 2, 2008 email from Baranyos to Madrid, Sousa (Melendres MCSO 080811) Mar. 13, 2008 email from Baranyos to Madrid, Sousa (Melendres MCSO 080819) June 25, 2008 email from Palmer to Armendariz (Melendres MCSO 081359) Email chain last dated April 15, 2008 re "Enforce EVENT numbers" and prior chain re "287g Deputies" (Melendres MCSO 081362-66 / Exhibit 3 to the deposition of Joseph Sousa, taken on October 22, 2010) Email chain dated October 13, 2009 re "Tuesday in Anthem???" (Melendres MCSO 081403) MCSO Crime Analysis Services Brochure (Melendres MCSO 081425-26) Dec. 17, 2008 email from Palmer to Collins/Sousa (Melendres MCSO 081512-14)
124

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 125 of 217

1

Trial Exh. No.

Description

2

3 283
4 5 284 6 285
7 8 286
9 287 10
11
12
13
14 15 288
16 17 289 18 290
291 19 20 307
21 22 308
23
24 309
25
26

Operations plan attached to July 5, 2007 email from Siemens to Sands, Madrid (Melendres MCSO 08154851) July 27, 2008 Shift Summary (Melendres MCSO 095907) MCSO Operation Manual re Human Smuggling Unit Standard Operating Procedures, revised 05-22-08 (Melendres MCSO 095926-29) Email correspondence, patrol statistics, Jan. 23, 2009 at 7th St & Thunderbird (Melendres MCSO 14494-95) Email chain originally dated December 1, 2007 re "detail, 12/1" / Shift Summary for 12/5/07 / Email originally dated 12/8/2007 re "detail, 12/08/07 / Shift Summary 12/14/07 / Aguila Saturation Patrol Totals 12-14-07 to 12-15-07 / Email originally dated December 19, 2007 re "detail, 12/19/07" / Shift Summary 12/22/07 (Melendres MCSO 14665-66; MCSO 14900; MCSO 14663-64; MCSO 14905-07; MCSO 14659; MCSO 14909) B1/B2 Visa, Nov. 13, 2007 I-94, Jan. 9, 2009 I-94 and Federal Mexican Voter ID (ORT 000001 / ORT 000012-13) April 29, 2008 letter Andrew Thomas to Sheriff Arpaio (ORT 000002-11) Memorandum of Agreement (ORT 000014-29) Fact Sheet: Delegation of Immigration Authority (ORT 000030-36) MCSO News Brief, dated September 27, 2007 "Sheriff's Office Not Waiting for Loitering and Soliciting Ordinance to Take Effect" (ORT 000103) MCSO News Release, dated October 4, 2007, "Sheriff Arpaio Goes After Day Laborers" (ORT 000104 / Exhibit 10 to the deposition of Joseph Arpaio, taken on December 16, 2009)
MCSO News Release dated December 5, 2007 "Arpaio Intensifies Presence at Pro-Illegal Immigration Protest at Pruitt's" (ORT 000105-06)

27

28

125

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 126 of 217

1

Trial Exh. No.

Description

2

3 310
4
5 311 6
7 312 8
313 9
10 314 11 12 315
13 316
14
15
16 17 317
18
19 20 320
21
22

MCSO News Release, dated January 18, 2008, "Sheriff Mobilizes Posse in Central Phoenix" (ORT 000107-108 / Exhibit 11 to the deposition of Joseph Arpaio, taken on December 16, 2009) MCSO News Release dated March 27, 2008 "Arpaio's Crime Suppression Operation Migrates North to Bell Road" (ORT 000109-110) MCSO News Brief dated March 28, 2008 "News from the Sheriff's Office" (ORT 000111) MCSO News Release dated April 3, 2008 "Sheriff's Crime Suppression Operation Moves to Guadalupe" (ORT 000112-113) MCSO News Release dated April 4, 2008 "Sheriff's Operation in Guadalupe Returns" (ORT 000114) MCSO Press Release, “Sheriff’s Deputies Arrest Thirteen Illegal Aliens in the City of Mesa” (May 8, 2008) (ORT 000115) MCSO News Release dated June 26, 2008 "Sherriff's Crime Suppression/Illegal Immigration Operation Moves Into Mesa" (ORT 000116 / Exhibit 1 to the deposition of Louis DiPietro, taken on October 21, 2009) MCSO News Release, dated February 3, 2009, "Arpaio Orders Move of Hundreds of Illegal Aliens to Their Own Tent City" (ORT 000117-118 / Exhibit 21 to the deposition of Joseph Arpaio, taken on December 16, 2009) Jeffrey S. Passel and David L. Word, “Constructing the List of Spanish Surnames for the 1980 Census: An Application of Bayes’ Theorem,” U.S. Bureau of the Census (1980) (ORT 000245-350)

23

24

25

26

27

28

126

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 127 of 217

1

Trial Exh. No.

Description

2

3 326 4

MCSO public records request for personnel file (ORT 000383-406)

5 327 6

Documents received pursuant to FOIA (ORT 00041016; ICE docs 42-43)

7 8 328
9
10
11
12 13 329
14 15 330 16 331
17 18 332
19 20 333
21 22 334
23 342
24
25 343
26
27
28

MCSO News Release, dated July 20, 2007, "Sheriff's Crackdown on Illegal Immigration Heats Up, Hundreds of deputies/volunteer posse targeting profile vehicles, Arpaio Opens Hotline for Citizens to Report Illegal Aliens" (ORT 000421-422 / Exhibit 7 to the deposition of Joseph Arpaio, taken on December 16, 2009 / Exhibit 4 to the Initial Expert Report of Ralph B. Taylor) MCSO News Release dated August 8, 2007 "Sheriff's Anti-Human Smuggling Unit Arrests 8 More Illegals" (ORT 000423) MCSO News Brief dated July 15, 2008 "Mesa Crime Deterrence Operation" (ORT 000424) MCSO News Release dated August 13, 2008 "Sheriff Intensifies Search for Human Smugglers" (ORT 000425-26) MCSO News Brief dated September 4, 2008 "Sheriff's Crime Suppressions Arrest Eleven More Illegal Aliens in Cave Creek" (ORT 000427) MCSO News Release dated January 8, 2009 "Sheriff's Crime Suppression and Human Smuggling Operation Comes to Buckeye Area" (ORT 000428-429) MCSO News Release dated April 23, 2009 "Sheriff Plans Two Day Crime Suppression Crackdown" (ORT 000430) MCSO News Release dated July 23, 2009 "Sheriff Joe Arpaio Says It Is Business As Usual" (ORT 000499500) MCSO News Release dated October 6, 2009 "Department of Homeland Security Decides to Strip Arpaio's Office of Its Federal Immigration Status Arpaio Outraged…." (ORT 000522-525)
127

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 128 of 217

1

Trial Exh. No.

Description

2

3 345

May 2, 2007 I-94 (ORT 000550-51)

4 349
5

MCSO News Release dated October 16, 2009 "Sheriff Arpaio: 'Nothing Changes'" (ORT 000613-14)

6 350 7
8 351 9
10 353
11
12 358
13
14 359 15
16 17 360
18 19 361
20
21 362 22
23 363 24
25 364
26
27 368
28

MCSO News Release dated October 19, 2009 "Weekend Crime Suppression Operation Concludes" (ORT 000615) MCSO News Release dated November 16, 2009 "Sheriff Arpaio Launches County-Wide Crime Suppression / Illegal Immigration Operation" (ORT 000623-24) MCSO News Release dated April 28, 2009 "Arpaio Says Swine Flu Underscores Need for Illegal Immigration Enforcement" (ORT 000637-39) MCSO News Release dated March 1, 2010 "Sheriff's Patrol Deputies Ramping Up Enforcement of Human Smuggling Laws" (ORT 001237) MCSO News Release dated March 18, 2010 "Arpaio Announces 14th Crime Suppression Operation as Human Smuggling Arrests Have Dramatically Increased This Year…" (ORT 001239-40) MCSO News Release dated March 19, 2010 "Sheriff Joe Arpaio Announces an Upcoming 15th Crime Suppression Operation" (ORT 001241-242) MCSO News Release dated April 6, 2010 "Sheriff Arpaio Will Conduct 15th Suppression Operation in High Crime Neighborhood in Phoenix" (ORT 001244245) MCSO News Release dated April 29, 2010 "Sheriff Arpaio Kicks off 15th Crime Suppression / Illegal Immigration Operation" (ORT 001249-250) MCSO News Release dated April 30, 2010 "15th Crime Suppression / Illegal Immigration Operation Has Successful First Day" (ORT 001251) MCSO News Release dated June 29, 2010 "Sheriff Arpaio to Citizens of Arizona 'Do Not Worry About Federal Government's Threat to Sue State - It's An Intimidation Tactic'" (ORT 001257-58) Ortega Melendres Visa and Mexican ID (ORT 12-13)
128

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 129 of 217

1

Trial Exh. No.

Description

2

3 369
4 370 5 392 6
7 393 8
9 394 10
11
12 395 13
14 15 396
16 17 397 18 402
19 20 406
21
22 411 23
1005 24
25 1006
26
27 1017 28

Thank you letter from Arpaio to Mr. Se, dated February 24, 2009 (OSLS 000028) Thank you letter from Arpaio to Ms. B, dated July 26, 2007 (OSLS 000121) Defendant Maricopa County Sheriff’s Office Answers to Plaintiffs’ First Set of Interrogatories dated March 27, 2009 Defendant Maricopa County Sheriff’s Office Response to Plaintiffs’ First Set of Request for Production of Documents and Things Defendant Maricopa County Sheriff's Office Response to Plaintiffs' Second Set of Requests for Admission and Requests for production and Third Set of Interrogatories (Exhibit 5 to the Initial Expert Report of Ralph B. Taylor) Email chain, last dated June 13, 2009 from Brett Palmer re "FW: Thought you'd find this interesting…." (Exhibit 6 to the deposition of Ramon Charley Armendariz, taken on November 8, 2010) Excerpts from the book "Joe's Law" by Sheriff Joe Arpaio and Len Sherman (Exhibit 1 to the deposition of Joseph Arpaio, taken on December 16, 2009) Hand drawing of intersection (Exhibit 13 to the November 24, 2009 Deposition of Armendariz) Report of Steven Camarota, Ph.D., Hispanic Surname Analysis of Maricopa County Sheriff’s Office Patrol Activity 2005 to 2009 dated January 20, 2011 MCSO CAD Incident Report, Incident #MA08054585 / (Exhibit 9 to the November 24, 2009 Deposition of Armendariz / Exhibit 3 to the Initial Expert Report of Ralph B. Taylor) Photos (Exhibit 24 to the November 24, 2009 Deposition of Armendariz) Memorandum from Deputy M. Ratcliffe, #1553 to Sgt. Wes Ellison, #752 re Complaint/Rodriguez (Melendres MCSO 056862) MCSO Traffic Ticket and Complaint #684751 re David Rodriguez with charge of Failure to Obey a Traffic Control Device (Melendres MCSO 056863) Photographs (4) of Quik Stop
129

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 130 of 217

1

Trial Exh. No.

Description

2

3 1018
4 5 1020
6 1043
7 8 1045
9 1070 10 1106
11 1114
12 1115 13
1116 14 15 1117
16 1118 17
1119 18 19 1120
20 1140
21 1141 22
23 1142
24 1149 25 26 1152 27 1160
28

(Ex. 24A – 24D, to C. Armendariz Depo (Vol. I) Audio CD re 911 call from Manuel’s Repair Shop (Melendres MCSO 000031) 03/28/08 MCSO CAD Incident History (Melendres MCSO 001817-1820) 08/29/08 e-mail (Redacted) from Richard H. to Laurie Roberts at Arizona Republic (Carveout MCSO 209953-54 Melendres MCSO 076044-45) Book about illegal immigration authored by Diana E. (Melendres MCSO 074447-74738) Expert Report of Bennie Click dated January 21, 2011 Operations Manual, Human Smuggling Unit Standard Operating Procedures (Melendres MCSO 014954-60) MCSO Policy EB1 re Traffic Law Enforcement Guidelines (Melendres MCSO 014935-38) MCSO Policy EB-2 re Traffic Violator Contacts and Citation Issuance (Melendres MCSO 014939-41) MCSO Policy GJ-3 Policy re Search and Seizure (Melendres MCSO 014942-50) MCSO Policy EA-11 re Arrest Procedures (Melendres MCSO 014968-93) MCSO Policy EA-3 re Field Interviews (Melendres MCSO 014911-12) Human Smuggling Unit growth time line (Melendres MCSO 014910) HSU Triple I Stats as of 11/10/09 (Melendres MCSO 059586) 09/27/07 Cave Creek Saturation Patrol Documents (Melendres MCSO 014079) 10/04/07 Queen Creek Saturation Patrol Documents (Melendres MCSO 014036-14037; 014865-14866; 015466-15467) 10/09/07 Queen Creek Saturation Patrol Documents (Melendres MCSO 014870-14871) 11/19/07 Wickenburg Saturation Patrol Documents (Melendres MCSO 014669) 12/01/07 36th Street and Thomas Road Saturation Patrol Documents (Melendres MCSO 014665-14667) 01/18-01/19/08 32nd Street and Thomas Road Saturation Patrol Documents (Melendres MCSO
130

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 131 of 217

1

Trial Exh. No.

Description

2

3
4 1163 5 1165 6
1166 7
8
9 1167 10
11 12 1168
13 1169
14 15 1170
16 17 1171
18 1172
19 20 1173
21 22 1174
23 1175
24
25
26 1176 27
28

001825-1833; 014041-14049; 014704; 01576715775) 02/20/08 Wickenburg Saturation Patrol Documents (Melendres MCSO 014653-14654) 03/17/08 Wickenburg Saturation Patrol Documents (Melendres MCSO 014712) 03/21/-03/22/08 32nd Street and Thomas Roads Saturation Patrol Documents (Melendres MCSO 001837-1842; 014071-14074; 014099-14101; 014541-14543; 014696-14697) 03/27-03/28/08 Cave Creek and Bell Road MCSO Documents (Melendres MCSO 001847-1852; 014093-14098; 014547-14548; 014644-14646; 015750-15764) 04/03-04/04/08 Guadalupe MCSO Documents (Melendres MCSO 001861-1877; 014109-14121; 014549-14554; 015638-15651) 05/06-05/07/08 Fountain Hills MCSO Documents (Melendres MCSO 014038; 014433-14434, 14436) 06/26-06/27/08 Mesa MCSO Documents (Melendres MCSO 001899-1925; 014218-14251; 014576-14582; 015597-15630) 07/05/08 Mesa MCSO Documents (Melendres MCSO 014191-14198; 014583-14585; 01579815805) 07/08/08 Cave Creek MCSO Documents (Melendres MCSO 014586-14587; 015464-15465; 014700) 07/14/08 Mesa MCSO Documents (Melendres MCSO 001941-1947; 014588-14590; 01551815525) 07/31/08 Food Vendor Detail, Maryvale MCSO Documents (Melendres MCSO 0019571969;014261-14294; 014607; 015713-15716) 08/13-08/14/08 Sun City/Sun City West/US 60/I-17 MCSO Documents (Melendres MCSO 001974-1998; 014178-14190; 014608-14609; 15529-15552; 001970-1973; 014175-14177; 015526-15528) 08/13/08 I-17 & Mile Post 234 (north of Anthem) MCSO Documents (Melendres MCSO 01408014090; 014612)
131

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 132 of 217

1

Trial Exh. No.

Description

2

3 1180
4
5 1185 6
7 8 1186
9 10 1187
11 12 1189
13 1190
14 15 1194
16 17 1195
18
19 1196 20
21 22 1199
23
24 1201 25
26 27 1203
28

01/09-01/10/09 Town of Buckeye MCSO Documents (Melendres MCSO 014484-14487; 014632-14634; 015460-15463; 015560-15577; 015553-15559; 015497-15499) 04/23-04/24/09 West Valley – Buckeye, Avondale, Goodyear, Tolleson, Gila Bend, Tonopah MCSO Documents (Melendres MCSO 056983-56998; 056976-56982) 07/23-07/25/09 Southeast Valley – Chandler, Tempe, Gilbert, Queen Creek MCSO Documents (Melendres MCSO 057005-57029; 056999-57004) 09/05-09/06/09 Durango and 35th Avenue Corridor MCSO Documents (Melendres MCSO 05704057052; 057030-57039) 11/16-11/18/09 Maricopa County MCSO Documents (Melendres MCSO 059602-59648;059655-59707; 59649-59654) Department of Homeland Security Officer Training Manual (Melendres MCSO 000038-1784) U.S. DOJ article, “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies” (ORT 000037-46) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re Law Enforcement Services 1.3 (Melendres MCSO 015015-40) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re Ethics and Professionalism (Melendres MCSO 015041-54) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re Patrol and Observation (Melendres MCSO 01512769) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re Title 28 – Traffic Law 4.6 (Melendres MCSO 015202-57) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re
132

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 133 of 217

1

Trial Exh. No.

Description

2

3 4 1204 5 6 7 1205 8 9 10 1206 11 12 1207 13 14 15
1208 16 17 18
1209 19 20 21 22 1211 23 1212 24 1213 25 26

Police and the Community 6.5 (Melendres MCSO 015307-29) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re High Risk Vehicle Stops Instructor 8.4 Section I: Introduction to Course (Melendres MCSO 01533034) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re High-Risk Vehicle Stops Instructor 8.4 Section II: PreStop Procedures (Melendres MCSO 015335-39) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re High Risk Vehicle Stops Instructor 8.4 Section III: Vehicle Positioning (Melendres MCSO 015340-44) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re High-Risk Vehicle Stops Instructor 8.4 Section IV: Removal of Subject(s) from the Vehicle (Melendres MCSO 015345-49) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re High-Risk Vehicle Stops Instructor 8.4 Section V: Clearing the Suspect Vehicle (Melendres MCSO 015350-54) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re High Risk Vehicle Stops Instructor 8.4 Section VI: Clearing Unconventional Vehicles (Melendres MCSO 015355-58) Lesson Plan, Vehicle Position (Melendres MCSO 015411-22) Lesson Plan, High Risk Vehicle Stops Instructor (Melendres MCSO 015423-34) Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re Search and Seizure 2.3 (Melendres MCSO 01543559)

27

28

133

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 134 of 217

1

2. As to the following exhibits, the parties have reached the following

2 stipulations:

3

4

None.

5

3. As to the following exhibits, the party against whom the exhibit is to be

6 offered objects to the admission of the exhibit and offers the objection stated below:

7

Plaintiffs Exhibits:

8

Exhibit

9

No.

Defendants’ Objections

Description

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

Object to attachment as hearsay Object to attachment as hearsay; cumulative of Exhibit 3. Objection cumulative to Exhibit 5.
Objection cumulative to Exhibit 7.
Objection cumulative to Exhibit 7.
Hearsay; no foundation; inadmissible lay opinion

Email dated August 3, 2009 re ""FW: Border - Intelligence (Part II) (Exhibit 6 to the deposition of Brett Palmer, taken on November 9, 2010) Email dated July 27, 2009 re "Isn't This Interesting?" re Raza studies (Exhibit 7 to the deposition of Brett Palmer, taken on November 9, 2010) Email dated May 29, 2008 re "3511 stuff" and attaching Mexifornia driver’s license (Exhibit 25 to the deposition of Brian L. Sands, taken on November 15, 2010) Email last dated May 1, 2008 re "FW: MORE: Mexican Words of the Day" (Exhibit 23 to the deposition of Brian L. Sands, taken on November 15, 2010) Email, last dated May 1, 2008 re "FW: MORE: Mexican Words of the Day" (Exhibit 24 to the deposition of Brian L. Sands, taken on November 15, 2010) Los Angeles Times Opinion column "May Day Myth-Busting" (Exhibit 15 to the deposition of Brett Palmer, taken on November 9, 2010)

28

134

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 135 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3 14 4 5 15 6 7 21 8 9 10 22 11 12 13
23 14 15 16
24 17 18 19 20 25 21 26 22 23 27 24 25 28 26 27 33 28

Relevance Objection cumulative to Exhibit 2 Relevance
Relevance
Relevance
Relevance
Relevance/foundation Objection cumulative to Exhibit 7. Objection cumulative to Exhibit 7. Objection cumulative to Exhibit 7. Relevance, hearsay, 403

Report attached to June 11, 2009 email from Joya to Rangel (Carveout MCSO 0002221) Email chain last dated June 13, 2009 "FW: Thought you'd find this interesting" (Carveout MCSO 0002520) Email chain dated July 16, 2008 with article "Sheriff Arpaio Sued Over Racial Profiling of Latinos in Maricopa County" (Carveout MCSO 003108889) Email chain dated July 16, 2008 with article "Sheriff Arpaio Sued Over Racial Profiling of Latinos in Maricopa County" (Carveout MCSO 003114243) Email chain dated July 16, 2008 with article "Sheriff Arpaio Sued Over Racial Profiling of Latinos in Maricopa County" and inquiring re arrest logs. (Carveout MCSO 0031188-89) Email dated July 16, 2008 with article "Sheriff Arpaio Sued Over Racial Profiling of Latinos in Maricopa County"(Carveout MCSO 003379293) Undated Attachments to Unknown emails (Carveout MCSO 0035258-82) Email chain last dated May 1, 2008 re "MORE Mexican Words of the Day" (Carveout MCSO 0035727-28) Email chain last dated May 1, 2008 re "MORE Mexican Words of the Day" (Carveout MCSO 0035735-36) Email chain last dated May 1, 2008 re "MORE Mexican Words of the Day" (Carveout MCSO 0035743-44) July 14, 2008 email to Sands (Carveout MCSO 0193073)

135

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 136 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 34

Relevance, hearsay, 403

4

Description
Email chain dated August 29, 2008 re "Fw: Sheriff Joe, racial profiling, et al." (Carveout MCSO 0209953-54)

5

6 36 7 8

Relevance; hearsay; foundation

Email dated January 17, 2010 re "How to Destroy America, from a liberal 4 term governor from Colorado who gets it" (Carveout MCSO 0282787-90)

9 37
10 11 38
12

Relevance, hearsay, 403, authenticity Relevance, hearsay, 403

Dec. 1, 2009 email to Hendershott (Carveout MCSO 0284113-21) Email dated January 9, 2010 re "Fwd: HOOVER, TRUMAN, AND IKE!" (Carveout MCSO 0295020-22)

13 39 14 15

Relevance, hearsay, 403, authenticity

Email dated January 3, 2010 re "Illegal immigration, et al." (Carveout MCSO 0297781)

16 17 40 18 19 20 41 21 22 42 23

Relevance, hearsay, 403
Cumulative to Exhibit 1 Cumulative to Exhibit 1

Email dated October 5, 2007 re ""PPD Statements re: "Day Labor" Enforcement - Found word(s) check out in the Text body" (Carveout MCSO 0344426-27) Mar. 11, 2009 email from Sousa to Siemens, Rios (Carveout MCSO 0348209) Mar. 10, 2009 email from Paul Tillitson to Paul Fritz and others (Carveout MCSO 0348211-12)

24 48 25 26 49 27 28

Object to attachment as hearsay; cumulative to Exhibit 3
Relevance; hearsay; No foundation

Aug. 3, 2009 email from Wade Voeltz to Palmer (Carveout MSCO 017358085) Email chain last dated December 12, 2007 re "Lawsuit Filed" (ICE BS 34758 / Exhibit 57 to the deposition of

136

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 137 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3
4 51
5
6 52 7
8 53 9
10 54 11
12 55 13 14 56
15 16 57
17 18 58
19 59
20
21 60
22
23 61
24
25 62 26
27 63

Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance

Jason Douglas Kidd, taken on October 1, 2010)
MCSO CAD Incident History, Incident # MA07222209 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA08059018 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA08095304 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA08115843 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA08116440 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA08116537 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA08116713 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA09004703 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA09107641 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA09126932 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA09136618 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA09150204 (MCSO CAD Database) MCSO CAD Incident History, Incident

28

137

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 138 of 217

1 Exhibit

2

No.

Defendants’ Objections

3

4 64 5

Relevance

6 72 105
7

Relevance Relevance

8 106
9

Relevance

10

11 124
12 13 151

Relevance; 403; foundation; hearsay re attachment
Relevance; hearsay; foundation

14 154
15

Relevance; hearsay;

16 155
17

Relevance;

18

19

20

21 157
22

Relevance; hearsay;

23 158 24

Relevance

25 159 26

Relevance

27

Description
# MA09163575 (MCSO CAD Database) MCSO CAD Incident History, Incident # MA09192105 (MCSO CAD Database) (Melendres MCSO 001812-14) MCSO Arrest/Booking Records from 7/21/07 (Melendres MCSO 005708730) MCSO Supplemental Report for Occurrence May 19, 2006 (Melendres MCSO 008769-73 / Exhibit 1 to the October 22, 2009 deposition of Beeks) Email from 25th St. and Bell Rd. supporter (Melendres MCSO 014707)
Diversity in the Workplace: Cultural Awareness Training (Melendres MCSO 016221-354) MCSO Incident Report, Persons Supplement, and Narratives for Incident (Melendres MCSO 019474-19486) MCSO intergovernmental agreement with DPS re participation in state Gang Intelligence and Immigration Team Mission (GIITEM) and Illegal Immigration Prevention and Apprehension Co-Op Team (IIMPACT), March 13, 20 (Melendres MCSO 021353-6007) MCSO Narrative for February 20, 2008 Human Smuggling Incident (Melendres MCSO 024665-24671) MCSO federal funding/grant information (Melendres MCSO 025164-71) MCSO Traffic Ticket and Complaint and summary for Armando Alarcon (Melendres MCSO 026743-44)

28

138

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 139 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 160

Relevance

4 5 161

Relevance

6 162
7

Relevance

8

9 10 163

Relevance

11 12 185

Relevance, hearsay, 403

13

14 15 187

Relevance, hearsay, 403

16

17 18 188

Relevance; hearsay

19 20 189

Relevance

21

Description
Arizona Traffic Ticket and Complaint forms (Melendres MCSO 026904, 26936, 27001, 30629, 36541) Arizona Traffic Ticket and Complaint forms (Melendres MCSO 030625, 37088) MCSO Incident Report, Persons Supplement, and Narratives for Incident (Melendres MCSO 038084-94 / Exhibit 2 to the deposition of Brett Palmer, taken on October 23, 2009) MCSO Incident Report for 2/29/08 at Buckeye Rd and 113th Ave (Melendres MCSO 038809-822) Letter dated July 26, 2007 from Carole V. B. to Joe (Melendres MCSO 068791-92 / Exhibit 42 to the deposition of Joseph Arpaio, taken on November 16, 2010) Letter dated June 19, 2008 from Gina M to Sheriff Joe (Melendres MCSO 069086-88 / Exhibit 18 to the deposition of Joseph Arpaio, taken on November 16, 2010) MCSO File, IA #2009-0118, complaint lodged by Katrina Ontiveros (Melendres MCSO 069144-54) MCSO File, IA #2008-0134 (Melendres MCSO 069155-273)

22 193 23 24 195 25 26 197 27

Relevance Relevance Relevance

License, Registration, Warrant Checks conducted by MCSO (Disc) (Melendres MCSO 069841) Supplemental Reports on May 6, 2008 stop by Armendariz (Melendres MCSO 070688-92) Incident report attached to Dec. 11, 2008 email from Perez to Armendariz (Melendres MCSO 071036-38)

28

139

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 140 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 198

Relevance

4

5

Description
Incident report attached to Feb. 19, 2009 email from Almanza to Roland Gonzalez (Melendres MCSO 07125659)

6 202 7
8 203 9
10 204
11 12 205
13
14 206
15
16
17 18 208
19
20 21 209
22
23 211 24
25

Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403
Hearsay; foundation
Hearsay; foundation Relevance, hearsay, 403

Email chain dated November 19, 2007 re "Pictures from Sat. Protests" (Melendres MCSO 071945) Letter to the Editor printed in Nov. 18, 2009 East Valley Tribune. In Arpaio’s immigration file. (Melendres MCSO 072038) Nov. 22, 2009 email from Bill S to Gonzales (Melendres MCSO 072378) Oct. 28, 2009 letter from William Tibbe, of Infraguard; Arpaio forwards to Sands and Hendershott (Melendres MCSO 072409)
Email dated October 27, 2009 re "Why Sheriff Arpaio, Secretary Napolitano?" (Melendres MCSO 072425 / Exhibit 13 to the deposition of Joseph Arpaio, taken on November 16, 2010) Article from The Washington Times, published October 14, 2009 "'Toughest sheriff' vows face-off with feds over illegals" (Melendres MCSO 072483488) Article from the Mesa Tribune, published October 7, 2009 "Feds strip Arpaio of immigration authority" (Melendres MCSO 072651-652) Aug. 25, 2008 Letter from Minutemen to Rep. Franks; Arpaio forwards to Sands. (Melendres MCSO 072876-77)

26 212 27 28

Relevance, hearsay, 403

Email dated December 12, 2007 with article "Law suit filed against Maricopa County Sheriff's Office for civil rights
140

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 141 of 217

1 Exhibit

2

No.

Defendants’ Objections

3

4 214
5

Relevance, hearsay, 403

6

7

8 9 216

Relevance, hearsay, 403

10

11

12 13 217

Relevance, hearsay, 403

14 218
15

Hearsay; foundation

16 220
17

Relevance, hearsay, 403

18

Description
abuse" and typed notes re same (Melendres MCSO 073088-89)
Email chain, last dated January 20, 2009, from The Class West, re "Huffington Post blogs and more…" (Melendres MCSO 074133-34 / Exhibit 2B to the deposition of Joseph Arpaio, taken on November 16, 2010) Letter dated May 26, 2009 from Stella to Sheriff Arpaio re Mexicans Loitering at 36th Street" (Melendres MCSO 074346 / Exhibit 19 to the deposition of Joseph Arpaio, taken on November 16, 2010) Excerpts re racial profiling and illegal immigration (Melendres MCSO 074447, 74589-604) May 3, 2009 article by E.J. Montini in Arizona Republic (Melendres MCSO 075094-95) Apr. 23, 2008 email to Gonzales; Arpaio forwards to Sands. (Melendres MCSO 075256-57)

19 221 20
21
22 222 23
24 223
25
26
27

Relevance, hearsay, 403
Relevance as to Melendres 080774-76; No objection to 08077-78 Relevance, hearsay, 403

Letter dated June 27, 2008 from Richard H to Chief Gascon Melendres (MCSO 075284 / Exhibit 14 to the deposition of Joseph Arpaio, taken on November 16, 2010) Shift Summary for Fountain Hills operation on May 5, 2008 (Melendres MCSO 80774-778)
Letter dated May 8, 2008 from Mike S to Sheriff Arpaio (Melendres MCSO 075403-04 / Exhibit 23 to the deposition of Joseph Arpaio, taken on November 16, 2010 / Exhibit 15 to the

28

141

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 142 of 217

1 Exhibit

2

No.

3

4

Defendants’ Objections

Description
deposition of Brian L. Sands, taken on November 15, 2010)

5 225
6
7

Relevance, hearsay, 403

July 10, 2008 letter from Joyce B to Arpaio. (Melendres MCSO 07561213)

8 226 9 10 11 227 12 13 14

Relevance, hearsay, 403 Relevance, hearsay, 403

July 16, 2008 letter from Debbie to Arpaio; Arpaio forwards to MacIntyre and Hendershott (Melendres MCSO 075618) Comments/Support Log for July 21, 2008 (Melendres MCSO 075620 / Exhibit 26 to the deposition of Joseph Arpaio, taken on November 16, 2010)

15 16 228 17 18 19

Relevance, hearsay, 403

Comments/Support Log for July 16, 2008 (Melendres MCSO 075622-24 / Exhibit 25 to the deposition of Joseph Arpaio, taken on November 16, 2010)

20 21 229 22 23

Relevance, hearsay, 403

June 28, 2008 letter from Richard Humphries to Mayor Gordon; Arpaio forwards to Hendershott (Melendres MCSO 075649-51)

24

25 26 230
27

Relevance, hearsay, 403

West Valley View article, dated September 30, 2008, "Family ties make a difference" (Melendres MCSO

28

142

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 143 of 217

1 Exhibit

2

No.

3

4

Defendants’ Objections

Description
075852 / Exhibit 11 to the deposition of Joseph Arpaio, taken on November 16, 2010)

5 231 6 7 8 232 9 10 11 233 12

Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403

West Valley View article, dated August 1, 2008, "We need to keep our sheriff" (Melendres MCSO 075859 / Exhibit 12 to the deposition of Joseph Arpaio, taken on November 16, 2010) Letter to the Editor printed in Oct. 17, 2008 West Valley View. In Arpaio’s immigration file. (Melendres MCSO 075872) Undated document in Arpaio’s immigration file (Melendres MCSO 075883)

13 234
14

Relevance, hearsay, 403

Aug. 7, 2008 letter from Paula H to Arpaio (Melendres MCSO 076058)

15 235 16 17 18 236 19 20 21 22 237 23 24 25 26

Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403

Letter dated August 8, 2008 from Bob & Lynnette W to Sheriff Arpaio (Melendres MCSO 076087-88 / Exhibit 21 to the deposition of Joseph Arpaio, taken on November 16, 2010) Letter dated August 1, 2008 from Gail v to Sheriff Joe "RE: Want to check out Sun City?" (Melendres MCSO 076091/ Exhibit 11 to the deposition of Brian L. Sands, taken on November 15, 2010) Letter dated August 1, 2008 from Gail v to Sheriff Joe re "Want to check out Sun City?" (Melendres MCSO 076091 / Exhibit 20 to the deposition of Joseph Arpaio, taken on November 16, 2010)

27

28

143

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 144 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 238

Relevance, hearsay, 403

4

5

6 239 7

Relevance, hearsay, 403

8

Description
Letter dated July 25, 2008 from Varia S to Sheriff Arpaio (Melendres MCSO 076123 / Exhibit 24 to the deposition of Joseph Arpaio, taken on November 16, 2010) July 15, 2008 letter from Harold B to Arpaio. (Melendres MCSO 07612832)

9 241
10
11

Relevance, hearsay, 403

Letter dated July 14, 2008 re illegal immigration and cc'ing Arpaio (Melendres MCSO 076155)

12

13 242 14
15

Relevance, hearsay, 403

undated email from Charlie E; in Arpaio’s immigration file (Melendres MCSO 076160)

16

17 243 18
19
20 245 21
22 246 23
24

Relevance, hearsay, 403
Relevance, hearsay, 403 Relevance, hearsay, 403

Letter dated May 24, 2008 from Jack S to Sheriff Joe (Melendres MCSO 076195 / Exhibit 13 to the deposition of Brian L. Sands, taken on November 15, 2010) May 15, 2008 letter from Kathleen C to Arpaio. (Melendres MCSO 07625152) Email chain dated April 2, 2008 re "Hang in there Joe!" (Melendres MCSO 076267)

25

26

27

28

144

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 145 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 247

Relevance, hearsay, 403

4

Description
Undated letter from Jenan N to Arpaio (Melendres MCSO 076292, 76294-96)

5

6 248 7 8

Relevance, hearsay, 403

Dec. 12, 2005 fax to Arpaio from Dina Galassini; Arpaio forwards to Hendershott (Melendres MCSO 076527)

9 249
10
11 251
12
13 14 252
15

Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403

"Illegal Alien 'Contributions' to the U (Melendres MCSO 076783 / Exhibit 10 to the deposition of Joseph Arpaio, taken on November 16, 2010.S." ) Apr. 15, 2008 letter to Arpaio; Arpaio forwards to Sands (Melendres MCSO 077113)
June 25, 2008 fax from Bridget J to Gascon; in Arpaio immigration file. (Melendres MCSO 077120)

16 253
17
18 254 19

Relevance Relevance

Arpaio’s undated notes on inmates charged with murder (Melendres MCSO 077299) Arpaio’s undated notes on ethnicity of inmates (Melendres MCSO 077301)

20 255
21 22
256 23 24 25 26

Relevance, hearsay, 403 Relevance, hearsay, 403

Aug. 16, 2009 article on “Vdare” website; in Arpaio’s immigration file (Melendres MCSO 077311-14) Letter dated Febrary 14, 2009 from John B to Congressman Conyers re Illegal Immigration (Melendres MCSO 077958 / Exhibit 3 to the deposition of Brian L. Sands, taken on November 15, 2010)

27

28

145

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 146 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 257

Relevance, hearsay, 403

4

Description
Mar. 11, 2009 email from Royce F to Arpaio. (Melendres MCSO 078099101)

5 258
6 7
259 8 9 260 10 11 12 13 261 14 15 16 17 262 18 19 20 263 21 22 264 23 24 25 292 26 27

Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403
Relevance, hearsay, 403
Relevance, hearsay, 403
Reserve objection until plaintiffs’ designate which parts they wish to play; relevance Relevance, hearsay, 403
Relevance, hearsay, 403

Sept. 23, 2009 email from Equity Court Services of Arizona to Gonzales (Melendres MCSO 078131-32) Sept. 19, 2009 email from Stoller to Gonzales (Melendres MCSO 078136) Article from Soldier of Fortune dated October 2009, titled "America's Toughest Sheriff"/"World's Toughest Sheriff" (Melendres MCSO 078143150 / Exhibit 28 to the deposition of Joseph Arpaio, taken on November 16, 2010) Article from Soldier of Fortune dated November 2009, titled "America's Toughest Sheriff" (Melendres MCSO 078151-55 / Exhibit 27 to the deposition of Joseph Arpaio, taken on November 16, 2010) Letter dated June 30, 2009 from Sarah M to Sheriff Joe (Melendres MCSO 078209 / Exhibit 17 to the deposition of Joseph Arpaio, taken on November 16, 2010) Press Conference (Disc) (Melendres MCSO 078285)
Article from Daily News-Sun dated April 7, 2009 "Profiling is sheriff's best tool" (Melendres MCSO 078287 / Exhibit 43 to the deposition of Joseph Arpaio, taken on November 16, 2010) Randal Archibold, “Arizona County Uses New Law to Look for Illegal Immigrants,” New York Times, May 10, 2006, at A19 (ORT 000051-54)

28

146

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 147 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 293

Relevance, hearsay, 403

4

5 294 6

Relevance, hearsay, 403

7 8 295

Relevance, hearsay, 403

9

10

11

12

Description
Elias C. Arnold, “52 Arrested in 2-Day Sheriff’s Crime Sweep in Southwest Valley,” The Arizona Republic, Jan. 13, 2009 (ORT 000055-56) Lindsey Collom, “Arpaio Slates E. Phoenix Crime Crackdown,” The Arizona Republic, Jan. 19, 2008, at B2 (ORT 000057-58) Tribune article, dated July 11, 2008, "Reasonable Doubt Part III: Sweeps and saturation patrols violate federal civil rights regulations" (ORT 00005965 / Exhibit 13 to the deposition of Joseph Arpaio, taken on December 16, 2009)

13

14

15

16 17 296 18 19 297 20 21 22 298 23 24 25 299 26 27 28

Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403 Relevance, hearsay, 403

Daniel González, “Arpaio’s Sweeps: Are They Allowed?” The Arizona Republic, April 25, 2008 (ORT 000066-68) Daniel González, “Crime-Suppression Records Raise Suspicions of Racial Profiling,” The Arizona Republic, Oct. 5, 2008 (ORT 000069-73) Katie McDevitt, “Arpaio Rallies Border Patrol Posse: 100 Volunteers Comb County Desert for Illegal Migrants,” The Mesa Tribune, May 3, 2006 (ORT 000074-75) The Arizona Republic article, dated November 18, 2007, "Silence of (elected) lambs) (ORT 000076-77 / Exhibit 17 to the deposition of Joseph Arpaio, taken on December 16, 2009)
147

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 148 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 300

Relevance, hearsay, 403

4

5

6 301
7

Relevance, hearsay, 403

8

9 10 302

Relevance, hearsay, 403

11

12

13 303
14

Relevance, hearsay, 403

15

16 304
17

Relevance, hearsay, 403

18

19 20 305

Relevance, hearsay, 403

21

22

Description
Article from the Seattle Times, dated May 21, 2006, "Sheriff's illegalimmigrant offer: up to 2 years on a chain gang" (ORT 000078-80 / Exhibit 5 to the deposition of Joseph Arpaio, taken on December 16, 2009) Jill Redhage, “Arpaio Launches Crackdown on Illegals: About 200 Deputies, Posse on Patrol,” The Mesa Tribune, July 21, 2007 (ORT 00008283) Article from The Arizona Republic, dated March 2, 2007, "Arpaio Stays Silent on Real ICE Plan" (ORT 000084-85 / Exhibit 6 to the deposition of Joseph Arpaio, taken on December 16, 2009) Dennis Welch, “Arpaio Clarifies KKK Remarks: Sheriff: It’s an Honor Critics Have Stooped to NameCalling,” The Mesa Tribune, Nov. 16, 2007 (ORT 000086-87) Dennis Welch, “Hispanics in Chandler Fear Another ‘Roundup’: Some Worry that Arpaio’s Sweeps Will Be Repeat of 1997,” The Mesa Tribune, April 15, 2008 (ORT 000088-90)
Howard Witt, “Does Crackdown Cross Line? Arizona’s Efforts Stir Racial Profiling Claims,” Chicago Tribune, May 26, 2008 (ORT 000091-95)

23 24 306
25

Hearsay; foundation; authentication

Transcript of broadcast from ABC Nightline, dated November 6, 2007 (ORT 000096-102)

26

27

28

148

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 149 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3 318 4 5 6 7 319 8 9 10 11 321 12

Relevance; hearsay; foundation.
Relevance; hearsay; foundation
No objection as to 911 calls; object to photos of alleged injuries on grounds on non-disclosure

Goldwater Institute Policy Report, No. 229, December 2, 2008, Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sheriff's Office (ORT 000119-14 / Exhibit 25 to the deposition of Bennie R. Click taken on March 18, 20110) Aarti Shahani & Judith Greene, “Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement,” Justice Strategies Report (Feb. 2009) (ORT 000141-233) Nieto’s 911 calls and photos of injury (ORT 000370-71 (CDs))

13

14

15 322
16
17 323 18
324 19
20
21 22 325
23
24 335 25
26 27 336
28

Relevance Relevance Relevance; hearsay.
Relevance; hearsay
Hearsay; no foundation for alleged Arpaio comments Relevance; hearsay; nondisclosure

Audio Recording "Disp/Radio East Broadway & Lindsay" 6/26/2008 (Disc) (ORT 000372) Victor D Vasquez Windshield Photos (Disc) (ORT 000373) Sarah Fenske, “Mexican Government Denounces Arpaio’s Tent City March; Protest Filed with Supervisors,” Phoenix New Times, Feb. 24, 2009 (ORT 000375-77) Yvonne Wingett and Michael Kiefer, “County to probe segregation in jails,” Arizona Republic, B3, Feb. 7, 2009 (ORT 000382) Article from the Phoenix Business Journal dated October 3, 2007 "Arpaio defends illegal immigrant tip line" (ORT 000433) June 3, 2009 Interview of Blaine Woodruff (Disc) (ORT 000442)

149

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 150 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3 337 4 5 6
338 7 8

Relevance; hearsay
Relevance; hearsay; no foundation for alleged Arpaio comments

Stephen Lemons, “Ja, Joe! Neo-Nazis and extreme right wingers love Joe Arpaio, and there’s evidence that the MCSO keeps them close” Phoenix New Times, May 14, 2009 (ORT 00044351) William Finnegan, “Profiles: Sheriff Joe,” New Yorker, July 20, 2009 (ORT 000454-65)

9 339 10 11 340 12 13 14 341 15 16 344 17 18 19 20 346 21 22
347 23 24 25 348 26 27

Relevance; hearsay Relevance; hearsay Relevance. Relevance; hearsay.
Relevance; hearsay Relevance; hearsay Relevance; hearsay

Article from the Tribune, East Valley Scottsdale dated July 25, 2009 "Arpaio: Deputies taped feds ordering release" (ORT 000466-68) Article from The Arizona Republic, dated August 5, 2009 "Arpaio's Dilemma, If sweeps not altered, jail help will be lost" (ORT 000469-71) MCSO News Release dated May 6, 2009 "Arpaio to Recruit and Arm Citizens" (ORT 000497-98) Article from Men.Style.Com, "The Vigilante, Alexander Provan meets Joe Arpaio, Phoenix's anti-immigration firebrand who's threatening to police the border himself" (ORT 000528-535 / Exhibit 2 to the deposition of Joseph Arpaio, taken on December 16, 2009) Article from the East Valley Tribune.com, dated October 6, 2009 "Feds strip Arpaio of immigration authority" (ORT 000552-554) Article from the Huffington Post dated October 7, 2009 "AZ Sheriff Plans to Bus 'Illegals' to the Border after DHS Authority Revoked" (ORT 000557-59) Article from The Arizona Republic dated October 16, 2009 "Arpaio cites non-existent law in crime-sweep argument" (ORT 000583-84)

28

150

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 151 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3 352

4

5 354 6

7 8 355

9 10 356

11

12 357 13

14 365 15

16 17 366

18

19 20 367

21

22 371 23
372 24
25 373

26

27

374 375

28

Relevance; hearsay; and no foundation for alleged Arpaio comments Relevance; hearsay; Rule 403 unfairly prejudicial
Relevance
Relevance; hearsay
Relevance; hearsay
Hearsay; foundation
Relevance; hearsay
Relevance; hearsay
Relevance; hearsay Relevance; hearsay Relevance; hearsay
Relevance; hearsay Relevance; hearsay
151

Article from The New York Times dated September 28, 2008 "Challenges to a Sheriff, Both Popular and Reviled" (ORT 000633-36) Letter from the U.S. Department of Justice to Sheriff Arpaio re "Investigation of the Maricopa County Sheriff's Office" (ORT 000649-50) Maricopa County Law Enforcement Officers Merit System Rules (ORT 001175-223) JJ Hensley, “All Arpaio’s deputies to get immigration training,” The Arizona Republic, Feb. 8, 2010 (ORT 00122627) Footage from the October 22, 2009 MCSO News Conference (Disc) (ORT 001235) Department of Homeland Security Office of Inspector General "The Performance of 287(g) Agreements" March 2010 (ORT 001259-1352) Article from The Arizona Republic azcentral.com dated June 21, 2010 "Sheriff Joe Arpaio's crime sweeps have little effect, analysis shows" (ORT 001359-60) Article from KGUN9.com dated July 29, 2010 "'Business as usual' -- inside Sheriff Arpaio's latest sweep" (ORT 001366-67) Letter dated February 8, 2007 to Sheriff Arpaio (OSLS 000591-95) Letter dated August 16, 2007 to Joe Arpaio from Linda M. (OSLS 001057) Letter dated August 16, 2007 to Governor of Arizona from Linda M. (OSLS 001058-60) Letter to Sheriff Joe (OSLS 001235) Comments/Support Log dated

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 152 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 376
4

Relevance; hearsay

5

6 377

Relevance; hearsay

7 378 8
379 9 10 380

Relevance; hearsay Relevance; hearsay Relevance; hearsay

11 12 381

Relevance; hearsay

13 382
14

Relevance; hearsay

15 383
16
17 384

Relevance; hearsay Relevance; hearsay

18 385
19

Relevance; hearsay

20

21 22 386

Relevance

23 387
24 388
25

Relevance Relevance

26

27

Description
September 20, 2007 (OSLS 001245-46) Letter dated March 14, 2009 to Sheriff Joe Arpaio from Scott A. H attaching papers written to the Republic (OSLS 002976-89) Letter dated March 12, 2009 to Sheriff Joe (OSLS 002990) Letter dated March 7, 2008 from Mike B. re Racial Profiling (OSLS 003218) Email chain last dated March 8, 2008 re "Racial profiling" (OSLS 003221) Letter dated February 12, 2008 to Sheriff Joe Arpaio from Robert L. D (OSLS 003243-44) Letter dated February 1, 2008 to Sheriff Joe from Garry and Kay R. (OSLS 003259-60) Letter dated November 30, 2009 to Sheriff Joe Arpaio from Lucia S (OSLS 004172) Email chain dated October 18, 2009 re "Racial profiling" (OSLS 004525) Letter dated July 2, 2008 to Senator Miranda and Representative Miranda (OSLS 005154) Letter dated November 20, 2005 to Sheriff Joe from Stacey O re "Minuteman Project / Illegal Immigration Maricopa Co." (OSLS 005516-18) Excerpts from Sheriff's calendar. (OSLS0000171, 174-175, 178-179, 189-190, 303) CAD Database (Disc) CAD Incident History for Incident No. MA07222209, produced by Defendants to Plaintiffs as part of the Computer Aided Dispatch (CAD) database

28

152

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 153 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3 389
4
5 390 6
7 391 8 398
399 9 10 400
11 401 12 403 13
14
15 404
16
17 405 18
19
20 407
21
22 23 408
24
25
26
27

Relevance
Hearsay Relevance; hearsay Hearsay; cumulative Hearsay; cumulative Hearsay; cumulative Hearsay; cumulative Relevance; hearsay
Relevance; hearsay; no foundation Relevance; hearsay
Relevance; hearsay
Relevance; hearsay; nondisclosure

Chart of funds to Maricopa County up for Board of Supervisors approval on November 18th (Exhibit 19 to the deposition of Ashmore) Curriculum Vitae of Ralph B. Taylor / (Exhibit 1 to the Initial Expert Report of Ralph B. Taylor) Declaration of Tammy Charles Leija Initial Expert Report of Ralph B. Taylor Rebuttal Expert Report of Ralph B. Taylor Initial Expert Report of Robert L. Stewart Rebuttal Expert Report of Robert L. Stewart Letter from Timothy J. Casey dated January 7, 2009 enclosing MCSO CAD/RMS codes and MCSO traffic stop data (Exhibit 2 to the Initial Expert Report of Ralph B. Taylor) Maricopa County Board of Supervisors Minute Book, Formal Session, February 20, 2008 Maricopa County Justice Courts, Arizona, Release Order of Sergio Villaman (Exhibit 2 to the Declaration of Sergio Martinez Villaman) MCSO Inmate Request Form for Sergio Villaman (Exhibit 1 to the Declaration of Sergio Martinez Villaman) Memorandum of Understanding (MOU) Between Immigration and Customs Enforcement and Local, County, or State Law Enforcement Agency for the Reimbursement of Joint Operations Expenses from the Treasury Forfeiture Fund

28

153

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 154 of 217

1 Exhibit

2

No.

Defendants’ Objections

3 409

Relevance; hearsay; foundation

4 410

Relevance; hearsay; foundation

5

6 412
7

Hearsay

8

9

10 413 11

Hearsay

12

13 414
14 15 415

Hearsay Hearsay

16 416

Hearsay

17 417 18
418 19 20 419
21 420
22 421 23
422 24
25 423
26 424 27

Hearsay
Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure

Description
Mexican 300 video (Disc) (Exhibit 6 to the Deposition of Rangel) Multimedia files - News Conferences and interviews (Exhibit 20 to the December 16, 2009 Deposition of Sheriff Arpaio (Disc)) Plaintiff Manuel de Jesus Ortega Melendres Responses and Objections to Defendant Arpaio First Set of Requests for Admission, Interrogatories and Requests for Production, dated June 5, 2009 Plaintiff Somos America’s Responses and Objections to Defendant Arpaio First Set of Requests for Admission, Interrogatories and Requests for Production, dated June 5, 2009 Plaintiffs’ Eighth Supplemental Disclosure Statement Plaintiffs’ Fifth Supplemental Disclosure Statement Plaintiffs’ Ninth Supplemental Disclosure Statement Plaintiffs’ Sixth Supplemental Disclosure Statement Google Maps Image of S Avondale Blvd and W Lower Buckeye Rd Google Maps Image of Apache Rd and Signal Butte Rd, Mesa, AZ Google Maps Image of Bartlett Dam Road, Scottsdale, AZ Google Maps Image of E Broadway Rd and Stapley Dr Google Maps Image of E Commonwealth Pl & N Naco Way Google Maps Image of E Guadalupe, Guadalupe, AZ Google Maps Image of El Mirage and Cactus Road

28

154

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 155 of 217

1 Exhibit

2

No.

Defendants’ Objections

Description

3 425
4 426 5 427 6
428 7 8 429
9 430 10
431 11 12 432
13 433
14 434 15
435 16 17 436
18 437
19 438 20
439 21 22 440
23 441 24
25 442
26 443 27
444 28

Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure
Relevance; hearsay; no foundation; non-disclosure Relevance; hearsay; no foundation; non-disclosure Relevance

Google Maps Image of Fairway Dr. And W Madison St Google Maps Image of Good Shepherd of the Hills, East Cave Creek Road Google Maps Image of Grand Ave and Rt 303 Google Maps Image of I-17 and Anthem Way Google Maps Image of N 122 St and W Adams St Google Maps image of N Cave Creek Rd Google Maps Image of N Cave Creek Rd and E Nisbet Rd, Phoenix Google Maps Image of S 27th Ave and W Durango St Google Maps Image of S 55th Sve and West Ellis Dr. Google Maps Image of S Country Club Dr and W Southern Ave Google Maps Image of S Lindsay Rd and E Broadway Rd Google Maps Image of S Mesa Dr & E Holmes Ave Google Maps Image of Sage Lane, Avondale Google Maps Image of Thomas Rd and N 32nd St Google Maps Image of U.S. 60 and W Happy Valley Rd, Wickenburg, AZ Google Maps Image of W Hilton Ave and S 19th Ave, Phoenix Google Maps Images of S. Mesa Dr. & E Holmes Ave, Mesa, AZ (Set of 3 Images) Google Map Image of greater Phoenix area Google Street Map of greater Phoenix area MCSO CAD Incident History, Incident
155

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 156 of 217

1 Exhibit

2

No.

Defendants’ Objections

3

4 445 5

Relevance

6

Description
#MA09043554 (MCSO CAD Database) MCSO CAD Incident History, Incident #MA09136602 (MCSO CAD Database)

7

Defendants’ Exhibits:

8

Exhibit

9

No.

Plaintiffs’ Objection

10 1007

Hearsay - The document is an out of court statement and does not fall under

11

any exceptions to the hearsay rule.

Description
Memorandum from W. Ellison, #752 to Lt. F. Aldorasi (Melendres MCSO 056860-61)

12 13 14 15 16
1009 17 18

Hearsay within hearsay - The document also contains multiple incidences of hearsay within hearsay that do not fall under any exceptions to the hearsay rule in which the author of the document reports on conversations he purportedly had with others. Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Hand-drawn diagram, J. Rodriquez (Ex. 1 to J. Rodriquez Depo.)

19

Relevance - The document does not tend

20

to make more likely any fact that is material to a claim or defense in this

21

lawsuit. The document does not contain

sufficient detail to provide assistance as

22

to any material fact.

23 Rule 403 - Even if the Court finds the

24

document to be relevant evidence, its

25

probative value is substantially outweighed by a danger of one or more

26

of the following: unfair prejudice,

confusing the issues, wasting time, or

27

needlessly presenting cumulative

28

156

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 157 of 217

1 2
1110 3 4 5 6 7 8 9 10 11 12 13 14 1022 15 16 17 18 19 20 21 22 23 24 25
1039 26 27 28

evidence.

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. There is no evidence that this training was presented to any MCSO employee.

Diversity in the Workplace: Cultural Awareness Training for Employees in Law Enforcement Setting (Melendres MCSO 016221-480)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated. Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. The document relates to a traffic stop that resulted in a DUI investigation of an individual not involved and that is not at issue in this lawsuit.

MCSO Non-Commercial Purpose Public Record Request, Incident #07-0178873 (Melendres MCSO 0017881810)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

To the extent that Defendants argue that MCSO News Releases are inadmissible for any reason, including but not limited to Hearsay, Plaintiffs submit that the
157

MCSO News Release dated 04/13/10, “Sheriff Will Conduct Another Crime Suppression Operation in Phoenix Prior to

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 158 of 217

1 2 3 4 5 1040 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1064 22 23 24 25 26 27 28

same objections would apply to MCSO May 1st” News Releases submitted by Defendants. (ORT 1246)

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule. Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Defendants’ Rule 1006, F.R.E. Chart Summary of Sheriff Joseph M. Arpaio’s Immigration File of Citizen Correspondence to him

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Admits Facts Not in Evidence: Plaintiffs object to the characterizations contained herein as admitting facts not in evidence.

Maps of Phoenix Area Drop Houses
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Map of Phoenix Metro Area Drop Houses, 03/03/03 -02/08/10 (Melendres MCSO 079253)

Relevance - Each of these documents document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. Whether or not there are drop houses in the Phoenix
158

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 159 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 1065 15 16 17 18 19 20 21 22 23 24 25 26 27 28

area is an at issue in this case and is not relevant to any facts that are at issue.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, no information is provided as to how the locations are marked on the map or as to what constitutes a “drop house” for purposes of this particular map.

Maps of Phoenix Area Drop Houses
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Map of Phoenix Metro Area Drop Houses, 03/03/03 -02/08/10 (Melendres MCSO 079256)

Relevance - Each of these documents document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. Whether or not there are drop houses in the Phoenix area is an at issue in this case and is not relevant to any facts that are at issue.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

159

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 160 of 217

1 2 3 4 5 6 1066 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1067 26 27 28

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, no information is provided as to how the locations are marked on the map or as to what constitutes a “drop house” for purposes of this particular map.

Maps of Phoenix Area Drop Houses
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Map of Phoenix Metro Area Drop Houses, 01/01/07- 02/08/10 (Melendres MCSO 079257)

Relevance - Each of these documents document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. Whether or not there are drop houses in the Phoenix area is an at issue in this case and is not relevant to any facts that are at issue.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, no information is provided as to how the locations are marked on the map or as to what constitutes a “drop house” for purposes of this particular map.

Maps of Phoenix Area Drop Houses
Hearsay - Each of these documents is an out of court statement and does not fall
160

Map of Phoenix Metro Area Drop Houses, 01/01/07- 02/08/10 (Melendres MCSO 079258)

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 161 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1068 19 20 21 22 23 24 25 26 27 28

under any exceptions to the hearsay rule.

Relevance - Each of these documents document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. Whether or not there are drop houses in the Phoenix area is an at issue in this case and is not relevant to any facts that are at issue.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, no information is provided as to how the locations are marked on the map or as to what constitutes a “drop house” for purposes of this particular map.

Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - Each of these documents document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. Whether or not there are drop houses in the Phoenix area is an at issue in this case and is not relevant to any facts that are at issue.

E-mails, charts and maps re: Crime Suppression/Human Smuggling patrol (Melendres MCSO 079259-79419)

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more
161

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 162 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 1072 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, no information is provided as to how the locations are marked on the map or as to what constitutes a “drop house” for purposes of this particular map.

Multiple Documents - The exhibit contains multiple documents, multiple emails and attachments thereto, and thus should not be submitted as a single exhibit.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

U.S. Immigration and Customs Enforcement, Issue Paper 287(g) Inspection of Maricopa County Sheriff, Phoenix Arizona (ICE 778-781)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of
162

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 163 of 217

1 2 3 4 1073 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1074 22 23 24 25 26 27 28

the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Letter from Susan Mathias to Alonzo Pena dated 09/24/10 (4 pages) (Ex. 2 to A. Pena Depo)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Letter from Alonzo Pena to Benjamin Miranda (MCSO 071805-07, Ex. 3 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its
163

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 164 of 217

1 2 3 4 5 6 7 8 9 10 11 12 1075 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Memorandum of Agreement (16 pages) (Ex. 4 to A. Pena Depo)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony
164

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 165 of 217

1 2
1076 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1077 21 22 23 24 25 26 27 28

and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Management Inspections Unit 287(g) Program Review Findings dated 09/15/08-09/19/08 (ICE 787-810, Ex. 5 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail string re MCSO does have state authority to conduct pure immigration enforcement operations; 287(g) checklist; Arizona Civil Rights Advisory Board on 287g.pdf (ICE BS 1150, ICE BS 1185, ICE BS 1191, Ex. 6 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more
165

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 166 of 217

1 2 3 4 5 6 7 8 9 10
1078 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

MCSO 287(g) Task Force Program (ICE 517-19, Ex. 7 to A. Pena Depo)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

166

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 167 of 217

1 1079 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
1080 19 20 21 22 23 24 25 26 27 28

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

ICE Issue Paper 287(g) Inspection of Maricopa County Sheriff (ICE 778a-d, Ex. 8 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

ICE Issue Paper 287(g) Authority Possibly Utilized by Maricopa County Sheriff (ICE 782-783, Ex. 9 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or
167

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 168 of 217

1 2 3 4 5 6 7 8 9 1081 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1082 28

needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Executive Summary (ICE 77577, Ex. 10 to A. Pena Depo

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under
168

E-mail string from William Reid to various recipients re Summary

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 169 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1083 18 19 20 21 22 23 24 25 26 27 28

any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

of the Maricopa County 287g inspection (ICE 582, Ex. 11 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Department of Homeland Security Report of Investigation (ICE BS 1250, Ex. 12 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.
169

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 170 of 217

1 2 3 4 5 6 7 8 1084 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1085 26 27 28

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Homeland Security (House) Committee Hearing Examining 287(g) (ICE BS 1958-66, Ex. 13 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
170

Memorandum to various recipients from Director of Office of Professional Responsibility re Management Review – MCSO

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 171 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1086 17 18 19 20 21 22 23 24 25 26 27 28

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

287(g) Program (ICE 645, Ex. 14 to A. Pena Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Letter to Jason Kidd from Susan Mathias dated 09/24/10 (4 pages) (Ex. 33 to J. Kidd Depo)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit,
171

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 172 of 217

1 2 3 4 5 6 7 1087 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1088 25 26 27 28

nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Redacted E-mail string from Jon Gurule to various recipients re 287(g) MASTER Arrest Stats 2008.03.09.pdf (ICE 484, Ex. 34 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is
172

E-mail string from Jon Gurule to Katrina Kane re 287(g) MASTER Arrest Stats 2008.02.24.pdf (ICE 497, Ex. 35 to J. Kidd Depo)

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 173 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1089 16 17 18 19 20 21 22 23 24 25 26 27 28

material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail string from Matthew Allen to Katrina Kane, Troy Henley and Jason Kidd re AZ Republic 287(g) Arpaio (ICE 595, Ex. 36 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.
173

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 174 of 217

1 2 3 4 5
1090 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1091 24 25 26 27 28

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

U.S. Immigration and Customs Enforcement Issue Paper 287(g) Inspection of Maricopa County Sheriff, Phoenix, Arizona (ICE BS 10717-20, Ex. 37 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.
174

E-mail to various recipients from Eduardo Preciado dated 04/09/07 (ICE BS 10721-22, Ex. 38 to J. Kidd Depo)

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 175 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 1092 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Letter to Clarisse McCormick from Shanetta Cutler dated 03/25/09 with enclosure (ICE BS 10749-59, Ex. 39 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This
175

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 176 of 217

1 2 3 4 1093 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1094 23 24 25 26 27 28

document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Draft copy of a response to the U.S. House inquiry dated 02/12/09 (ICE BS 10760-66, Ex. 40 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail to Jon Gurule from Kristine Brisson dated 11/09/07 (ICE BS 10767, Ex. 41 to J. Kidd Depo)

Rule 403 - Even if the Court finds the
176

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 177 of 217

1 2 3 4 5 6 7 8 9 10 11 12 1095 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail to various recipients from Troy Henley dated 08/23/07 (ICE BS 10768, Ex. 42 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion
177

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 178 of 217

1 2 3 1096 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
1097 21 22 23 24 25 26 27 28

in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

MCSO 287(g) Steering Committee Meeting (ICE BS 10769-74, Ex. 43 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail to various recipients from Kristine Brisson dated 05/02/07 (ICE BS 10775, Ex. 44 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially
178

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 179 of 217

1 2 3 4 5 6 7 8 9 10 11 1098 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Memorandum to Mark Moore from Katrina Kane (ICE BS 10776-77, Ex. 45 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.
179

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 180 of 217

1 2 1099 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1100 20 21 22 23 24 25 26 27 28

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Letter to Julie Myers from Joseph Arpaio dated 08/14/07 (ICE BS 10787, Ex. 46 to J. Kidd Depo)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail to Troy Henley and Joe Gurule from Christopher Nissen dated 09/10/07 (ICE BS 10788, Ex. 47 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
180

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 181 of 217

1 2 3 4 5 6 7 8 9 10 1101 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1102 28

confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

MCSO Statistics (ICE BS 1079294, Ex. 48 to J. Kidd Depo)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of
181

Phoenix Field Office

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 182 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1103 19 20 21 22 23 24 25 26 27 28

court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Contingency Plan Rescission of 287(g) Delegation in Maricopa County, Arizona (ICE BS 1079599, Ex. 49 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail string from Jason Kidd to Eric McLoughlin and Troy Henley re NEWS – new law suit filed against Sheriff’s Office (ICE BS 34761, Ex. 50 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative
182

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 183 of 217

1 2 3 4 5 6 7 8 9 1104 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1105 27 28

evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

E-mail string from Raymond Parmer to various recipients re Background Issue – Maricopa (ICE BS 11035, Ex. 51 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
183

E-mail string with attachments from James Barrett to Eric McLoughlin and Victor Vartarian

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 184 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1122 18 19 20 21 22 23 24 25 26 27 28

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

in reference to upcoming MCSO 287(g) audit (ICE BS 27014-18, Ex. 52 to J. Kidd Depo)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated.

Subject to Motion in Limine - This document should be excluded for all of the reasons set form in Plaintiff’s Motion in Limine with regards to ICE testimony and documentary evidence.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.

Human Smuggling Unit Tips and Disposition 04/01/08 to present (Melendres MCSO 016033-217)

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

184

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 185 of 217

1 2 3 4 5 6 7 8 9 1123 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Multiple Documents - The exhibit contains multiple documents and thus should not be submitted as a single exhibit.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, it is not clear how this collection of tips were chosen and if this is a complete set for a particular time period or if certain tips are not include.

Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. There is no evidence that tips to the Employment Sanctions Unit were linked to traffic stops or saturation patrols at issue in this litigation.

Employment Sanction Unit Tips and Dispositions 04/01/08 to present (Melendres MCSO 015806-16032)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Multiple Documents - The exhibit contains multiple documents and thus should not be submitted as a single exhibit.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. For example, it is not clear how this collection of tips
185

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 186 of 217

1 2 3 4 1124 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1125 22 23 24 25 26 27 28

were chosen and if this is a complete set for a particular time period or if certain tips are not included.

IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 04/07-09/07 (Melendres MCSO 059593)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 10/07 (Melendres MCSO 059594)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in
186

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 187 of 217

1 2 3 4 5 6 7 8 9 10 11 12 1126 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 12/07 (Melendres MCSO 059595)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics
187

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 188 of 217

1 2
1127 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1128 21 22 23 24 25 26 27 28

come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 01/08 (Melendres MCSO 059596)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 02/08 (Melendres MCSO 059597)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

188

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 189 of 217

1 2 3 4 5 6 7 8 9 10
1129 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 02/08 (Melendres MCSO 059598)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed.
189

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 190 of 217

1 1130 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
1131 19 20 21 22 23 24 25 26 27 28

Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO 04/08 (Melendres MCSO 059599)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO 05/08 (Melendres MCSO 059601)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence,
190

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 191 of 217

1 2 3 4 5 6 7 8 9 1132 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1133 28

its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 06/2009 (Melendres MCSO 059587)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Arizona! Detention and Transportation Monthly Statistical Report for HSU-
191

Arizona! Detention and Transportation Monthly

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 192 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1134 18 19 20 21 22 23 24 25 26 27 28

MCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Statistical Report 07/2009 (Melendres MCSO 059588)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. IMPACT Arizona! Investigations Monthly Statistical Reports for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

IMPACT Arizona! Investigations Monthly Statistical Report for HSU-MCSO 08/2009 (Melendres MCSO 059589)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more
192

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 193 of 217

1 2 3 4 5 6 7 8 1135 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1136 26 27 28

of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Arizona! Detention and Transportation Monthly Statistical Report 09/2009 (Melendres MCSO 059590)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO
193

Arizona! Detention and Transportation Monthly Statistical Report 10/2009 (Melendres MCSO 059592)

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 194 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1137 17 18 19 20 21 22 23 24 25 26 27 28

Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Arizona! Detention and Transportation Monthly Statistical Report undated (Melendres MCSO 059591)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or
194

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 195 of 217

1 2 3 4 5 6 7 1138 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1182 25 26 27 28

needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Arizona! Detention and Transportation Monthly Statistical Report for HSUMCSO
Hearsay - Each of these documents is an out of court statement and does not fall under any exceptions to the hearsay rule.

Arizona! Detention and Transportation Monthly Statistical Report undated (Melendres MCSO 059600)

Relevance - None of these documents not tend to make more likely any fact that is material to a claim or defense in this lawsuit.

Rule 403 - Even if the Court finds any of the documents to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibits, nor the information provided therein, have been authenticated. There is no evidence as to where these statistics come from or what all is included in the statistics listed. Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is
195

01/28/09 Operation Wood Chip – Scottsdale Road and Frank Lloyd Wright Blvd. MCSO Documents (Melendres MCSO 01550015504)

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 196 of 217

1 2 3 4 5 6 7 8 9 10 11 12 1183 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1184 27 28

material to a claim or defense in this lawsuit. The operation discussed therein appears to be a worksite raid that would not likely include traffic stops.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated. Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. The operation discussed therein appears to be a worksite raid that would not likely include traffic stops.

02/11/09 Operation Clean House – H.M.I. 2646 S. 19th Ave., Phoenix MCSO Documents (Melendres MCSO 01547115484)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit, nor the information provided therein, have been authenticated. Hearsay - The document is an out of court statement and does not fall under any exceptions to the hearsay rule.
196

03/16/09 Operation Paint Stripper – Christown Mall MCSO Documents (Melendres MCSO

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 197 of 217

1 2 3 4 5 6 7 8 9 10 11 12 13 14 1210 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Relevance - The document does not tend to make more likely any fact that is material to a claim or defense in this lawsuit. The operation discussed therein appears to be a worksite raid that would not likely include traffic stops.

015488-15496; 015485-15487)

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence.

Lacks Foundation - Neither the exhibit,

nor the information provided therein,

have been authenticated.

Hearsay - The document is an out of

Arizona Peace Officer Standards

court statement and does not fall under and Training Board Lesson Plan

any exceptions to the hearsay rule.

Cover Sheet re Cultural

Awareness (Melendres MCSO

Relevance - The document does not tend 015359-410)

to make more likely any fact that is

material to a claim or defense in this

lawsuit. This lesson plan is not part of

the 585-Hour Basic Curriculum Model

Lesson Plan and there is no evidence that

any particular individual at MCSO ever

received this training.

Rule 403 - Even if the Court finds the document to be relevant evidence, its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, wasting time, or needlessly presenting cumulative evidence. In particular, it would be prejudicial to consider training that was never actually received by any individual
197

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 198 of 217

1

at MCSO.

2 Lacks Foundation - Neither the exhibit,

3

nor the information provided therein,

4

have been authenticated.

5 Each party hereby acknowledges by signing this joint Proposed Final Pretrial
6 7 Order that any objections not specifically raised herein are waived.

8 G. DEPOSITIONS TO BE OFFERED

9

Plaintiffs:

10 Plaintiffs identify the following portions of the following depositions to be read or
11 12 submitted at trial by page and line number:

13

1. Deposition of Sheriff Joe Arpaio:

14

December 16, 2009 Deposition: 9:17-11:9, 11:10-18, 14:12-16, 18:21-25:4, 29:5-

15 13, 31:7-9, 34:19-35:5, 38:9-19, 34:19-38:8, 38:20-39:22, 40:25-41:25, 45:14-46:19, 16
45:14-50:18, 47:22-51:19, 57:23-61:21, 63:10-14, 65:3-66:22, 69:2-70:9, 71:9-18, 17

18 83:21-5, 89:1-6, 112:11-113:20, 114:16-116:18, 117:6-19, 129:12-17, 130:9-135:22,

19 138:9-19, 143:10-24, 149:6-21, 161:9-162:18, 175:4-20, 182:11-186:22, 210:1-15,

20 220:15-222:6, 243:5-21, 245:4-10, 248:18-249:3, 249:11-23, 261:14-262:15, 273:7-
21 276:8, 278:6-279:1.
22

23

Defendants offer the following counter designations pursuant to Rule 32(a)(6) for

24 completeness purposes: pp. 19:1- 10:12, 29:14-30:7, 32:32-33:1, 35:6-10,; 37:16- 38:19,

25 39:23-40:24, 42:24-45:13, 49:3-50:10, 62:17-63:9, 64:4-65:3; 66:23-67:17, 71:19-72:18,
26 77:16-78:5, 78:6-80:9, 80:20-81:24, 84:6-23, 87:5-88:15, 89:8-90:12, 92:23-94:8, 95:8-
27

28

198

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 199 of 217

1 96:10, 97:7-14, 98:8-16, 110:19-23, 137:3-138:8, 138:20-139:2, 140;24:141:17, 145:9-
2 147:20, 149:6-151:19, 159:3-15, 160:13-161:8, 162:19-163:17, 164:3-165:9, 166:213 4 167:5, 167:9-168:20, 172:24-173:11, 186:23-190:6, 190:14-21, 192:7-15, 201:6-24,
5 205:7-206:23, 207:19-208:22, 215:22-216:20, 219:1-12; 222:7-223:15, 224:22-225:3,

6 228:16-231:1, 247:3-13, 249:24-250:9, 262:16-264:7; 264:18-265:16, 276:9-278:9 and

7 300:22-303:16. 8

9 10 Defendants object to the follow page line designations submitted by Plaintiffs: All

11 testimony that is cumulative of live testimony

12

November 16, 2010 Deposition: 11:10-13:17, 14:20-15:10, 16:23-17:8, 17:22-

13 18:24, 21:12-22:13, 24:5-19, 25:15-28:2, 28:16-22, 32:21-33:2, 44:21-46:17, 48:3-20,
14

15 68:14-69:10, 71:2-72:22, 73:11-23, 74:16-75:22, 77:22-78:4, 80:20-81:5, 82:19-83:22,

16 84:19-85:13, 88:22-89:25, 91:22-92:1, 106:2-14, 107:24-108:25, 113:15-25, 115:8-

17 116:10, 116:25-117:21, 118:1-122:24, 124:8-126:23, 129:5-12, 132:23-136:11, 138:1518
139:11, 141:10-146:2, 146:18-160:5, 160:8-12, 161:19-166:14, 167:15-168:11, 169:619
20 172:13, 180:21-181:9, 183:5-184:11, 184:24-186:23, 188:10-191:17, 194:11-195:1,

21 196:22-25, 212:13-17, 216:18-217:13, 217:20-218:21, 219:9-21, 220:2-18, 222:14-

22 223:14, 224:14-22; 232:8-243:12, 245:4-20, 247:8-249:2, 253:14-255:19, 272:1-273:20,
23 274:16-21, 279:16-281:6, 283:2-285:24, 287:2-290:17.
24

25

Defendants offer the following pursuant to Rule 32(a)(6) for completeness

26 purposes:

27

28

199

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 200 of 217

1 pp. 17:9-12, 19:5-20:20, 22:14-22, 28:4-15, 28:23-25, 32:2-10, 32:13-20, 33:3-22, 35:9-
2 14, 35:15-22, 35:24-36:7, 39:11-24, 43:3-44:15, 46:19-25, 48:21-49:7, 57:12-58:2, 61:33 4 19, 64:12-65:12; 66:6-18, 66:19-67:7, 67:13-68:12, 69:11-16; 72:23-73:9,; 74:5-13,
5 77:5-16, 81:6-82:3, 85:14-86:12, 93:7-94:3, 94:23-95:22, 104:22-105:8, 106:15-18,

6 109:1-14 , 109:15-110:10, 112:6-113:7; 116:11-18, 123:6-124:7, 126:24-127-2, 127:15-

7 22, 127:24-128:8, 128:10-129:3, 129:14-130:2, 136:20-137:13, 140:21-141:8, 160:198
161:16,; 166:15-167:14, 172:14-21,176:15-22, 177:8-12, 177:17-23, 178:1-13, 178:169
10 179:13, 182:12-183:4, 191:19-192:14, 193:2-8, 193:9-15, 194:2-9, 195:2-196:3, 219:1-8,

11 227:4-23, 243:22-25, 246:13-247-7; 250:18-251:3, 251:15-252:15, 268:4-269:7, and

12 274:5-13. 13
Defendants object to the follow page line designations submitted by Plaintiffs: 14
15 All testimony that is cumulative of live testimony

16

2. Deposition of Lieutenant Sousa:

17

December 10, 2009 Deposition: 16:20-17:17, 17:23-18:12, 25:17-26:6, 53:15-

18 54:4, 55:14-56:1, 56:20-59:14, 66:18-67:3, 69:7-22, 74:6-9, 74:25-76:4, 84:24-85:10,
19

20 89:20-93:21, 95:23-96:24, 97:19-24, 99:5-10, 99:15-18, 102:17-104:21, 108:22-112:5,

21 123:2-5, 127:22-131:11, 131:24-132:2, 132:14-133:5, 133:22-138:12, 139:2-3, 139:7-23,

22 142:12-143:9, 144:13-25, 146:24-148:25, 149:24-151:3, 154:4-25, 155:6-19, 156:4-16, 23
157:8-11, 159:2-4, 198:7-10, 203:7-13, 203:22-205:18, 236:17-25, 237:16-238:3, 24
25 239:10-14, 251:12-252:3, 268:22-269:13.

26

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

27 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

28

200

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 201 of 217

1 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

2 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

3

4

October 22, 2010 Deposition: 25:16-18, 26:19-27:3, 27:24-30:17, 61:4-62:11.

5

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

6 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

7 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness
8 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.
9

10

11

3. Deposition of Chief Brian Sands:

12

December 14, 2009 Deposition: 14:12-17:22, 19:1-17, 22:4-16, 32:3-6; 33:12-22,

13 37:2-9, 37:23-38:12, 41:13-20, 42:20-45:1, 46:7-21, 60:2-23, 62:8-10, 66:20-69:19,
14

15 71:9-72:1, 74:10-75:12, 79:16-81:8, 83:18-84:23, 87:7-17, 89:2-24, 95:11-96:23, 97:8-

16 103:15, 104:3-25, 105:19-107:5, 114:17-115:16, 122:13-123:8, 123:9-17, 124:19-125:9,

17 130:10-133:6, 133:23-134:6, 137:11-20, 138:5-139:21, 139:22-141:20, 142:5-25, 143:7-
18 23, 143:24-144:25, 145:1-146:20, 149:2-25, 152:8-21, 169:1-18, 199:24-200:9.
19

20

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

21 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

22 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness
23 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.
24

25

26

November 15, 2010 Deposition: 9:2-20, 10:21-11:8, 13:19-25, 14:6-25, 26:22-

27 27:10, 31:2-15, 33:6-17, 85:9-86:4, 86:5-7, 99:8-19, 100:2-10, 104:3-105:9, 106:2-

28

201

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 202 of 217

1 108:16,112:3-113:2, 115:22-116:3, 117:4-118:10, 118:25-119:19, 121:11-123:14,

2 126:21-127:1, 127:9-128:6, 130:5-138:20, 140:3-143:18, 153:25-154:5, 203:20-204:7, 3 4 218:14-24, 226:4-9, 226:24-227:3, 226:4-229:17, 227:7-11, 228:4-12, 231:18-233:1.

5

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

6 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

7 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness
8 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.
9

10

11

4. Deposition of Chief Hendershott:

12

February 12, 2010 Deposition: 43:1-6, 44:12-15, 50:25-51:17, 92:18-93:1,

13 102:20-104:19, 128:22-137:11, 151:9-156:6, 173:11-178:6, 189:5-22, 274:17-277:15
14

15

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

16 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

17 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness
18 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.
19

20

21

November 19, 2010 Deposition: 44:3-45:9, 66:25-73:7, 98:1-110:19.

22

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

23 because this witness is not a party to the lawsuit, and is not a party’s officer, director,
24

25 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

26 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

27

28

202

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 203 of 217

1

5. Deposition of Sergeant Madrid:

2

October 27, 2009 Deposition: 6:1-15, 8:25-10:13, 11:19-18:23, 21:14-24, 29:20-

3

4 32:14, 41:2-42:15, 43:5-45:10, 47:19-48:14, 57:22-59:4, 66:24-67:3, 68:22-69:14, 74:3-

5 75:1, 86:17-87:11, 89:16-93:17, 95:15-98:1, 106:21-107:20, 115:18-117:21, 120:1-13,

6 125:12-20, 129:15-130:17, 131:9-132:5, 139:2-141:12, 141:20-143:11, 146:6-13,

7 151:18-152:15, 168:3-6, 186:9-187:24, 194:24-195:8, 195:18-198:12, 198:13-18, 221:8-
8 222:12.
9

10

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

11 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

12 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness
13 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.
14

15

16

October 20, 2010 Deposition: 10:1-10:15, 48:20-49:8, 53:17-59:9, 95:8-96:15.

17

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

18 because this witness is not a party to the lawsuit, and is not a party’s officer, director,
19

20 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

21 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

22

23 6. Deposition of Sergeant Palmer:
24

25

October 23, 2009 Deposition: 6:12-15, 14:5-14, 26:15-30:1, 31:1-24, 42:5-44:16,

26 47:7-48:6, 56:6-58:16, 72:24-73:6, 73:24-74:15, 75:4-76:12, 77:3-78:24, 89:24-90:17,

27 105:22-108:3

28

203

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 204 of 217

1

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

2 because this witness is not a party to the lawsuit, and is not a party’s officer, director, 3 4 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

5 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

6

7

November 9, 2010 Deposition: 50:1-61:5, 75:15-24, 110:7-111:11, 120:7-18.

8

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P., 9

10 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

11 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

12 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P. 13

14

15

7. Deposition of Deputy Louis DiPietro:

16

October 21, 2009 Deposition: 30:20-32:1, 33:23-34:18, 39:19-40:25, 46:10-20,

17 42:18-43:17, 46:21-49:15, 46:10--60:1, 65:6-18, 63:19-66:6, 66:22-67:10, 67:25-69:14, 18
72:11-73:4, 73:11-25, 75:16-76:10, 76:22-77:11, 78:5-80:21, 83:10-84:10, 89:17-90:1, 19
20 107:6-16, 108:13-109:8, 109:15-110:9.

21

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

22 because this witness is not a party to the lawsuit, and is not a party’s officer, director, 23
managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness 24
25 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

26

27

8. Deposition of Deputy Armendariz:

28

204

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 205 of 217

1

November 24, 2009 Deposition: 12:14-19, 15:9-16:113:14-19, 15:9-16:1, 16:17-

2 20, 22:22-26:10, 28:24-30-10, 35:17-36:8, 39:21-40:15, 46:16-51:7, 62:23-63:3, 63:63 4 66:13, 71:25-72:11, 95:17-97:1, 97:2-18, 97:21-98:3, 100:12-101:20, 114:15-118:16,

5 120:3-126:10, 128:1-18, 129:15-22, 130:13-133:21, 139:2-25, 141:3-17, 143:9-17,

6 145:24, 146:25, 147:1-10, 147:18-25, 148:21-25, 149:2-23, 149:24-25, 153:2-154:2,

7 154:3-155:7, 167:4-6, 172:20-173:3, 176:19-177:5, 177:24-178:15, 183:2-25, 186:5-
8 187:11, 198:1-199:7.
9

10

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

11 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

12 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness
13 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.
14

15

16

November 8, 2010 Deposition: 40:6-25, 63:12-68:22, 85:3-88:18.

17

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

18 because this witness is not a party to the lawsuit, and is not a party’s officer, director,
19

20 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

21 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

22

23 9. Deposition of Deputy Rangel:
24

25

October 20, 2009 Deposition: 10:15-14:22; 16:23-17:8; 21:13-23:7; 27:9-37:10;

26 39:6-25; 41:5-43:15; 47:22-49:11; 56:10-57:16; 59:6-61:16; 63:2-64:5; 69:2-11; 70:15-

27

28

205

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 206 of 217

1 71:24; 76:14-81:10; 84:7-86:4; 87:16-88:5; 88:25-96:10; 100:19-101:1; 102:25-105:17;

2 109:19-23; 110:4-111:2.

3

4

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

5 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

6 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

7 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P. 8

9

10

November 8, 2010 Deposition: 19:4-25; 24:19-25:16; 31:1-35:10; 38:1-16; 45:1-

11 19; 53:1-14; 68:23-69:2; 70:21-25; 76:21-77:21; 80:24-81:13; 103:14-104:17.

12

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

13 because this witness is not a party to the lawsuit, and is not a party’s officer, director,
14

15 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

16 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

17

18 10. Deposition of Deputy Beeks:
19

20

October 22, 2009 Deposition: 11:8-20, 16:1-17:20, 20:3-21:17, 24:2-9, 26:25-

21 27:12, 35:15-18, 40:24-42:1, 61:25-62:5, 65:17-66:2, 72:23-73:20, 99:8-100:8, 103:21-

22 104:23, 120:3-12, 121:22-123:9, 125:5-13, 128:4-20, 126:18-127:7, 147:20-148:9. 23
Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P., 24
25 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

26 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

27 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

28

206

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 207 of 217

1

2

11. Deposition of Deputy Ratcliffe:

3

4

October 15, 2009 Deposition: 7:16-8:1; 9:7-22; 12:18-25, 15:1-14; 16:1-20; 18:8-

5 13; 20:14-22:20, 23:14-21, 24:21-25:6, 25:12-26:9, 27:16-20, 28:9-30:24, 33:13-25,

6 35:4-17, 36:5-37:5, 38:1-10, 39:4-25, 41:20-45:6, 46:23-47:20, 51:17-52:16, 59:11-

7 63:15, 68:11-69:9, 80:7-24, 96:4-24, 97:1-13, 98:7-15, 99:5-8, 113:9-13. 8
Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P., 9
10 because this witness is not a party to the lawsuit, and is not a party’s officer, director,

11 managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness

12 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P. 13

14

15

12. Deposition of Deputy Kikes:

16

December 15, 2010 Deposition: 10:25-12:8, 13:16-20, 15:14-16:4, 18:15-20,

17 19:25-20:6, 36:21-39:3, 47:4-49:15, 51:19-25, 52:22-53:16, 59:12-14, 59:16-17, 71:1518
73:14, 74:9-77:2, 79:6-18, 80:23-82:3, 83:10-84:22, 86:6-24, 94:4-5, 94:23-99:12, 19
20 107:21-108:5, 120:4-6, 134:11-21.

21

Defendants object to this designation as improper under Rule 32(a)(3), F.R.C.P.,

22 because this witness is not a party to the lawsuit, and is not a party’s officer, director, 23
managing agent, or designee under Rule 30(b)(6) or 31(a)(4). Additionally, this witness 24
25 is not unavailable for live testimony at trial as required by Rule 32(a)(4),, F.R.C.P.

26

27

13. Deposition of Deputy Ashmore:

28

207

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 208 of 217

1

November 3, 2009 Deposition: 6:8-15, 7:12-8:1, 11:24-12:3, 13:12-14:4, 15:12-

2 16:13, 17:11-20:11, 33:14-20, 38:8-39:19, 52:5-53:21, 57:4-19, 60:7-20, 63:4-64:14, 3 4 67:10-69:3; 80:15-25; 81:22-83:24; 93:1-9; 102:2-12.

5

Defendants object to this designation as irrelevant given that the parties have

6 stipulated that the MCSO receives federal monies for its law enforcement activities. It is

7 also improper under Rule 32(a)(3), F.R.C.P., because this witness is not a party to the 8
lawsuit, and is not a party’s officer, director, managing agent, or designee under Rule 9
10 30(b)(6) or 31(a)(4). Additionally, this witness is not unavailable for live testimony at

11 trial as required by Rule 32(a)(4),, F.R.C.P.

12

13 Further, Plaintiffs may use the following deposition transcripts at trial for
14

15

additional

16 purposes, such as impeachment:

17

October 15, 2009 Deposition of Deputy Ratcliffe

18 November 24, 2010 Deposition of Deputy Armendariz
19

20

December 16, 2009 Deposition of Sheriff Arpaio

21

November 16, 2010 Deposition of Sheriff Arpaio

22

November 3, 2009 Deposition of Suzanne Ashmore

23 October 22, 2009 Deposition of Deputy Beeks
24

25

October 20, 2009 Deposition of Deputy DiPietro

26

October 21, 2009 Deposition of Deputy DiPietro

27

November 19, 2010 Deposition of Chief Hendershott

28

208

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 209 of 217

1

February 12, 2010 Deposition of Chief Hendershott

2

October 1, 2010 Deposition of Jason Douglas Kidd

3

4

February 15, 2010 Deposition of Deputy Kikes

5

November 17, 2010 Deposition of Chief MacIntyre

6

October 27, 2009 Deposition of Sergeant Madrid

7

October 20, 2010 Deposition of Sergeant Madrid

8

November 9, 2010 Deposition of Sergeant Palmer 9

10

September 30, 2010 Deposition of Alfonzo Rafael Pena

11

October 20, 2009 Deposition of Deputy Rangel

12

November 8, 2010 Deposition of Deputy Rangel

13 October 15, 2009 Deposition of Deputy Ratcliffe
14

15

December 14, 2009 Deposition of Chief Sands

16

November 15, 2010 Deposition of Chief Sands

17

December 10, 2009 Deposition of Lieutenant Sousa

18 October 22, 2010 Deposition of Lieutenant Sousa
19

20

Defendants object to this list of MCSO witness deposition transcripts as

21 unnecessary under Rule 32(a)(2), F.R.C.P. and to the extent that Plaintiffs intend to

22 argue that Defendants cannot use any transcript not listed by Defendant for purposes
23 under Rule 32(a).
24

25

With respect to the parts of Defendants’ deposition identified below, and if any of

26 those designations are found admissible as substantive evidence, Plaintiff designates the

27 following parts of those depositions as further evidence to ensure completeness:

28

209

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 210 of 217

1

Deposition of Jason Kidd: 20:14-17, 24:20-25, 26:15-22, 28:14-16, 28:20-22,

2 32:1-10, 36:17-37:4, 37:12-23, 39:19-40:14, 44:7-13, 51:18-23, 53:8-11, 59:1-6, 59:223 4 60:11, 80:19-24, 121:19-122:1, 125:11-18, 132:7-134:14, 137:1-6, 138:8-139:11, 140:3-

5 18, 141:8-142:3, 143:14-19, 145:7-146:1, 151:23-154:1, 160:4-25, 161:7-12, 164:2-6,

6 165:11-18, 166:10-16, 169:1-170:9, 171:14-16, 177:4-178:23, 192:15-21, 196:5-15,

7 200:4-18, 203:24-204:3, 205:3-8, 211:4-9, 212:5-213:4, 215:3-18, 227:2-8, 230:1-4. 8
Deposition of Alonzo Pena: 37:5-15, 59:-60:6, 73:24-74:19, 76:16-77:4, 78:109
10 21, 84:2-9, 91:16-92:13, 94:23-95:14, 97:24-98:11, 132:11-133:2, 138:4-17, 161:18-

11 163:3, 166:11-167:7, 168:4-169:7, 170:3-24, 173:11-174:8, 175:12-15, 179:4-9, 184:4-

12 11; 184:15-186:3, 186:11-14, 190:21-191:7, 204:13-20, 206:25-207:3, 211:4-20, 216:1313
11, 229:23-230:13, 232:16-20, 240:11-24, 242:2-18, 245:5-11, 247:10-21, 268:2-17, 14
15 274:19-275:17.

16

Further, to the extent Defendants use any portion of deposition testimony to

17 impeach any of Plaintiffs’ witnesses, Plaintiffs reserves the right to rehabilitate that
18 witness with other portions of the Deposition.
19

20

Defendants:

21

DEFENSE WITNESS JASON KIDD

(excluding objections)

22

p. 9:9-22

pp. 11:1-12:19

23

pp. 14:14- 15:4

p. 17:10-17

24

p. 19:4-9

pp. 19:19-24:17

25

pp. 25:1-26:14

26

p. 27:13-15 p. 28:6-12

27

p. 28:17-19 p. 28:23-25

28

210

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 211 of 217

1

pp. 29:2-30:2

p. 30:12-18

2

p. 30:20-25

p. 31:2-25

3

p. 32:12-20

4

p. 33:4-14 pp. 33:16-34:14

5

p. 34:18-25 pp. 35:2-39:2

6

pp. 41:11-42:14 p. 43:6-18

7

p. 44:18-22 p. 45:10-12

8

pp. 46:4-47:10 p. 47:15-18

9

pp. 48:2-49:1

pp. 52:8-53:7

10

p. 56:14-19

p. 122:2-124:3

11

pp. 124:20-125:9

pp. 135:22-136:8

12

p. 142:18-24

p. 143:2-13

13

pp. 158:17-159:20

p. 161:1-12

14

p. 164:7-18

pp. 171:18-172:5

15

p. 203:3-23

16

p. 204:5-25 p. 211:10-20

17

pp. 213:5-214:18 p. 233:7-13

18

19

DEFENSE WITNESS ALONZO PENA

p. 9:3-5

20

p. 9:19-22

p. 10:10-18

21

pp. 12:4-15:23

pp. 18:17-20:13

22

pp. 21:24-22:5

23

pp. 22:20-24:2 p. 24:14-16

24

pp. 26:13-27:6 p. 28:8-10

25

p. 28:14-23 p. 29:4-12

26

pp. 33:19-34:2 p. 34:4-9

27

pp. 34:24-36:15 pp. 38:16-41:4

28

211

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 212 of 217

1

pp. 41:25-46:14

pp. 47:20-48:24

2

p. 50:7-10

pp. 50:22-52:23

3

pp. 52:25-55:20

4

p. 56:14-24 p. 57:2-12

5

pp. 57:22-59:4 p. 60:7-18

6

pp. 61:3-62:18 pp. 68:2-71:16

7

pp. 71:19-72:23 pp. 72:25-73:23

8

p. 75:8-22 p. 77:14-20

9

p. 79:1-22

p. 80:19-24

10

pp. 81:24-82:6

pp. 92:25-94:21

11

p. 98:13-20

p. 99:6-22

12

p. 115:3-9

pp. 115:22-116:7

13

pp. 116:11-117:2

pp. 119:4-121:3

14

pp. 122:5-123:10

pp. 127:3-128:6

15

pp. 133:4-134:17

16

pp. 135:10-136:13 pp. 138:18-139:11

17

pp. 149:18-150:19 pp. 150:21-151:24

18

pp. 153:5-154:2 pp. 156:12-157:25

19

20

Plaintiffs object to the deposition designations of Mr. Kidd and Mr. Pena on the

21 basis of relevance and F.R.E. 403. Plaintiffs will concurrently file a motion in Limine in 22
that regard. Additionally, Plaintiffs object to the use of deposition designations for Mr. 23
24 Kidd and Mr. Pena as opposed to live testimony.

25

Defendants further designate the following portions of the October 8, 2009

26 deposition of Mr. Ortega-Melendres: p. 38:18-25. 27

28

212

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 213 of 217

1

Plaintiffs object to this designation to the extent Mr. Ortega-Melendres appears at

2 trial. For completeness, Plaintiffs further designate 39:1-2 of the October 8, 2009 3 4 deposition of Mr. Ortega-Melendres.

5

Defendants further designate the following portions of the October 2, 2009

6 Deposition of Jessica Rodriguez at pp. 30:7-21, 31:9-20, and 55:25-56:4.

7

Plaintiffs object to these designations to the extent Ms. Rodriguez appears at trial.

8

Plaintiffs further object to these designations on the basis of relevance. For 9

10 completeness, Plaintiffs further designate 31:3-7, 36:19-40:25, 53:9-54:23, 69:21-71:3.

11

Each party hereby acknowledges by signing this joint Proposed Final Pretrial

12 Order that any deposition not listed as provided herein will not be allowed, absent good 13
cause. 14
15 H. LIST OF PENDING MOTIONS

16

No motions are pending before the Court other than motions in limine. However,

17 Defendants note that their interlocutory appeal regarding the Court’s December 23, 2011
18 Order is presently pending before the United States District Court for the Ninth Circuit.
19 20 Defendants filed their opening brief with the Ninth Circuit on February 10, 2012.

21 Plaintiffs’ Response brief is due March 23, 2012. Defendants’ optional Reply brief is

22 due within fourteen days after service of the Response brief. Accordingly, both Plaintiffs
23 and Defendants respectfully request and reserve the right, with leave of the Court, to
24 25 amend or modify this Proposed Final Pretrial Order as may be necessitated by the

26 resolution of such appeal.

27 I. 28

PROCEDURES FOR EXPEDITING TRIAL
213

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 214 of 217

1

The parties have discussed procedures that might be used to expedite trial. The

2 parties have agreed to stipulations with regards to certain facts and issues of law, as 3 4 identified above. The parties have agreed to stipulations on the authenticity and

5 foundation for certain documents, as identified above. The parties also agree to the use

6 of edited video clips of depositions of witnesses. The parties also agree to the following

7 uses of courtroom technology: display of exhibits on courtroom monitors for use during 8
witness questioning as well as opening and closing statements. 9
10 J. ESTIMATED LENGTH OF TRIAL

11

4 hours for Opening statements and closing arguments

12

50 hours for Plaintiff(s) case

13 14 15 16
K.
17 18

50 hours for Defendant(s) case 8 hours for rebuttal 112 Total Estimated Hours JURY DEMAND Defendants have requested a jury trial but agree with Plaintiffs that a jury trial is

19 not permitted given the declaratory and equitable claims for relief sought by Plaintiffs

20 L. 21

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS

22

The parties’ respective separately lodged Proposed Findings of Fact and

23 Conclusions of Law are incorporated by reference into this joint Proposed Final Pretrial
24 Order.
25 26 M. CERTIFICATIONS

27

28

214

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 215 of 217

1

The undersigned counsel for each of the parties in this action do hereby certify

2 and acknowledge the following:

3

4

a. All discovery has been completed.

5

b. The identity of each witness has been disclosed to opposing

6 counsel.

7

c. Each exhibit listed herein: (1) is in existence; (2) is numbered; and

8

(3) has been disclosed and shown to opposing counsel. 9

10

d. The parties have complied in all respects with the mandates of the

11 Court’s Rule 16 Scheduling Order and Order Setting Final Pretrial Conference.

12

e. The parties have made all of the disclosures required by the Federal

13 Rules of Civil Procedure (unless otherwise previously ordered to the contrary).
14

15

f. The parties acknowledge that once this Proposed Final Pretrial

16 Order has been signed and lodged by the parties, no amendments to this Order can be

17 made without leave of Court."

18
N.
19

INFORMATION FOR COURT REPORTER

20

As required by this Courts Order Setting the Pre-Trial Conference, and in order to

21 facilitate the creation of an accurate record, the parties intend to file a "Notice to Court

22 Reporter" one week before trial, as well as a copy of the concordance from key
23 depositions.
24 DATED this 2nd day of March, 2012
25

26

27

28

215

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 216 of 217

1 COVINGTON & BURLING, LLP

2

3 s/Lesli Gallagher_________________

4

Stanley Young Andrew C. Byrnes

Tim

5 Lesli Gallagher Attorney for Plaintiffs
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C s/Timothy J. Casey_________________
othy J. Casey Attorneys for Defendants MARICOPA COUNTY ATTORNEYS OFFICE s/Thomas P. Liddy_________________ Thomas P. Liddy Attorneys for Defendants
216

Case 2:07-cv-02513-GMS Document 530 Filed 03/26/12 Page 217 of 217

1

Based on the foregoing,

2

IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the

3

4 parties is hereby APPROVED and ADOPTED as the official Pretrial Order of this

5 Court.

6

Dated this 23rd day of March, 2012.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

217

 </s> Case 2:07-cv-02513-GMS Document 566 Filed 08/13/12 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 v.

)

)

12 Joseph m. Arpaio, et al.,

)

)

13

Defendants.

)

)

14

)

No. CV-07-2513-PHX-GMS ORDER

15

16

Pursuant to the parties’ Stipulation Regarding Doc uments in Evidence Containing

17 Arrest Information (Doc. 565), the Court will accept the Stipulation. Accordingly,

18

IT IS ORDERED granting the Stipulation.

19

DATED this 13th day of August, 2012.

20

21

22

23

24

25

26

27

28

 </s> Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 1 of 24
FILED

FOR PUBLICATION UNITED STATES COURT OF APPEALS

SEP 25 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA MELENDRES; JESSICA QUITUGUA RODRIGUEZ; DAVID RODRIGUEZ; VELIA MERAZ; MANUEL NIETO, Jr.; SOMOS AMERICA,
Plaintiffs - Appellees,
v.
JOSEPH M. ARPAIO; MARICOPA COUNTY SHERIFF’S OFFICE,
Defendants - Appellants.

No. 12-15098 D.C. No. 2:07-cv-02513-GMS
OPINION

Appeal from the United States District Court for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted September 13, 2012 San Francisco, California
Before: WALLACE, GRABER, and BERZON, Circuit Judges.
Opinion by Judge WALLACE, Senior Circuit Judge:
Sheriff Joseph M. Arpaio and the Maricopa County Sheriff’s Office
(collectively, the Defendants) appeal from the district court’s December 23, 2011
order (Order), which granted Manuel de Jesus Ortega Melendres, David and Jessica

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 2 of 24
Rodriguez, Manuel Nieto, Jr., Velia Meraz, the organization Somos America, and the class of individuals the named plaintiffs represent (collectively, the Plaintiffs) “partial injunctive relief” prohibiting the Defendants from detaining any individual “based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.” We have jurisdiction to review the district court’s order under 28 U.S.C. § 1292(a)(1), and we affirm.
I. The Plaintiffs contend that the Defendants have a “custom, policy and practice of racial profiling toward Latino persons in Maricopa County and an unconstitutional policy and practice of stopping Latino drivers and passengers pretextually and without individualized suspicion or cause, and of subjecting them to different, burdensome, stigmatizing and injurious treatment once stopped,” under the auspices of enforcing federal immigration laws and/or Arizona state immigration-related laws. In particular, the Plaintiffs allege that, since September 2007, the Defendants and persons under their control have conducted racially discriminatory traffic stops and launched “crime suppression sweeps,” also known as “saturation patrols,” targeting Latinos as part of their immigration enforcement plan. It is alleged that the Defendants have, for some time, sought to enforce immigration-related laws. In 2006, as part of a “crackdown” against illegal
2

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 3 of 24
immigration, the Defendants allegedly entered into an agreement with the United States Immigration and Customs Enforcement (ICE) agency whereby a number of the Defendants were cross-certified to enforce federal civil immigration laws under section 287(g) of the Immigration and Nationality Act (Act). See 8 U.S.C. § 1357(g) (providing for the enforcement of civil immigration laws by local law enforcement agencies where the United States Attorney General enters into a written agreement with local officials). In 2009, however, ICE modified its agreement with the Defendants such that the Defendants’ deputies no longer had Act section 287(g) authority to enforce civil immigration laws except in jails. The Plaintiffs allege that the Defendants racially profiled Latinos in their immigration enforcement program both before and after ICE modified its agreement with the Defendants.
Each of the five named plaintiffs was stopped by defendant officers during one of three traffic incidents. The named individual plaintiffs, each of whom is of “Latino descent and, by physical appearance, [a] person[] of color,” alleged that they were stopped, detained, searched, and/or questioned by Defendant officers pursuant to the Defendants’ policy or custom of racially profiling Latinos during traffic stops. Somos America, a membership organization, has likewise alleged that under the Defendants’ immigration enforcement program, its members have been “unlawfully targeted, stopped, questioned and/or detained by” defendant officers because of their race. The
3

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 4 of 24
named plaintiffs further alleged that, just as they have been harmed, similarly situated Latino individuals “have been or will be in the future, stopped, detained, questioned or searched by [the Defendants’] agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona.”
The Plaintiffs filed this putative class civil rights action alleging that the Defendants’ racially discriminatory policy violates the Fourth and Fourteenth Amendments to the United States Constitution, Article II, section 8 of the Arizona Constitution, and Title VI of the Civil Rights Act of 1964. The Plaintiffs sought declaratory and injunctive relief to prevent the Defendants from engaging in unlawful racial profiling and other “racially motivated treatment” of the plaintiff class.
After discovery, the parties filed competing motions for summary judgment. For their part, the Plaintiffs moved for partial summary judgment on their Fourteenth Amendment claim, contending that undisputed evidence established that the Defendants racially profiled Latinos when conducting their crime-suppression sweeps in response to racially charged citizen requests. At the summary judgment hearing, they also moved for summary judgment on Ortega Melendres’s Fourth Amendment claim that the Defendants may not detain a person based solely on suspicion about that person’s unlawful immigration status. The Plaintiffs concurrently sought certification of a class composed of “[a]ll Latino persons who, since January 2007, have been or
4

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 5 of 24
will be in the future stopped, detained, questioned or searched by [the Defendants’] agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona.”
The Defendants filed a competing motion for summary judgment, challenging the Plaintiffs’ standing to seek declaratory and injunctive relief. The Defendants also sought summary judgment on the Plaintiffs’ Fourth Amendment claims, arguing that the traffic stops of the named plaintiffs were based on probable cause. Finally, the Defendants argued that undisputed evidence established that the Defendants do not engage in racial profiling and that the Plaintiffs’ Fourteenth Amendment and Title VI claims must fail.
In ruling on the competing summary judgment motions, the district court held that the Plaintiffs had standing to pursue equitable relief on their Fourth Amendment, Fourteenth Amendment, and Title VI claims. The district court likewise certified the Plaintiffs’ proposed class. The court then granted the Plaintiffs’ motion for partial summary judgment on their Fourth Amendment claims and entered a preliminary injunction barring the Defendants from detaining an individual based solely on reasonable suspicion or knowledge that the individual is unlawfully present in the country. Finally, the district court granted the Defendants’ motion for summary judgment as to two named plaintiffs, but denied their remaining motions and ordered
5

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 6 of 24
that trial proceed on the Plaintiffs’ Fourth Amendment, Fourteenth Amendment, and Title VI claims. The trial has been held, but the district court has not yet issued a posttrial decision or final judgment.
II. On appeal of the district court’s decision granting “partial injunctive relief,” the Defendants ask us to address a number of issues, including the district court’s: determination that the Plaintiffs have standing to pursue injunctive relief on Fourth Amendment grounds; statements of Fourth Amendment law; decision to certify the plaintiff class; description of Arizona Revised Statutes section 13-2929; and conclusion that the Plaintiffs have standing to pursue their Fourteenth Amendment and Title VI claims. While the Defendants raise a number of issues in this appeal, we emphasize that we have before us only an order granting “partial injunctive relief.” Although the Defendants attempt to style this appeal as one from permanent injunctive relief, the district court has not entered final judgment in this case. Indeed, the trial has only recently concluded and final judgment remains on the horizon. Additionally, there is nothing in the Order purporting to provide a permanent remedy. Thus, we treat the Order as granting only preliminary injunctive relief. As a result, our task on this appeal is to determine whether the district court’s partial, preliminary injunctive relief
6

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 7 of 24
was appropriate—a limited form of review. See Zepeda v. INS, 753 F.2d 719, 724 (9th Cir. 1983). Thus, except with respect to those issues that we identify below, we need not perform the searching review that the Defendants invite us to undertake, as such review should be had only after the district court enters a final judgment.
III. We turn first to the extent of our jurisdiction to hear this appeal. While we unquestionably have jurisdiction to hear an interlocutory appeal of the district court’s preliminary injunction, see 28 U.S.C. § 1292(a)(1), we may also exercise pendent appellate jurisdiction over any “otherwise non-appealable ruling [that] is ‘inextricably intertwined’ with or ‘necessary to ensure meaningful review of’ the order properly before us on interlocutory appeal,” Meredith v. Oregon, 321 F.3d 807, 813 (9th Cir. 2003), as amended, 326 F.3d 1030 (9th Cir. 2003), quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1995). We have explained that “[d]istrict court rulings are ‘inextricably intertwined’ with a preliminary injunction when ‘the legal theories on which the issues advance [are] . . . so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or . . . resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.’” Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1134 (9th Cir. 2005), quoting Meredith, 321 F.3d at 814. We have also construed “necessary to ensure
7

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 8 of 24
meaningful review” narrowly to require “much more than a tangential relationship to the decision properly before us on interlocutory appeal.” Poulos v. Caesars World, Inc., 379 F.3d 654, 669 (9th Cir. 2004). Thus, we have explained that an issue is “necessary to ensure meaningful review” where the issue “calls into question the district court’s ‘authority to rule on a party’s motion for a preliminary injunction.’” Hendricks, 408 F.3d at 1134, quoting Meredith, 321 F.3d at 816.
Based on the above, we have exercised jurisdiction to review issues related to sovereign and qualified immunity, subject matter jurisdiction, and abstention. See Meredith, 321 F.3d at 816. Indeed, “the common thread” running through our decisions to exercise our pendent jurisdiction “to ensure meaningful review” is that pendent jurisdiction is appropriate to review those issues that implicate “the very power the district court used to issue the rulings then under consideration.” Hendricks, 408 F.3d at 1134–35 (internal quotation marks omitted).
We have emphasized, however, that we “should exercise restraint in reviewing on interlocutory appeal otherwise non-appealable [issues].” Meredith, 321 F.3d at 812. With this consideration in mind, we are convinced that “meaningful review” of this limited preliminary injunction at issue here necessitates that we address only two otherwise non-appealable pendent issues related to the district court’s authority to enter class-wide injunctive relief: (1) whether the Plaintiffs lacked standing to pursue
8

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 9 of 24
the Fourth-Amendment-related injunction the district court ultimately ordered; and (2) whether the district court erroneously certified the plaintiff class. We address each in turn.
A. First, whether the Plaintiffs had standing to pursue an injunction on Fourth Amendment grounds plainly bears on the authority of the district court to enter injunctive relief on those grounds. See City of Los Angeles v. Cnty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009) (explaining that Article III’s standing requirements are jurisdictional). Accordingly, a review of the Plaintiffs’ Fourth Amendment standing is “necessary to ensure meaningful review” of the district court’s Fourth-Amendmentrelated injunction. Because the injunction relates only to the Fourth Amendment, however, we will not exercise our pendent jurisdiction to review the Defendants’ additional argument that the Plaintiffs lacked standing to bring their Fourteenth Amendment and Title VI claims. The Defendants argue that the Plaintiffs lack standing to pursue their Fourth Amendment claims because “[n]one of the named Plaintiffs can demonstrate a ‘credible’ and ‘genuine’ threat of future traffic stop interaction with the [Defendants], or any likely future harm by the [Defendants]. The named Plaintiffs [thus] lack the standing to seek equitable relief because ‘it is not sufficiently likely that [Plaintiffs]
9

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 10 of 24
will again [be] stopped by the [Defendants].’” (Quoting Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (1999) (en banc)).
“Although questions of standing are reviewed de novo, we will affirm a district court’s ruling on standing when the court has determined that the alleged threatened injury is sufficiently likely to occur, unless that determination is clearly erroneous or incorrect as a matter of law.” Mayfield v. United States, 599 F.3d 964, 970 (9th Cir.), cert. denied, 131 S. Ct. 503 (2010); see also Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005). To have standing to assert a claim for prospective injunctive relief, a plaintiff must demonstrate “that he is realistically threatened by a repetition of [the violation].” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). We have “enumerated two ways in which a plaintiff can demonstrate that such injury is likely to recur.” Mayfield, 599 F.3d at 971. “First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury ‘stems from’ that policy.” Armstrong, 275 F.3d at 861. “Second, the plaintiff may demonstrate that the harm is part of a ‘pattern of officially sanctioned . . . behavior, violative of the plaintiffs’ [federal] rights.’” Id. (alterations in original), quoting LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985).
10

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 11 of 24
Here, the district court expressly found that the Plaintiffs “are sufficiently likely to be seized in violation of the Fourth Amendment.” That finding rests on the Defendants’ express claim of “authority to detain persons [they believe] are not authorized to be in the country . . . . ‘based only upon a reasonable suspicion, without more, that the person is not legally present within the United States.’” The Plaintiffs also presented evidence that the Defendants have engaged in a pattern or practice of conducting traffic stops as part of “saturation patrols” or “sweeps” targeting Latinos suspected of being illegally present in the country. Exposure to this policy while going about one’s daily life, the district court determined, constitutes “ongoing harm and evidence that there is ‘sufficient likelihood’ that the Plaintiffs’ rights will be violated again.” The district court specifically found that the Defendants had a policy and practice of violating the Plaintiffs’ Fourth Amendment rights. Thus, although it held that the likelihood of a future stop of a particular individual plaintiff may not be “high,” we are not convinced that the district court erred in determining that future injury was nevertheless “sufficiently likely” given the Defendants’ stated policy and practice. See Mayfield, 599 F.3d at 970–71 (looking to the government’s policy and pattern of officially sanctioned unlawful behavior to determine standing); see also Lyons, 461 U.S. at 106 (explaining that a victim of police misconduct could seek an
11

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 12 of 24
injunction where the government “ordered or authorized police officers” to enforce an unconstitutional policy).
Further, while standing is not appropriate where a plaintiff can avoid injury by avoiding illegal conduct, see Armstrong, 275 F.3d at 865, the Defendants are incorrect that the Plaintiffs may avoid being detained by simply avoiding criminal activity. Indeed, the Defendants alleged that they have authority to detain “individuals based only on reasonable suspicion or probable cause that a person is not authorized to be in the United States.” Because, as will be explained in greater detail below, mere unlawful presence in our country is not a crime, see Arizona v. United States, 132 S. Ct. 2492, 2505 (2012), even if the Plaintiffs comply with all criminal laws enforceable by the Defendants, under the Defendants’ view of the Fourth Amendment, the Plaintiffs remain vulnerable to unlawful detention solely because an officer has reasonable suspicion or knowledge that they are not authorized to be present in the United States. Nor are we persuaded by the Defendants’ assertion that the Plaintiffs can avoid the claimed injury merely by obeying all traffic laws. Some Plaintiffs were only passengers in vehicles that the Defendants stopped; there is no claim that those passengers disobeyed traffic laws. Plaintiff-drivers fare no better because the Defendants could initiate a stop with probable cause that a traffic violation had occurred—whether or not the Plaintiff-drivers had actually committed a traffic
12

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 13 of 24
infraction—and then proceed to detain the Plaintiff-drivers based solely on reasonable suspicion as to the legality of their presence in the United States. Indeed, one Plaintiff-driver was released after detention without being issued any traffic citation. Thus, even as to the Plaintiff-drivers, adherence to traffic laws fails to assure that they would not face future injury.
In sum, we conclude that the district court did not clearly err in finding that the threatened constitutional injury was likely to occur again, and thus, there was no error in the determination that the Plaintiffs had standing to pursue equitable relief as to their Fourth Amendment claims.
We need not address whether Somos America, an organization, met the requirements for associational standing. “The general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993).
B. We next turn to the Defendants’ claims that we should exercise our pendent jurisdiction to review the district court’s decision to certify the plaintiff class. We agree that whether the class was appropriately certified bears on our ability to review the class-wide injunction in this interlocutory appeal. As we have explained before,
13

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 14 of 24
where an injunction provides class-wide relief, “effective review of the injunction requires review of the class certification.” Paige v. California, 102 F.3d 1035, 1039 (9th Cir. 1996).
But the Defendants do not challenge the district court’s class certification itself; rather, they contend that certification of the class must be reversed and remanded because (1) the district court erroneously concluded that the Defendants may not detain persons based only on a reasonable suspicion that they may be unlawfully present in the United States, and (2) the district court erred in holding that the Plaintiffs have standing to seek injunctive relief. We address the former claim as we consider the preliminary injunction below. As to the latter claim, we have already concluded that the district court correctly determined that the Plaintiffs had Fourth Amendment standing. Thus, while class certification may be appropriately reviewed under a pendent jurisdiction theory, we need not go into any greater detail at this time as to the district court’s class-certification analysis. In any event, as the district court recognized, class certification is subject to amendment at any time before final judgment. Accordingly, complete review of the class certification order is best had once a final judgment has been entered.
Mindful of the restraint that we must exercise in determining the scope of our pendent jurisdiction, we conclude that no other issue the Defendants raise in this
14

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 15 of 24
interlocutory appeal is “inextricably intertwined with” or “necessary to ensure meaningful review” of the preliminary injunction decision.
IV. We turn now to our consideration of the preliminary injunction issued by the district court. We review a district court’s preliminary injunction for an abuse of discretion. Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). “‘Under this standard, [a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.’” Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011) (alteration in original), quoting Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir. 2010). To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126–27 (9th Cir. 2009) (abandoning the prior preliminary injunction test and applying Winter). The district court’s Order granted “the certified class . . . partial injunctive relief enjoining [the] Defendants from detaining any person based solely on knowledge, without more, that
15

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 16 of 24
the person is in the country without lawful authority.” We now determine whether, under the Winter factors, the district court abused its discretion entering this preliminary injunction prohibiting the Defendants from detaining individuals solely because they are unlawfully present in the United States.
A. We first conclude that the Plaintiffs were likely to succeed on their claim that without more, the Fourth Amendment does not permit a stop or detention based solely on unlawful presence. Absent probable cause to arrest, a law enforcement officer may conduct an investigatory stop “when [that] police officer reasonably suspects that the person apprehended is committing or has committed a crime.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). The Supreme Court has explained that the investigatory-stop standard is met in the traffic-stop setting “whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation.” Id. at 327. Nevertheless, a detention beyond the duration of the initial traffic stop must be supported independently by reasonable suspicion of criminality. Id. at 333; see also United States v. Mendez, 476 F.3d 1077, 1080–81 (9th Cir. 2007). Accordingly, possible criminality is key to any Terry investigatory stop or prolonged detention. See Terry v. Ohio, 392 U.S. 1, 30 (1968). Absent suspicion that a “suspect is engaged in, or is about to engage in, criminal activity,” law enforcement may not
16

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 17 of 24
stop or detain an individual. United States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004).
We have long made clear that, unlike illegal entry, mere unauthorized presence in the United States is not a crime. See Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011) (“Nor is there any other federal criminal statute making unlawful presence in the United States, alone, a federal crime, although an alien’s willful failure to register his presence in the United States when required to do so is a crime, and other criminal statutes may be applicable in a particular circumstance.” (citation omitted)); Gonzales v. City of Peoria, 722 F.2d 468, 476–77 (9th Cir. 1983) (explaining that illegal presence is “only a civil violation”), overruled on other grounds by Hodgers-Durgin, 199 F.3d 1037. The Supreme Court recently affirmed that, “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona v. United States, 132 S. Ct. at 2505.
Here, the district court enjoined the Defendants from detaining individuals based solely on reasonable suspicion or knowledge that a person was unlawfully present in the United States. The Defendants acknowledge that, although they previously had authority under section 287(g) of the Act to enforce federal civil immigration law, they no longer have authority to do so except in the jail context. Accordingly, if the Defendants are to enforce immigration-related laws, they must
17

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 18 of 24
enforce only immigration-related laws that are criminal in nature, which they are permitted to do even without section 287(g) authority. See Gonzales, 722 F.2d at 475 (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). That enforcement must be consistent with the Fourth Amendment requirement that a Terry investigative stop be premised on criminality. Thus, because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is “afoot.” Terry, 392 U.S. at 30. Although we have recognized that “illegal presence may be some indication of illegal entry,” Martinez-Medina, 673 F.3d at 1035 (internal quotation marks omitted), unlawful presence need not result from illegal entry. For example, an individual may have entered the country lawfully, but overstayed his or her visa. See Gonzales, 722 F.2d at 476. In any event, nothing in Martinez-Medina suggests that presence alone is sufficient to justify a stop by the Defendants’ officers who are not empowered to enforce civil immigration violations.
While the seizures of the named plaintiffs based on traffic violations may have been supported by reasonable suspicion, any extension of their detention must be supported by additional suspicion of criminality. Unlawful presence is not criminal. Nor does illegal presence, without more, give rise to reasonable suspicion of violation of Arizona’s human smuggling statute, Ariz. Rev. Stat. § 13-2319, as the Defendants
18

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 19 of 24
maintain. That statute provides: “It is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose.” Id. § 13-2319(A). It defines “smuggling of human beings” as:
the transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state or have attempted to enter, entered or remained in the United States in violation of law. Id. § 13-2319(F)(3). Absent any reason to suspect a profit or commercial purpose, the unlawful presence in the country of one person in an automobile, without more, does not give rise to reasonable suspicion that the driver or occupants are violating the human smuggling statute.1 We therefore conclude that the Plaintiffs were likely to succeed on the merits of the Fourth Amendment argument that the Defendants may not detain individuals solely because of unlawful presence. The Defendants assert that the district court’s Fourth Amendment injunction rests on incorrect conclusions of law: that the district court employed an “all-theelements” test and/or used a “divide-and-conquer” strategy in concluding that its injunction was appropriate. The district court, however, expressly identified the correct “totality of the circumstances” test in its Fourth Amendment analysis when
1 The validity of section 13-2319 is not challenged in this litigation. 19

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 20 of 24
arriving at its preliminary injunction decision. Indeed, the district court explained that “[i]f the totality of the circumstances do[es] not provide reasonable suspicion that a person is about to commit or is committing a crime, then [the Defendants’ officers] cannot stop the person.” To the extent that portions of the district court’s reasoning leading up to the preliminary injunction could be read to suggest that the district court departed from the well-established “totality of the circumstances” test, we emphasize that we are reviewing only the content of the preliminary injunction itself, not the reasoning that led to it. Under that narrow review, we are convinced that the district court did not abuse its discretion in determining likely success on the merits.
B. We now turn to the next part of the preliminary injunction test: irreparable harm. It is well established that the deprivation of constitutional rights “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The Defendants’ representations during the summary judgment hearing, reasonably interpreted, demonstrate that the Defendants operated under the impression that they have authority to detain individuals solely because of their immigration status—a purely civil matter. From those representations, it was reasonable for the district court to conclude that the Plaintiffs faced a real possibility that they would again be stopped or detained and subjected to unlawful detention on the basis of their
20

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 21 of 24
unlawful presence alone. Accordingly, there was no abuse of discretion in concluding that the Plaintiffs faced irreparable harm in the form of a deprivation of constitutional rights absent a preliminary injunction.
C. Furthermore, there was no abuse of discretion in the district court’s determination that the equities favor issuance of a narrow, limited preliminary injunction. The Defendants have not established that they will be harmed if this injunction is permitted to stand while the district court reaches a final judgment on the merits. The Defendants repeatedly represented during oral argument—in contradiction to their representations to the district court during the summary judgment hearing—that they do not detain individuals based only on immigration status, nor do they desire to do so. The Defendants cannot be harmed by an order enjoining an action they will not take. Further, the district court’s injunction is very narrow and does “not enjoin[] [the Defendants] from enforcing valid state laws, or detaining individuals when officers have reasonable suspicion that individuals are violating a state criminal law.” Thus, the Defendants’ ability to enforce local and even federal criminal law is not impaired by the injunction. Accordingly, we conclude that the district court did not abuse its discretion in concluding that the balance of equities tip in the Plaintiffs’ favor.
21

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 22 of 24
D.
Likewise, the Defendants make no argument that an injunction is not in the
public interest. We agreed in Sammartano v. First Judicial District Court, 303 F.3d
959 (9th Cir. 2002), that “‘it is always in the public interest to prevent the violation
of a party’s constitutional rights.’” Id. at 974, quoting G & V Lounge, Inc. v. Mich.
Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
In sum, we hold that the district court did not abuse its discretion in granting
preliminary injunctive relief.
V.
We applaud how the district court has expedited this sensitive case and moved
with appropriate speed towards a final disposition. We have long
emphasize[d] the ways in which review of an order granting or denying a preliminary injunction differs from review of an order involving a permanent injunction because we are persuaded that in some cases, parties appeal orders granting or denying motions for preliminary injunctions in order to ascertain the views of the appellate court on the merits of the litigation. Because of the limited scope of our review of the law applied by the district court and because the fully developed factual record may be materially different from that initially before the district court, our disposition of appeals from most preliminary injunctions may provide little guidance as to the appropriate disposition on the merits. Furthermore, in many cases, appeal of district courts’ preliminary injunctions will result in unnecessary delay to the parties and inefficient use of judicial resources. We think it likely that this case, for instance, could have proceeded to a disposition on the merits in far less time than it took to process this appeal. Furthermore, our disposition of this appeal
22

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 23 of 24 will affect the rights of the parties only until the district court renders judgment on the merits of the case, at which time the losing party may again appeal.
Sports Form, Inc. v. United Press Int’l, Inc, 686 F.2d 750, 753 (9th Cir. 1982). Here, it appears that the district court heeded our direction to proceed to trial and otherwise move towards a final judgment in this case without waiting for our interlocutory review. As a result, final judgment is now imminent and we need only exercise very limited review at this time. If there is an appeal from the trial court’s final judgment, this panel will retain jurisdiction to hear any subsequent appeal. At that point, we may appropriately consider the broader claims that the Defendants raise in this appeal, if necessary.
AFFIRMED.
23

Case 2:07-cv-02513-GMS Document 578-1 Filed 10/23/12 Page 24 of 24
COUNSEL Timothy J. Casey (argued) and James L. Williams, Schmitt, Schneck, Smyth,
Casey & Even, P.C., Phoenix, Arizona, for Defendants-Appellants Thomas P. Liddy, Maricopa County Attorney’s Officer, Phoenix, Arizona, for
Defendants-Appellants Anne Lai (argued), Jerome N. Frank Legal Services Organization, New Haven,
Connecticut, for Plaintiffs-Appellees Stanley Young and Andrew C. Byrnes, Covington & Burling LLP, Redwood
Shores, California, for Plaintiffs-Appellees Tammy Albarran and David R. Hults, Covington & Burling LLP, San Francisco,
California, for Plaintiffs-Appellees Lesli Gallagher, Covington & Burling LLP, San Diego, California, for Plaintiffs-
Appellees Cecillia D. Wang, ACLU Foundation Immigrants’ Rights Project, San Francisco,
California, for Plaintiffs-Appellees Nancy Ramirez, Mexican American Legal and Educational Fund, Los Angeles,
California, for Plaintiffs-Appellees Dan Pochoda and James Lyall, ACLU Foundation of Arizona, Phoenix, Arizona,
for Plaintiffs-Appellees Andre I. Segura, ACLU Foundation Immigrants’ Rights Project, New York, New
York, for Plaintiffs-Appellees
24

 </s> Case 2:07-cv-02513-GMS Document 567 Filed 08/15/12 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 v.

)

)

12 Joseph m. Arpaio, et al.,

)

)

13

Defendants.

)

)

14

)

No. CV-07-2513-PHX-GMS ORDER

15

16

Pending before the Court is Scott Hum inski’s Motion to Intervene, Alternatively,

17 Motion to File Amicus Brief (Doc. 561).

18

IT IS ORDERED denying the Motion.

19

IT IS FURTHER ORDERED directing the Clerk of Court to term inate Scott

20 Huminski from this action.

21

DATED this 15th day of August, 2012.

22

23

24

25

26

27

28

 </s> _________________________________________________________________________

1 STEPTOE & JOHNSON LLP

Collier Center 2 201 East Washington Street

Suite 1600

‘ Phoenix, Arizona 85004-23 82

4

Telephone: 602 257-5200 Facsimile: 602 257-5299

David J. Bodney 06065
6 dbodney@steptoe.com Peter S. Kozinets 019856
7 pkozinets@steptoe.com Karen J. Hartman-Tellez 021121
8 khartman@steptoe.com Isaac P. Hernandez 025537
9 ihernandez@steptoe.com

10 Attorneys for Plaintiffs

11

Additional Attorneys for Plaintiffs listed on next page

12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15 MANUEL DE JESUS ORTEGA MELENDRES, JESSICA QUITUGUA
16 RODRIGUEZ, DAVID RODRIGUEZ, VELIA MERAZ, MANUEL NIETO,
17 JR., on behalf of themselves and all others similarly situated, and SOMOS
18 AMERICA,

19

Plaintiffs,

No. CV 07-025 13-PHX-MHM FIRST AMENDED COMPLAINT Class Action
[Assigned to the Hon. Maiy H. Murguia]

20

vs.

21 JOSEPH M. ARPAIO, in his official capacity as Sheriff of Maricopa County,
22 Arizona, MARICOPA COUNTY SHERIFF’S OFFICE, and MARICOPA
23 COUNTY, ARIZONA,

24

Defendants.

25

26

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 1 of 31

Additional Attorneys: 1

2 ACLU FOUNDATION OF ARIZONA P.O. Box 17148
3 Phoenix, Arizona 85011-0148

4

Telephone: 602 650-1854 Facsimile: 602 650-1376

5 Daniel Pochoda 021979
6 dpochodaacluaz.org

7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
8 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111
10 Telephone: 415 343-0770 Facsimile: 415 395-0950
11

12 Robin Goldfaden* rgoldfadenaclu. org
13 Monica M. RamIrez*
14 mramirezaclu. org

15 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
16 634 South Spring Street, 11th Floor
17 Los Angeles, California 90014 Telephone: 213 629-2512 x136
18 Facsimile: 213 629-0266

19 Kristina M. Campbell 023 139 20 kcampbellmaldef. org
Nancy Ramirez* 21 nramirezmaldef. org
22

23 *pro Hac Vice Application to be filed

24

25

26

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 2 of 31 -2-

1

Plaintiffs Manuel de Jesus Ortega Melendres, Jessica Quitugua Rodriguez,

2 David Rodriguez, Velia Meraz, Manuel Nieto, Jr., on behalf of themselves and all others

3 similarly situated, and Somos America collectively, "Plaintiffs" allege as follows:

4

PRELIMINARY STATEMENT

5

1. This is a class action to enforce the Fourth and Fourteenth Amendments to

6 the United States Constitution; Title VI of the Civil Rights Act of 1964; and Article II,

7 § 8 of the Arizona Constitution. Plaintiffs seek declaratory and injunctive relief against
8 Defendants Sheriff Joe Arpaio "Arpaio", the Maricopa County Sheriff’s Office

9 "MCSO" and Maricopa County, Arizona collectively, "Defendants".

10

2. As described below, Defendants have engaged in a widespread pattern and

11 practice of racial profiling and other racially and ethnically discriminatoiy treatment in

12 an illegal, improper and unauthorized attempt to "enforce" federal immigration laws

13 against large numbers of Latino persons in Maricopa County without regard for actual

14 citizenship or valid immigration status.

15

3. Claiming authority under a limited agreement with U.S. Immigration and

16 Customs Enforcement ICE that actually prohibits the practices challenged here,

17 Defendants have launched a series of massive so-called "crime suppression sweeps" that

18 show a law enforcement agency operating well beyond the bounds of the law. During

19 these sweeps, which have shown no signs of abating since Defendants began them in

20 September 2007, large numbers of MCSO officers and volunteer "posse" members

21 under Defendants’ direction and control have targeted Latino persons for investigation

22 of immigration status, using pretextual and unfounded stops, racially motivated

23 questioning, searches and other mistreatment, and often baseless arrests. Defendants’

24 pattern and practice of racial profiling goes beyond these sweeps to include widespread,

25 day-to-day targeting and mistreatment of persons who appear to be Latino.

26

4. To curtail Defendants’ illegal conduct, Plaintiffs bring this action as

27 representatives of a class of Latino persons who, as a result ofracial profiling, have been

28 or will be stopped, detained, interrogated or searched by Arpaio and his agents in

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 3 of 31 -3-

1 moving or parked vehicles in Maricopa County. The moment Plaintiffs and those they

2 represent were stopped by Defendants, they became the victims of "an all too familiar

3 set of circumstances - an intrusive law enforcement stop and seizure of innocent persons

4 on the basis of suspicions rooted principally in the race of the ‘suspects." Washington

5 Lambert, 98 F.3d 1181, 1182 9th Cir. 1996. Plaintiffs seek judicial relief to enjoin

6 Defendants’ unlawful racial profiling and the attendant racially motivated mistreatment

7 and constitutional injuries that Plaintiffs and the class will otherwise continue to endure.

8

JURISDICTION AND VENUE

9

5. This Court has subject matter jurisdiction over this action pursuant to 28

10 U.S.C. § 1331 and 1343. This Court has jurisdiction over the state law claims pursuant

11 to 28 U.S.C. § 1367. This Court has authority to grant declaratory and injunctive relief

12 pursuant to 28 U.S.C. § 1343, 2201 and 2202, and to award attorneys’ fees under 42

13 U.S.C. § 1988b.

14

6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391b.

15

PARTIES

16

7. Plaintiff Manuel de Jesus Ortega Melendres "Mr. Ortega" is a citizen

17 and resident of Mexico. At the time of the events underlying this lawsuit, he was

18 lawfully present in the United States. He is of Latino descent and, by physical

19 appearance, is a person of color. He is a retired school teacher.

20

8. Plaintiffs David and Jessica Rodriguez, husband and wife, are U.S.

21 citizens and residents of Maricopa County. The Rodriguezes are of Latino descent and,

22 by physical appearance, are persons of color.

23

9. Plaintiffs Velia Meraz and Manuel Nieto, Jr., siblings, are U.S. citizens

24 and residents of Maricopa County. They are of Latino descent and, by physical

25 appearance, are persons of color. They work for their family-owned business in

26 Phoenix.

27

10. Plaintiff Somos America/We Are America is a community-based non

28 profit membership organization, comprised of grassroots organizations, community and

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 4 of 31 -4-

1 religious leaders, labor unions, students and others, established in March 2006 to

2 mobilize for equal rights for immigrant communities in Arizona and for comprehensive

3 immigration reform. Somos America’s organizational mission includes seeking to

4 combat racial discrimination directed at Latinos. Plaintiff Somos America and its

S members have been injured by the pattern and practice of Defendants alleged in this

6 Complaint.

7

11. Upon information and belief, because of their race, color and/or ethnicity,

8 Somos America members have been unlawfully targeted, stopped, questioned and/or

9 detained by Defendants, and those they direct and control, as a result of Defendants’

10 policy and practice of profiling and targeting persons whom they believe to be of Latino

11 descent to determine their immigration status. As a result of Defendants’ policy and

12 practice and failure to provide adequate training and supervision, Defendants’ agents

13 have pretextually, with racial motivation and without adequate cause stopped vehicles

14 driven or ridden in by Somos America members and have subjected occupants to

15 discriminatory, unreasonable and burdensome questioning and other differential

16 treatment without individualized suspicion or any evidence of criminal activity. Several

17 individual members have reported to Somos that they have been stopped while driving

18 in Maricopa County by MCSO officers without good cause and subjected to the

19 mistreatment described herein.

20

12. Because of Defendants’ policies and pattern and practice of racially

21 profiling persons in Maricopa County whom they believe to be of Latino descent,

22 Somos America has experienced an increase in various requests for assistance from

23 persons who have been negatively impacted by Defendants’ actions. In response,

24 Somos America and its members have participated in monitoring Defendants’ pattern

25 and practice and assisting persons who have been unlawfully racially profiled by

26 Defendants. Somos America is concerned that it will not be able to meet adequately this

27 increased demand for assistance. Already its limited sources have been, and continue to

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 5 of 31 -5-

1 be, diverted and drained as a result of Defendants’ policies and practices and the harm

2 they cause.

3

13. Defendant Joseph M. Arpaio is the Sheriff of Maricopa County, Arizona,

4 and is sued in his official capacity. He is the final decisionmaker for Maricopa County

5 in the area of law enforcement, and is responsible for setting and implementing the

6 policies and practices of the MC SO, including but not limited to creating and regulating

7 department policies regarding the stops and arrests and related treatment of individuals

8 in motor vehicles in Maricopa County.

9

14. Defendant Arpaio, on behalf of the MCSO and with the Maricopa County

10 Board of Supervisors, is responsible for entering into a Memorandum of Agreement

11 MOA with U.S. Immigrations and Customs Enforcement ICE that purports to

12 authorize enforcement of federal immigration laws by specially nominated and cross-

13 trained MCSO Sheriff’s deputies. Defendant Arpaio, in his role as Sheriff, is

14 responsible for implementation and administration of the MOA. He is also responsible

15 for directing MCSO immigration enforcement activity that is legally unauthorized and

16 conducted pursuant to his policy and practice ofracial profiling.

17

15. Upon information and belief, Arpaio participated in the authorization,

18 planning and supervision of the actions of the MCSO employees involved in the events

19 described in this Complaint. Upon information and belief, Arpaio is also responsible for

20 recruiting, training, supervising and managing members of the MCSO’s volunteer

21 "posse" that have carried out Defendants’ policies and practices and have participated in

22 the events described herein without adequate selection processes, proper authority, or

23 adequate training and supervision.

24

16. Upon information and belief, Arpaio is also responsible for the institution

25 of a telephonic "hotline" used to generate and pursue "tips" about suspected

26 immigration violations notwithstanding the complexity of immigration law, the general

27 lack of training, knowledge, and experience among the public in immigration law, and

28 the unfortunate reality that such a hotline invites individuals to equate race with

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 6 of 31 -6-

1 immigration status and allows some to pursue personal grievances by way of a hotline

2 complaint. Arpaio established and has overseen an "Illegal Immigration and

3 Interdiction" unit, known as the "Triple I Unit," to pursue hotline tips and other

4 immigration enforcement activities carried out in the manner described herein.

5

17. Upon information and belief, Arpaio failed to train MCSO personnel and

6 volunteers adequately and to promulgate appropriate policies to prevent the unlawful

7 stops of Plaintiffs and class members based on impermissible racial profiling and

8 arbitraiy and unreasonable stops and seizures. Arpaio has also failed to develop criteria

9 to avoid the abuse of the unchecked discretion he has afforded MCSO personnel, and

10 has established, implemented and enforced illegal and unconstitutional policies and

11 practices that have caused the unlawful treatment of Plaintiffs and class members by

12 MCSO Deputies and other personnel and "posse" members.

13

18. Defendant MCSO is a law enforcement agency in Maricopa County.

14 Upon information and belief, MCSO programs and activities receive financial assistance

15 through federal grants and other contributions from the U.S. Department of Justice

16 "DOJ" and other federal agencies. As a recipient of federal financial assistance,

17 MCSO is legally required to provide and conduct its programs and activities in a racially

18 and ethnically non-discriminatory manner.

19

19. Defendant Maricopa County, Arizona, is a political subdivision of the

20 State of Arizona that can sue and be sued in its own name. Upon information and belief,

21 Maricopa County programs and activities receive federal financial assistance. The

22 County is therefore legally required to conduct its programs and activities in a racially

23 and ethnically non-discriminatory manner. By both its action and inaction, Defendant

24 Maricopa County has agreed with, accepted, acquiesced in, and sanctioned Defendant

25 Arpaio’s focus on supposed enforcement of federal civil immigration laws at the

26 expense of pursuit of criminal conduct and has done the same with regard to

27 Defendants’ policy and practice of employing illegal and improper racial profiling and

28 other discriminatoiy treatment of Plaintiffs and other Latino persons in Maricopa

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 7 of 31 -7-

1 County. In fact, the Chair of the Maricopa County Board of Supervisors has praised as

2 good law enforcement these policies and practices of Defendant Arpaio in the face of

3 large-scale criticism that they specifically target Latinos.

4

GENERAL ALLEGATIONS

5

Limits on Defendants’ Authority to Perform Immi2ration Functions

6

20. In or around Januaiy 2007, Defendants Maricopa County and Arpaio

7 entered into an MOA with ICE that provided for a maximum of 160 nominated, trained

8 and certified personnel of the MCSO to perform certain immigration enforcement

9 functions in limited circumstances. A true copy of the MOA is attached hereto as

10 Exhibit A.

11

21. Section 287g of the Immigration and Nationality Act, 8 U.S.C. § 1357g

12 authorizes the Secretary of the U.S. Department of Homeland Security, of which ICE is

13 a part, to enter into MOAs with state and local law enforcement agencies to train and

14 permit designated officers to perform certain immigration enforcement functions.

15 Under such agreements, the designated state and local officers are to be trained and

16 supervised by appropriate ICE officers.

17

22. According to ICE, "[t]he 287g program is designed to enable state and

18 local law enforcement personnel, incidental to a lawful arrest and during the course of

19 their normal duties, to question and detain individuals for potential removal from the

20 United States, if these individuals are identified as undocumented illegal aliens and they

21 are suspected of committing a state crime." Fact Sheet, Section 28 7g of the

22 Immigration and Nationalily Act September 24, 2007, at

23 http ://www. ice. gov/pi/news/factsheets/factsheet2 8 7gprogover.htm. A true copy of the

24 Fact Sheet is attached hereto as Exhibit B.

25

23. ICE has made clear that "[t]he 287g program is not designed to allow

26 state and local agencies to perform random street operations," and "is not designed to

27 impact issues such as excessive occupancy and day laborer activities." Id. ICE

28 guidelines state, "Police can only use 287g authority when people are taken into

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 8 of 31 -8-

1 custody as a result of violating state or local criminal law. Police cannot randomly ask

2 for a person’s immigration status or conduct immigration raids," and "[officers may

3 only] use their authority when dealing with someone who is suspected of a state

4 crime that is more than a traffic offense." Id. emphases added.

5

24. Part I of the MOA provides that "the exercise of the immigration

6 enforcement authority granted under this MOA to participating LEA [Law Enforcement

7 Agency] personnel shall occur only as provided in this MOA." Part V provides that the

8 immigration enforcement authority granted to Defendants is "subject to the limitations

9 contained in this MOA." Ex. A.

10

25. Part XV of the MOA provides in part that "[p]articipating LEA personnel

11 who perform certain federal immigration enforcement functions are bound by all federal

12 civil rights statutes and regulations, including the U.S. Department of Justice ‘Guidance

13 Regarding The Use Of Race By Federal Law Enforcement Agencies’ dated June 2003."

14 Ex.A.

15

26. The DOJ Guidance states: "‘Racial profiling’ at its core concerns the

16 invidious use of race or ethnicity as a criterion in conducting stops, searches and other

17 law enforcement investigative procedures." It notes that "[r]acial profiling in law

18 enforcement is not merely wrong, but also ineffective." A true copy of the DOJ

19 Guidance is attached hereto as Exhibit C.

20

27. The DOJ Guidance directs that "[i]n making routine or spontaneous law

21 enforcement decisions, such as ordinary traffic stops, Federal law enforcement

22 officers may not use race or ethnicity to any degree, except that officers may rely on

23 race and ethnicity in a specific suspect description." Ex. C emphases added.

24

28. Arpaio has utilized deputies trained under the MOA - and, on information

25 and belief has also used other MCSO deputies and other personnel and volunteers who

26 are not specially nominated and cross-trained to perform immigration duties - on and/or

27 in support of his "Triple I Unit." In doing so and in other ways, he has violated the

28 applicable ICE guidelines as to what a 287g agreement may allow.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 9 of 31 -9-

1

29. In short, Defendants’ authority to enforce federal immigration law is

2 constrained and limited by the U.S. and Arizona Constitutions, federal and state law,

3 and the MOA. Defendants have grossly exceeded these limits by devising and

4 implementing an invidious and unconstitutional custom, policy and practice of racial

5 profiling toward Latino persons in Maricopa County and an unconstitutional policy and

6 practice of stopping Latino drivers and passengers, pretextually and without

7 individualized suspicion or cause, and of subjecting them to different, burdensome,

8 stigmatizing and injurious treatment once stopped. Consequently, Defendants have

9 violated the constitutional and civil rights of Plaintiffs and countless other Latino

10 members of the Maricopa County community.

11

Defendants’ Racial Profilin! and Immi2ration "Sweeps"

12

30. Specifically, Defendants have adopted an unlawful, racially-biased policy

13 of stopping, detaining, questioning and/or searching persons in vehicles in Maricopa

14 County who are or appear to be Latino to interrogate them about their perceived

15 immigration status based on nothing more than their race, color and/or ethnicity.

16 Defendants have implemented this policy in Maricopa County in part through a series of

17 so-called "crime suppression sweeps" that target persons who appear to be Latino for

18 stops, questioning, arrests and other differential treatment that is not based on a

19 constitutionally acceptable level of cause or suspicion and that is in any event racially

20 motivated.

21

31. However, as exemplified by the stops of several Plaintiffs described

22 below, this racially-motivated and biased policy of targeting persons who appear to be

23 Latino for immigration enforcement through pretextual and unfounded stops,

24 interrogation, and arrests also applies and is followed as a general matter by MCSO

25 personnel and is not limited to when "sweeps" are being conducted. Persons who

26 appear to be Latino, when driving or riding in a car, are at risk of being stopped and

27 subjected to burdensome, time-consuming, harassing and stigmatizing interrogation,

28 searches and other mistreatment that may culminate in an arrest and further detention.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 10 of 31

10 -

-

1 These stops and interrogations are frequently unsupported by reasonable suspicion or

2 probable cause, and in any event, are pretextual and racially motivated.

3

32. Indeed, upon information and belief, Caucasian drivers and passengers

4 involved in the same or similar acts or alleged violations are treated differently and their

5 vehicles stopped at much lower rates than similarly situated Latino drivers and

6 passengers pursuant to MCSO policy and practice. Further, Caucasian drivers and

7 passengers are treated differently and less intrusively and detained for shorter periods of

8 time after their vehicles are stopped by MCSO personnel than Latino drivers and

9 passengers after being stopped. Latino occupants are also treated differently and more

10 intrusively by MCSO than Caucasian occupants ofthe same vehicle.

11

33. Defendants’ pattern and practice of racial profiling is evidenced by

12 numerous statements of Arpaio. For example, Arpaio has claimed that physical

13 appearance alone is sufficient to question an individual regarding their immigration

14 status. See Howard Witt, "Does Crackdown Cross Line? Arizona Efforts Stir Racial

15 Profiling Claims," Chicago Tribune, May 26, 2008.

16

34. At a press conference last year, he described his operations as a "pure

17 program" designed "to go after illegals, not the crime first." See Richard Ruelas,

18 "Arpaio Stays Silent on Real ICE Plan," The Arizona Republic, March 2, 2007, at BlO.

19 Arpaio’s practice is to "go after illegals. . . . You go after them, and you lock them up."

20 Id. Arpaio and Maricopa County do not have legal authority under federal or state law

21 or the MOA to engage in such conduct, let alone to do so in a discriminatoiy manner.

22

35. Defendants have targeted specific areas of Maricopa County that have

23 high Latino populations or large numbers of Latino day laborers for pretextual "crime

24 suppression operations." On information and belief, large numbers of MCSO deputies

25 and hundreds of volunteer "posse" members, assisted by members of motorcycle clubs

26 such as the "American Freedom Riders," have been concentrated in such areas during

27 these "sweeps." See, e.g., Press Release, Maricopa County Sheriff’s Office, "Sheriff’s

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 11 of 31 - 11-

1 Operation in Guadalupe Returns: Arpaio Disregards Mayor Jimenez’s Request to Leave

2 Town" April 4, 2008, at http ://www.mcso.org/include/prpdf/Guadalupe%202008 .pdf.

3

36. Defendants’ sweeps were launched in September 2007, have continued

4 through the present time, and show no signs of abating.

5

37. On or about September 27, 2007, Arpaio and MCSO initiated a "crime

6 suppression operation" in Cave Creek, Arizona, to investigate and arrest persons

7 deemed by them to be "illegal" immigrants and to disrupt a "day labor" center in the

8 parking lot of a local church where persons who are predominantly Latino gather.

9 Acting under color of law and Arpaio’s orders, several MCSO officers detained,

10 questioned and arrested at least nine Latino individuals because they allegedly were

11 undocumented immigrants. In the case of at least one vehicle that MCSO officers

12 stopped after it left the church parking lot, MCSO officers let the Caucasian driver leave

13 and did not issue a citation to him, but they questioned, detained and arrested the Latino

14 passengers in the Caucasian driver’s vehicle. See Press Release, Maricopa County

15 Sheriff’s Office, "Sheriff’s Office Not Waiting for Loitering and Soliciting Ordinance to

16 Take Effect" September 27, 2007, at http://www.mcso.org/include/prpdf/CC.pdf.

17 Upon information and belief, the officers did not have reasonable suspicion or probable

18 cause to believe that any driver stopped or passenger questioned had committed a

19 violation of Arizona or federal law, and in any event, used a traffic violation to

20 investigate the immigration status of all Latino occupants.

21

38. On October 4, 2007, Arpaio and MCSO initiated another "crime

22 suppression operation" in Queen Creek, Arizona. Again, at least 16 Latino individuals

23 were detained, questioned and arrested on suspicion of being undocumented immigrants.

24 See Press Release, Maricopa County Sheriff’s Office, "Sheriff Arpaio Goes After Day

25 Laborers" October 4, 2007, at http://www.mcso.org/include/prpdf/Queen%2oCreek

26 %2ODay%2oLaborers.pdf. Upon information and belief, the officers did not have

27 reasonable suspicion or probable cause to believe that any driver stopped or passenger

28 questioned had committed a violation of Arizona or federal law, and in any event, used a

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 12 of 31

12 -

-

1 traffic violation to investigate the immigration status of all Latino occupants. Upon

2 information and belief, there were other persons who appeared to be Latino beyond the

3 number arrested who were also subject to pretextual, racially motivated stops and

4 questioning aimed at investigating them for immigration enforcement.

5

39. For several months beginning in October 2007, Defendants Arpaio and

6 MCSO targeted the intersection of 34th Street and Thomas Road in central Phoenix

7 because of the presence of day laborers near Pruitt’s Furniture Store. See, e.g., Press

8 Release, Maricopa County Sheriff’s Office, "Arpaio Intensifies Presence at Pro-Illegal

9 Immigration Protests at Pruitt’s" December 5, 2007, at

10 http ://www.mcso. org/include/prpdf/Arre sts%20 120507 .pdf. Upon information and

11 belief, MCSO did not engage in these activities at the invitation or request of the City of

12 Phoenix Police Department, which has jurisdiction over this area. Upon information

13 and belief, MCSO officers engaged in racial profiling and targeted Latino individuals

14 during this operation. These officers stopped and questioned Latino drivers and

15 passengers prior to having adequate cause or suspicion that they were involved in

16 criminal acts, and in any event, for racially motivated reasons, singled them out for

17 investigation and enforcement and subjected them to different treatment.

18

40. On December 5, 2007, Defendant Arpaio announced that he was

19 increasing the number of MCSO deputies patrolling the Pruitt’s parking area. Id.

20 Arpaio announced that he was acting in response to protests by members of the Latino

21 community about the policies of the MCSO and the Pruitt’s owner. During the

22 operation at Pruitt’s, Arpaio and his officers stopped, detained, questioned and arrested

23 Latino persons in the vicinity of the store. Upon information and belief, the officers did

24 not have reasonable suspicion or probable cause to believe that those stopped had

25 committed a violation of Arizona or federal law prior to making the stop, and in any

26 event, for racially motivated reasons, singled them out for investigation and enforcement

27 and subjected them to different treatment. In an apparent effort to suppress the Pruitt

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 13 of 31

13 -

-

1 store protesters’ exercise of their First Amendment rights, Arpaio announced that he

2 would continue to patrol the area until the protests ended. Id.

3

41. On or about Januaiy 18, 2008, Arpaio and MCSO conducted a "crime

4 suppression operation" between 16th and 40th Streets and McDowell and Indian School

5 Roads in Phoenix. See Press Release, Maricopa County Sheriff’s Office, "Sheriff

6 Mobilizes Posse in Central Phoenix" Januaiy 18, 2008, at

7 http ://www.mcso. org/include/prpdf/Sheriff%2oMobilizes%2oPosse%2Oin%2oCentral

8 %2oPhoenix.pdf. Upon information and belief, MCSO did not engage in these activities

9 at the invitation or request of the Phoenix Police Department, which has jurisdiction

10 over this area. Upon information and belief, MCSO officers engaged in racial profiling

11 and targeted Latino individuals during this operation. To justify the massive use of

12 MCSO resources in the area bounded by 16th and 40th Streets and Indian School and

13 McDowell Roads in Phoenix, Defendant Arpaio stated: "I anticipate that many illegal

14 immigrants will be arrested as the central Phoenix neighborhood remains a popular spot

15 for day laborers." Id. Such day laborers are predominantly Latino, but are by no means

16 exclusively noncitizens, let alone all undocumented.

17

42. In late March 2008, Arpaio and MCSO conducted a "crime suppression

18 operation" at Cave Creek and Bell Roads in Phoenix because of the existence of the

19 Macehueli Day Labor Center, which is run by one of the leaders of the Pruitt’s protests,

20 Salvador Reza. See Press Release, Maricopa County Sheriff’s Office, "Bell Road Crime

21 Suppression

Patrols"

March

28,

2008,

at

22 http ://www.mc so. org/include/prpdf/Bell%200perations%203 2808 .pdf.

Upon

23 information and belief, MCSO did not engage in these activities at the invitation or

24 request of the Phoenix Police Department, which has jurisdiction over this area. Upon

25 information and belief, MCSO officers engaged in racial profiling and targeted Latino

26 individuals during this operation. Defendant Arpaio praised as "patriotic" the private

27 groups, including the American Freedom Riders, that on information and belief, had

28 been harassing all Latino persons entering and leaving this legal center. Upon

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 14 of 31

14 -

-

1 information and belief, Arpaio was aware of the anti-immigrant reputation of the

2 American Freedom Riders and the public use ofracial epithets by their members.

3

43. Between April 3 and April 6, 2008, Arpaio and MCSO conducted a "crime

4 suppression operation" in the Town of Guadalupe, Arizona. See Press Release,

5 Maricopa County Sheriff’s Office, "Sheriff’s Crime Suppression Operation Moves to

6 Guadalupe" April 3, 2008, at http ://www.mcso. org/include/prpdf/Guadalupe

7 %200peration.pdf. Upon information and belief, MCSO officers engaged in racial

8 profiling, targeting individuals who appeared to them to be Latino during this operation.

9

44. As MCSO is the law enforcement agency for the Town of Guadalupe,

10 Arpaio was aware that nearly all of the residents of Guadalupe are of Latino and/or

11 Native American descent. In response to the criticism of his tactics and allegations of

12 racial profiling by the Mayor of Guadalupe, Rebecca Jimenez, Arpaio publicly labeled

13 her "a supporter of illegal immigration." See Press Release, Maricopa County Sheriff’s

14 Office, "Sheriff’s Operation in Guadalupe Returns: Arpaio Disregards Mayor Jimenez’s

15 Request

to

Leave

Town"

April

4,

2008,

at

16 http ://www.mc so. org/include/prpdf/Guadalupe%202008 .pdf.

17

45. On April 4, 2008, after the commencement of the MCSO sweep in the

18 Town of Guadalupe, Phoenix Mayor Phil Gordon formally requested that U.S. Attorney

19 General Michael Mukasey launch a Justice Department investigation into the

20 "discriminatory harassment, improper stops, searches and arrests" of Latino persons in

21 Maricopa County by the MCSO. A copy of Mayor Gordon’s letter is attached as

22 Exhibit D.

23

46. On or about May 7, 2008, Arpaio and MCSO conducted a "crime

24 suppression operation" in Fountain Hills, Arizona. See Press Release, Maricopa County

25 Sheriff’s Office, "Mesa Drop House" May 8, 2008 at

26 http ://www.mc so. org/include/prpdf/mesa%2odrop%2ohouse%205 0808 .pdf. Upon

27 information and belief, MCSO officers engaged in racial profiling and targeted Latino

28 individuals during this operation as described above for other sweeps.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 15 of 31

15 -

-

1

47. On or about June 26, 2008, Arpaio and MCSO conducted a "crime

2 suppression operation" in Mesa, Arizona, using nearly 200 deputies and posse members.

3 See Press Release, Maricopa County Sheriff’s Office, "Sheriff’s Crime

4 Suppressionllllegal Immigration Operation Moves Into Mesa" June 26, 2008 at

5 http ://www.mcso. org/include/prpdf/Me sa%2 OCrime%20Suppression.pdf.

Upon

6 information and belief, MCSO did not engage in these activities at the invitation or

7 request of the City of Mesa Police Department, which has jurisdiction over this area.

8 Upon information and belief, MCSO officers engaged in racial profiling and targeted

9 Latino individuals during this operation as described above for other sweeps.

10

48. On information and belief, the MCSO personnel involved in these "crime

11 suppression sweeps" and in the vehicle stops of Plaintiffs and other Latinos in Maricopa

12 County have targeted, stopped, interrogated, detained or arrested Latino persons based

13 on their race, color and/or ethnicity, pretextually and not because of probable cause or

14 reasonable suspicion that they had committed any crime.

15

Additional Indicia of Racial Bias

16

49. In early 2008, Arpaio established a telephone hotline to facilitate MCSO’s

17 unlawful, racially-biased immigration enforcement tactics and its racial profiling of

18 Latinos in Maricopa County. Arpaio was aware that his policy of acting on anonymous

19 citizen "tips" about alleged undocumented immigrants and his invitation for untrained

20 members of the public to participate in his enforcement campaign would result in false,

21 inaccurate, and racially motivated reports about Latino residents. As opposed to law

22 enforcement use of tips from the public which are based on suspected criminal activity

23 and behaviors, a citizen report that an individual is "here illegally" will often be based

24 solely on an individual’s race, color and/or ethnicity. On information and belief, this

25 hotline has been used to further the policies and practices complained of herein and has

26 increased their racially discriminatoiy impact.

27

50. Racial profiling in law enforcement operations has been recognized as a

28 serious and recurrent problem by elected officials and associations representing chiefs of

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 16 of 31

16 -

-

1 police and other law enforcement professionals across the nation and beyond.

2 Professional safeguards have been developed for law enforcement agencies to monitor

3 and deter racially motivated practices when stopping and questioning the drivers of

4 vehicles and any passengers. These safeguards include: collecting data for eveiy

5 vehicle stop, including data regarding the race ofthe persons affected, the identity of the

6 officers involved, the reason for the stop and the actions taken; regularly analyzing this

7 data for the agency and for particular units and officers; intervening if the resulting data

8 indicate a problem of racial profiling or racial animus; requiring ongoing training of all

9 personnel in the area of racial bias and sensitivity; disciplining personnel upon

10 documented findings of racially improper actions; video and audio taping of all vehicle

11 stops from start to finish; and making available to the public the results of the agency’s

12 monitoring efforts and its internal reviews of racial profiling or race discrimination

13 complaints.

14

51. On information and belief, Defendants have not adequately implemented,

15 or even begun to implement, the foregoing safeguards. Rather, Arpaio and other

16 Defendants have remained steadfast in their resolve to continue their course. As a

17 result, Plaintiffs and those they seek to represent continue to be at risk for being

18 subjected to pretextual stops, detention, questioning, searches and other mistreatment,

19 without adequate cause or suspicion and because ofthe color oftheir skin.

20

CLASS REPRESENTATIVES

21

52. Defendants’ behavior toward the following Plaintiffs starkly illustrates the

22 unlawful policies, practices and conduct described above.

23

The Unlawful Stop and Detention of Manuel de Jesus Orte2a Melendres

24

53. On September 6, 2007, Mr. Ortega legally entered the United States at the

25 border station in Nogales, Arizona.

26

54. Mr. Ortega possesses a U.S. Visa that is valid through August 23, 2016,

27 and possessed a Permit issued by the U.S. Department of Homeland Security that was

28 valid through November 1, 2007.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 17 of 31

17 -

-

1

55. On or about September 26, 2007, at 6:15 a.m., Mr. Ortega was a passenger

2 in a vehicle in Cave Creek, Arizona that was stopped by officers from the Maricopa

3 County Sheriff’s Office. The vehicle was being driven by a Caucasian male, but the

4 passengers, including Mr. Ortega, were Latino men.

5

56. The officers told the driver that he was being stopped for speeding, but

6 they did not give him a citation or take him into custody.

7

57. The officers looked at Mr. Ortega sitting in the vehicle and asked him to

8 produce identification.

9

58. Mr. Ortega showed them the following documents that he had in his

10 wallet: a his United States Visa, which has his photograph and fingerprint on it; b

11 his Mexican Federal Voter Registration card, which also has his photograph and

12 fingerprint on it; and c a copy of the Permit he was given by the U.S. Department of

13 Homeland Security with a stamp showing its validity through November 1, 2007.

14

59. Although Mr. Ortega produced identification establishing his legal status,

15 the officers told him to exit the vehicle.

16

60. After exiting the vehicle, the officers pushed Mr. Ortega against a police

17 vehicle and roughly patted him down over his entire body.

18

61. The Sheriff’s officers then took eveiything out of Mr. Ortega’s pockets,

19 including his wallet and a small bottle of lotion that Mr. Ortega occasionally applies to

20 his face so that his skin does not become dry.

21

62. The Sheriff’s officers, upon removal of the small bottle of lotion from Mr.

22 Ortega’s pocket, asked Mr. Ortega in a confrontational manner, "How many times a

23 week do you jack off?"

24

63. Mr. Ortega was then handcuffed with his arms behind his back. Mr.

25 Ortega had a broken wrist years ago that did not heal correctly. His wrist has a visible

26 deformity and causes him pain. Mr. Ortega asked the Sheriff’s officers to please be

27 careful in handcuffing him, but they handled him roughly. The officers kept Mr.

28 Ortega’s hands handcuffed behind his back for approximately 40 minutes.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 18 of 31

18 -

-

1

64. The officers then put Mr. Ortega in the back of a Sheriff’s vehicle and

2 took him to the Sheriff’s office in Cave Creek where he was placed in a holding cell for

3 four hours.

4

65. Throughout the time that Mr. Ortega was seized from the vehicle, patted

5 down, handcuffed, transported to the Sheriff’s office, placed in the holding cell and left

6 to remain in the holding cell, no one from the Sheriff’s office explained anything to him,

7 and no one offered to get a Spanish speaking officer or translator to assist in

8 communicating with him.

9

66. The officers did not advise Mr. Ortega ofhis Miranda rights.

10

67. The officers did not give Mr. Ortega any opportunity to make a phone call.

11

68. The officers did not tell Mr. Ortega what crime he allegedly committed, or

12 if he was being charged with any crime.

13

69. The officers did not say anything about what might happen to Mr. Ortega.

14

70. The officers did not give Mr. Ortega any documents regarding his arrest or

15 their putting him in jail.

16

71. After the Sheriff’s officers left Mr. Ortega in the jail for four hours, they

17 placed him in handcuffs again and drove him to downtown Phoenix. The driver of that

18 vehicle spoke Spanish. Mr. Ortega explained that his wrist was quite painful and asked

19 if he could be handcuffed with his hands in front of him rather than behind him. The

20 driver said that he could not do that.

21

72. The officers drove Mr. Ortega to the local ICE office. They took him

22 inside and removed the handcuffs. Mr. Ortega’s hands were swollen, and he was in

23 pain.

24

73. At the ICE office, Mr. Ortega was placed in a holding cell again and left

25 unattended for more than an hour.

26

74. Mr. Ortega was then taken to an ICE official who did not identify himself.

27 The Sheriff’s officers who arrested Mr. Ortega were also present.

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 19 of 31

19 -

-

1

75. The ICE official asked for Mr. Ortega’s documents. He took a quick look

2 at the documents and said, "These documents are good." The ICE official told Mr.

3 Ortega he was free to leave.

4

76. Mr. Ortega had been in custody for about nine hours. During that time,

5 Mr. Ortega was never: a given any water, b given any food, c told his rights, or

6 d given the name of any of the officers involved.

7

77. Mr. Ortega also was never given any paperwork, other than a case number,

8 with any information about his: a being stopped, b being taken into custody by the

9 Sheriff’s officers, c being held in jail by the Sheriffs officers, d being transferred to

10 the ICE office, e being held in jail at the ICE office, or fj his being released from

11 custody.

12

78. After being released, Mr. Ortega had to make his own way from

13 downtown Phoenix to Cave Creek.

14

79. Because of Mr. Ortega’ experience with the Maricopa County Sheriff’s

15 officers he is now afraid. He is frightened to walk on the street or be seen in public in

16 Maricopa County because he fears that the Sheriff’s officers will come and arrest him

17 again because he is Latino and does not speak English.

18

80. Mr. Ortega is afraid that the Sheriff’s officers will hurt him physically if

19 they pick him up again.

20

81. Mr. Ortega is afraid that he will be thrown in jail without any explanation,

21 without any rights, and without any opportunity to get help even though the federal

22 government of the United States has issued a Visa to him that gives him permission to

23 be here.

24

The Unlawful Stop and Detention of David and Jessica Rodri2uez

25

82. On or about December 2, 2007, Mr. and Mrs. Rodriguez, along with their

26 two young children, visited Lake Bartlett.

27

83. As they were leaving the preserve, while driving on a paved road, they

28 saw a sign that read, "Road Damaged." They could then see that the road ahead was

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 20 of 31

20 -

-

1 washed out by recent rains. Two Sheriff’s vehicles were parked on the opposite side of

2 the wash-out.

3

84. Like the motorcycle rider behind him, Mr. Rodriguez decided to turn

4 around and head the other way.

5

85. The two Sheriff’s vehicles followed. The deputies stopped Mr. Rodriguez,

6 the motorcycle now in front ofthem and another sedan.

7

86. The deputies let the motorcycle and sedan go in short order, without

8 visibly exchanging any documentation.

9

87. When Deputy Matthew Ratcliffe approached Mr. Rodriguez, however,

10 Deputy Ratcliffe asked for a social security card, driver’s license, vehicle registration

11 and proof ofinsurance.

12

88. Mrs. Rodriguez asked Deputy Ratcliffe why he needed to see a social

13 security card, to which he responded, "standard procedure."

14

89. Deputy Ratcliffe then asked Mr. Rodriguez whether he had seen the "Road

15 Closed" sign. Mr. Rodriguez explained that he had seen only a "Road Damaged" sign.

16 The Rodriguezes later discovered that there was a "Road Closed" sign, but on a part of

17 the paved road that they had not traveled.

18

90. Deputy Ratcliffe took down Mr. Rodriguez’s information and returned to

19 his vehicle.

20

91. While they waited, the Rodriguezes watched another deputy pull over

21 several other vehicles, and from all appearances, the other drivers were being given only

22 warnings.

23

92. When Deputy Ratcliffe returned, Mrs. Rodriguez asked if they could be

24 given a warning like eveiyone else. He said no.

25

93. Mrs. Rodriguez told Deputy Ratcliffe that this was selective enforcement.

26 She said that this looked like racial profiling.

27

94. Deputy Ratcliffe became visibly angiy and gave them a citation for failure

28 to obey a traffic control device.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 21 of 31 -21 -

1

95. Deputy Ratcliffe returned to his vehicle, turned on his siren and yelled

2 over the loud speaker "you’re free to go."

3

96. As Mr. Rodriguez drove to the exit of the preserve, he finally saw the

4 "Road Closed" sign. He pulled over and waited on the side ofthe road. Mr. Rodriguez

5 was able to stop and speak with several drivers he had seen pulled over by Sheriff’s

6 deputies. Not one of them had been asked for a social security card, and not one of them

7 had been given a citation. The other drivers were all Caucasian.

8

97. The next day, Mrs. Rodriguez filed a formal complaint with the MCSO.

9 To date, she has not received a formal response.

10

The Unlawful Stop and Detention of Velia Meraz and Manuel Nieto, Jr.

11

98. On or about March 28, 2008, a little before 3:00 p.m., Ms. Meraz and Mr.

12 Nieto drove down the block from their family business, Manuel’s Auto Repair, to the

13 Quick Stop at the corner of N. Cave Creek and E. Nisbet Roads.

14

99. They had the windows down, and Ms. Meraz was singing along to Spanish

15 music.

16

100. Pulling into the Quick Stop, they noticed a Sheriff’s vehicle behind one of

17 the vehicles at the pumps. The officer, Deputy Alberto Armendariz, was speaking with

18 two Latino-looking men in handcuffs.

19

101. As soon as Mr. Nieto parked the car, Deputy Armendariz yelled over to

20 them that they should leave. Ms. Meraz asked why.

21

102. Leaving the two handcuffed gentlemen, Deputy Armendariz approached

22 Ms. Meraz and accused them of disturbing the peace. Ms. Meraz explained that she was

23 just singing to her music.

24

103. Deputy Armendariz repeated that they had better leave before he arrested

25 them for disorderly conduct. Ms. Meraz said that they would leave, but asked the

26 deputy for his badge number.

27

104. The Deputy then starting speaking into his radio, evidently calling for

28 additional officers.

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 22 of 31

22 -

-

1

105. As Mr. Nieto and Ms. Meraz pulled out of the Quick Stop, they noticed a

2 motorcycle officer coming down Cave Creek Road.

3

106. Deputy Armendariz waved at the motorcycle officer, directing him to

4 follow Mr. Nieto and Ms. Meraz.

5

107. Mr. Nieto then saw the motorcycle officer and three other Sheriff’s

6 vehicles behind them. The motorcycle officer told Mr. Nieto to pull over and get out of

7 the car.

8

108. Mr. Nieto quickly dialed 9-1-1 and reported that he was being harassed by

9 Sheriff’s officers for no apparent reason.

10

109. Mr. Nieto’s family business was no more than 50 yards away, so he pulled

11 into the parking lot there.

12

110. The four police vehicles descended on them, blocking off the street and

13 their business. The officers jumped out oftheir vehicles and raised their weapons.

14

111. Among the officers were Deputies Douglas Beeks and Cesar Brockman.

15

112. An officer grabbed Mr. Nieto and pulled him out of the car. He was

16 pressed face first against his car. His arms were twisted behind his back and he was

17 handcuffed.

18

113. An officer then asked Mr. Nieto if he had a driver’s license. He responded

19 thathe did.

20

114. The sound of the commotion drew other people from the repair shop. The

21 officers told them to stay back. The customers were told that they needed to leave or be

22 arrested.

23

115. Mr. Nieto was petrified that he was going to be arrested in front of his

24 family, neighbors and customers, though he had done nothing wrong.

25

116. Mr. Nieto’s father, who had come out ofthe shop, called out to the officers

26 that the repair shop was his business, that Mr. Nieto and Ms. Meraz were his children

27 and that they all were U.S. citizens.

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 23 of 31

23 -

-

1

117. The officers immediately backed down and lowered their weapons. Mr.

2 Nieto was let out of the handcuffs. The officers asked for his identification and ran it

3 through their computer system. They did not give him any citation.

4

118. Mr. Nieto asked why the officers had subjected him and his sister to such

5 treatment. He was not given any explanation, nor any apology.

6

119. Upon information and belief, Mr. Nieto and Ms. Meraz were targeted

7 because they look Latino. Upon information and belief, what happened to them was

8 part ofthe sweep going on at that time on Cave Creek Road.

9

CLASS ALLEGATIONS

10

120. This is a class action seeking declaratory and injunctive relief under

11 Federal Rule of Civil Procedure 23b2 on behalf of Plaintiffs and all other similarly

12 situated individuals.

13

121. The class that Plaintiffs seek to represent consists of all Latino persons

14 who, since Januaiy 2007, have been or will be in the future, stopped, detained,

15 questioned or searched by MCSO agents while driving or sitting in a vehicle on a public

16 roadway or parking area in Maricopa County, Arizona. This class is so numerous that

17 joinder of all members is impracticable.

18

122. There are questions of law and fact common to all members of the class

19 and all class members have been directly affected by the challenged actions of

20 Defendants. Each putative class member has been or will be subjected to arbitrary,

21 racially-motivated, discriminatoiy stops, questioning, detentions, arrests and/or searches

22 conducted by Defendants. Each putative class member has been or will be subjected to

23 stops, detentions, interrogations and/or searches, pretextually, without consent, without

24 any reasonable, articulable suspicion or probable cause that such class member had

25 committed a crime or was engaged in criminal or other unlawful activity, and in a

26 manner to which Caucasian drivers and passengers in vehicles in Maricopa County are

27 generally not subjected.

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 24 of 31

24 -

-

1

123. The claims and defenses of the representative Plaintiffs are typical of the

2 claims and defenses of the class.

3

124. The representative Plaintiffs will fairly and adequately protect the interests

4 of the class.

5

125. Defendants in this case have taken actions in violation of the class

6 members’ constitutional rights and/or refused to act in accordance with those rights,

7 which are grounds generally applicable to the class, thereby making appropriate final

8 injunctive relief and corresponding declaratory relief with respect to the class as a

9 whole.

10

126. Plaintiffs’ counsel is competent and experienced in class action litigation

11 of the type brought here.

12

REQUISITES FOR RELIEF

13

127. As a result of the conduct of Defendants described above, Plaintiffs have

14 been denied their constitutional and civil rights. Defendants’ policies, practices, conduct

15 and acts alleged herein have resulted and will continue to result in irreparable injury to

16 Plaintiffs, including but not limited to further violations of their constitutional and civil

17 rights. Plaintiffs have no plain, adequate or complete remedy at law to address the

18 wrongs described herein. Plaintiffs therefore seek injunctive relief restraining

19 Defendants from continuing to engage in and enforce the unlawful and unconstitutional

20 policies, practices, conduct and acts described herein.

21

FIRST CLAIM FOR RELIEF: EQUAL PROTECTION

Fourteenth Amendment 22
128. Plaintiffs hereby incorporate by this reference all allegations of the

23 preceding paragraphs ofthis Complaint as if fully set forth herein.
24 129. As Latino persons, Plaintiffs are members of a protected class.
25 130. As Latino persons, those individuals stopped, detained, questioned or
26 searched by MCSO agents during the class period are members of a protected class.

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 25 of 31

25 -

-

1

131. Defendants, acting under color of law and in concert with one another,

2 engaged, and continued to engage, in profiling and discriminatoiy treatment of Plaintiffs

3 and other Latino individuals based on their race, color and/or ethnicity.

4

132. Defendants have acted pretextually, with racial motivation and without

5 reasonable suspicion or probable cause to stop, detain, question, search and/or arrest

6 Plaintiffs or any of the other Latino individuals referred to above.

7

133. By purposefully stopping, detaining, questioning, searching and/or

8 arresting Plaintiffs and subjecting them to different, burdensome and injurious treatment

9 because of their race, color and/or ethnicity, Defendants deprived Plaintiffs and

10 members of the plaintiff class of the equal protection of the law within the meaning of

11 the Fourteenth Amendment to the U.S. Constitution. These actions violated Plaintiffs’

12 and class members’ Fourteenth Amendment rights and 42 U.S.C. § 1983.

13

134. Defendants, acting under color of law and in concert with one another,

14 exceeded and/or abused the authority granted to them under state and federal law.

15

135. By their conduct described above, Defendants in general, and Arpaio in

16 particular, have devised and implemented a policy, custom and practice of illegally

17 stopping, detaining, questioning or searching Latino individuals because of their race,

18 color and/or ethnicity.

19

136. Defendants’ actions have caused and will continue to cause Plaintiffs and

20 other similarly situated individuals to suffer public humiliation and additional harms,

21 and be subjected to unlawful discrimination unless these actions are stopped.

22

137. As a direct, proximate result of Defendants’ wrongful conduct, Plaintiffs

23 and class members have suffered and will continue to suffer significant and substantial

24 emotional harm and additional injuries.

25 SECOND CLAIM FOR RELIEF: UNREASONABLE SEARCH AND SEIZURE
Fourth and Fourteenth Amendments 26
138. Plaintiffs hereby incorporate by reference all allegations of the preceding 27
paragraphs of this Complaint as if fully set forth herein. 28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 26 of 31

26 -

-

1

139. Pursuant to the Fourth and Fourteenth Amendments to the U.S.

2 Constitution, state and local governments are prohibited from conducting unreasonable

3 searches and seizures.

4

140. Defendants, acting under color of law and in concert with one another,

5 stopped, seized, searched, arrested and/or impermissibly extended stops of Plaintiffs,

6 pretextually, for racially motivated reasons and without probable cause or reasonable

7 suspicion that they had violated the law. Such conduct violated the Fourth Amendment

8 guarantee against unreasonable searches and seizures, the Fourteenth Amendment and

9 42 U.S.C. § 1983.

10

141. Upon information and belief, Arpaio and the other Defendants, acting

11 under color of law and in concert with one another, have engaged in a custom, practice

12 and policy of stopping, seizing, searching and arresting Latino individuals in Maricopa

13 County, pretextually, for racially motivated reasons and without probable cause or

14 reasonable suspicion that they had committed any crime.

15

142. Defendants, acting under color of law and in concert with one another,

16 exceeded and/or abused the authority granted to them under state and federal law.

17

143. Defendants’ actions have caused and will continue to cause Plaintiffs and

18 other similarly situated individuals to suffer public humiliation and additional harms,

19 and be subjected to unlawful discrimination unless these actions are stopped.

20

THIRD CLAIM FOR RELIEF: VIOLATION OF

21

ARIZONA CONSTITUTION ARTICLE II, § 8

144. Plaintiffs hereby incorporate by reference all allegations of the preceding

22

paragraphs of this Complaint as if fully set forth herein.

23

145. Article II, § 8 of the Arizona Constitution provides: "No person shall be
24

disturbed in his private affairs, or his home invaded, without authority of law."

25

146. By their wrongful conduct described above, Defendants, acting under

26

color of law and in concert with one another, have violated the rights guaranteed to

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 27 of 31 - 27 -

1 Plaintiffs and other similarly situated individuals under Article II, § 8 of the Arizona
2 Constitution.

3

147. Defendants’ actions have caused and will continue to cause Plaintiffs and

4 other similarly situated individuals to suffer public humiliation and additional harms,

5 and be subjected to unlawful discrimination unless these actions are stopped.

6

FOURTH CLAIM FOR RELIEF: RACE DISCRIMINATION

IN FEDERALLY FUNDED PROGRAMS

7

Defendants MCSO and Maricopa County

8

148. Plaintiffs hereby incorporate by reference all allegations of the preceding

9 paragraphs of this Complaint as if fully set forth herein.

10

149. Title VI ofthe Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:

i. [N]o person in the United States shall, on the ground of race, color,

11

or national origin, be excluded from participation in, be denied

benefits of, or be subjected to discrimination under any program or

12

activity receiving federal financial assistance.

13

150. Defendant MCSO is the law enforcement agency for Maricopa County,

14 Arizona, and receives federal funding and other financial assistance from the

15 Department of Justice and other federal agencies. As a recipient of federal financial

16 assistance, MCSO is required to conduct its activities in a racially non-discriminatory

17 manner pursuant to Title VI of the Civil Rights Act of 1964.

18

151. Defendant County of Maricopa is a political subdivision of the State of

19 Arizona and, as a recipient of federal funds, is required to conduct its activities in a

20 racially non-discriminatory manner pursuant to Title VI ofthe Civil Rights Act of 1964.

21

152. Federal regulations implementing Title VI further provide that no program

22 receiving financial assistance through the DOJ shall utilize criteria or methods of

23 administration which have the effect of subjecting individuals to discrimination because

24 of their race, color and/or ethnicity, or have the effect of defeating or substantially

25 impairing accomplishment of the objectives of the program as respects individuals of a

26 particular race, color and/or ethnicity.

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 28 of 31

28 -

-

1

153. The methods employed by Arpaio, MCSO and Maricopa County

2 discriminate against individuals based on their race, color and/or ethnicity as described

3 herein.

4

154. Defendants MCSO’s and Maricopa County’s violations of 42 U.S.C.

5 § 2000d and its implementing regulations have caused and will continue to cause
6 Plaintiffs and other similarly situated individuals public humiliation and additional

7 harms in that they will continue to be subjected to unlawful discrimination unless it is

8 stopped.

9

DEMAND FOR RELIEF

10

WHEREFORE, Plaintiffs, individually and on behalf of a class of all those

11 similarly situated, respectfully demand judgment against Defendants awarding the

12 following:

13

A. A declaratory judgment pursuant to 28 U.S.C. § 2201 and 2202

14 that Defendants have engaged in discrimination based on race, color and/or ethnicity

15 and denied Plaintiffs and plaintiff class equal protection of the laws in violation of the

16 Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983;

17

B. A declaratory judgment pursuant to 28 U.S.C. § 2201 and 2202

18 that Defendants’ stops, interrogations, detentions, searches and/or arrests of Plaintiffs

19 and other similarly situated individuals without probable cause or reasonable, articulable

20 suspicion to believe that they had committed a crime violated the Fourth Amendment

21 guarantee against unreasonable searches and seizures, the Fourteenth Amendment and

22 42 U.S.C. § 1983;

23

C. A declaratory judgment pursuant to 28 U.S.C. § 2201 and 2202

24 that Defendants’ actions are unconstitutional because they violate the rights of Plaintiffs

25 and other similarly situated individuals provided by Article II, § 8 of the Arizona
26 Constitution;

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 29 of 31

29 -

-

1

D. A declaratory judgment pursuant to 28 U.S.C. § 2201 and 2202

2 that Defendants engaged in race discrimination in violation of Title VI of the Civil

3 Rights Act of 1964 and 42 C.F.R. § 101 etseq.;

4

E. A preliminary and permanent injunction prohibiting Defendants

5 from continuing to engage in such race, color and/or ethnicity-based discrimination as

6 described herein and to put into place safeguards sufficient to ensure that such

7 discrimination does not continue in the future;

8

F. A preliminary and permanent injunction prohibiting Defendants

9 from exceeding the limits of their authority under the MOA and state and federal law;

10

G. An award of attorneys’ fees and costs of suit, plus interest, pursuant

11 to 42 U.S.C. § 1988; and

12

H. Such other relief as the Court deems just and proper.

13

DATED this 16th day of July 2008.

14

15

STEPTOE & JOHNSON LLP

16

17

By /s/DavidJ.Bodney

David J. Bodney

18

Peter S. Kozinets

Karen J. Hartman-Tellez

19

Isaac P. Hernandez

Collier Center

20

201 East Washington Street

Suite 1600

21

Phoenix, Arizona 85004-2382

22

23

ACLU FOUNDATION OF ARIZONA

24

Daniel Pochoda P.O. Box 17148

25

Phoenix, Arizona 85011-0148

Telephone: 602 650-1854

26

Facsimile: 602 650-1376

27

28

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 30 of 31 - 30 -

AMERICAN CIVIL LIBERTIES

1

UNION FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

2

Robin Goldfaden

3

Monica M. RamIrez

39 Drumm Street

4

San Francisco, California 94111

Telephone: 415 343-0770

Facsimile: 415 395-0950

6

MEXICAN AMERICAN LEGAL

7

DEFENSE AND EDUCATIONAL

FUND

8

Kristina M. Campbell

9

Nancy Ramirez

634 South Spring Street, 11th Floor

10

Los Angeles, California 90014

11

Telephone: 213 629-2512 x136 Facsimile: 213 629-0266

12

Attorneys for Plaintiffs 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

561437

Case 2:07-cv-02513-MHM Document 18 Filed 07/16/2008 Page 31 of 31 -31-

 </s> Case 2:07-cv-02513-GMS Document 392 Filed 12/09/10 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Manuel de Jesus Ortega Melendres, et al.,)

9

)

Plaintiffs,

)

10

)

v.

)

11

)

Joseph m. Arpaio, et al.,

)

12

)

Defendants.

)

13

)

)

14

No. CV-07-2513-PHX-GMS ORDER

15

Pending before the Court is Defendant’s Motion for Protective Order (Doc. 383). The

16 Motion sets forth no justification for the entry ofa protective order pursuant to Federal Rule of

17 Civil Procedure 26(c). Further, “[t]he Motion does not include a certification that the movant

18 has in good faith conferred or attem pted to confer with other affected parties in an effort to

19 resolve the dispute without court action.” To the extent that arguments are cursorily raised for

20 the first time in the reply, the Court does not consider arguments raised for the first time in a

21 reply. Should a Defendant deem that any of the arguments raised for the first time in a reply

22 justifies an order of protection pursuant toRule 26(c) it may renew the motion upon compliance

23 with the rule. Therefore,

24

IT IS HEREBY ORDERED denying the Motion for Prote ctive Order without

25 prejudice (Doc. 383).

26

DATED this 9th day of December, 2010.

27

28

 </s> Case 2:07-cv-02513-GMS Document 368 Filed 10/01/10 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 v.

)

)

12 Joseph m. Arpaio, et al.,

)

)

13

Defendants.

)

)

14

)

No. CV-07-2513-PHX-GMS ORDER

15

16

Pending before the Court is United States of Am erica’s Motion to Change

17 Venue/Transfer Case (Doc. 355) filed on September 13, 2010, requesting thatUnited States of

18 America v. County of Maricopa , Case No. CV-10-1878-PHX-LOA be transferred to Judge

19 Snow. On September 16, 2010 the case was transferred to Judge Snow pursuant to a notice to

20 proceed before a United States District Judge. Therefore,

21

IT IS HEREBY ORDERED denying the Motion to Change Venue/Transfer Case

22 as moot (Doc. 355).

23

DATED this 1st day of October, 2010.

24

25

26

27

28

 </s> Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 1 of 13

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9 Manuel de Jesus Ortega Melendres, et al.

10 11 vs.

Plaintiffs,

12

Joseph M. Arpaio, et al. Defendants.

13

No. CV-07-02513-PHX-GMS PROTECTIVE ORDER

14

15

16 Pursuant to the parties’ S tipulation and Proposed Protec tive Order Re the Carve Out
17 MCSO Archived Emails (Doc. 33 2), the Court finds that Plain tiffs’ treatment and use of the

18 Maricopa County Sheriff’s Office archived “carve-out” emails shall be as follows:

19

RECITALS

20

A. Defendants Joseph M. Arpaio and the MCSO assert that on Tuesday, March 2,

21 2010, they learned that Maricopa C ounty’s Enterprise Data Center Services, Office of

22 Enterprise Technology for Maricopa C ounty (“OET”) had been backing-up or archiving all

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

MCSO emails since August 2008. B. Defense counsel Tim othy J. Case y and Plaintiffs’ former lead trial counsel ,
David J. Bodney, submitted to OET’s couns el, Thomas K. Irvine, writte n letters containing the names of MCSO employees be lieved to have sent or receive d emails relevant to this litigation, and whose archived emails OET was to duplicate and turn over to defense counsel Casey for review and production to Plaintiffs.

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 2 of 13

1

C. Plaintiffs’ former counsel Peter Kozi nets supplied defense counsel Casey with

2 a written list containing the “key words” that Plaintiffs requested that defense counsel use to

3 cull the “universe” of MCSO archived emails pr ovided by OET down to those emails that

4 may be relevant and/or discoverable in this litigation.

5

D. Defendants represent that OET’s coun sel, Mr. Irvine, provided to defense

6 counsel four (4) different hard drives cont aining the emails of the MCS O employees or

7 agents requested by counsel for the parties in th is litigation, and that these hard drives were

8 produced to defense counsel on the following dates: April 8, 2010, April 13, 2010, April 21,

2010, and April 30, 2010. 9
E. Defendants state that upon receipt of each hard-drive, defense counsel 10
provided the same to outside vendor and c onsulting discovery expert XACT Data Discovery 11 Consultants for electronic culling pursuant to Plaintiffs’ previously supplied “key word” list.

12

F. Defendants represent that the use of Plaintiffs’ key word search terms by

13 XACT narrowed the total document universe but still left a significant volum e of potentially

14 responsive emails (i.e., 53 GB or over 546,000 pages of emails that contained one or more of

15 plaintiffs’ “key words.”).

16

G. Defense counsel and his office state they have reviewed, and as of the date of

17 this Stipulation, are continuing to review th e 546,000 pages of em ails, and producing on a

18 rolling-basis to Plaintiffs those emails that they reasonably be lieve are disco verable in this

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

case. Defense couns el represents that m any of the em ails contained within the 546, 000 pages are not discoverable either in this case, or in other legal matters, due to the attorneyclient privilege and/or work-product privilege.
H. The Court has ordered, via its Order da ted July 16, 2010, and the Parties have agreed, to create a “carved-out” universe of the Plaintiffs’ key word list responsive MCSO archived emails so that Plaintiffs may conduct an independent search of the MCS O archived emails. This “carved-out” universe will be com posed of the 546,000 pages of email that are responsive to Plaintiff s’ key w ord search list minus all emails that contain the nam es of certain attorneys and their employees. In add ition, Defendants state they have also rem oved emails containing the names of certain other individuals. As Defendants did not disclose the
2

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 3 of 13

1 list of names removed from the “carved-out” materials until July 26 , 2010, Plaintiffs

2 continue to reserve their right t o seek pr oduction of t he “carve out ” of the emails and

3 documents for the individuals listed in Paragraph I under the headings for “Maricopa County

4 Attorneys representing MCSO on various M atters”, “Maricopa County Risk Management -

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Managers and Adjusters” and “MCSO Legal Liaison working on Matters at the direction of County Attorneys or Outside Counsel in Defense of Pe nding Litigation or Anticipated Litigation Against Arpaio and/or the MCSO.”
I. Defendants represent the “carve-out” universe ha s been electronically performed by XA CT, which has been aske d by defense counsel Casey to electronically remove from the universe of 546, 000 pages of em ails any email or attachment that contains the following name or nam es (the headi ngs are provided only for general identification purposes and were not included in the carve-out process): Defense Counsel in Melendres Tim Casey Tim J. Casey Timothy J. Casey Drew Metcalf Schmitt, Schneck, Smyth & Herrod Eileen Henry Defense Counsel in Melendres/MCSO Counsel in other Litigation Matters Eric Dowell Kerry Martin Asheesh Agarwal Joe Clees Michelle Ganz Alec Hilbo Ogletree Deakins, Nash, Smoak & Stewart Defense Counsel for MCSO in other Litigation Matters Dennis Wilenchik Mark Goldman MCSO Counsel in DOJ Racial Profiling Civil Investigation and other Matters Alston & Bird Robert Driscoll Bob Driscoll Laura Sierra Brian Frey
Maricopa County Attorneys representing MCSO on various Matters Clarisse McCormick Andrew P. Thomas
3

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 4 of 13

1 Lisa M. Aubuchon Sally W. Wells
2 Phil MacDonnell Barnett Lotstein
3 Michael Novitsky

4 Criminal Defense Attorney for MCSO Tom Crowe
5 Crowe & Scott

6 Office of Special Litigation Counsel Representing MCSO in other cases and Monitoring Melendres Defense
7 Richard Stewart
8 Maria Brandon Laurence Tinsley, Jr.
9 Maricopa County Risk Management- Managers and Adjusters
10 Peter Crowley Rocky Armstrong
11 Edward Howard Ted Howard
12 Jean Bowman Jacquie Garrett
13 Bill Doppler Marc Fredrics
14 Trisha Rough

15 MCSO Legal Liaison working on Matters at the direction of County Attorneys or O utside Counsel in Defense of Pending Litigation or Anticipated Litig ation Against Arpaio and/or
16 the MCSO

17 Mike Hall Doris Culhane
18 Pamela Woody Roderick Douglas
19 Mario Rodriguez

20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Maricopa County Former Conflict Counsel for the MCSO David Tierney
J. With respect to the em ails and documents removed (as described in Paragraph I) because they containe d the name of Doris Cu lhane, Defendants ag ree to produce such materials to Plaintiffs on or before August 11, 2010, i n a separate “carve out” to which the terms of this Stipulation and Proposed Order (ot her than Paragraph I) shall apply. Defendants also agree to provide promptly emails and docum ents removed for any ot her individuals listed in Paragraph I whose testimony or documents are subsequently determined
4

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 5 of 13

1 to be potentially relevant to the issues raised in or arisi ng out of Plaintiffs’ m otion for

2 sanctions.

3

K. Defendants state the XA CT work has resulted in the carve-out universe of

4 MCSO archived emai ls totaling 147,357 documen ts (out of the original total of 158,008

5 documents that were responsive to the Plaintiffs’ key word search) and 503,317 pages (out of

6 the total of 546,099 pages of doc uments) (the carve-out universe of doc uments that shall be

7 produced to Plaintiffs’ counsel shall be re ferred to herein as “The Carve-Out MC SO

8 Archived Emails.”).

L. The parties understand and agree that th e Defendants in this case do not intend 9
to disclose, or desire to disclose, inadvertently or ot herwise, any privilege d emails for this 10
case, or in regards to any other pending litig ation or claim or ma tter, by producing to 11 Plaintiffs the Carve-Out MCSO Archived Emails.

12

M. The parties understand and a gree that the XACT electronic carve out of The

13 Carve-Out MCSO Archived Emails may not have fully rem oved, or captured for rem oval,

14 each and every conceivable MCSO archived email or attachment that is privileged pursuant

15 to the attorney-client privilege and/or work product doctrine privilege.

16

N. In order to preserve the Defendants’ privileges in this and other litigation,

17 claims, or matters, in regards to The Carve-Out MCSO Archived Emails, this Stipulation is

18 intended to make clear that the MCS O’s production to Plaintiffs in th is case of The Carve-

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Out MCSO Archived Emails: (a) does not waive any privilege, including the attorney-client privilege or attorney work product privile ge, in regards to a ny privileged document inadvertently produced in The Carve-Out MCSO Archived Emails; and (b) in the event that Plaintiffs, by and through thei r counsel are to find within The Carve-Out MC SO Archived Emails any privileged, or potentially privileged documents, they shall not further read such document in compliance with th e applicable American Bar A ssociation standards set forth for the inadvertent disc losure of privileged documents, they shall promptly return such document to defense counsel in this case, and they shall in no way attem pt to use or disseminate such doc ument for any pur pose whatsoever, unless Defendants determine th at the document in question is not privileged. Nothing in this Stipulation and Protective Order
5

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 6 of 13

1 shall waive or affect Plaintiffs’ right to pro duction of a privilege log by De fendants, or to

2 challenge any claims of privilege or protection by Defendants.

3

O. Defendants assert that some ema ils or documents in The Carve-Out MCSO

4 Archived Emails are irrelevant to any legal or factual issu e in this litigation No. CV 07-

5 02513-PHX-GMS, and would not ordinarily even be subjec t to disclosure or discoverability

6 outside the unique circum stances of this litigation No. CV-07-02513-PHX-GMS.

7 Defendants further assert that som e of those em ails are such that th ird persons or enti ties

8 may find t hem of int erest for their own pe rsonal or business reasons. Defenda nts wish to

avoid subjecting the authors and/ or recipients of s uch emails to harassm ent, oppression, 9
and/or embarrassment by the unnecessary dissemination of such emails to third parties. 10
Based on the foregoing, the parties, by and through their undersigned counsel, hereby 11 Stipulate and Agree as follows:

12

1. Privileged emails may have been inadvertently and mistakenly included within

13 The Carve-Out MCSO Archived Emails through the preparation process used by t hird party

14 vendor XACT during the culli ng process of creating The Carve-Out MCSO Archived

15 Emails.

16

2. The production to Pl aintiffs of pr ivileged emails in The Carve-Out MCSO

17 Archived Emails, if any, shall be construed as unintentional, inadvertent, and a mistake.

18

3. The production to Plaintiffs of priv ileged emails, if any, i n The Carve-O ut

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

MCSO Archived Emails sh all not be c onstrued, and will not be construed by the Plaintiffs, as a waiver of a ny privilege t he Defendants have as to any em ail or docum ent within The Carve-Out MCSO Archived Ema ils in this case No. CV 07 -02513-PHX-GMS, or in any other litigation, claim, or matter.
4. In the event that Plaintiffs, by and through their counsel find within The CarveOut MCSO Archived Emails any privileged, or potentially privileged, emails or documents, they shall not read the email or document further and will us e their best personal and professional good-faith judgm ent and eff ort to comply with the American Bar Association standards set forth for the ha ndling and retu rn of inadvertently/mistakenly disclosed privileged documents, including but not limited to promptly returning any such privileged or
6

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 7 of 13

1 arguably privileged emails or documents to defense counsel in this case No. CV 07- 02513-

2 PHX-GMS, and in no way attemp ting to use such em ails and documents or their content for

3 any purpose whatsoever in this litigation No. CV 07-02513-PHX-GM S, unless Defendants

4 determine that the email or document in question is not privileged. Nothing in the foregoing

5 shall waive or affect Plaintiffs' right to production of a privil ege log by Defenda nts of

6 materials (including m aterials containing ce rtain names identified in Paragraph I removed

7 from The Carve-Out MCSO Archiv ed Emails) that are otherwise relevant to this litigation

8 and being withhel d based on privilege, with the e xception of com munications between

Defendants and their counsel with respect to this litigation. Nor shall anything in this 9

Stipulation and Protective Order waive or affect Plaintiffs’ right to challenge any claim s of

10 privilege or protection by Defendants.

11

5. Subject to paragraphs 6 through 10 below, all em ails and documents within The

12 Carve-Out MCSO Archived Em ails produced by Defenda nts in this action No. CV 07-

13 02513-PHX-GMS shall be considered confidential, and used for purposes of this action only

14 and for no other purpose, and shall not, withou t leave of the Court in No. CV 07-02513-

15 PHX-GMS, or agreement of the parties, be disc losed to any pers on or entity other than this

16 Court (under seal), th e parties to No. CV 07-02513-PHX-GMS, their counsel and staff,

17 experts and consultants, and court reporters engaged to transcribe depositions in this case.

18

6. Plaintiffs may seek to remove the blanket c onfidentiality designation for

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

particular documents within The Carve-Out MCSO Archived Emails by seeking agreement of Defendants or, if necessary, by m oving the Court in No. CV 07 -02513-PHX-GMS. The parties agree to first exchange written co mmunication seeking the joint and voluntary agreement to remove the conf idential designation for any document from The Carve-Out MCSO Archived Emails. If the parties are unable to come to agreement, the parties agree to mutually cooperate and bring the dispute to th e Court’s attention prom ptly pursuant to its discovery policies. If permitted by the Court, th e Plaintiffs shall file a motion and describe with specificity the particular documents for which they seek to re move the confidential designation. Defendants shall then be re quired to submit their Resp onse setting forth the good cause for maintain ing the confidential status of the documents pursuant to the Federal
7

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 8 of 13

1 Rules of Civil Procedure. Defendants shall bear the burden of proof to justify confidential

2 status. Once the confidentiality designation has been removed as to a particular document,

3 that document shall no longer be subject to the terms of this Stipulation and Protective Order.

4

7. The disclosure by c ounsel for a party to No. CV 07-02513-PHX-GMS of The

5 Carve-Out MCSO Archived Em ails to experts or consultants retained by the disclosing
6 counsel, or to court reporters engaged to transcribe depos itions in this case, shall not 7 constitute a violation of, or a waiver of the protections affo rded by this Stipulation and 8 Protective Order so long as the person to whom disclosure is made has executed an Affidavit
in the form attached hereto as Exhibit “A”. 9
8. In the event The Ca rve-Out MCSO Archived Em ails themselves, or the 10
contents of The Carve-Out MC SO Archived Emails are to be identified, discussed or 11 disclosed during a deposition taken in No. CV 07-02513-PHX-GMS of any person, the 12 deponent shall be re quired to acknowle dge on the record, before any identification, 13 discussion or disclosure of The Carve-Out MCSO Archived Emails occurs that he or she has
14 been advised of, and has agreed to be bound by, the terms of this Stipulation and Protective
15 Order. However, the foregoing requirements sha ll not apply to any documents that appear,

16 on their face, to have been sent or received previously by the deponent. In addition, it shall

17 be Defendants’ responsibility to advise MCSO employees or agents of, and seek their

18 agreement to, the instant Stipulation and Protective Order, prior to their depositions.

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

9. All portions of any deposition transcript taken in No. CV 07-02513-PHX-GMS wherein The Carve-Out MCSO Ar chived Emails themselves, or the contents of The CarveOut MCSO Archived Emails are identified, discussed, or disc losed, may also be designa ted by Defendants as “CONFIDENTIAL” and shall be subject to the terms of this Stipulation and Protective Order and the procedures provided by paragraph 6 above.
10. In the event that counsel for a party wishes to identify, discuss, or disclose The Carve-Out MCSO Archived Emails , or the c ontents of the same, during the course of pretrial or trial proceedings, he or she shall, prio r to each identification, discussion or disclosure make reference to the confidential nature ther eof to the Court and to couns el for the other parties; and counsel for the other parties m ay at any time, or after such identification,
8

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 9 of 13

1 discussion, or disclosure, move the Court that The Carve-Out MCSO Archived Emails or the

2 contents of the same be filed und er seal with this Court and be subject to the terms of this

3 Stipulation and Protective Order. Nothing in this agreement is intended to, nor will prevent,

4 any party from using The Carve-Out MCSO Archived Emails at pre-trial hearings or at trial

5 in CV 07-02513-PHX-GMS; but merely provides that the submission of The Carve-Out

6 MCSO Archived Emails into th e record s hall be done in a manner consistent with this

7 Stipulation and Pr otective Order and with th e intent of protecting The Ca rve-Out MCSO

8 Archived Emails from being obtained by third parties by simply obtaining copies of unsealed exhibits or court transcriptions in CV 07-02513-PHX-GMS.
9 11. In the eve nt No. CV 07-02513-PHX-GMS or the contents of t he same are
10 identified, discussed, or disclosed, are file d electronically or ot herwise or are ot herwise
11 deposited with the Clerk of th is Court in CV 07-02513-PHX-GM S, such materials shall be
12 filed or deposited in a sealed envelope bearing the following designation:

13

“CV 07-02513-PHX-GMS CONFIDENTIAL: THE CONTENTS

14

OFTHIS ENVELOPE ARE NOT TO BE SCANNED AND ARE SUBJECT TO A PROTECTIVE ORDER OF THIS COURT

15

AND SHALL NOT BE SHOWN TO ANY PERSONS OTHER THAN A JUDGE OF THIS COURT OR AN ATTORNEY IN

16

THIS CASE OR BY COURT ORDER”

17

12. The parties agree that th ey shall not, in the presence of the jury shoul d a jury

18 trial be permitted in this case, comment on the reasons or motiva tion for designating The
19 Carve-Out MCSO Archived Emails as “confid ential” without first havi ng obtained a ruling from the Court to do so . Nothing in the foregoing shall operate as an ac knowledgement or
20 admission by Plaintiffs that a jury trial may be permitted in this case.
21 13. This Stipulation and Protective Order shall be bindi ng throughout and after
22 final adjudication of No. CV 07-02513-PHX-GMS including but not limite d to, final
23 adjudication of any appeals and/or interlocutory relief.

24

14. Within thirty (30) days after final adj udication of N o. CV 07-02513-PHX-

25 GMS, the Plaintiffs shall re turn to counsel for the defe ndants The Ca rve-Out MCSO

26 Archived Emails or within thir ty (30) days after final adjudi cation of this action, counsel

27 then having possession, custody or control of The Carve-O ut MCSO Archived Emails shall

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

verify the complete destruction of the same by executing and mailing to defense counsel an
9

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 10 of 13

1 Affidavit in the form attached hereto as Exhibit “B”.

2

15. Notwithstanding the date upon whic h the Court enters this Stip ulation and

3 Protective Order, this Stipula tion and Protective Order shall be come effective and bi nding

4 upon each of the parties to No. CV 07-02513-PHX-GMS, and each of their undersigned

5 counsel, on the date each party executes same.

6

16. Nothing in this Stipula tion and Protective Order shall be construed to prevent

7 the Court in N o. CV 07- 02513-PHX-GMS from disclosing any facts relied upon by it in

8 making or rendering any finding, ruling, order, judgment or decree of whatever description. 17. This Stipulation and Protective Order applies only to the documents within The
9 Carve-Out MCSO Archived Emails . Nothing in this Stipula tion and Protective Order shall
10 apply to documents or inform ation previously produced, disc losed or exchanged, or to
11 documents being produced by Defendants in a series of ro lling productions to be concluded
12 by August 11, 2010.

13

18. This Stipulation and Protective Order may be executed in one or m

ore

14 counterparts in which case all executed counterparts and eac h of them shall be deemed to be

15 one and the same instrument. A complete set of original executed counterparts shall be filed

16 with this Court.

17

19. Each of t he parties to N o. CV 07-02513-PHX-GMS a nd each of their

18 undersigned counsel acknowle dge that they ha ve executed this Stipulation and Prote ctive 19 Order voluntarily, are authorized to do so, and that the terms and provisions of this 20 Stipulation and Protective Order have been read and understood by them.

21

IT IS SO ORDERED.

22

Dated this 5th day of August, 2010.

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

10

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 11 of 13

1

EXHIBIT A

2

3

AFFIDAVIT OF ________________________

4

5

STATE OF __________________ ) ) ss:

6 COUNTY OF ________________ )

7

Before me, the undersigned Notary Public , in and for said County and State,

8 personally appeared _________________________, who after first being duly sworn, states

9 as follows:

10

1. My name is ____________________. I am over the age of 18 years and am a

11 resident of __________________ County, ____ _______________. I make this Affidavit

12 based upon m y personal knowledge, and I am competent to testify to the matters stated

13 herein.

14

2. I am aware that a Protective Orde r has be en entered in C V 07-02513-PHX-

15 GMS regarding The Carve-Out MCSO Arc hived Emails. A copy of that Protective Order

16 has been shown to me, and I have read and understood its contents.

17

3. By signing this Affidavit, I promise that I will use the materials and contents of

The Carve-Out MCSO Archived Emails for the purpos e of assi sting counsel for a party to 18

CV 07-02513-PHX-GMS in the adjudication of that action and for no other purpose.

19 4. By signing this Affidavit, I also promise that I will not communicate, disclose,

20 discuss, identify, or otherwise use m aterials or the contents of The Ca rve-Out MCSO

21 Archived Emails pursuant to the above-described Protective Order with, to, or for any person

22 or entity other than the Cour t in CV 07-02513-PH X-GMS, a party to CV 07-02513-PHX-

23 GMS, counsel for a party to CV 07-02513-PHX- GMS, including other counsel, paralegal s,

24 and clerical staff employed in his or her office, persons pe rmitted by the above-described

25 Protective Order to attend depos ition taken in the above-describ ed civil action, and persons

26 or entities assisting such counsel who have executed an affidav it in the same form as this

27 Affidavit.

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

11

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 12 of 13

1 5. By signing this Affidavit, I also promise that I will not copy, transcribe, or otherwise

2 reproduce, or cause to be copied, transc ribed or ot herwise reproduced, by a ny means

3 whatsoever, The Carve- Out MCSO Archived Em ails except to the extent which I am

4 directed to do so by counsel for a party to CV 07-02513-PHX-GMS, in which case all such
5 copies, transcriptions, or reproductions shall be made solely for m y own use in connection
6 with my work in the above matter. I further promise at th e conclusion of this case to deliver 7 upon request all materials (originals and copies) of The Carve-Out MCSO Archived Emails 8 to the counsel who originally directed that said materials be provided to me.
6. I agree and consent to personal an d subject matter jurisdiction in the United 9
States District Court for the District of Arizona. 10

11

Further Affiant sayeth not.

12

13

14

15

Subscribed and sworn to before me, this ____ day of _________, 2010.

16

17

18

___________________________ Affiant
___________________________ Notary Public

19

20

21

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

12

Case 2:07-cv-02513-GMS Document 333 Filed 08/05/10 Page 13 of 13

1

EXHIBIT B

2

3

AFF IDAVIT OF ________________________

4

5

STATE OF __________________ ) ) ss:

6 COUNTY OF ________________ )

7

Before me, the undersigned Notary Pub lic, in and for said County and State,

8 personally appeared ________________, Esq., who after first being duly sworn, state as

9 Follows:

10

1. My name is ________ ________. I a m over the age of 18 years and am a

11 resident of ____________ Count y, ______________. I make this Affidavit based upon m y

12 personal knowledge, and I am competent to testify to the matters stated herein.

13

2. I have requested and r eceived from _________________ all of the materi als,

14 transcripts, and other things described in t he Protective Order which was entered by the

15 Court in CV 07-02513-PHX-GMS. I have either destroyed or have attached hereto all of the

16 materials, transcripts, and other things, including those materials which were returned to me

17 by ______________________ in accordance with the preceding paragraph, described in the

18 Protective Order which was entered by the Court in CV 07-02513-PHX-GMS.

Further Affiant sayeth not. 19 20

____________________________ Affiant

21

22

Subscribed and sworn to before me, this _____ day of _____________, 2010 __.

23 ____________________________ 24 Notary Public

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

13

 </s> Case 2:07-cv-02513-GMS Document 311 Filed 06/07/10 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 v.

)

)

12 Joseph m. Arpaio, et al.,

)

)

13

Defendants.

)

)

14

)

No. CV-07-2513-PHX-GMS ORDER

15

16

Pending before the Court is Plaintiffs’ Motion for Court-Assisted Mediation (Dkt. #

17 301). Mediation is a voluntary process. Until such time that all parties are am enable to

18 mediation the Court will not compel participation in such a process. Therefore,

19

IT IS HEREBY ORDERED denying the Motion without prejudice.

20

DATED this 4th day of June, 2010.

21

22

23

24

25

26

27

28

 </s> Case 2:07-cv-02513-GMS Document 147 Filed 07/27/09 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

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

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, et al.,

)

13

)

Defendants.

)

14

)

)

15

No. CV-07-2513-PHX-GMS ORDER

16

Pending before this Court are Defe ndant Maricopa County’s Motion for Leave to

17 Withdraw its Participation in Defendant’s Motion for Recusal (Dkt. # 112); and the United

18 States Motion for Leave to File Am icus Curiae Brief Regarding Defendant Maricopa

19 County’s Motion to Stay Proceedings (Dkt. # 113) and Responses thereto. After

20 consideration,

21

IT IS HEREBY ORDERED terminating the Motion for Leave to Withdraw (Dkt.

22 # 112) as moot.

23

IT IS FURTHER ORDERED granting the United States Motion to File its Amicus

24 Curiae Brief (Dkt. # 113).

25

DATED this 27th day of July, 2009.

26

27

28

 </s> Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 1 of 21

1 Timothy J. Casey (#013492) Casson N. Mathis (#025618)
2 SCHMITT, SCHNECK, SMYTH & HERROD, P.C. 1221 East Osborn Road, Suite 105
3 Phoenix, AZ 85014-5540 Telephone: (602) 277-7000
4 Facsimile: (602) 277-8663 timcasey@azbarristers.com
5 Counsel for Defendants

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10 MANUEL de JESUS ORTEGA

11

MELENDRES, JESSICA QUITUGUA RODRIQUEZ, DAVID RODRIQUEZ,

12

VELIA MERAZ, MAUAL NIETO, JR. on behalf of themselves and all others

13

similarly situation, and SOMOS AMERICA,

14 15 vs.

Plaintiffs,

16

JOSEPH M. ARPAIO, in his individual and official capacity as Sheriff of Maricopa

17

County, Arizona; MARICOPA COUNTY, ARIZONA SHERIFF’S OFFICE, and

18 MARICOPA COUNTY, ARIZONA

19

Defendants.

No. CV 07-02513-PHX-MHM DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT
(Oral Argument Requested)

20

21

22

Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, defendants Joseph M.

23 Arpaio, Maricopa County, and the Maricopa County Sheriff’s Office respectfully move the

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Court for its Order dismissing Plaintiffs’ First Amended Complaint (Doc. # 26) and/or certain claims contained therein for failure to state a claim against these defendants upon which relief can be granted.
This Motion is supported by the following Memorandum of Points and Authorities, the Court’s entire file in this matter, and any oral argument that the Court may wish to hear.

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 2 of 21

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

This lawsuit arises from plaintiffs’ claim that they were unlawfully stopped and

4 detained by Maricopa County Sheriff’s Deputies because of their race and/or national origin.

5 As a result of the foregoing, plaintiffs have filed a four-count proposed class action

6 Amended Complaint against the defendants, alleging violations of their Arizona state and

7 federal constitutional rights.

8

Plaintiffs’ Amended Complaint, however, fails to state claims upon which relief can

be granted against these defendants. As such, defendants file this Motion seeking to dismiss 9
as a matter of law plaintiffs’ Amended Complaint in its entirety and/or certain claims 10
contained therein. 11 II. RULE 12(b)(6) STANDARD

12

A complaint should be dismissed if it appears beyond doubt that a plaintiff can prove

13 no set of facts in support of a claim which would entitle the plaintiff to relief. Williamson v.

14 Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th 2000). In considering a motion to dismiss

15 for failure to state a claim, all factual allegations of the complaint are presumed true and all

16 reasonable inferences are made in favor of the non-moving party. Rhodes v. Robinson, 408

17 F.3d 559, 563 (9th 2005). However, legal conclusions or characterizations in a complaint do

18 not preclude dismissal merely because they are cast in the form of factual allegations as such

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

conclusions or characterizations are not entitled to a presumption of truthfulness. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th 2004). III. LAW AND ARGUMENT
A. SA/WAA Lacks Standing. A parties’ standing to bring a lawsuit is a fundamental threshold inquiry. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Whether a party has standing is a question of law for the Court to decide. Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002). The United States Supreme Court, therefore, directs that “[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231
2

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 3 of 21

1 (1990) (quoting Allen v. Wright, 486 U.S. 737, 750 (1984)), overruled in part, on other

2 grounds, City of Littlejohn v. Z.J. Giffs D-4, L.L.C., 541 U.S. 774 (2004).

3

Consistent with these principals, federal courts consistently hold that “[s]tanding is an

4 essential component of the case or controversy requirement of Article III, section 2 of the

5 U.S. Constitution.” Caroll v. Nakatani, 342 F. 3d 934, 940 (9th Cir. 2003). The United

6 States Supreme Court has established three “irreducible standing requirements” for any

7 plaintiff to meet:

8 (1) the plaintiff must have suffered an “injury in fact,” which is concrete and

9

particularized, and actual or imminent, not conjectural or hypothetical; (2) the injury

10

must be caused by the defendant; and (3) it must be likely, rather than speculative, that the injury will be redressable by the court.

11 Id. A party seeking the exercise of federal jurisdiction in its favor bears the burden of

12 alleging sufficient facts demonstrating proper standing. FW/PBS, 493 U.S. at 231; Warth v.

13 Seldin, 422 U.S. 490, 518 (1975). If any plaintiff fails to assert the necessary factual

14 allegations, that plaintiff has no standing to bring the lawsuit. FW/PBS, 493 U.S. at 231.

15

Our Supreme Court has repeatedly refused to recognize a generalized grievance

16 against allegedly illegal government conduct as sufficient to confer standing. United States

17 v. Hays, 515 U.S. 737, 743 (1995). The Court requires that even if a government acts

18 illegally, such as in discriminating based on race, the resulting injury “accords a basis for

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

standing only to those persons who are personally denied equal treatment.” Allen v. Wright, 468 U.S. 737, 755 (1984) (emphasis added). Moreover, the Supreme Court holds that even when a plaintiff has alleged a redressable injury sufficient to satisfy the standing requirements of Article III, federal courts should refrain from “adjudicating abstract questions of wide public significance which amount to generalized grievances.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982).
Only a person who was denied a privilege, benefit, or constitutional right by the conduct of a defendant has “standing to challenge” that conduct. See, e. g., Comfort v. Lynn School Committee, 418 F.3d 1, 11 (1st Cir. 2005). “Plaintiffs must demonstrate their
3

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 4 of 21

1 standing to sue, which includes, a showing of actual injury to their legally protected 2 rights.” Tennison v. Paulus, 144 F. 3d 1285, 1287 (9th Cir. 1998) (emphasis added). 3 Federal court jurisdiction “can only be invoked when the plaintiff himself has suffered ‘some 4 threatened or actual injury resulting from the punitively illegal action.’” City of South Lake
5 Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231 (9th Cir. 1980) (quoting

6 Linda R. S. v. Richard D. et al., 410 U.S. 614, 617(1973).

7

In the absence of injury to itself, an association may have standing solely as a

8 representative of its members. Warth v. Seldin, 422 U.S. 490 (1975). However, an

9 association has such standing only if: (a) its members would have standing to sue in their

10 own right; (b) the interests of the organization sought to be protected are relevant to the

11 organization’s purpose; and (c) neither the claim asserted nor the relief sought requires the

12 participation of individual members of the organization in the lawsuit. International Union,

13 UAW v. Brock, 477 U.S. 274, 282 (1986).

14

Here, the proposed plaintiff Somos America/We Are America (“SA/WAA”) has

15 failed to allege facts establishing the “irreducible” elements required for legal standing. 16 Lujan, 454 U.S. at 472.

17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

1. SA/WAA lacks standing because it has failed to sufficiently allege an actual injury to it, injury to its members, and that the interests it seeks to protect are relevant to its purpose.
The Amended Complaint’s tenth paragraph alleges that SA/WAA is “a communitybased non-profit membership organization, comprised of grassroots organizations, community and religious leaders, labor unions, students and others, established in March 2006 to mobilize for equal rights for immigrant communities in Arizona and for comprehensive immigration reform.” The eleventh paragraph alleges that “[u]pon information and belief, because of their race, color, and/or ethnicity, [SA/WAA] members have been unlawfully targeted, stopped, questioned and or detained” by defendants’ alleged policies. Paragraph twelve alleges that SA/WAA “has experienced an increase in various requests for assistance from persons who have been negatively impacted by defendants’
4

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 5 of 21

1 actions… [and] its limited resources have been, and continue to be, diverted and drained” as

2 a result of defendants’ alleged action. These allegations are insufficient to confer standing.

3

There is no actual injury alleged to have been suffered by SA/WAA. In fact,

4 SA/WAA does not allege that it has ever been targeted, stopped, questioned, detained, or

5 even negatively impacted by defendants’ alleged conduct. It does not allege that it has been

6 denied any constitutional right. It does not allege any specific irreparable injury to it as an

7 entity. It does not allege that it is in danger of some direct injury as a result of defendants’

8 law enforcement policy. Accordingly, the only manner in which SA/WAA can have

9 standing is through “association” standing. Brock, 477 U.S. at 282.

10

SA/WAA, however, lacks “association” standing. SA/WAA does not directly and

11 clearly allege in the Amended Complaint that any specific member has been denied any

12 constitutional right by defendants’ alleged actions. It does not allege that any of its alleged

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

members -- i.e., the “grassroots organizations, community and religious leaders, labor unions, students and others” which comprise SA/WAA -- would have standing to sue in their own right. Indeed, there is nothing in the record to suggest that any individual member of SA/WAA has standing.
At most, SA/WAA can only ambiguously allege “upon information and belief,” that unspecified members have had their constitutional rights supposedly violated by defendants’ alleged conduct. See, e.g., Amended Complaint at ¶ 11. The barren allegation that “[s]everal individual members have reported to [SA/WAA] that they have been stopped while driving in Maricopa County by MCSO officers without good cause and subjected to mistreatment” is legally inadequate to invoke “association” standing in this case. The “several members” are not identified, not named plaintiffs, and there are no allegations that the unspecified “several members” are, in fact, actual, registered, and bona fide members of SA/WAA at the time of the alleged stops when they supposedly suffered a constitutional deprivation. Legal Aid Society of Hawaii v. Legal Services Corp., 145 F.3d 1017, 1030 (9th Cir. 1998). Moreover, SA/WAA has completely failed to allege that any of these members have suffered an actual injury to their legally protected rights as required by law.
5

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 6 of 21

1 Tennison, 144 F. 3d at 1287; City of South Lake Tahoe, 625 F.2d 231. These failures, alone,

2 are fatal to SA/WAA’s alleged standing.

3

SA/WAA also fails to sufficiently allege that the interests of it, as an association, are

4 relevant to the lawsuit. Brock, 477 U.S. at 282. Plaintiffs’ Amended Complaint alleges that

5 SA/WAA was established in March 2006 to mobilize for comprehensive immigration

6 reform. There is no allegation attempting to demonstrate how the stated purpose of

7 comprehensive immigration reform is relevant to this action to justify “association”

8 standing.1

9

Other than merely claiming that it voluntarily acts to help those persons of “Latino

10 descent” (Amended Complaint at ¶ 12) who “request assistance… [because they have been]

11 negatively impacted by defendants’ actions,” SA/WAA makes no allegation of a contractual

12 or other legally recognized relationship that would allow it to bring this lawsuit on its own

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

behalf. In short, SA/WAA has alleged only a generalized grievance: it disagrees with the defendants’ law enforcement policy in conducting crime suppression sweeps and chooses to spend its money to help those persons it believes are directly affected by that policy.
SA/WAA’s sole basis for purported “standing” is precisely the type of “generalized grievances” by a community member that the Supreme Court holds is insufficient to create standing as a matter of law. See Hays, 515 U.S. at 737; Valley Forge Christian College, 454 U.S. at 474-75; Allen, 468 U.S. at 755. Any tangible effect of the defendants’ law enforcement policy on SA/WAA is too “remote, fluctuating, and uncertain” to confer standing on it. Frothingham v. Mellon, 262 U.S. 447, 487 (1923). As held by the Supreme Court:
The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally…. Here the party plaintiffs have no such case.
1 Plaintiffs also allege that SA/WAA exists “to mobilize for equal rights for immigrant communities in Arizona.” While defendants can assume how this stated purpose is connected to the stated purpose of the lawsuit, plaintiffs surprisingly make no allegation connecting that stated organizational purpose with the purpose of the lawsuit and, therefore, they fail to sufficiently plead “association” standing of SA/WAA.
6

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 7 of 21

1 Id. at 488. The Court, therefore, should dismiss SA/WAA as a plaintiff for the lack of

2 standing.

3

2. SA/WAA lacks third party standing.

4

Because SA/WAA has no actual injury and its grounds for “association” standing is

5 tenuous at best, defendants expect that plaintiff may attempt to claim standing for SA/WAA
6 under a theory commonly referred to as “third party” standing. See, e.g., Powers v. Ohio, 7 499 U.S. 400, 419 (1991). That theory, however, still will not give standing to SA/WAA 8 because it makes no allegations justifying third party standing.
In Powers, the Supreme Court held that a criminal defendant had standing to assert an 9
equal protection challenge on behalf of jurors that were improperly excluded from his trial. 10
Id. The Court allowed a plaintiff (i.e., the criminal defendant) to assert standing on behalf of 11 “third parties” (i.e., the jurors in his trial) condition upon the satisfaction of three criteria. 12 These criteria are: (1) the litigant must have suffered an “injury in fact,” thus giving him a 13 “sufficiently concrete interest” in the outcome of the issue in dispute; (2) the litigant must
14 have a close relation to the third party; and (3) some hindrance must exist that prevents the
15 third party’s from protecting his own interests.” Id. at 411. SA/WAA has not alleged in the

16 Amended Complaint any of these three criteria.

17

First, as discussed earlier in this Motion, SA/WAA is not alleged to have had an

18 “injury in fact.” Without an injury in fact to SA/WAA, it does not have a sufficiently

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

concrete interest in the resolution of the legal matter before the Court in this lawsuit. Second, plaintiffs have made no allegation showing that SA/WAA has any “close relationship” with any third party on whose behalf they claim to bring this purported class action lawsuit. SA/WAA is essentially a civil rights group of political activists that wish defendants’ law enforcement policy regarding crime suppression sweeps was different, and that it could spend their time and money in other ways. While the wishes of SA/WAA are assumed sincere, the wishes remain inadequate to confer legal standing.
Third, plaintiffs have failed to allege any “hindrance” to any third party’s ability to protect their own interests that can only be protected by SA/WAA as a plaintiff. For these reasons, plaintiffs have failed to make sufficient allegations that SA/WAA has “third party”
7

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 8 of 21

1 standing. Id. As a consequence, the Court should dismiss SA/WAA as a party plaintiff.

2

B. Plaintiffs’ Constitutional Claims at Counts One (Equal Protection), Two

3

(Federal Unreasonable Search and Seizure) and Three (Arizona Search and Seizure) Fail as a Matter of Law.

4

5

Plaintiffs sue the defendants because they were pulled over in traffic stops by

6 Maricopa County Sheriff’s Office (“MCSO”) deputies during crime suppression sweeps.

7 They claim to subjectively believe they were targeted for the stops by the mere fact of the 8 color of their skin.2 The fatal problem with the federal and Arizona law based claims of the
plaintiffs Amended Complaint are two fold. 9
First, they do not allege in their Amended Complaint how it is unlawful or a violation 10
of anyone’s civil rights under the federal Fourth and Fourteenth Amendment or the Arizona 11 Constitution regarding unreasonable search and seizure, for a peace office to make a traffic 12 stop that is supported by probable cause. Second, they do not sufficiently allege that
13 similarly situated members of non-minority groups were treated differently under the same

14 circumstances.

15

1. The Law.

16

To establish a Section 1983 claim under the Fourteenth Amendment for

17 unconstitutional selective enforcement and unreasonable search and seizure3, the plaintiff

18 must show: (1) the absence of probable cause for the traffic stop as to each of the proposed

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

plaintiffs, Hartman v. Moore, 547 U.S. 250, 262, 265 (2006) (in context of absence of
probable cause for a criminal prosecution); Virginia v. Moore, __ U.S. __, 128 S.Ct. 1598,
1604 (2008) (officers did not violate constitutional rights by arresting motorist whom they
had probable cause to believe had violated Virginia law by driving with a suspended
license); and (2) that similarly situated members of other, usually majority, groups were
treated differently. United States v. Armstrong, 517 U.S. 456 (1996); Farm Labor
2 Conclusory allegations of generalized racial bias do not establish discriminatory intent, and a plaintiff must allege more to support a claim that a defendant acted with racial animus. Jones v. School Dist. of Philadelphia, 19 F.Supp.2d 414, 421 (E.D. Pa. 1998), aff’d, 198 F.3d 403 (3d Cir. 1999) (citing to Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-68 (1977). 3 Plaintiffs’ Amended Complaint at the First Claim for Relief alleges a Fourteenth Amendment violation of the right to equal protection for what appears to be a selective enforcement claim. Plaintiffs’ Second Claim for Relief alleges unreasonable search and seizure under the Fourth and Fourteenth Amendments. Plaintiffs’ Third Claim for relief alleges essentially unreasonable search and seizure under the Arizona Constitution, Article II, § 8.
8

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 9 of 21

1 Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 535 n.4 (6th Cir. 2002);

2 Pyke v. Cuomo, 258 F.3d 107, 109-110 (2d Cir. 2001); cf. United States v. Montero-

3 Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000).

4

As the United States Supreme Court emphasized in Armstrong, this Fourteenth

5 Amendment test imposes a “demanding standard” of pleading as a “significant barrier to the

6 litigation of insubstantial claims.” Armstrong, 517 U.S. at 463-64. This “rigorous standard,”

7 id. at 468, is necessary because a selective enforcement claim “asks a court to exercise

8 judicial power over a ‘special province’ of the Executive.” Id. at 464 (quoting Heckler v.

Chaney, 470 U.S. 821, 832 (1985)). The executive branch of government, therefore, is 9

afforded “broad discretion” in enforcing the law. Wayte v. United States, 470 U.S. 598, 607 10
(1985). Decisions about who should be stopped, arrested, and/or prosecuted are, in general,

11 “not readily susceptible to the kind of analysis the courts are competent to undertake.” Id.4

12

The Supreme Court has explained that a claimant alleging selective enforcement of a

13 facially neutral criminal law must demonstrate that the challenged law enforcement practice

14 “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte,

15 470 U.S. at 608. “To establish discriminatory effect in a race case, the claimant must allege

16 that similarly situated individuals of a different race were not prosecuted.” Armstrong, 517

17 U.S. at 465. If probable cause existed for each of the plaintiffs’ traffic stops, and there is no

18 allegation of dissimilar treatment, the Section 1983 federal claims for alleged equal

19 protection and unreasonable search and seizure violations of plaintiffs are subject to

20 dismissal as a matter of law.

21

Probable cause to make a traffic stop exists where the facts and circumstances within

22 an officer’s knowledge and of which he had reasonably trustworthy information would cause

a reasonable person to believe that an offense has been or is being committed. Devenpeck v. 23
Alford, 543 U.S. 146, 155 (2004) (“Those are lawfully arrested whom the facts known to the 24
arresting officers give probable cause to arrest.”). Whether probable cause exists depends 25
upon the reasonable conclusion to be drawn from the facts known to the subject law
26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

4 “Caution [by the courts] is also required because a selective enforcement claim is easily asserted, and responding to such a charge may be expensive, time consuming, and unduly distracting.” Jones v. Sterling, 110 P.3d 1271, 1279 (Ariz. 2005) (citing to Armstrong, 517 U.S. at 468.
9

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 10 of 21

1 enforcement officer at the time of the stop. Id. An arresting or stopping officer’s state of

2 mind is irrelevant to the existence of probable cause. Id. at 593.

3

The test for probable cause does not involve speculation about the outcome of a trial

4 on the merits of a particular charge, but rather upon an assessment of whether the arresting or

5 the officer effecting the stop had knowledge of the facts at the time of the arrest or stop that

6 would lead a prudent person to believe the arrested or detained person had committed or

7 were committing an offense. United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971).

8

2. The Plaintiffs’ Federal and Arizona Unreasonable Search and Seizure Claims Fail as a Matter of Law.

9

10

In ruling on the Motion to Dismiss as it relates to the Plaintiff’s Second and Third

11 Claims for Relief alleging unreasonable search and seizure, the Court must decide as a
12 matter of law whether probable cause existed to stop each of the plaintiffs. See Ornelas v. 13 United States, 517 U.S. 690, 696 (1996); United States v. Brooks, 367 F.3d 1128, 1134 (9th
Cir. 2004); Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). A plaintiff can “plead 14
himself out of court by pleading facts that undermine the allegations set forth in his 15
complaint.” Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999). Here, the First 16 Amended Complaint’s own allegations demonstrate, as a matter of law, that probable cause 17 existed to stop each of the plaintiffs. More pointedly, the allegations in the First Amended
18 Complaint amply show that each of the plaintiffs was stopped based on objective, provable

19 probable cause.

20

The failure of a motor vehicle driver to follow traffic control signals is a violation of

21 Arizona law. A.R.S. § 28-644; Johnson v. Maricopa County, 730 P.2d 862 (Ct. App. 1986)

22 (motorists who approach intersection controlled by traffic signal are required by law to abide

23 by the signal and may proceed in reliance of the signal alone). A peace office may also stop

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

and detain a person as is reasonable necessary to investigate an actual or suspected violation of Arizona law. A.R.S. § 28-1594; see also Ornelas, 517 U.S. at 696 (1996) (to justify an investigative stop, officer must have a particularized and objective basis for suspecting the person stopped was or is in engaged in criminal activity.).
The failure of a citizen to willfully fail or refuse to comply with any lawful order or
10

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 11 of 21

1 direction of a police office is a criminal violation of Arizona law. A.R.S. § 28-622.

2 Accordingly, any peace officer that observes violations of the foregoing statutory law has

3 probable cause to stop the person for the legal violation. Devenpeck, 543 U.S. at155

4

As to plaintiff Melendres, he acknowledges in his First Amended Complaint that he

5 and the driver of his vehicle were told that the vehicle was being stopped by MCSO deputies

6 for speeding. See Amended Complaint at ¶ 56. Speeding is an objective violation of

7 Arizona law. A.R.S. § 28-644; Johnson, 730 P.2d 862. Any peace officer that observes a

8 vehicle that is speeding unquestionably gives the officer probable cause to stop the vehicle driven in violation of law.5 Indeed, the United States Supreme Court holds that the Fourth
9 Amendment is not violated even when a minor traffic violation is pretext rather than the
10 actual motivation for a stop by law enforcement. Whren v. United States, 517 U.S. 806
11 (1996).

12

Plaintiff Melendres, therefore, is unable as a matter of law to allege a fundamental

13 element required for Section 1983 liability for unreasonable search and seizure because his

14 own allegations acknowledge the basis for the traffic stop that provided law enforcement

15 probable cause for the same. The fact that plaintiff Melendres now denies any probable

16 cause is immaterial to the Court’s analysis. Rodriquez v. California Highway Patrol, 89

17 F.Supp.2d 1131, 1139 (N.D. Ca. 2000) (an “individual plaintiffs’ allegations that they were

18 stopped for pretextual reasons, with more, would not state a claim under the Fourth

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Amendment.”); see also Ornelas, 517 U.S. at 696; Brooks, 367 F.3d at 1134; Criss, 867 F.2d at 262. Plaintiff Melendres’ § 1983 search and seizure claims are ripe for dismissal as a matter of law. Hartman, 547 U.S. 250; see also Caldeira v. County of Kauai, 866 F.2d 1175, 1181 (9th Cir. 1989); Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999).
As to the Rodriguez plaintiffs, the plaintiffs affirmatively acknowledge in their Amended Complaint that the road that they were admittedly driving their motor vehicle on
5 In their Reply in support of their Motion to Amend Complaint (Doc# 20 at p. 8, lns. 18-20), Plaintiffs urge that they have viable search and seizure claims because they merely allege the racial animus or intent of the MCSO deputies when making a traffic stop. That argument is immaterial to avoiding dismissal. The Supreme Court recognizes that whether defendants were motivated by race in making the traffic stops is immaterial in deciding whether a section 1983 claim is subject to dismissal. Whren v. United States, 517 U.S. 806, 813 (1996) (The Supreme Court unanimously rejected the argument “that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”).
11

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 12 of 21

1 was closed with a visible “Road Closed” sign. See Amended Complaint at ¶¶ 83, 89, and 96.

2 This is an objective violation of Arizona law. A.R.S. § 28-644; Johnson, 730 P.2d 862. Any

3 peace officer that observes the Rodriguez plaintiffs driving on the admittedly closed road in

4 violation of A.R.S. § 28-644 unquestionable gives the officer probable cause to stop the

5 vehicle driven in violation of law. How then can the Rodriguez plaintiffs establish a Section

6 1983 for unreasonable search and seizure when they make allegations essentially admitting
7 in their First Amended Complaint to having broken the law and giving law enforcement 8 probable cause for a traffic stop and search and seizure? They cannot. The plaintiffs’
conclusory allegation that probable cause did not exist is immaterial to the Court’s analysis 9
under the law. Cholla Ready Mix, Inc., 382 F.3d at 973. 10
The Rodriguez plaintiffs § 1983 claim under the Fourth and Fourteenth Amendments, 11 and their Arizona law based claim, are subject to dismissal as a matter of law based on their 12 own allegations. Hartman, 547 U.S. 250; see also Caldeira, 866 F.2d at 1181; Askew, 191
13 F.3d at 957.

14

As to the Meraz and Nieto plaintiffs, the allegations in the Amended Complaint -- and

15 the reasonable inferences drawn from those allegations -- also show that they failed to obey

16 the instructions of a peace officer, then belatedly fled the scene, failed to stop for pursuing

17 law enforcement vehicles apparently signaling for them to immediately pull over, and were

18 generally non-compliant with the instructions of the peace officers. See Amended Complaint

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

at ¶¶ 98-119. This conduct is an objective violation of Arizona law. A.R.S. § 28-622; see also United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983) (addressing whether the law enforcement officer had sufficient basis to fear for his safety to warrant actions taken). Meraz and Nieto, therefore, cannot establish §1983 liability for unreasonable search and seizure when they make allegations essentially admitting to objective violations of law thereby giving law enforcement probable cause to stop and search. Their § 1983 claim as to their Second Cause of Action (unreasonable search and seizure), and their Third Cause of Action (Arizona law based claim) are subject to dismissal as a matter of law.
In summary, the plaintiffs’ allegations in their own First Amended Complaint defeat their federal and state law based claims for alleged unreasonable search and seizure. The
12

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 13 of 21

1 Court, therefore, should dismiss each of those claims.

2

3. The Plaintiffs’ Equal Protection Claim Fails as a Matter of Law.

3

To maintain a valid equal protection claim during a lawful traffic stop, plaintiffs must

4 next allege in their Amended Complaint facts demonstrating that similarly situated members

5 of other, usually majority, groups were treated differently. Armstrong, 517 U.S. 456; Farm

6 Labor Organizing Comm., 308 F.3d at 535 n.4; Pyke, 258 F.3d at 109-110; Montero-

7 Camargo, 208 F.3d at 1135. Plaintiffs, however, have failed to meet this burden.

8

As to the Rodriguez plaintiffs, for example, the plaintiffs affirmatively acknowledge

in the Amended Complaint that MCSO Deputies pulled over all other vehicles driving on the 9
closed road. See Amended Complaint at ¶¶ 85-86.6 Plaintiffs make no allegation that

10 similarly situated persons from non-minority groups were not pulled over. Id. at ¶ 91.

11 Plaintiffs also make no allegation that similarly situated persons from non-minority groups

12 were given only warnings or treated more quickly. Id. at ¶¶ 85, 86, and 91. At most,

13 plaintiffs only allege that it subjectively appeared to the Rodriquez plaintiffs that the other

14 drivers, without any allegation regarding the race of those other drivers, that were pulled

15 over were let go in “short order, without visibly exchanging any documentation.” Id. at ¶

16 86.7 This type of allegation is legally inadequate to allege a valid equal protection selective

17 enforcement cause of action. Armstrong, 517 U.S. at 465 (plaintiffs “must show that

18 similarly situated individuals of a different race were not prosecuted.”); Brown v. City of

19 Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) (Plaintiff must plead the existence of a similarly

20 situated non-minority group being treated differently when challenging a law or policy that

21 does not contain an express racial classification).

22

How then can the Rodriguez plaintiffs establish a Section 1983 claim for violation of

equal protection by claiming racial profiling when essentially admitting to having broken the 23
law, albeit unknowingly, in their Amended Complaint, and admitting to all others persons 24
similarly situated on the road also having been pulled over? They cannot as a matter of law.
25

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

6 This allegation alone renders the Rodriguez plaintiffs’ equal protection claim fatally defective. They have failed to allege that similarly situated members of non-minority groups were treated differently. 7 The only time the Rodriquez plaintiff identify the race of other drivers is after they received a citation and stopped to observe future stops. Amended Complaint at ¶ 96. They make no allegations concerning the race of the other drivers stopped at or before the time they were stopped.
13

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 14 of 21

1 As such, their § 1983 equal protection claim is subject to dismissal.

2

As to plaintiffs Melendres, Meraz, and Nieto, plaintiffs make no allegation

3 whatsoever that they were treated any differently under the circumstances than any non-

4 minority groups. The burden is on these plaintiffs to allege in their Amended Complaint that

5 they were treated differently than similarly situated non-minorities. They have failed to

6 make such allegations, and as such, their § 1983 equal protection claim at Count One is

7 subject to dismissal as a matter of law.

8

In summary, each of the acts and failures of the plaintiffs, as alleged in their own

Amended Complaint and from the reasonable inferences drawn from the same, 9
unquestionably gave enforcement officers probable cause to stop the vehicles occupied by 10
them. As a matter of law, therefore, there can be no unreasonable search and seizure claim 11 under the Fourth and Fourteenth Amendments. Moreover, plaintiffs make no specific

12 allegation that the plaintiffs were treated differently than any other non-minority group. As a

13 matter of law, therefore, there can be no equal protection violation under the Fourteenth

14 Amendment and the Court should dismiss their First Claim for Relief (equal protection).8

15

C. Plaintiffs’ Municipal Liability Claims Against Maricopa County Fail as a

16

Matter Of Law.

17

Plaintiffs’ Amended Complaint seeks to hold Maricopa County derivatively liable for

18 the actions of defendant Arpaio. That is not permissible under the law and, therefore,

19 plaintiffs’ Amended Complaint, as to Maricopa County, is subject to dismissal.

20

A municipality, such as defendant Maricopa County, may be held liable under a §

21 1983 claim only when the municipality itself causes the constitutional violation at issue, and

22 not under a respondeat superior theory. Monell v. New York City Dept. of Social Services,

23 436 U.S. 658, 691-95 (1978); Hanson v. Black, 885 F.2d 42, 645-46 (9th Cir. 1989); Gillette 24 v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992); Van Ort v Estate of Stanewich, 92 F.3d 25 831, 835 (9th Cir. 1996).

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

8 Plaintiffs’ Fourth Claim for Relief (Race Discrimination in Federally Funded Programs) is a claim legally duplicative of their First Claim for Relief (i.e., Fourteenth Amendment, equal protection claim.). Guardians Ass’n v. Civil Service Comm. of New York, 463 U.S. 582 (1982); United States v. Fordice, 505 U.S. 717 (1992); Alexander v. Sandoval, 532 U.S. 275 (2001). As such, this claim fails for the same reasons Plaintiffs’ First Claim for Relief must fail.
14

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 15 of 21

1

[T]he language of §1983, read against the background of the same legislative history,

2

compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a

3

constitutional tort. In particular, we conclude that a municipality cannot be held liable

solely because it employs a tortfeasor – or, in other words, a municipality cannot be

4

held liable under §1983 on a respondeat superior theory.

5

6 Id. at 691 (Emphasis in original).

7

Municipal liability under §1983 “attaches where -- and only where -- a deliberate

8 choice to follow a course of action is made from among various alternatives by the official or

officials responsible for establishing final policy with respect to the subject matter in 9
question.” Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986). “Municipal liability depends 10
on its own wrongdoing.” Greenwalt v. Sun City West Fire Dist., 250 F.Supp.2d 1200, 1215 11 (D. Ariz. 2003). To avoid futility of their § 1983 claims against Maricopa County, therefore,

12 plaintiffs must properly plead the existence of a municipal policy; i.e., that the enforcement

13 of that policy caused a deprivation of a federal right; and that the municipality itself

14 committed “deliberate action” that constitutes a “moving force” behind the plaintiffs’

15 deprivation of federal rights. Id. A policy is established by pleading: (1) a "policy statement,

16 ordinance, regulation or decision officially adopted and promulgated" by the municipality's

17 lawmaking body; (2) a single edict or act by a municipal officer with final policy making

18 authority; or (3) “a widespread custom or practice.” Id. at 1215-16.

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Taking the plaintiffs’ allegations in their Amended Complaint as true, plaintiffs have failed to properly allege the existence of any particular policy statement, ordinance, regulation, or decision of the lawmaking body of defendant Maricopa County that led to the alleged deprivation of plaintiffs’ federal rights. Plaintiffs have not properly alleged anywhere in their Amended Complaint an edict or act by the Maricopa County Board of Supervisors -- the actual lawmaking body of Maricopa County -- that led to the alleged deprivation of plaintiffs’ federal rights. They have not properly alleged a “widespread custom or practice” encouraged or allowed by the County’s Board of Supervisors that led to the alleged deprivation of plaintiffs’ federal rights. Nowhere in Plaintiffs’ Amended Complaint do they even cite a policy, ordinance, regulation, decision, edict or act of
15

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 16 of 21

1 defendant Maricopa County that was a “deliberate action” that constituted a “moving

2 force” behind plaintiffs’ alleged deprivation of rights. All of the plaintiffs’ allegations center

3 on the conduct and/or actions of defendant Arpaio.

4

There are two reasons that plaintiffs’ allegations in their Amended Complaint as to

5 defendant Arpaio’s “policies, practices, philosophies, and directives” are legally insufficient

6 to support a municipal liability claim under §1983 against defendant Maricopa County.
7 First, “[t]he fact that a particular official -- even a policy making official -- has discretion in 8 the exercise of particular functions does not, without more, give rise to municipal liability
based on an exercise of that discretion.” Pembaur, 475 U.S. 482-83. Second, the “official 9
must also be responsible for establishing final government policy respecting such activity 10
before the municipality can be held liable.” Id. at 483. “[F]inal policy making authority is a 11 question of state law.” Id. Under Arizona law, only the elected members of the Maricopa 12 County Board of Supervisors, not defendant Arpaio, are responsible for establishing the final
13 government policy for Maricopa County. See A.R.S. §11-251(30) and (31). While

14 defendant Arpaio is responsible for establishing the final policy for the MCSO, he is not

15 responsible for establishing the final policy of Maricopa County.

16

In summary, plaintiffs’ Amended Complaint alleges no set of factual allegations that

17 supports Monell municipality liability against defendant Maricopa County itself under

18 Section 1983. On this ground alone, therefore, the Court should dismiss Maricopa County as

19 a named defendant.

20

D. Defendants Arpaio And The MCSO Have Qualified Immunity for All of

Plaintiffs’ Liability Claims.

21

22

The defense of “qualified immunity” requires courts to enter judgment in favor of a

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

government and its employees unless the employees’ conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The defense is designed to protect “all but the plainly incompetent or those who knowingly violated the law.” Malley v. Briggs, 477 U.S. 335, 341 (1986); see also Alexander v. County of Los Angeles, 64 F.3d 1315, 1319 (9th Cir. 1995). Here, the Amended Complaint lacks facts showing that Sheriff Arpaio or the MCSO
16

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 17 of 21

1 were “plainly incompetent” or acted in “knowing violation of the law.” Qualified immunity

2 applies.

3

The qualified immunity standard requires a two-pronged inquiry: first, was the right

4 claimed to have been violated clearly established at the time the defendants acted; and

5 second, if so, could a reasonable peace officer in defendants’ position nonetheless believe

6 that defendants’ conduct was lawful given the circumstances.

7

1. One Reasonable Peace Officer Could Believe that Defendants’ Conduct was Lawful.

8

Assuming that the right to be free from racially motivated traffic stops is clearly 9
established under the law, the inquiry is whether one reasonable peace officer out of the 10
world of reasonable peace officers could have believed that Sheriff Arpaio’s conduct, or the 11 conduct of his deputies in the MCSO, as alleged in the Amended Complaint, was lawful.

12 The qualified immunity analysis asks whether “all reasonable officials in the defendant’s

13 circumstances would have then known that the defendant’s conduct was violated the

14 plaintiff’s asserted constitutional or federal statutory right.” Cozzo v. Tangipahoa Parish

15 Council President Gov’t, 279 F.3d 273, 284 (5th Cir. 2002) (emphasis added); Thompson v.

16 Upshur County, 245 F.3d 447, 457 (5th Cir. 2001). In other words, qualified immunity

17 applies if one reasonable peace officer out of the world of reasonable officers could disagree

18 on whether the defendants’ conduct was permissible. Reynolds v. County of San Diego, 84

19 F.3d 1162, 1170 (9th Cir. 1996), overruled on other grounds, Acri v. Varian Assoc’s Inc.,

20 114 F.3d 999 (1997). “[I]f officers of reasonable competence could disagree, immunity

21 should be recognized.” Malley, 475 U.S. at 341.9

22

Based on the allegations of the Amended Complaint, as a matter of law, one

reasonable sheriff out of the world of reasonable sheriffs could believe Sheriff’s Arpaio’s 23
conduct to be appropriate and lawful. 24

25

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

9 The inquiry of whether a reasonable sheriff could believe that defendant’s conduct was lawful is an objective inquiry by the Court. Harlow, 457 U.S. at 819; see also Mazuz v. Maryland, 442 F.3d 217, 232 (4th Cir. 2006) (Kelly, J., concurring) (“Whether an officer’s conduct was objectively reasonable, and hence protected by qualified immunity, is a question of law solely for the court.”).
17

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 18 of 21

1

A. Plaintiff Melendres.

2

A reasonable sheriff could certainly believe that pulling over a vehicle for speeding in

3 violation of Arizona state law was appropriate and lawful. A reasonable sheriff could also

4 believe it reasonable to ask questions of the vehicle’s driver and occupants, especially in

5 light of Sheriff Arpaio having a Memorandum of Understanding with federal authorities
6 which authorized MCSO personnel to perform certain immigration enforcement. Indeed, 7 according to plaintiffs’ own allegations, defendant Arpaio has a Memorandum of 8 Understanding with the U.S. Immigration and Customs Enforcement (“ICE”) which
authorized personnel of the MCSO to perform certain immigration enforcement functions. 9
See Amended Complaint at ¶¶ 20-29. These immigration enforcement functions by the 10
MCSO could be performed, among other things, pursuant to routine or spontaneous law 11 enforcement decisions. Id. As to Plaintiff Melendres, as a passenger in a vehicle stopped for 12 speeding, he provided the MCSO officers with identification and other papers which 13 established that he was a foreign national. See Amended Complaint at ¶ 58. The officers, for
14 whatever reason, did not trust the veracity or legitimacy of the visa and permit provided to
15 them by the Plaintiff and detained him for transportation to ICE. Id. at ¶ 72. ICE officials

16 questioned the Plaintiff, and eventually released him. Id. at ¶ 75. A reasonable officer could

17 certainly believe it lawful to question and/or detain a person whose legal status in the United

18 States was uncertain to that officer.

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs’ Amended Complaint, therefore, should be dismissed for failure to state a claim upon which relief may be granted on the basis of qualified immunity for the Melendres traffic stop.
B. Rodriguez plaintiffs. As to the Rodriguez plaintiffs, the plaintiffs acknowledge in their Amended Complaint that the road that they were admittedly driving their motor vehicle on was closed with a visible “Road Closed” sign. See Amended Complaint at ¶¶ 83, 89, and 96. This is an objective violation of Arizona law. A.R.S. § 28-644; Johnson, 730 P.2d 862. A reasonable peach officer could believe that he was well within his authority provided to him under law to make the stop and question the driver of the vehicle and pursuant to
18

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 19 of 21

1 agreement with the federal government. See Amended Complaint at ¶ 21 (granting MCSO

2 deputies the authority “to perform certain immigration enforcement functions.”) Taking the

3 Plaintiffs’ allegations as true, a reasonable law enforcement officer could have believed his

4 conduct in stop and questioning these plaintiffs was proper and not a violation of any

5 clearly established statutory or constitutional rights, including making an inquiry regarding

6 Mr. Rodriguez’ social security card.

7

Plaintiffs’ Amended Complaint as to unequal treatment, therefore, should be

8 dismissed for failure to state a claim upon which relief may be granted on the basis of

qualified immunity for the Rodriguez traffic stop. 9
C. Meraz and Nieto plaintiffs. 10
As to the Meraz and Nieto plaintiffs, the allegations in their Amended Complaint 11 show that they failed to obey the instructions of a peace officer, then belatedly fled the

12 scene, failed to stop for pursuing law enforcement vehicles apparently signaling for them to

13 immediately pull over, and were generally non-compliant with the instructions of the peace

14 officers. See Amended Complaint at ¶¶ 98-119. This is an objective violation of Arizona

15 law. A.R.S. § 28-622; see also United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir.

16 1983). Again, the MCSO officer(s) questioned these plaintiffs and did so within the

17 authority provided to them under law and pursuant to agreement with the federal

18 government. See Amended Complaint at ¶ 21. Taking the Plaintiffs’ allegations as true, a

19 reasonable law enforcement officer could have believed his conduct in stopping and

20 questioning the plaintiff was proper and not a violation of any clearly established statutory

21 or constitutional rights.

22

Plaintiffs’ Amended Complaint, therefore, should be dismissed for failure to state a

claim upon which relief may be granted on the basis of qualified immunity for the Meraz 23

and Nieto traffic stop. 24
E. The Amended Complaint Improperly Adds Non-Jural Entity MCSO as a

25

Named Defendant.

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs’ Amended Complaint adds the MCSO as a named defendant. The MCSO, however, is a non-jural entity not capable of suing, or being sued, in its own name.
19

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 20 of 21

1

In order for a plaintiff to sue a county department, such as the MCSO, the department

2 must “enjoy a separate legal existence.” Darby v. Pasadena Police Dept., 939 F.2d 311, 313

3 (5th Cir. 1991) (holding that a plaintiff may not bring a civil rights action against a servient

4 political agency or department unless such agency or department enjoys a separate and

5 distinct legal existence); Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979) (same);

6 Jacobs v. Port Neches Police Dep’t, 915 F.Supp.2d 842, 844 (E.D. Tex. 1996) (sheriff’s

7 department not a proper party to suit).

8

A political subdivision cannot sue or be sued in its own name unless it is “a separate

and distinct corporate entity.” Kirby Lumbar Corp. v. State of La. Through Anacoco-Prairie 9

State Fame and Fish Comm’n, 293 F.2d 82, 83 (5th Cir. 1961); Darby, 939 F.2d at 313. 10
“[U]nless the true political entity has taken explicit steps to grant the servient agency with

11 jural authority, the agency cannot engage in any litigation except in concert with the

12 government itself.” Darby, 939 F.2d at 313 citing to Taylor v. Administrator of the SBA, 722

13 F.2d 105, 110-11 (5th Cir. 1983); J.C. Driskill, Inc. v. Abdnor, 901 F.2d 383, 386 (4th Cir.

14 1990); see also Avery v. Burke County, 660 F.2d 111, 114 (4th Cir. 1981). Plaintiff makes

15 no allegation that the MCSO is a corporate entity separate and apart from Maricopa County.

16 As a consequence, the Court should dismiss the MCSO from this litigation because it is a

17 non-jural entity.

18 IV. CONCLUSION.

19

Based on the foregoing, defendants respectfully request that the Court dismiss

20 Plaintiffs’ Amended Complaint as against them for the reasons stated above, or dismiss those

21 individual claims that fail to set forth a viable cause of action against them under the law.

22

DATED this 24th day of September, 2008.

23

SCHMITT, SCHNECK, SMYTH & HERROD,

24

P.C.

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Schmitt, 1221 Phoeni Telephone:

s/Timothy J. Casey______ Timothy J. Casey Casson N. Mathis
Schneck, Smyth & Herrod, P.C. E. Osborn Rd., Suite 105
x, Arizona 85014 (602) 277-7000
20

Case 2:07-cv-02513-GMS Document 39 Filed 09/29/08 Page 21 of 21

1

Facsimile:(602) 277-8663

timcasey@azbarristers.com

2

Counsel for Defendants

3 ORIGINAL of this document electronically

4

filed with the Clerk’s Office using the CM/ECF System this 24th day of September, 2008

5 COPY of this document electronically mailed this 6 24th day of September to the following:

7

The Honorable Mary H. Murguia United States District Court

8

401 West Washington Street, Phoenix, Arizona 85003-2158

9 COPY of this document electronically and regular mailed this

10

24th day of September, 2008 to the following counsel of record for plaintiffs:

11 David J. Bodney, Esq.

12

Peter Kozinets, Esq. STEPTOE & JOHNSON LLP

13

Collier Center 201 East Washington St., Suite 1600

14 Phoenix, Arizona 85004-2382

15

s/Eileen Henry______ Eileen Henry, Paralegal

16 SCHMITT, SCHNECK, SMYTH & HERROD, P.C.

17

18

19

20

21

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

21

 </s> Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 1 of 20

1 STEPTOE & JOHNSON LLP

Collier Center 2 201 East Washington Street

Suite 1600

Phoenix, Arizona 85004-23 82

4

Telephone: 602 257-5200 Facsimile: 602 257-5299

David J. Bodney 06065
6 dbodney@steptoe.com Peter S. Kozinets 019856
7 pkozinets@steptoe.com Karen J. Hartman-Tellez 021121
8 khartman@steptoe.com Isaac P. Hernandez 025537
9 ihernandez@steptoe.com

10 Attorneys for Plaintiffs

11

12

UNITED STATES DISTRICT COURT

13

DISTRICT OF ARIZONA

14 Manuel de Jesus Ortega Melendres, et 15 al.,

16

Plaintiffs,

17

vs.

18 Joseph M. Arpaio, et al.,

19

Defendants.

No. CV 07-025 13-PHX-MHM
RESPONSE IN OPPOSITION TO DEFENDANTS’ RULE 12b6 MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT
Oral Argument Requested

20

21

22

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 2 of 20

1 Additional Attorneys:
2 ACLU FOUNDATION OF ARIZONA
3 P.O. Box 17148 Phoenix, Arizona 85011-0148 Telephone: 602 650-1854
5 Facsimile: 602 650-1376

6 Daniel Pochoda 021979 7 dpochodaacluaz.org

8 AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
10 San Francisco, California 94111 Telephone: 415 343-0770 Facsimile: 415395-0950

12 Robin Goldfaden
13 rgoldfadenaclu. org

14

Monica M. RamIrez mramirezaclu.org

15 MEXICAN AMERICAN LEGAL DEFENSE
16 AND EDUCATIONAL FUND
17 634 South Spring Street, 11th Floor Los Angeles, California 90014
18 Telephone: 213 629-2512 x136
19 Facsimile: 213 629-0266

20 Kristina M. Campbell 023 139 kcampbellmaldef. org
21 Nancy Ramirez Pro Hac Vice
22 nramirezmaldef. org

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 3 of 20

1

PRELIMINARY STATEMENT

2

Defendants’ illegal racial profiling of Latinos in Maricopa County necessitated

3 the filing of this action, which seeks to enjoin Defendants’ unconstitutional policies and

4 practices. Having unsuccessfully opposed Plaintiffs’ Motion for Leave to File the First

5 Amended Complaint FAC, Defendants now seek to dismiss the FAC for failure to

6 state a claim based on the same arguments they previously offered. As shown below, the

7 Motion to Dismiss Motion fundamentally misconstrues the law and deliberately

8 ignores several key allegations in Plaintiffs’ detailed, well-pled FAC. Even a cursoiy

9 review of the FAC demonstrates that Defendants’ Motion should be denied.

10

First, the FAC clearly establishes the standing of Plaintiff Somos America/We

11 Are America "Somos", an organization created to combat racial discrimination

12 directed at Latinos, and whose members have been subjected to racial profiling and

13 other mistreatment by Maricopa County Sheriff’s Office "MCSO" officers. While

14 Defendants spend several pages describing the law of standing, they ignore specific

15 allegations showing that Somos has both standing to sue on its own behalf

16 organizational standing and on behalf of its members representative standing.

17

Second, Defendants’ assertion that the FAC fails to state claims under the Fourth

18 and Fourteenth Amendments is meritless. Plaintiffs’ First Claim for Relief Equal

19 Protection - Fourteenth Amendment is amply supported by the FAC, which far exceeds

20 the limited notice requirements of the Federal Rules, and contains detailed allegations

21 illustrating Defendants’ comprehensive and regular practice of racially-profiling Latino

22 motorists and passengers. The allegations demonstrate that Defendants have targeted,

23 stopped, interrogated, detained and/or arrested Latino persons based solely on their race,

24 color or ethnicity, and not for any lawful purpose. [See, e.g, FAC ¶ 11 Somos members
25 have been subjected to Defendants’ "policy and practice of profiling and targeting

26 persons" believed to be of Latino descent; FAC ¶ 30 "Defendants have adopted an
27 unlawful, racially-biased policy of stopping, detaining, questioning and/or searching

28 persons in vehicles in Maricopa County who are or appear to be Latino to interrogate

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 4 of 20

1 them about their perceived immigration status based on nothing more than their race,

2 color and/or ethnicity"; FAC ¶ 32 "Caucasian drivers and passengers involved in the
3 same or similar acts or alleged violations are treated differently and their vehicles

4 stopped at much lower rates than similarly situated Latino drivers"; FAC ¶ 40 "for
5 racially motivated reasons" Latino persons are singled out for investigation "and

6 subjected []to different treatment"]

7

Plaintiffs’ Second Claim for Relief Unreasonable Search and Seizure - Fourth

8 and Fourteenth Amendments is supported by myriad allegations that Defendants have

9 acted toward the members of the Plaintiff class, including persons named and unnamed,

10 pursuant to a policy that targets Latino drivers and passengers for traffic stops,

11 detentions, searches, questioning and/or arrests, without reasonable suspicion or

12 probable cause. [See, e.g., FAC ¶J 3, 11, 29, 30-32, 37-40, 48, 51, 52, 122, 140-41] The
13 FAC alleges that these persons have been and/or will be subject to unlawful extensions

14 of traffic stops solely for the purpose of investigating their immigration status. [See, e.g.,

15 Id. ¶J 30-32, 59-77, 85-97, 110-119, 140]

16

The experiences of the individual named Plaintiffs are the direct product and are

17 emblematic of these unconstitutional policies and practices. For example, the FAC

18 alleges that MCSO officers detained Plaintiff Manuel de Jesus Ortega Melendres for

19 more than nine hours, without reasonable suspicion or probable cause to believe that he

20 had committed any crime. He was merely a passenger in a vehicle that was allegedly

21 stopped for speeding during an MCSO immigration "sweep" in Cave Creek. Likewise,

22 MCSO officers unreasonably searched and seized Plaintiffs Velia Meraz and Manuel 23 Nieto, Jr., leaving them alone only after their father rushed out and told the officers that 24 they were all U.S. Citizens. The FAC clearly alleges that Defendants were conducting 25 an immigration "sweep" at that time in that area, and that Ms. Meraz and Mr. Nieto 26 were targeted solely because of their Latino appearance as part of that operation.

27 Similarly, the FAC alleges that Plaintiffs Jessica and David Rodriguez were targeted for 28 differential treatment. As explained below, these allegations must be taken as true for

-2-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 5 of 20

1 purposes of the present Motion, and they support claims for relief under the Fourth and

2 Fourteenth Amendments. Indeed, these allegations make out a classic case of racial

3 profiling - of "intrusive law enforcement stop[s] and seizure[s] of innocent persons on

4 the basis of suspicions rooted principally in the race of the ‘suspects." Washington v.

5 Lambert, 98 F.3d 1181, 1192 9th Cir. 1996.

6

Defendants’ other arguments are equally without merit. First, Defendants assert

7 that Maricopa County cannot be sued, even though it is directly liable for, among other

8 things, the official policies of Sheriff Joe Arpaio - the final decision maker for the

9 County in the area of law enforcement. [FAC ¶ 13] Second, Defendants invoke qualified
10 immunity on behalf of Arpaio and the MCSO, forgetting that Plaintiffs do not seek

11 monetary damages, but rather seek only declaratory and injunctive relief - to which

12 qualified immunity does not apply. Finally, Defendants assert that the MCSO is a "non-

13 jural" entity, despite its repeated participation as a party in numerous lawsuits, even as a

14 plaintiff The MCSO cannot be a "jural entity" only when convenient. Defendants’

15 Motion should be denied.

16

ARGUMENT

17 I. DEFENDANTS FAIL TO OVERCOME THE STRONG PRESUMPTION AGAINST MOTIONS TO DISMISS.
18 Rule 8a establishes a "powerful presumption against rejecting pleadings for
19 failure to state a claim." Gilligan v. Jamco Dcv. Corp., 108 F.3d 246, 249 9th Cir.
20
1997. Indeed, such motions are "viewed with disfavor and [ ] rarely granted." Hall v.
21 Cily of Santa Barbara, 833 F.2d 1270, 1274 9th Cir. 1986, abrogated on other
22 grounds by Yee v. Cily of Escondido, 503 U.S. 519, 525 1992; see generally Erickson
23 Pardus, 127 5. Ct. 2197, 2200 2007 reiterating that a complaint "need only give the
24 defendant fair notice of what the claim is and the grounds upon which it rests" internal
25 quotation omitted. This presumption applies with even greater force in civil rights
26 cases. Rodriguez v. Calif Highway Patrol, 89 F. Supp. 2d 1131, 1135 N.D. Cal. 2000
27 "[C]ivil rights complaints are to be liberally construed." internal quotation omitted.
28

-3-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 6 of 20

1 Taking all well-pleaded factual allegations as true and drawing all reasonable inferences 2 in Plaintiffs’ favor, the FAC satisfies Rule 8a - and Defendants should be forced to 3 defend this vitally important case on the merits as promptly as possible. Gilligan, 108 4 F.3d at 248.

5 II. THE FAC ESTABLISHES SOMOS’ STANDING ON MULTIPLE BASES.

6

A. Defendants’ Conduct Injures Somos Directly and Gives Somos

7

Standin! to Sue on Its Own Behalf.

8

Somos has standing to sue in its own right "organizational standing" because it

9 has suffered an injuiy-in-fact sufficient to give it "a personal stake in the outcome of the

10 controversy." Smith v. Pac. Prop. & Dcv. Corp., 358 F.3d 1097, 1105 9th Cir. 2004;

11 see also Havens Really Corp. v. Coleman, 455 U.S. 363, 3 78-79 1982 organizations

12 have standing if forced to devote resources to address defendant’s misconduct. Somos

13 may establish injury by showing "1 frustration of its organizational mission; and 2

14 diversion of its resources to combat the particular. . . discrimination in question." Smith,

15 358 F.3d at 1105 non-profit disability rights advocacy group had organizational

16 standing to sue where defendants’ conduct frustrated its mission and caused it to divert

17 resources to monitor defendants’ activities.

18

Somos’ injury consists of the frustration of its mission and the diversion of its

19 resources to combat Defendants’ alleged misconduct. As the FAC alleges, Somos was

20 created to advance "equal rights for immigrant communities in Arizona," and its

21 "organizational mission includes seeking to combat racial discrimination directed at

22 Latinos." [FAC ¶ 10] By violating the rights of Plaintiffs and putative class members,
23 Defendants’ alleged misconduct frustrates these objectives. See Smith, 358 F.3d at 1105.

24

The FAC further alleges that Somos has begun to monitor Defendants’ actions

25 and assist those that have been mistreated by Defendants. [FAC ¶ 12] Somos’ limited
26 resources have therefore been "diverted and drained as a result of Defendants’ policies

27 and practices and the harm they cause." [Id.] Remarkably, Defendants’ Motion quotes

28 these allegations, while arguing that "[t]here is no actual injury alleged to have been

-4-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 7 of 20

1 suffered by [Somos]." [Mot. at 4-5] Yet Defendants’ alleged activities have depleted

2 Somos’s resources, causing Somos the precise harm that the Supreme Court recognized

3 as conferring standing in Havens Really. See 455 U.S. at 379. Because Somos will

4 continue to be harmed if Defendants’ misconduct is not enjoined, it has properly alleged

5 organizational standing. [FAC ¶J 4, 12] See Smith, 358 F.3d at 1106 "[W]e believe
6 these allegations are enough to constitute a showing of a ‘diversion of resources’ and to

7 survive a 12b6 motion."; ACORN v. Fowler, 178 F.3d 350, 357 5th Cir. 1999

8 "general factual allegations of injury resulting from the defendant’s conduct" suffice at

9 the pleading stage to establish organizational standing.

10

B. Defendants’ Alle2ed Conduct Injures Somos’ Members, Givin! Somos

11

Standin! to Sue on Its Members’ Behalf.

12

Apart from its own injury, Somos has standing to represent its injured members

13 "representative standing". Hunt v. Washington State Apple Adver. Comm ‘n, 432 U.S.

14 333, 342 1977. An organization has representative standing when: "a its members

15 would otherwise have standing to sue in their own right; b the interests it seeks to

16 protect are germane to the organization’s purpose; and c neither the claim asserted nor

17 the relief requested requires the participation of individual members in the lawsuit." Id.

18 at 343; see also Rodriguez, 89 F. Supp. 2d at 1135-36 finding representative standing to

19 challenge racial profiling. The FAC’s allegations satisfy each of these elements.

20

First, for the reasons that the individual plaintiffs have standing which

21 Defendants do not challenge, Somos’ members have standing. The FAC states that

22 "Defendants’ agents have pretextually, with racial motivation and without adequate

23 cause stopped vehicles driven or ridden in by Somos America members and have

24 subjected occupants to discriminatory, unreasonable and burdensome questioning and

25 other differential treatment without individualized suspicion or any evidence of criminal

26 activity." [FAC ¶ 11] Several members have reported such mistreatment to Somos. [Id.]
27 Because these members would be entitled to sue Defendants directly, their injuries

28 satisfy the first prong of Somos’ representative standing.

-5-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 8 of 20

1

Defendants’ assertion that the FAC does not explicitly state that these members

2 were "actual, registered, and bona tIde members" at the time of the alleged stops is

3 unavailing. [Mot. at 5] Not only does this argument neglect the presumption that general

4 allegations embrace the specific facts needed to support them, Smith, 358 F.3d at 1105,

5 but it seeks to create a requirement unsupported by law. Courts have not required

6 represented individuals to be "registered," "bona fide," or even "members" for

7 representational standing. See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110-11

8 9th Cir. 2003 "direct membership linkage" is not required to establish representative

9 standing, and injury to "constituents" of non-profit organization created to protect

10 federal rights suffices to confer standing on organization. Because the FAC alleges that

11 Somos’ members have been injured by Defendants’ conduct, allegations detailing a

12 "direct membership linkage" at the time of the events are unnecessary. Id.’

13

Second, the civil rights at stake in this litigation are unquestionably germane to

14 Somos’ mission. Somos’ purpose is "to combat racial discrimination directed at

15 Latinos." [FAC ¶ 10] Even Defendants "can assume how this stated purpose is
16 connected to the stated purpose of the lawsuit." [Mot. at 6, n. 1] Third, Somos’ claims

17 and requested relief do not require the participation of individual members. Indeed, the

18 third prong of representative standing is satisfied when a plaintiff seeks only declaratory

19 or injunctive relief, as Somos does here. See Hunt, 432 U.S. at 344 claims for

20 declaratory and injunctive relief do not require individualized proof and are properly

21 resolved in a group context. Accordingly, the FAC meets all three elements of 22 representative standing, and Somos is a proper plaintiff2

23 1 Defendants’ reliance on Legal Aid Soc. of Hawaii v. Legal Seii’s. Corp., 145
24 F.3d 1017 9th Cir. 1998, is misplaced. The organizational plaintiffs in Legal Aid

25 Sociely failed to present any evidence on a motion for summaiy judgment that any

of their members had standing in his or her own right. Id. at 1030. In contrast, the FAC

26 clearly alleges that Somos’ members have been injured by Defendants’ conduct [FAC ¶

27 11], and at this early stage of litigation, those allegations must be taken as true.

28

2 Moreover, Somos satisfies "third-party standing" - another independent basis for standing. First, Somos has sufficiently alleged that it suffers an injury-in-fact.

-6-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 9 of 20

III. 1 2

THE FAC AMPLY SUPPORTS PLAINTIFFS’ FOURTH AND FOURTEENTH AMENDMENT CLAIMS.
In a section of their Motion called "The Law," Defendants confuse the standards

3 that apply to Plaintiffs’ separate claims under the Fourth Amendment unreasonable

4 search and seizure and the Fourteenth Amendment equal protection. [Mot. at 8,

5 Section B. 1, "The Law"] First, and contrary to Defendants’ assertions, to establish a

6 Fourth Amendment claim, Plaintiffs need only allege facts capable of showing that they

7 were searched or seized without reasonable suspicion or probable case. They do not also

8 need to show that similarly-situated members of other, non-minority groups were treated

9 differently. [Cf Mot. at 8]

10

Second, to state a claim under the Fourteenth Amendment’s Equal Protection

11 Clause, Plaintiffs need only allege facts showing that Defendants acted with "racially

12 discriminatoiy intent or purpose." Vill. of Arlington Heights v. Metro. Housing Dcv.

13 Corp., 429 U.S. 252, 266 1977. Plaintiffs are not required to show that similarly

14 situated members of other, non-minority groups were treated differently if there is other

15 evidence of discriminatoiy motive. The FAC abundantly satisfies these standards.

16

A. Defendants Violated the Fourth Amendment by Initiatin! or

17

Extendin! Searches and Seizures Without Reasonable Suspicion.

18

The FAC states valid claims under the Fourth Amendment and the Arizona

19 Constitution for unreasonable searches and seizures because it alleges that Defendants

20 unreasonably stopped, searched and/or arrested, or otherwise extended the stops of,

21 plaintiffs and putative class members, without reasonable suspicion or probable cause.

22 [E.g., FAC ¶J 3, 11, 29, 30-32, 37-40, 48, 51, 122, 140-41] Indeed, the FAC alleges a

23

24

continued from page 6 Second, it has a close relation to its members, whose civil rights are affected by the complained-of pattern and practice. Third, its members are deterred

25 from bringing suit due to fear of publicity and retaliation from a Defendant that has shown that he will not hesitate to bring pressure to bear on those who take issue with his
26 tactics. [E.g., FAC ¶J 40, 44]; Carey v. Population Seii’s. Int’l, 431 U.S. 678, 683 1977
27 vendor had third-party standing to challenge a law prohibiting distribution of contraceptives to minors, because the desire to avoid publicity would deter potential

28 purchasers from defending their own rights.

-7-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 10 of 20

1 pattern and practice of using race as a surrogate for individualized suspicion of violation

2 of immigration laws, and this pattern and practice has led to the unreasonable seizures of

3 persons lawfully present in Maricopa County. [E.g., id. ¶J 30-32, 52] The FAC alleges
4 that this pattern and practice is directed to all members ofthe class, and that Defendants’

5 behavior toward the named Plaintiffs "starkly illustrates" these unlawful policies,

6 practices and conduct. [Id. ¶ 52]

7

For example, the FAC alleges that MSCO officers arrested and detained Mr.

8 Ortega without reasonable suspicion or probable cause to believe that he committed any

9 crime. Mr. Ortega was merely a passenger in a car that was allegedly stopped for

10 speeding during an MSCO "crime suppression sweep" in Cave Creek. [Cf FAC ¶J 30,
11 35-3 8, 4 1-48 describing MCSO’s use of so-called "crime suppression sweeps" as part

12 of a campaign to target Latinos for stops, detention, investigation and arrests] After he

13 presented a valid U.S. visa and permit, the officers inexplicably handcuffed, searched

14 and detained him. He was not cited for any traffic violation, not charged with any crime

15 and not given any explanation for this treatment. [Id. ¶J 66-7 1]

16

Defendants’ assertion that Mr. Ortega cannot state a Fourth Amendment claim is

17 baseless. [Mot. at 11] Defendants assert that, because an officer had probable cause to

18 believe the driver of the vehicle in which Mr. Ortega was a passenger was speeding, the

19 officer had reasonable suspicion or probable cause to search, arrest and detain Mr.

20 Ortega for nine hours. [FAC ¶ 56; Mot. at 11] This absolutely contradicts the Fourth
21 Amendment requirement that suspicion be particularized, and that an investigatory stop

22 be reasonably related to the circumstances that justified it. Even if a traffic stop might

23 have been initially justified, the Fourth Amendment does not give officers a blank check

24 to run roughshod over the constitutional rights of eveiyone involved. Rather, traffic

25 stops must be supported by at least reasonable suspicion - i.e., "specific, articulable

26 facts which, when considered with objective and reasonable inferences, form a basis for 27 particularized suspicion" of criminal activity. U.S. v. Montero-Camargo, 208 F.3d 28 1122, 1129 9th Cir. 2002 holding that race and ethnicity are of such little probative

-8-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 11 of 20

1 value that they may not be considered in the reasonable-suspicion analysis, including for

2 immigration enforcement purposes. The stop must be justified at its inception and be

3 reasonably related in scope to the circumstances that justified it. Terry v. Ohio, 392 U.S.

4 1, 19-20 1968. It must last no longer than is necessary. U.S. v. Urrieta, 520 F.3d 569,

5 578-79 6th Cir. 2008; U.S. v. Valadez, 267 F.3d 395, 397 5th Cir. 2001.

6

Here, Defendants lacked any basis to search and arrest Mr. Ortega, let alone

7 detain him for nine hours. [FAC U 53-81] Defendants’ assertion that the Memorandum
8 of Understanding "MOU" with ICE permitted the officer to stop Mr. Ortega to inquire

9 into his immigration status is fundamentally flawed, and it touches on a key issue this

10 case. [Mot. at 18] Defendants may not rely on the MOU to justify law-enforcement

11 activities that violate the constitutional rights of Plaintiffs and putative class members.

12 Indeed, the Fourth Amendment limits federal statutes and immigration enforcement

13 authority such that agents may not question any individual as to his right to be in the

14 United States without reasonable suspicion, involving more than mere ethnic

15 appearance, that the individual is an alien. See, e.g., Murillo Musegades, 809 F. Supp.

16 487, 498 W.D. Tex. 1992. Moreover, to forestall concerns about racial profiling, ICE

17 itself has declared that under an MOU, "Police cannot randomly ask for a person’s

18 immigration status . . . [and] may only use their authority when dealing with someone

19 who is suspected of a state crime that is more than a traffic offense." [FAC ¶ 23
20 emphasis altered] At best, the officer had probable cause to believe that someone other

21 than Mr. Ortega had committed a traffic offense. This falls far short of justifying an

22 investigation, let alone an arrest, of Mr. Ortega.

23

The FAC also alleges that Defendants had neither reasonable suspicion nor

24 probable cause to justify their search and seizure of Ms. Meraz and Mr. Nieto. Like Mr.

25 Ortega, Ms. Meraz and Mr. Nieto were not cited for any traffic violation or charged with

26 any crime. Upon pulling into a gas station parking lot, they were greeted with an

27 officer’s unexplained demand that they leave. They complied, yet other officers were

28 called to follow them. [FAC ¶J 10 1-05] When signaled to pull over, Mr. Nieto did so.

-9-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 12 of 20

1 LId. ¶J 107-09] The officers then descended on Mr. Nieto and Ms. Meraz in front of
2 their family business and, with weapons raised, forcefully pulled Mr. Nieto from the car

3 and handcuffed him, demanding identification. [Id. ¶J 110, 112] Yet the officers ceased
4 their pursuit, investigation and detention when Ms. Meraz’s and Mr. Nieto’s father told

5 the officers that his children were U.S. Citizens. [Id. ¶J 116-17] Indeed, the officers then
6 left, without issuing any citations or giving any explanation for their actions. The FAC

7 alleges that this search and seizure was part of Defendants’ immigration sweep going on

8 at that time, and was motivated solely by Ms. Meraz’s and Mr. Nieto’s Latino

9 appearance - rather than any reasonable suspicion or probable cause. [Id. ¶ 119] These
10 allegations state a Fourth Amendment claim.

11

Defendants’ assertion that Ms. Meraz and Mr. Nieto violated A.R.S. § 28-622, a

12 statute concerning an officer’s authority to "direct, control or regulate traffic," is

13 unsupported by the FAC and is entirely inappropriate at the motion to dismiss stage.

14 [Mot. at 12, 19] Neither Ms. Meraz nor Mr. Nieto received a citation or warning for

15 violating this statute. Nowhere does the FAC suggest that the officers were directing

16 traffic at the time of the stop - or had any legitimate justification for their seizure of

17 these Plaintiffs, or for the scope and duration of that seizure. On a Rule 12b6 motion,

18 Defendants cannot construct their own unsubstantiated factual narrative. Rather,

19 Plaintiffs’ well-pled allegations must be taken as true and construed in their favor.

20 Gilligan, 108 F.3dat248-49.

21

The FAC also states a clear violation of Plaintiffs Jessica and David Rodriguezes’

22 Fourth Amendment rights. It alleges that the Rodriguezes, as members of the putative

23 class, were stopped without justification under the Fourth Amendment. [FAC U 31-32,
24 52] While the Rodriguezes were ostensibly stopped for driving on a closed road, the

25 FAC makes clear that Mr. Rodriguez did not see any "Road Damaged" sign until after

26 the encounter, when he traveled on another part of the road. Nowhere does the FAC

27 state that he failed "to follow traffic control signals." LId. ¶J 83-84; Mot. at 10, 12]
28 Further, the Rodriguezes’ complaint extends beyond the propriety of the initial stop to

10 -

-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 13 of 20

1 the deputy’s conduct after they were stopped. [FAC ¶J 87-88] During the stop, the
2 investigating officer must use the "least intrusive means" reasonably available, Valadez, 3 267 F.3d at 398, and the stop must be "carefully tailored" to its underlying justification. 4 Carrasca v. Pomeroy, 3 13 F.3d 828, 836 3d Cir. 2002. As the FAC alleges, the officer 5 failed to tailor the stop to determining whether Mr. Rodriguez in fact drove on a closed 6 road, nor did the officer use the least intrusive means. Rather, he extended its scope and
7 duration by requesting Mr. Rodriguez’s social security card. [FAC ¶ 87] This was not 8 "standard procedure" for a traffic offense [id. ¶ 88], because none of the other drivers
9 was asked to produce their social security cards. IIId.J 96] The officer went beyond any 10 legitimate purpose of the stop, and any extension to investigate immigration status was
11 unlawful for the same reason as in Mr. Ortega’s case. [Id. ¶J 87-88, 96] In sum, the FAC
12 states a claim for violation of the Rodriguezes’ Fourth Amendment rights.

13

B. Defendants’ Discriminatory Treatment of Plaintiffs and Class

14

Members Violates the Equal Protection Clause.

15

Plaintiffs’ Equal Protection claim is entirely independent of their Fourth

16 Amendment claim. [Cf Mot. at 13] Plaintiffs may state an Equal Protection claim by

17 showing "that they were subjected to unequal treatment based upon their race or

18 ethnicity during the course of an otherwise lawful traffic stop." Farm Labor Organizing

19 Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533 6th Cir. 2002 emphasis

20 added. See also Whren v U.S., 517 U.S. 806, 813 1996 a stop supported by objective

21 probable cause may nonetheless violate the Equal Protection Clause because the

22 "Constitution prohibits selective enforcement of the law based on considerations such as

23 race".

24

The FAC states a claim under the Fourteenth Amendment’s Equal Protection

25 Clause by alleging that Defendants have intentionally discriminated against Plaintiffs

26 and putative class members on the basis ofrace and ethnicity. See, e.g., Rodriguez, 89 F.

27 Supp. 2d at 1140; [e.g., FAC ¶J 2-3, 11, 17, 27, 30-34, 39, 49-5 1, 122] The numerous

28 allegations in the FAC describing Defendants’ policy and practice of racial targeting of

- 11-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 14 of 20

1 Latinos applies to all class members, including the named Plaintiffs. Paragraph 52

2 specifically states that the experiences of the named Plaintiffs illustrate the illegal acts

3 described earlier in the FAC.

4

Where, as here, a discriminatoiy purpose is manifest, Plaintiffs do not need to

5 also show that similarly situated members of other, non-minority groups were treated

6 differently. See Vill. of Arlington Heights, 429 U.S. at 266; Pyke v. Cuomo, 258 F.3d

7 107, 108-09 2d Cir. 2001 holding that plaintiffs could plead a "theoiy of

8 discriminatoiy motivation underlying a facially neutral policy . . . [without] show[ing]

9 the disparate treatment of other similarly situated individuals". The FAC specifically

10 alleges facts showing Defendants’ discriminatoiy purpose, including admissions and

11 public statements of intent. [E.g., FAC ¶ 33 "Arpaio has claimed that physical
12 appearance alone is sufficient to question an individual regarding their immigration

13 status."; id. ¶ 34 Arpaio has described his operations "as a ‘pure program"; id. ¶ 49-
14 51 discussing additional indicia of racial bias] Because "a government that sets out to

15 discriminate intentionally in its enforcement of some neutral law or policy will rarely if

16 ever fail to achieve its purpose," such allegations are sufficient to state a claim under the

17 Equal Protection Clause. Doe v. Vill. of Mamaroneck, 462 F. Supp. 2d 520, 543

18 S.D.N.Y. 2006.

19

While not required to do so, the FAC affirmatively alleges that Defendants’

20 polices and practices have treated others differently. Specifically, it alleges that

21 similarly-situated Caucasian motorists are not subjected to similar mistreatment. [FAC ¶

22 32 "Caucasian drivers and passengers

e treated differently and their vehicles

23 stopped at much lower rates than similarly situated Latino drivers and passengers."]

24 Moreover, the FAC alleges that the individual Plaintiffs were treated differently than

25 members of non-minority groups and describes the underlying circumstances. For

26 example, the FAC’s allegations concerning the Rodriguezes identifies similarly-situated

27 non-Latino motorists who were not asked for similar documents and not cited. [Id. ¶ 96
28 "Mr. Rodriguez was able to stop and speak with several drivers he had seen pulled over

- 12 -

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 15 of 20

1 by Sheriff’s deputies. Not one of them had been asked for a social security card, and not

2 one of them had been given a citation. The other drivers were all Caucasian."

3 emphasis added]3 The allegations regarding Mr. Ortega likewise demonstrate that he

4 was treated much differently than the Caucasian driver of the vehicle - who was not

5 detained. [FAC ¶ 56]

6

Similarly, the FAC alleges that Ms. Meraz and Mr. Nieto were left alone once the

7 officers heard their father identify them as U.S. Citizens. [Id. ¶ 116-119] Further, the
8 FAC alleges that these two plaintiffs were targeted because of their Latino appearance

9 during one of Defendants’ so-called "crime suppression sweeps," and that each

10 Plaintiffs’ experience was the product of Defendants’ pattern and practice of racial

11 profiling. [FAC ¶J 30-32, 42, 48, 52, 119] In these circumstances, Plaintiffs have
12 sufficiently alleged discriminatory effect.

13

Defendants’ assertion that Plaintiffs must satisfy the requirements in selective

14 prosecution cases, or otherwise face a "demanding standard of pleading" and

15 "significant barrier" to litigation, is simply wrong. [Mot. at 9] This argument conflates

16 "selective prosecution" and "selective enforcement" by improperly relying on selective

17 prosecution cases when arguing the similarly-situated requirement. [Mot. at 9 citing

18 Wayte v. United States, 470 U.S. 598 1985; United States v. Armstrong, 517 U.S. 456

19 1996] The MSCO is a police agency, not a prosecutor’s office, and selective

20 prosecution cases - which arise in the context of criminal prosecutions - involve veiy

21 different considerations than civil cases. See Awaboly City of Adelanto, 368 F.3d

22

23

24

Defendants assert that Mr. Rodriguez did not identify the race of the other drivers until afier he was cited. [Mot. at 13, n.7] This is irrelevant, because the other

25 Caucasian drivers were pulled over by the same officers, for the same alleged traffic violation, at the same place and at roughly the same time, and these drivers admitted to
26 Mr. Rodriguez that the officers had not requested their social security cards nor cited

27 them. [FAC ¶ 96] Defendants provide no authority for the proposition that similarly
situated non-minorities must be identified at the instant the constitutional violation

28 occurs.

- 13 -

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 16 of 20

1 1062, 1071 9th Cir. 2004 Armstrong did not apply to a malicious prosecution case

2 where the plaintiff was not challenging any decision by the prosecutor.

3

Indeed, courts have found selective prosecution cases inapplicable to selective

4 enforcement or racial profiling cases for several reasons. First, selective prosecution

5 claims implicate constitutional concerns by interfering with the prosecutorial function -

6 something not directly at issue in a civil claim of racial profiling. See Awaboly, 368 F.3d

7 at 1071; Rodriguez, 89 F. Supp. 2d at 1141. Second, absent clear evidence to the

8 contrary, courts presume that prosecutors have properly discharged their duties.

9 Armstrong, 517 U.S. at 464. "Law enforcement officers, in contrast, never have been

10 afforded the same presumption of regularity." Rodriguez, 89 F. Supp. 2d at 1141.

11

Third, courts have recognized that requiring the identification of a similarly-

12 situated class that was treated differently might well be "impossible" outside the

13 selective prosecution context, due to the difficulty of identifying individuals who were

14 not issued citations or arrested, or not even stopped. Rodriguez, 89 F. Supp. 2d at 1141.

15 Requiring that Plaintiffs prove such a negative where Defendants have failed to gather

16 relevant data about individuals stopped without further incident, or not stopped at all,

17 would effectively eliminate the Court’s ability to enjoin unconstitutional acts. See Farm

18 Labor Organizing Comm., 308 F.3d at 534 n. 4; Pyke, 258 F.3d at 108-09; Doe, 462 F.

19 Supp. 2d at 545 noting that this would be a result that "Armstrong does not sanction".

20

While evidence of a similarly-situated class of individuals who were treated

21 differently than Plaintiffs may be utilized as part of a lawsuit seeking to enjoin a racially

22 discriminatoiy policy, it is not the only - or necessarily best - way to prove an Equal

23 Protection violation. See, e.g., Vill. of Arlington Heights, 429 U.S. at 266 court may

24 inquire into "such circumstantial and direct evidence of intent as may be available".

25 Here, Plaintiffs have alleged and will present significant direct and circumstantial

26 evidence of the discriminatoiy motivations behind, and discriminatoiy impact of,

27 Defendants’ conduct and policies. Against this backdrop, the FAC more than adequately

28 states a claim under the Equal Protection Clause.

14 -

-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 17 of 20

1 IV. 2

MARICOPA COUNTY MAY BE HELD LIABLE FOR ITS OWN ACTION OR INACTION, AND IS A PROPER DEFENDANT.
The FAC contains a number of allegations that strongly support holding

Maricopa County directly liable under 42 U.S.C. § 1983. First, the FAC specifically
alleges that Sheriff Arpaio "is the final decisionmaker for Maricopa County in the area

of law enforcement." [FAC ¶ 13] As such, Arpaio’s "decision to adopt a particular
6 course of action" constitutes County policy, even without official action ofthe Maricopa

‘ County Board of Supervisors. Harper v. City of Los Angeles, 533 F.3d 1010, 1024-25
8 imposing municipal liability under § 1983 where City’s Police Chief was "an
authorized policymaker on police matters"; see also Flanders v. Maricopa County, 203 10 Ariz. 368, 378, 54 P.3d 837, 847 Ct. App. 2002 holding Maricopa County liable

under § 1983 for Sheriff Arpaio’s jail policies; Guillory v. Greenlee County, CV-05-
12 352-TUC-DCB, 2006 WL 2816600, *5 D. Ariz. Sept. 28, 2006 holding County liable

13 for Sheriff’s policies regarding officer training that applied to all officers over an

14 extended period oftime.

15

Second, Maricopa County may be held directly liable for acquiescing in and

16 effectively sanctioning Arpaio’s law-enforcement policies, practices and custom. See

17 Monell v. Dep’t of Soc. Servs. of City of NY., 436 U.S. 658, 691 1978 local

18 governments are responsible for practices and custom, although such "custom has not

19 received formal approval through the body’s official decisionmaking channels";

20 Harper, 533 F.3d at 1024 a policy may be "tacitly authorized"; Griffin v. City of Opa

21 Locka, 261 F.3d 1295, 1308 11th Cir. 2001 finding § 1983 municipal liability because
22 "sexual harassment was the on-going, accepted practice at the City and that the City

23 Commission, Mayor, and other high ranking City officials knew of, ignored, and

24 tolerated the harassment". The FAC alleges that the County has tolerated, acquiesced

25 in, or otherwise tacitly authorized the Sheriff’s illegal customs and practices. [E.g., FAC

26 ¶ 19 "[T]he Chair of Maricopa County Board of Supervisors has praised as good law
27 enforcement these policies and practices of Defendant Arpaio in the face of large-scale

28

- 15 -

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 18 of 20

1 criticism that they specifically target Latinos."] By any measure, the FAC properly 2 alleges the County’s liability. See Galbraith v. County of Santa Clara, 307 F.3d 1119,
3 1127 9th Cir. 2002 a § 1983 claim against a municipality may be stated with "nothing
4 more than a bare allegation that the individual officers’ conduct conformed to official 5 policy, custom, or practice".

6 V. 7

DEFENDANTS ARPAIO AND THE MCSO HAVE NO IMMUNITY AGAINST DECLARATORY AND INJUNCTION RELIEF.

8

Defendants inexplicably seek qualified immunity here. "[Q]ualified immunity is

9 only an immunity from a suit for damages, and does not provide immunity from suit for

10 declaratory or injunctive relief." Hydrick v. Hunter, 500 F.3d 978, 988 9th Cir. 2007.

11 Because the FAC seeks only declaratory and injunctive relief, Arpaio and the MCSO are

12 not entitled to immunity. Id.

13 VI. MCSO IS A PROPER DEFENDANT.

14

Defendants cite no authority holding that MCSO is a "non-jural entity not

15 capable of suing, or being sued, in its own name." [Mot. at 19] Moreover, Defendants

16 ignore the numerous Arizona cases in which MCSO has acted as a "jural entity." See,

17 e.g., Maricopa County Sheriff’s Office v. Maricopa County Employee Merit Sys.

18 Comm ‘n, 211 Ariz. 219, 119 P.3d 1022 2005 MCSO as plaintiff-appellant; W. Valley

19 View, Inc. v. Maricopa County Sheriffs Office, 216 Ariz. 225, 165 P.3d 203 Ct. App.

20 2007 MCSO as defendant-appellant; Patterson v. Maricopa County Sheriff c Office,

21 177 Ariz. 153, 865 P.2d 814 Ct. App. 1993 same.

22

Furthermore, MCSO is amendable to suit as a "program or activity" under Title

23 VI of the Civil Rights Act of 1964. See 42 U.S.C. § 2000d-4a1A defining "program

24 or activity" to include "a department, agency, special purpose district, or other

25 instrumentality of a State or of a local government". Even under Defendants’ definition

26 of MCSO as a "county department," MCSO constitutes a "program or activity" that, as

27 Plaintiffs have alleged, receives federal funds. [Mot. at 20; FAC ¶ 18] MCSO may

28 therefore be sued as a "program or activity" to enjoin its illegal use of those funds.

16 -

-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 19 of 20

1

CONCLUSION

2

For the foregoing reasons, the Court should deny Defendants’ Rule 12b6

3 Motion to Dismiss Plaintiffs’ First Amended Complaint.

4

5

RESPECTFULLY SUBMITTED this 14th day of October, 2008.

6

STEPTOE & JOHNSON LLP

7

8

By /s/ Peter S. Kozinets

David J. Bodney

9

Peter S. Kozinets

Karen J. Hartman-Tellez

10

Isaac P. Hernandez

Collier Center

11

201 East Washington Street

Suite 1600

12

Phoenix, Arizona 85004-2382

13

Attorneys for Plaintiffs

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17 -

-

Case 2:07-cv-02513-GMS Document 48 Filed 10/14/08 Page 20 of 20

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 14th day of October, 2008, I caused the

3 attached document to be electronically transmitted to the Clerk’s Office using the

4 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the

5 following CM/ECF Registrant:

Timothy James Casey

7

timcaseyazbarristers.com

8

9

I further certify that I caused a copy ofthe attached document to be mailed

10 on the 14th day of October, 2008 to:

11

12

Hon. Mary H. Murguia

United States District Court

13

Sandra Day O’Connor U.S. Courthouse

14

Suite 525 401 West Washington Street, 5PC53

is

Phoenix, Arizona 85003-2 154

16

/s/ Monica Medlin

18

Legal Secretary

19

20

21

22

23

24

25

567288

26

27

28

18 -

-

 </s> Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 1 of 35

1 Timothy J. Casey (#013492) SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
2 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540
3 Telephone: (602) 277-7000 Facsimile: (602) 277-8663
4 timcasey@azbarristers.com

5 Maria Brandon (#0004249) Thomas P. Liddy (#019384)
6 MARICOPA COUNTY ATTORNEY’S OFFICE Deputy County Attorneys
7 Litigation Practice Group Civil Services Division
8 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
9 Phoenix, Arizona 85004 602-506-8066
10 Co-counsel for Defendants Arpaio and MCSO

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 Manuel de Jesus Ortega Melendres, et al.,
14 Plaintiffs,
15 vs.
16 Joseph M. Arpaio, et al.

No. CV 07-02513-PHX-GMS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

17

Defendants.

(Oral Argument Requested)

18

19

20 Pursuant to Rule 56(b), Federal Rules of Civil Procedure, Defendants Joseph M.
21 Arpaio (“Arpaio”) and the Maricopa County Sheriff’s Office (“MCSO”) respectfully move

22 the Court for its Order granting summary judgment in their favor and against Plaintiffs’

23 claims. Arpaio and the MCSO move for summary judgment because:

24

1. Plaintiffs lack standing to obtain their requested equitable remedies because the

25 undisputed and well developed evidentiary record shows that Plaintiffs have not, and cannot,

26 demonstrate a real and immediate threat of future injury despite being exposed since 2007 to

27 the Defendants’ allegedly racially discriminatory policy, custom, or practice;

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

2. Plaintiff’s Fourth Amendment claim (Second Claim for Relief) and Plaintiffs’

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 2 of 35

1 claim under Article II, Section 8 of the Arizona Constitution (Third Claim for Relief) fail as

2 a matter of law because the undisputed facts establish that each of the Plaintiffs’ traffic stops

3 made by MCSO deputies was preceded by, and based on, probable cause or reasonable

4 suspicion that they, or the driver of the vehicle in which he/she was a passenger, had violated

5 Arizona law; and

6

3. Plaintiffs’ Fourteenth Amendment claim (First Claim for Relief) and Title VI

7 of the Civil Rights Act of 1964 claim (Fourth Claim for Relief) fail as a matter of law

because the evidentiary record demonstrates that there are no genuine issues of material fact 8
as to whether Plaintiffs were subjected to intentional discrimination – that is whether any 9
MCSO deputy that had stopped, questioned, detained, or interacted with the Plaintiffs in any 10
manner acted with racially discriminatory intent or motive, or that any alleged policy,
11 custom, or practice of the Defendants had a discriminatory intent or motive.

12

This Motion is supported by the following Memorandum of Points and Authorities,

13 the concurrently filed supporting Statement of Facts and accompanying exhibits, the

14 concurrently filed (under seal) supporting Supplemental Statement of Facts Re: Testimony of

15 ICE Witnesses and accompanying exhibits, the Court’s entire file in this matter, and any oral

16 argument the Court may wish to hear.

17

MEMORANDUM OF POINTS AND AUTHORITIES

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

I. INTRODUCTION Plaintiffs have sued Arpaio and the MCSO for alleged violations of the Plaintiffs’
rights under the Fourth and Fourteenth Amendments to the United States Constitution, alleged violations of the Plaintiffs’ rights under Arizona Constitution Article II, Section 8, and alleged violations of Plaintiffs’ right to be free of racial discrimination pursuant to Title VI of the Civil Rights Act of 1964. See Defendants’ Statement of Facts (“SOF”) at ¶ 1. More specifically, each of the individual Plaintiffs allege that during the operation of a motor vehicle on a public roadway in Maricopa County they have been stopped, detained, questioned, and/or searched by MCSO deputies allegedly in violation of their constitutional and statutory rights. Id. at ¶ 2.
The Plaintiffs’ First Amended Complaint asserts that the individual Plaintiffs were
2

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 3 of 35

1 stopped, detained, questioned, and/or searched by MCSO officers allegedly pursuant to an

2 officially-sanctioned MCSO policy, pattern, and practice of racially profiling, targeting, or

3 otherwise discriminating against Latinos during motor vehicle traffic stops. Id. at ¶ 3.

4 Plaintiffs further allege that Defendants’ purported policy, practice, pattern, and practice is

5 manifested not only on a “day-to-day” basis during routine traffic stops conducted by MCSO

6 deputies, but also during traffic stops made during “crime suppression sweeps” or law

7 enforcement saturation patrols or crime suppression operations. Id. at ¶ 4.

The gravamen of Plaintiffs’ lawsuit is the charge that MCSO deputies are racially 8
profiling Latinos by making “pre-textual and unfounded [traffic] stops,” and following those 9
stops, then engage in “racially motivated questioning, searches and other treatment, and 10
often [make] baseless arrests.” Id. at ¶ 5. The Plaintiffs, therefore, seek declaratory and
11 injunctive relief against the Defendants. Id.

12

After extensive written and deposition discovery conducted since the lawsuit’s initial

13 filing on December 12, 2007, the evidentiary record now amply demonstrates that the

14 Plaintiffs’ charges are factually unsupported and legally deficient as set forth below.

15 II. BACKGROUND FACTS

16

To assist the Court in better understanding the factual predicate for this Motion, it is

17 essential to set forth the factual background about each of the Plaintiffs’ respective traffic

18 stops, questioning, and/or detention.

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

A. The Traffic Stop Involving Mr. Melendres. 1. Mr. Melendres Visits the United States.
The first named individual plaintiff is Manuel de Jesus Ortega Melendres. Mr. Melendres is a citizen of the Republic of Mexico. Id. at ¶ 6. He legally entered the United States and visited Maricopa County as a tourist for the time period between September 6, 2007 and September 27, 2007. Id. at ¶ 7. Pursuant to federal law, during Mr. Melendres’ visit to Maricopa County he was required to keep with him at all times his B-1/B-2 tourist visa and an I-94 Form (that allowed him to travel more than 25 miles north of the U.S. border with Mexico). Id. at ¶ 8. If a visiting foreign national, such as Mr. Melendres, does not keep his tourist visa and/or I-94 Form with him (i.e., on his person), that person is legally
3

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 4 of 35

1 “out-of-status” and a local law enforcement officer certified under the federal government’s

2 287(g) program may lawfully question and detain such a person without a warrant in order to

3 determine his entry status, and/or in order to deliver him to the United States Immigration
4 and Customs Enforcement (“ICE”) for its determination of the person’s lawful presence in 5 the United States.1 Id. at ¶ 9. In addition, a person visiting the United States with a tourist
6 visa is not lawfully permitted to work for compensation or otherwise have employment. Id. 7 at ¶ 10. If a foreign national visiting the United States on a tourist visa tells an ICE agent or
a 287(g) certified law enforcement officer that he/she is working while visiting as a tourist, 8
that foreign national is considered “out of status” and may be detained without warrant and 9
transported to ICE. Id. at ¶ 11. 10
2. The MCSO Operation on September 26, 2007 11
On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave 12 Creek, Arizona investigating a particular church building/parking lot in response to citizen 13 complaints that the church or its grounds may be serving as a possible “drop house” for
14 human smuggling and because “day laborers” congregating or loitering near the church were
15 stepping into the traffic lanes of Cave Creek Road and causing traffic problems. Id. at ¶ 12.
16 As such, the HSU conducted surveillance on the church and its property, and conducted a

17 narrow traffic patrol that related exclusively to stopping for probable cause following traffic

18 violations only those vehicles that were observed to have picked up people congregating at

19 the church property and that had left the property. Id.

20

On that same date, Mr. Melendres testified that he wanted to travel to an unknown

21 location in Scottsdale to take photographs, that he needed a ride there, and that a friend

named “Jorge Morales” from Mexico offered to arrange to have an unknown person in a 22
white colored pickup truck give him the ride. Id. at ¶ 13. Mr. Melendres sat in the right 23
front seat of the white colored truck, an unknown Caucasian person drove the truck, and Mr. 24

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

1 Local law enforcement personnel that are trained and certified pursuant to ICE’s 287(g) program are expressly authorized to investigate and enforce federal immigration law. More specifically, the MCSO personnel certified with 287(g) authority by the federal government under the February 2007 ICE-MCSO Memorandum of Agreement are expressly allowed to stop and interrogate any person “believed” by a MCSO 287(g) certified officer to be an alien as to his/her right to be or remain in the United States. See 8 U.S.C. § 1357; 8 C.F.R. § 287.5, et seq. They are also permitted to make warrantless arrests. Id.
4

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 5 of 35

1 Morales and another unknown person sat in the second row in the extended cab pick-up

2 truck and drove on Cave Creek Road. Id. at ¶ 14. Mr. Melendres and the other persons

3 were picked up by the driver of the white colored truck at the church that was under HSU

4 surveillance. Id. at ¶ 15.

5

3. The Actual Traffic Stop of the Melendres Truck.

6

When a HSU surveillance unit observed the white truck stop at the church and pick up

7 Mr. Melendres and three other men it radioed MCSO Deputy Louis DiPietro in his patrol car

and assigned him to follow the truck (in which Mr. Melendres was a passenger) and to look 8
for probable cause to make a traffic stop of the truck. Id. at ¶ 16. Deputy DiPietro followed 9
the truck and observed no equipment violations on the truck and, therefore, “paced” the truck 10
for roughly 1.5 miles and determined it was speeding (34 mph in a 25 mph zone) and that he
11 had probable cause to lawfully stop the truck for a violation of the traffic code. Id. at ¶ 17;

12 see also Muehler v. Mena, 544 U.S. 93, 101 (2005) (A traffic violation provides probable

13 cause to stop the vehicle and to reasonably detain a driver and other occupants of the

14 vehicle); Whren v. United States, 517 U.S. 806, 810 (1996) (same, regardless of the

15 subjective intentions or motivations of the stopping officer in making the traffic stop);

16 Delaware v. Prouse, 440 U.S. 648, 653 (1979) (a traffic violation results in probable cause to

17 stop the vehicle). Once the truck was stopped, Deputy DiPietro contacted the truck’s driver,

18 and based on information provided by the driver, formed reasonable suspicion that the

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

truck’s occupants may have been in the country unlawfully. SOF at ¶ 18. Deputy DiPietro, therefore, called on his radio for a 287(g) MCSO deputy to assist at the stop to investigate the truck’s occupants. Id. at ¶ 19.
4. The Role of Deputy Rangel. MCSO Deputy Carlos Rangel arrived at the traffic stop within one minute of receiving the call for a 287(g) deputy. Id. at ¶ 20. Deputy Rangel was then a 287(g) certified officer. Id. Deputy DiPietro told Deputy Rangel that the passengers in the truck did not speak English and asked if he would talk to the passengers. Id. at ¶ 21. Deputy Rangel, a Latino himself and a fluent Spanish speaker, asked the passengers for identification. Id. at ¶ 22. Deputy Rangel questioned the truck’s passengers while Deputy DiPietro was
5

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 6 of 35

1 simultaneously questioning the driver of the truck. Id. at ¶ 23; see also Muehler, 544 U.S. at

2 101(“mere police questioning [regarding identification] does not constitute a seizure unless it

3 prolongs the detention of the individual, and, thus, no reasonable suspicion is required to

4 justify questioning that does not prolong the stop.”); Florida v. Bostick, 501 U.S. 429, 434-

5 35 (1991) (holding that officers did not need reasonable suspicion to ask questions of an

6 individual or to ask to examine the individual’s identification); United States v. Turvin, 517

7 F.3d 1097, 1100-1104 (9th Cir. 2008) (reasonable suspicion is not required to ask questions

unrelated to purpose of an initially lawful stop); United States v. Mendez, 476 F.3d 1077, 8

1080 (9th Cir. 2007) (Muehler applies equally to traffic stops); United States v. Soriano9

Jarquin, 492 F.3d 495, 500-501 (4th Cir. 2007) (“request for identification from passengers

10 falls within purview of a lawful traffic stop and does not constitute a separate Fourth

11 Amendment event.”).

12

As a 287(g) certified officer, Deputy Rangel had broad authority to question the

13 truck’s occupants to determine whether they were lawfully present in the United States. See

14 8 U.S.C. § 1357; 8 C.F.R. § 287.5, et seq. As set forth in the 2007 Memorandum of

15 Agreement between the MCSO and ICE, a 287(g) deputy has:

16

the power and authority to interrogate any alien or person believed to be an alien as to

17

his right to be or remain in the United States (INA § 287(a)(1) and 8 C.F.R. § 287.5(a)(1))… [and] [t]he power to arrest without warrant any alien entering or

18

attempting to unlawfully enter the United States, or any alien in the United States, if

the officer has reason to believe the alien to be arrested is in the United States in

19

violation of law and is likely to escape before a warrant can be obtained. INA §

20

287(a)(4) and 8 C.F.R. § 287(c)(2).

21 SOF at ¶ 24 (emphasis added).

22 Deputy Rangel, as a 287(g) officer, looked for ICE approved indicators of unlawful
23 presence in the United States such as the questioned person providing him with a foreign 24 identification card, not having any identification documents issued from anywhere in the 25 United States, and the inability to speak the English language. Id. at ¶ 25. Based on those
26 indicators, a 287(g) officer is permitted to question persons about their country of origin and

27 whether they are lawfully present in the United States. Id.

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Deputy Rangel questioned Mr. Melendres. According to Deputy Rangel, Mr. 6

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 7 of 35

1 Melendres provided him with a tourist visa but did not provide an I-94 Form. Id. at ¶ 26.

2 Mr. Melendres, therefore, was “out-of-status.” Deputy Rangel then asked the passengers

3 whether they were going to work, and two of the passengers responded “yes,” with one of

4 the responders being Mr. Melendres. Id. at ¶ 27. Mr. Melendres, therefore, also was “out-

5 of-status” based on his statement about working on his tourist visa. Deputy Rangel then

6 instructed the truck’s passengers, including Mr. Melendres, to exit the truck. Id. at ¶ 28.

7

5. Deputy Rangel used his 287(g) Authority to Detain Melendres.

Based on the identification information and statements provided by Mr. Melendres 8
and the other passengers, Deputy Rangel began to try to determine whether the passengers 9
were in the United States legally. Id. at ¶ 29. Mr. Melendres told Deputy Rangel that Mr. 10
Melendres had lawfully entered the United States through a legitimate port of entry, had
11 obtained an I-94 Form, but did not have the I-94 Form with him at the moment. Id. at ¶

12 30.2 Based on Mr. Melendres not having his I-94 Form on him at the time and his statement

13 that he was working, Deputy Rangel detained Mr. Melendres with handcuffs and directed

14 that he be delivered to ICE for handling and/or verification of status. Id. at ¶ 32.

15

Deputy Rangel advised Mr. Melendres that he was being detained because he did not

16 have his I-94 Form with him. Id. at ¶ 33. Deputy Rangel was polite to Mr. Melendres at all

17 times. Id. The total amount of time Deputy Rangel spent questioning the truck’s passengers

18 was fifteen (15) minutes. Id. at ¶ 34. All of the truck’s passengers were detained. Id. at ¶ 35.

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The passengers/detainees were taken to an MCSO substation and held for roughly two hours, and then the MCSO transported them to ICE’s Detention and Removal Office near Central Avenue and McDowell Road where Mr. Melendres waited in federal detention for six to seven hours for federal officials. Id. at ¶ 36.
ICE eventually released Mr. Melendres from detention. The ICE agent that determined Mr. Melendres’ status told Deputy Rangel that ICE released Mr. Melendres because it concluded that there was insufficient evidence that Mr. Melendres was actually
2 Mr. Melendres testified that he gave his I-94 Form to the deputy that questioned him at the time of the stop. SOF at ¶ 31. Mr. Melendres, however, has never produced a copy of the I-94 Form that he supposedly had on September 26, 2007 and the one copy of an I-94 Form produced in the litigation does not include or cover the date of his September 26, 2007 stop and detention. Id. Regardless, this factual dispute is immaterial to the resolution of this Motion as Deputy Rangel had other grounds to detain Mr. Melendres under the 287(g) authority.
7

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 8 of 35

1 working during his visit to the United States, and that he had an I-94 Form issued to him

2 despite him being “out-of-status” at the time of the traffic stop (i.e., not having the I-94 Form 3 on him when questioned by Deputy Rangel). Id. at ¶ 37.3

4

B. The Traffic Stop Involving Mr. and Mrs. Rodriquez.

5

The next set of individual plaintiffs is the married couple of David Rodriguez and

6 Jessika Rodriguez.

7

Deputy Matthew Ratcliffe is an eight-year veteran of the MCSO. In 2007 he worked

in the MCSO Lake Patrol Division. The Lake Patrol Division is responsible for policing the 8

recreational areas within Maricopa County and the Tonto National Forest. SOF at ¶ 39. 9

Lake Patrol deputies conduct traffic-related patrol duties near the recreational areas, perform

10 searches and rescues and dive missions in the lakes and rivers, and conduct ATV patrols. Id.

11 On Sunday, December 2, 2007, the Maricopa County Department of Transportation

12 (“MCDOT”), in order to protect the public’s safety, closed the Bartlett Dam Road, the road

13 to Bartlett Lake, because storm damage had caused heavy flooding on it, washed away parts

14 of the road, and left debris on the road. Id. at ¶ 40. There was a “Road Closed” sign posted

15 by the MCDOT across Bartlett Dam Road indicating to approaching drivers that the road

16 was closed. Id. at ¶ 41.

17

Deputy Ratcliffe was on regular patrol that day in a marked MCSO SUV. Id. at ¶ 42.

18 Neither Deputy Ratcliffe nor anyone from the MCSO conducted a saturation patrol on that
19 date. Id. at ¶ 43. In the early afternoon, Deputy Ratcliffe observed a dark colored truck
20 driving toward his parked position on the closed Bartlett Dam Road and then observed that it 21 suddenly made a “u-turn” as it approached him and another MCSO officer. Id. at ¶ 44.
Deputy Ratcliffe determined that the truck had committed a traffic violation by driving on 22
the closed road, and decided to stop the truck and issue a citation to its driver. Id. at ¶ 45. 23
Before deciding to conduct the traffic stop and issue a citation, Deputy Ratcliffe did not see 24

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

3 Plaintiffs’ Complaint asserts that an MCSO deputy made allegedly crude and derogatory remarks to Mr. Melendres about lotion found in his pocket. SOF at ¶ 38. Mr. Melendres, however, does not speak or understand English well and did not personally hear such alleged comments. Id. The alleged remarks were reported to Mr. Melendres by his friend Jorge Morales while they were in custody. Id. Deputies DiPietro, Rangel, and Madrid deny making or hearing such comments. Id. Regardless, to the extent any factual dispute on this issue exists from the hearsay statement, it is neither material nor germane to the resolution of this Motion for Summary Judgment.
8

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 9 of 35

1 the race of the truck’s driver or of any of the truck’s occupants. Id. at ¶ 46.

2

Mr. David Rodriguez was driving the truck, his wife, Jessika, was sitting in the front

3 right passenger seat, and the Rodriguez’ children were seated in the truck’s back row.
4 Deputy Ratcliffe stopped the truck and asked Mr. Rodriquez for his driver’s license, vehicle
5 registration, and proof of insurance documents. Id. at ¶ 47. He also asked Mr. Rodriquez for
6 his Social Security number so he could complete the MCSO citation form which includes a 7 space for recording such information. Id. at ¶ 48. Deputy Ratcliffe denies asking Mr.
Rodriguez for his Social Security card. Id. at ¶ 49.4 Indeed, Deputy Ratcliffe never asks any 8
driver for his Social Security card. Id. 9
After obtaining Mr. Rodriguez’ identification, Deputy Ratcliffe asked him why he 10
was driving his truck on the closed Bartlett Dam Road. Id. at ¶ 50. Mr. Rodriguez stated 11
that “he had driven around the [road closed] sign and was taking the kids down to the 12 lake.” Id.5 Mr. and Mrs. Rodriguez asked Deputy Ratcliffe why he asked for David’s Social 13 Security number. Id. at ¶ 52. Deputy Ratcliffe explained that it was for identification
14 purposes only and to fill in the blanks on the MCSO citation form. Id. Deputy Ratcliffe
15 performed via radio a records check on the Rodriguez’ truck and then issued a citation to Mr.
16 Rodriguez for failure to obey a traffic control device (i.e., the “Road Closed” sign). Id. at ¶

17 53. He determined that a citation was appropriate in his discretion because of the safety risk

18 inherent in driving on the closed road. Id.

19

Upon receipt of the citation, Mr. Rodriguez asked Deputy Ratcliffe what possible

20 affect such a citation would have on his commercial driver’s license, and either Mr. or Mrs.
21 Rodriguez then told Deputy Ratcliff that he/she did not see any other drivers on the closed
road receiving citations. Id. at ¶ 54. Deputy Ratcliffe responded by telling Mr. and Mrs. 22
Rodriguez that he was only dealing with them and not dealing with other drivers at that time. 23
Id. It was at this time that Mrs. Rodriguez accused Deputy Ratcliffe of “selective 24

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

4 Mr. Rodriguez testified that Deputy Ratcliffe asked for his Social Security card. This conflict in testimony is immaterial to the resolution of this Motion for the same reasons set forth below in footnote 5. 5 Mr. Rodriguez admits that he saw a “Road Damaged” sign but drove past it. SOF at ¶ 51. He denied ever seeing a “Road Closed” sign. Id. This conflict in testimony is immaterial to the resolution of this Motion because it is undisputed that Mr. Rodriguez was actually driving on a closed road, and as will be shown below, it is undisputed that Deputy Ratcliffe had probable cause to stop the truck driven by Mr. Rodriguez.
9

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 10 of 35

1 enforcement” in issuing the traffic citation to her husband. Id. at ¶ 55. Mrs. Rodriguez

2 became “argumentative” with Deputy Ratcliffe. Id. According to Deputy Ratcliffe, neither

3 Mr. nor Mrs. Rodriguez ever told him that they had not seen the “Road Closed” sign, or that

4 they were off-road driving and must have missed seeing the sign. Id. at ¶ 56.6 The total time

5 for the Rodriguez traffic stop was approximately ten (10) minutes. Id. at ¶ 58.

6

After completing the traffic stop, Deputy Ratcliffe drove behind the Rodriguez’ truck

7 as it left the area. He was behind the Rodriquez truck for roughly two miles, not to escort

them out, or to harass or intimidate them, but in order for Deputy Ratcliffe to reach the 8

location where he could take a picture of the “Road Closed” sign. Id. at ¶ 59. “Due to the 9

argumentative nature of the passenger in the vehicle [Mrs. Rodriguez], [Deputy Ratcliffe]

10 wanted to take photographs of the ‘Road Closed’ sign and the ‘Road Closed Ahead’ signs for

11 later defense in court.” Id. Mr. Rodriguez later pled responsible to the citation. Id.

12

C. The Traffic Stop of Ms. Meraz and Mr. Nieto.

13

The last set of individual Plaintiffs are siblings, Mr. Manuel Nieto, Jr. and Ms. Velia

14 Meraz.

15

1. The Role of Deputy Armendariz.

16

Deputy Ramon Armendariz is a member of the MCSO HSU and is 287(g) certified.

17 SOF at ¶ 61. Deputy Armendariz’ first language is Spanish and he is fluent in speaking that

18 language. Id. at ¶ 62. On March 28, 2008, the MCSO was conducting a saturation patrol in
19 north Phoenix. Deputy Armendariz worked the saturation patrol in the capacity of a patrol
20 officer and his role was to conduct traffic stops and write citations. Id. at ¶ 63. Around 2:00
21 p.m., Deputy Armendariz made a traffic stop of a car on North Cave Creek Road and that car pulled into a convenience mart/gas station located at the southwest corner of North Cave
22 Creek Road and East Nesbit Road. Id. at ¶ 64. Deputy Armendariz parked his patrol car
23 behind the stopped car. Id. at ¶ 65. The stopped car contained two men, and Deputy
24 Armendariz conducted a radio check on them. Id.
25

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

6 The Rodriguez’ claim they were off-road driving and must have missed the Closed Road sign. SOF at ¶ 57. As in footnotes 4-5, this factual dispute also is immaterial to the resolution of this Motion as Mr. Rodriguez was stopped and cited for committing a traffic violation for driving on a closed road, and to which Mr. Rodriguez later pled responsible. SOF at ¶ 60.
10

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 11 of 35

1

Following his radio check, Deputy Armendariz took both men into custody. Id. at ¶

2 66. He arrested the car’s driver for driving with a suspended license, placed him in

3 handcuffs, and sat him inside his MCSO patrol car. Id. For security reasons because he was

4 the only officer at the scene, Deputy Armendariz placed handcuffs on the car’s passenger,

5 and had the passenger sit down on the front bumper of the MCSO patrol car. Id. at ¶ 67. At
6 that moment a dark colored vehicle pulled into the convenience mart/gas station and parked
7 directly behind Deputy Armendariz’ patrol car. Id. at ¶ 68. Deputy Armendariz was standing in front of his patrol car handling the detained passenger of the car he stopped. Id.
8 The dark colored vehicle was playing load music, the passenger side windows were
9 down, and Deputy Armendariz could see a female passenger (later known to be Ms. Meraz)
10 and a male driver (later known to be Mr. Nieto). Id. at ¶ 69. The female passenger started
11 yelling repeatedly in Spanish out her window at Deputy Armendariz’ detainee sitting on the
12 bumper of the patrol car, “no diga nada,’ ‘no diga nada,’ … which means don’t – ‘don’t say
13 anything,’ ‘don’t say anything’; ‘pida un abogado,’ ‘pida un abogado,’ which means ….‘ask
14 for a lawyer,’ ‘ask for a lawyer.’” Id. at ¶ 70.

15

At first, Deputy Armendariz tried to ignore the yelling, but the female passenger in

16 the dark colored vehicle kept yelling and he began to fear for his safety. Id. at ¶ 71. Deputy

17 Armendariz, therefore, ordered the driver of the vehicle to leave his vicinity and to stay out

18 of the way. Id. In response to Deputy Armendariz’ command, the female passenger yelled
19 several times that ‘we’re not going anywhere!” Id. at ¶ 72. Deputy Armendariz again
20 ordered that they leave. Id. at ¶ 73. The dark vehicle, however, would not leave. Then the
21 female passenger started yelling at Deputy Armendariz “fucking Sheriff Joe, fucking Nazi,” and “you guys don't have a right to do this.” Id. at ¶ 74.
22 Deputy Armendariz was worried about his safety and the safety of the two men he
23 had in custody. Id. at ¶ 75. Because the vehicle with the yelling passenger would not leave,
24 Deputy Armendariz called on his radio for back-up. Id. at ¶ 76.7 25

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

7 MCSO Deputy Douglas Beeks heard Deputy Armendariz’ radio call for back-up and described Deputy Armendariz’ voice as sounding “excited” and “agitated”. Id. at ¶ 77. Deputy Beeks also recalls hearing words used by Deputy Armendariz that led Deputy Beeks to believe in good faith that “a vehicle had tried to run over or hit Deputy Armendariz as it left the area” and that a crime may have been committed. Id. Accordingly, Deputy Beeks was concerned for the safety of Deputy Armendariz. Id. MCSO Deputy Michael Kikes also heard Deputy Armendariz’ radio call for
11

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 12 of 35

1

Despite Deputy Armendariz’ repeated commands for them to leave, the male in the

2 dark colored vehicle then opened his door and started to get out. Id. at ¶ 78. Deputy

3 Armendariz believed that the male was going to get out of the car to “try to kick my ass.” Id.

4 The vehicle occupants appeared very “angry” and were acting “very threatening.” Id. at 79.

5 “[T]heir actions towards [Deputy Armendariz] were as if it was personal towards [him].” Id.

6 Deputy Armendariz testified as to his state of mind when he saw the male in the vehicle open

7 his door and start to get out:

I had other responsibilities that I was taking care of. I had two people that I was in --

8

that I had in custody that I was responsible for. I didn’t know if he [Mr. Nieto] was

9

going to come out with a gun. I didn’t know if he was going to come out with a knife.

Am I going to have to -- am I going to have to defend myself while protecting my

10

suspect that I have in custody? You know, is this going to turn into -- is he going to

11

get out with a knife? Am I going to have to shoot him? Is he going to come out with

a gun? Am I going to have to spray -- you know, pepper spray to get him away from

12

me? I mean, just the array of, you know, “what-ifs.” That situation could have gone

bad, really bad, really quick. 13

14 Id. at 80.8

15

Seeing this, Deputy Armendariz grew more worried, in fact he was afraid, and

16 ordered the man to stay in his car or he would be arrested for disorderly conduct. Id. at ¶ 82.

17 In short, the occupants of the vehicle (Ms. Meraz and Mr. Nieto) made “a big scene” at the

18 convenience mart/gas station. Id. at ¶ 83.

19

Finally, the vehicle’s occupants complied with Deputy Armendariz’ command and

20 left the scene while yelling profanities at him. After the vehicle was out of Deputy

21 Armendariz’ sight, other MCSO deputies arrived on scene in response to his radio call for
assistance. Deputy Armendariz identified the vehicle to MCSO motorcycle Deputy Michael 22
Kikes and then pointed Deputy Kikes in the general direction of the departed vehicle. 23
Deputy Beeks, in a patrol car, followed Deputy Kikes. Deputy Armendariz returned to the 24
work of safely handling his arrestees. 25

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

assistance and believed, based on the pitch of Deputy Armendariz’ voice, that something was wrong at the time of Deputy Armendariz’ call. Id.
8 Deputy Armendariz’ caution about Mr. Nieto’s anger and behavior was sound. Although unknown to Deputy Armendariz at the time, Plaintiff Manuel Nieto is a three-time convicted felon who spent 3.5 years in prison for domestic
12

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 13 of 35

1

2. The Role of Deputies Kikes and Beeks.

2

Deputy Kikes quickly spotted the dark colored vehicle driving on North Cave Creek

3 Road and activated his motorcycle’s lights and siren. Id. at ¶ 84. Deputy Kikes believed in

4 good-faith that he had probable cause to stop the dark colored vehicle because he believed

5 there was an emergency situation of some type involving Deputy Armendariz. Id. at ¶ 85.

6 Due to the vehicle’s window tinting, Deputy Kikes could not see the race, sex, or other

7 characteristics of the vehicle’s occupants. Id. at ¶ 86. The driver of the vehicle (i.e., Mr.

Nieto) would not stop in response to Deputy Kikes’ signals (in itself a violation of the traffic 8
law), and he drove another 300 feet until he turned left into an auto shop instead of pulling 9
over on the right side of the public roadway as required by law. Id. at ¶ 87. Deputy Kikes 10
was concerned about the driver’s behavior, where he parked, and what that behavior meant.
11 Id. at ¶ 88.

12

Once the vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to

13 exit his vehicle. Id. at ¶ 89. He also refused to roll down his window to speak with Deputy

14 Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s clothing immediately

15 came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy

16 Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene, saw the driver acting very “belligerent”,

17 “non-compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks

18 thought that the driver might drive his vehicle forward or backward; therefore, Deputy Beeks

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

pulled his handgun to his side for safety purposes. Id. at ¶ 92. Finally, Deputy Kikes opened the vehicle’s door, grabbed the driver, and removed him from the vehicle where he then handcuffed him. Id. at ¶ 93. Deputy Kikes moved the driver to the rear of the vehicle away from the angry mechanics and obtained his driver’s license information. Id. at ¶ 94.
Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came back clear. Id. at ¶ 95. Deputy Beeks then contacted Deputy Armendariz to determine what had actually occurred between him and the vehicle’s occupants. Id. at ¶ 96. Following that communication, Mr. Nieto was released without being charged with either a traffic violation (i.e., failure to stop when directed) or for obstructing Deputy Armendariz. Id. at ¶ 97.9
violence and was released from prison only one month earlier in February 2008. SOF at ¶ 81. 9 Mr. Nieto and Ms. Meraz deny making many of the comments and acting with the behavior attributed to them by
13

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 14 of 35

1 Deputies Kikes and Beeks left the auto repair shop.

2 III. PLAINTIFFS LACK STANDING TO OBTAIN EQUITABLE RELIEF AND

3

SUMMARY JUDGMENT IS REQUIRED.

4

To have standing to seek equitable relief, a plaintiff must satisfy the case-or-

5 controversy requirement under Article III of the Constitution and demonstrate a real and

6 immediate threat of future injury. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040-45

7 (9th Cir. 1999). “It is the responsibility of the [plaintiff] clearly to allege facts demonstrating

8 that he is a proper party to invoke judicial resolution of the dispute and the exercise of the

9 court's remedial powers.” Warth v. Seldin, 422 U.S. 490, 518 (1975). Standing cannot be

10 “inferred argumentatively from averments in the pleadings.” Grace v. American Cent. Ins.
11 Co., 109 U.S. 278, 284 (1883). Standing “must affirmatively appear in the record.”
12 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (citations omitted) (emphasis added) (overruled on other grounds in City of Littleton v. Z. J. Gifts D-4, L.L.C, 541 U.S.
13 774, 781 (2004)); see also Althin v. W. Suburban Kidney Ctr., 874 F. Supp. 837(N.D. Ill.
14 1994). “System-wide injunctive relief is not available based on alleged injuries to unnamed
15 members of a proposed class.” Hodges-Durgin, 199 F.3d at 1045; see also Lewis v. Casey,
16 518 U.S. 343, 357 (1996). After extensive discovery, the evidentiary record now 17 demonstrates that Plaintiffs have failed to meet their burden of proof for establishing that
18 they have standing to continue this lawsuit. As such, summary judgment is required.

19

A. Plaintiffs Have Failed to Demonstrate a Real and Immediate Threat of

20

Future Injury.

21

A plaintiff seeking to invoke the jurisdiction of the federal courts must demonstrate an

22 actual case or controversy to satisfy the jurisdictional requirement under Article III of the 23 Constitution. Flast v. Cohen, 392 U.S. 83, 94-101 (1968). To satisfy the case-or24 controversy requirement under the Constitution, a plaintiff seeking equitable relief must

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Deputies Armendariz, Kikes, and Beeks in their depositions. These denials, however, do not create genuine issue of material fact on the issues pending before the Court on this Motion as shown below. Additionally, Ms. Meraz’ truthfulness is at issue for several reasons, including the fact she has a prior felony conviction for fraudulent schemes and artifices for writing money orders to herself while she was employed at Catholic Social Services as an immigration case worker. SOF at ¶ 98. Because those credibility issues are not germane to the Court’s ruling on this Motion, they are not addressed further in this Motion.
14

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 15 of 35

1 demonstrate a “credible” and “genuine” threat of suffering the same harm or injury

2 again in the future. Ellis v. Dyson, 421 U.S. 426, 434-435 (1975); see also O’Shea v.

3 Littleton, 414 U.S. 488, 495-96 and 502 (1974) (“past exposure to illegal conduct does not in

4 itself show a present case or controversy regarding injunctive relief;” to obtain equitable
5 relief, the plaintiff must establish “the likelihood of substantial and immediate irreparable
6 injury.”); City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (in the context of a party 7 seeking injunctive relief, the plaintiff must prove that he is “likely to suffer future injury.”)
“A claim is not ripe for adjudication if it rests upon contingent future events that may 8
not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 9
296, 299 (1998) (citation and internal quotation omitted). “[F]ailure to establish a likelihood 10
of future injury similarly renders . . . [a] claim for declaratory relief unripe. Ripeness 11
doctrine protects against premature adjudication of suits in which declaratory relief is 12 sought.” Hodgers-Durgin, 199 F.3d at 1044 (clarifying that “[i]n suits seeking both 13 declaratory and injunctive relief against a defendant’s continuing practices, the ripeness
14 requirement serves the same function in limiting declaratory relief as the imminent-harm
15 requirement serves in limiting injunctive relief.”) (citation omitted).

16

Here, the Plaintiffs allege that since 2007 they have been subjected to the MCSO’s

17 alleged official policy, pattern, and practice of stopping, questioning, searching, and

18 sometimes arresting Latino persons without probable cause or reasonable suspicion simply

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

on the basis of their race. SOF at ¶ 99. They further alleges that the MCSO’s challenged conduct occurs not only as a general practice of the MCSO when making traffic stops, but also through making traffic stops during saturation patrols or so called “crime suppression sweeps.” Id.
Plaintiffs have completely failed, however, to prove a credible and genuine threat of the MCSO stopping, questioning, searching, detaining or otherwise harming them again in the future. Lyons, 461 U.S. at 103-106 (and the cases cited therein); Farm Labor Organizing Committee v. Ohio State Highway Patrol, 95 F.Supp.2d 723, 731 (N.D. Ohio 2000); see also Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667, *4-8 (E.D.Wash. 2007) (“plaintiff seeking to challenge an unconstitutional policy must show a genuine threat of enforcement
15

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 16 of 35

1 of the policy against the plaintiff”). Indeed, the extensive evidence garnered during this

2 litigation amply shows that although the Plaintiffs have been long exposed to MCSO

3 scrutiny under its alleged “racial profiling” policy since 2007, they have nevertheless

4 experienced no additional traffic stop encounters with the MCSO of which they can

5 complain of, or at all.

6

Mr. Melendres is a Mexican national and lives in Ciudad Obregon, Sonora, Mexico,

7 about a seven (7) hour bus trip from the border at Nogales, Mexico. SOF at ¶ 100. As a

citizen of Mexico, Mr. Melendres is not likely to again encounter the MCSO while he lives 8
in Mexico. In addition, Mr. Melendres has returned to Maricopa County “once or twice” 9
since his September 2007 traffic stop. Id. at ¶ 101. When he has visited Maricopa County 10
on those occasions, Mr. Melendres stays only for “some days or maybe a week.” Id. at ¶
11 102. During his one or two visits to Maricopa County after the 2007 traffic stop, Mr.

12 Melendres has not again been stopped, questioned, detained, arrested, searched, or

13 investigated by the MCSO. Id. Moreover, Mr. Melendres’ own statistics expert, Ralph

14 Taylor, Ph.D., has no opinion as to whether Mr. Melendres is likely to again face a future

15 traffic stop by the MCSO. Id. at ¶ 146. Mr. Melendres, therefore, cannot prove a “credible”

16 and “genuine” threat of future interaction with the MCSO, let alone likely future harm

17 caused by the MCSO. He lacks standing to seek the equitable relief set forth in the First

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Amended Complaint. As to Mr. and Mrs. Rodriguez, they each testified that since their December 2007
traffic stop on Bartlett Dam Road by Deputy Ratcliffe, and although they live and work in Maricopa County, they each have had no other traffic stop encounters with the MCSO. Id. at ¶ 103. Indeed, Mrs. Rodriquez drives 20 miles roundtrip to work every day and estimates that she drives roughly 20,000 miles on her personal car every year in Maricopa County but has never again been stopped by the MCSO. Id. at ¶ 104. Dr. Taylor also has no opinion as to whether Mr. and Mrs. Rodriguez are likely to again face a future traffic stop by the MCSO. Id. at ¶ 147. Mr. and Mrs. Rodriquez, therefore, cannot demonstrate a “credible” and “genuine” threat of future interaction with the MCSO, or any likely future harm by the MCSO. As such, they lack standing to seek the equitable relief set forth in the First
16

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 17 of 35

1 Amended Complaint.

2

Likewise, Ms. Meraz and Mr. Nieto are hard-pressed to prove that that they have a

3 “credible” and “genuine” threat of the MCSO again stopping, questioning, searching, or

4 detaining them in the future. Ms. Meraz testified that since her March 2008 traffic stop by

5 the MCSO she has had no other personal experience with the MCSO stopping her in any

6 vehicle at any time for any reason. Id. at ¶ 105. Her brother, Mr. Nieto, testified that he also

7 has had no traffic stop encounters with the MCSO since the March 2008 traffic stop. Id.

at ¶ 106. Once again, Dr. Taylor also has no opinion as to whether Ms. Meraz and Mr. Nieto 8

are likely to again face a future traffic stop by the MCSO. Id. at ¶ 148. As a consequence, 9

Ms. Meraz and Mr. Nieto cannot demonstrate a “credible” and “genuine” threat of future

10 traffic stop interaction with the MCSO, or any likely future harm by the MCSO. They also

11 lack the standing to seek equitable relief.

12

The sole organizational Plaintiff, Somos America, also can show no credible or

13 genuine threat of future injury. Somos America’s Rule 30(b)(6) representative, Ms. Lydia

14 Guzman, has never experienced a traffic stop by the MCSO. Id. at ¶ 150. Somos America is

15 a non-profit advocacy organization, with no paid staff, no membership dues, and any person

16 or entity that attends its monthly meetings may consider itself a member of Somos

17 American. Id. at ¶ 151. It has only 35 members such as Latino American Citizens, No More

18 Deaths, MECHHA, and various labor unions, and there is no admissible evidence that any

19 Somos America member -- or employee of a member organization -- has been subject to an

20 MCSO traffic stop. Id. at ¶ 152.

21

In summary, the evidentiary record shows that “it is not sufficiently likely that [the

Plaintiffs] will again stopped by the” MCSO. Hodgers-Durgin, 199 F.3d at 1044. In other 22
words, Plaintiffs are not sufficiently “likely to suffer future injury” because of the MCSO’s 23
alleged racial profiling policy. Lyons, 461 U.S. at 105. The Plaintiffs lack standing to 24
request or receive the injunctive relief they seek against the Defendants. The Court, 25 therefore, should dismiss their claims.10

26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

10 There is another reason the Plaintiffs lack standing. Plaintiffs can avoid future traffic stop encounters with the MCSO by avoiding future unlawful conduct, such as violating the Arizona motor vehicle code or, as in the case of Ms. Meraz and Mr. Nieto, complying with the lawful instructions of a peace officer. “[S]tanding is inappropriate where the future injury could be inflicted only in the event
17

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 18 of 35

1 IV. PLAINTIFFS’ FOURTH AMENDEMENT AND ARIZONA

2

CONSTITUTIONAL CLAIMS FAIL BECAUSE EACH OF THEIR TRAFFIC STOPS WITH THE MCSO WERE PRECEDED BY, AND BASED ON,

3

PROBABLE CAUSE OR REASONABLE SUSPICION THAT THEY, OR THE

VEHICLES IN WHICH THEY WERE PASSENGERS, HAD VIOLATED

4

ARIZONA LAW.

5

6

The existence of probable cause or reasonable suspicion supporting the traffic stops of

7 each of the Plaintiffs defeats their Fourth Amendment and Arizona Constitution Article II, §
8 claims. Virginia v. Moore, 553 U.S. 164, 171 (2008) (a seizure based on probable cause 8
does not violate the Fourth Amendment); Atwater v. City of Lago Vista, 532 U.S. 318, 354 9
(2001) (no Fourth Amendment violation arises out of seizure for minor traffic infraction 10
where police officer has probable cause to believe seized person violated law); Edgerly v. 11
City and County of San Francisco, 599 F.3d 946, 959 (9th Cir. 2010) (the existence of
12 probable cause renders a seizure reasonable under the Fourth Amendment); Cabrera v.

13 Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (probable cause defeats a § 1983 claim

14 for false arrest); United States v. Choudhry, 461 F.2d 1097, 1101 (9th Cir. 2006) (no Fourth

15 Amendment violation for traffic stop based on reasonable suspicion); cf. Malmin v. State,

16 246 P. 548, 548-49 (Ariz. 1926) (Article II, § 8 of Arizona Constitution “although different

17 in its language, is of the same general effect and purpose as the Fourth Amendment, and, for

18 that reason, decisions on the right of search under the latter are well on point.”); see also

19 State v. Reyna, 71 P.3d 366, 369-70 & n.5 (Ariz. App. 2003); State v. Teagle, 170 P.3d 266,

20 271 n.3 (Ariz. App. 2007).

21

Law enforcement officers may stop a moving vehicle if they have probable cause or

reasonable suspicion that a moving violation has occurred. Whren, 517 U.S. at 810. 22
Probable cause determinations present mixed question of law and fact in which the legal 23
issues predominate. Orenelas v. United States, 517 U.S. 690, 697-98 (1996). In determining 24

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

of future illegal conduct by the plaintiff.” Armstrong v. Davis, 275 F.3d 849, 865 (9th Cir. 2001). “Where a party can prevent all risk of constitutional injury by controlling his conduct (without sacrificing any of his rights, privileges, or immunities), his claim of standing, which is predicated on a future unlawful act on his own part, is of dubious legitimacy.” Farm Labor, 95 F.Supp.2d at 731, n. 6 (citing O’Shea, 414 U.S. at 497). “It is to be assumed that (plaintiffs) will conduct their activities within the law and so avoid . . . exposure to the challenged course of conduct said to be followed by [police officials].” Lyons, 461 U.S. at 103. Even Plaintiffs’ expert Dr. Taylor admits that future behavior by Plaintiffs is a variable that will determine whether it is likely that Plaintiffs will ever again be stopped by the MCSO. SOF at ¶ ¶ 146 and 149.
18

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 19 of 35

1 whether there is probable cause to defeat a Fourth Amendment claim, courts do not consider

2 a stopping officer’s actual motivation for effectuating the traffic stop. Whren, 517 U.S. at

3 812-13; see also United States v. Robinson, 414 U.S. 218, 221 n.1 (1973) (“a traffic violation

4 arrest would not be rendered invalid under the Fourth Amendment by the fact that it was a

5 mere pretext for a narcotics search.”); United States v. Ramirez, 473 F.3d 1026, 1030-31 (9th

6 Cir. 2007) (pre-textual traffic stops based on probable cause that are also motivated by some

7 other reason do not violate Fourth Amendment); United States v. Willis, 431 F.3d 709, 715

(9th Cir. 2005) (same); Rodriquez v. California Highway Patrol, 89 F.Supp.2d 1131, 1139 8
(N.D. Cal. 2000) (same). Instead, “[p]robable cause exists when the facts and circumstances 9
within the officer’s knowledge are sufficient to cause a reasonably prudent person to believe 10
that a crime [or traffic offense] has been committed.” Lassiter v. City of Bremerton, 556
11 F.3d 1049, 1053 (9th Cir. 2009).

12

Reasonable suspicion is a less exacting standard than probable cause. United States v.

13 Skolow, 490 U.S. 1, 7 (1989). When deciding whether a traffic stop was supported by

14 reasonable suspicion, courts must consider whether “in light of the totality of the

15 circumstances, the officer had a particularized and objective basis for suspecting the

16 particular person stopped of criminal activity.” United States v. Berber-Tinoco, 510 F.3d

17 1083, 1087 (9th Cir. 2007) (internal quotation marks and citation omitted).

18

The undisputed evidence in this case demonstrates that each of the Plaintiffs’

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

respective traffic stops was made on either probable cause or reasonable suspicion as required. Plaintiffs’ Fourth Amendment and Arizona Constitution Article II, § 8 claims, therefore, fail as a matter of law.
A. The Melendres Vehicle was Stopped for Probable Cause. Deputy DiPietro paced the truck, in which Mr. Melendres was a passenger, for 1.5 miles and determined it was speeding (i.e., going 34 mph in a zone marked for 25 mph) and that he had probable cause to lawfully stop the truck. SOF at ¶ 17. Speeding is a violation of Arizona law. A.R.S. § 28-701; see also A.R.S. § 13-3883(B) (“A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer's presence….”). Even though Deputy DiPietro
19

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 20 of 35

1 wanted to stop the truck because he believed it may have passengers in the country

2 unlawfully, that subjective intent is irrelevant to the Fourth Amendment analysis. Whren,

3 517 U.S. at 811 (rejecting “the principle that ulterior motives can invalidate police conduct

4 that is justifiable on the basis of probable cause.”).

5

Although Mr. Melendres speculates that the truck in which he was a passenger was

6 not speeding, he has presented no admissible facts to dispute the probable cause

7 determination of Deputy DiPietro. SOF at ¶ 107. Defendants’ law enforcement practices
expert witness, Bennie R. Click, opines that “Deputy DiPietro had probable cause to stop the 8
vehicle in which Mr. Melendres was a passenger. Deputy DiPietro’s actions in stopping the 9
vehicle conformed with standard police training and law enforcement practice, met the 10
requirements set for in [A.R.S. section] 13-3883 and were reasonable.” Id. at ¶ 108. Even 11
Plaintiffs’ law enforcement practices/racial profiling expert witness, Robert L. Stewart, has
12 no factual basis to disagree with Deputy DiPietro’s probable cause determination:

13

Q. Based on all the evidence that you have reviewed, did Deputy Louis DiPietro

14

have probable cause to stop the truck in which Mr. Melendres was a

passenger?

15

16

A. According to him.

17

Q. Is that a yes or a no?

18

A. His record reflects that he did.

19

Q. Do you have any direct evidence rebutting Deputy DiPietro’s testimony that he

20

had probable cause to stop the truck?

21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

A. No, sir.
Q. Do you have any circumstantial evidence rebutting Deputy DiPietro’s testimony that he had probable cause to stop the truck?
A. No, sir.
Id. at ¶ 109 (emphasis added). The undisputed evidence, therefore, shows that the traffic stop involving Mr. Melendres was based on probable cause and his Fourth Amendment and Arizona Constitution Article II, § 8 claims fail as a matter of law.
20

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 21 of 35

1

There is also no unreasonable seizure under the Fourth Amendment or Arizona

2 Constitution Article II, § 8 for Deputy Rangel’s detention of Mr. Melendres. According to

3 Deputy Rangel, the questioning of the truck’s passengers, including Mr. Melendres, lasted

4 only fifteen minutes while Deputy DiPietro was concurrently questioning the driver. SOF at

5 ¶ 34. The reasonableness of a detention is evaluated “from the perspective of a reasonable

6 officer on the scene.” Graham v. Connor, 490 U.S. 386, 387 (1989). In addition, Mr.

7 Melendres was out-of-status (in not having his I-94 Form on him at the time of the stop) and
stated that he was working while on his tourist visa and such information allowed a 287(g) 8
certified officer to detain Mr. Melendres. See 8 U.S.C. § 1357; 8 C.F.R. § 287.5, et seq.; see 9
also SOF at ¶¶ 24-30, 32-33. Mr. Melendres was in a MCSO holding cell before removal to 10
ICE for “probably about two hours.” SOF at ¶ 110. He was held by ICE -- not the MCSO -11
for another six to seven hours at an ICE facility. Id. As such, Mr. Melendres was properly
12 detained pursuant to Deputy Rangel’s 287(g) authority. See 8 U.S.C. § 1357; 8 C.F.R. §

13 287.5, et seq.; see also SOF at ¶¶ 24 and 111.

14

B. The Rodriguez Vehicle was Stopped for Probable Cause.

15

Deputy Ratcliffe had probable cause to stop the Rodriguez truck because it was

16 driving on a closed road. SOF at ¶¶ 44-45, and 51-52. Knowingly or unknowingly

17 disobeying a traffic control sign is a violation of Arizona law. A.R.S. § 28-644. Mrs.

18 Rodriguez admits there was probable cause to stop her vehicle. Id. at ¶ 112. Mrs. Rodriguez

19 is not even critical of the actual traffic stop. Id. at ¶ 113. Defense expert Mr. Click testified

20 that Deputy Ratcliffe had probable cause to stop the Rodriguez truck. Id. at ¶ 114. The

21 opinion of Plaintiffs’ own expert, Mr. Stewart, is in accord:

Q. Based on all the evidence you’ve reviewed, did Deputy Ratcliffe have probable

22

cause to stop the Rodriguez vehicle on the road?

23 A. Yes.
24

25 Id. at ¶ 115 (emphasis added). Moreover, the factual testimony from Mr. and Mrs.

26 Rodriquez as to whether they ever saw the “Road Closed” sign is immaterial. Their own

27 liability expert, Mr. Stewart, testified that Deputy Ratcliffe had probable cause to stop the

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Rodriguez truck even if Mr. Rodriguez did not see the “Road Closed” sign. Id. at ¶ 116. 21

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 22 of 35

1 The undisputed evidence, therefore, shows that the traffic stop involving Mr. and Mrs.

2 Rodriguez was based on probable cause and their Fourth Amendment and Arizona

3 Constitution Article II, § 8 claims fail as a matter of law.

4

C. The Meraz-Nieto Vehicle was Stopped for Reasonable Suspicion and

Probable Cause.

5

6

Neither Deputy Armendariz nor Deputy Beeks stopped the Meraz-Nieto vehicle.

7 They, therefore, could not have violated Ms. Meraz and Mr. Nieto’s rights under the Fourth

8 Amendment or Article II, § 8. Deputy Kikes, however, stopped the Meraz-Nieto vehicle.

9 SOF at ¶¶ 84-85.

10

Deputy Kikes testified that he had probable cause to stop the Meraz-Nieto vehicle. Id.

11 at ¶ 117. He made the stop because he believed in good faith that the occupants of the

12 vehicle were involved in some type of crime involving Deputy Armendariz. Id. Defense
expert Mr. Click opines that Ms. Meraz and Mr. Nieto obstructed Deputy Armendariz in his 13
investigation and arrest of the two stopped men, and that the MCSO could have arrested Ms. 14
Meraz and Mr. Nieto for such obstruction. Id. at ¶ 118. 15
Mr. Click further testified that Deputy Kikes had reasonable suspicion to stop the 16 Meraz-Nieto vehicle. Id. Plaintiffs’ expert Mr. Stewart agrees that Deputy Kikes had
17 reasonable suspicion under the circumstances that allowed him to properly stop the Meraz-

18 Nieto vehicle. Id. at ¶ 119. It is, therefore, undisputed, that Deputy Kikes had reasonable

19 suspicion, if not probable cause, to stop the Meraz-Nieto vehicle. Ms. Meraz and Mr.

20 Nieto’s Fourth Amendment and Arizona Constitution Article II, § 8 claims fail as a matter of

21 law.

22

Finally, to the extent the Plaintiffs claim that Deputy Kikes’ post-traffic stop

23 treatment of Mr. Nieto (i.e., removing him from the vehicle and handcuffing him) violated

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Mr. Nieto’s Fourth Amendment rights, such a claim lacks merit. Plaintiffs’ expert Mr. Stewart testified that Deputy Kikes acted “reasonably” in his post-stop conduct and treatment of Mr. Nieto. Id. at ¶ 120; see also Graham, 490 U.S. at 387 (the reasonableness of a detention is evaluated “from the perspective of a reasonable officer on the scene.”); Michigan v. Summers, 452 U.S. 692, 703, fn. 14 (1981) (“[T]he reasonableness of a
22

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 23 of 35

1 detention may be determined in part by whether the police are diligently pursuing a means of

2 investigation which is likely to resolve the matter one way or another very soon….”)

3 (internal citation and quotations omitted).

4

Based on the foregoing undisputed facts, the Court must dismiss the Plaintiffs’ Fourth

5 Amendment and Arizona Constitution Article II, § 8 claims.

6 V. 7 8

THE EVIDENTIARY RECORD DEMONSTRATES THAT THE PLAINTIFFS HAVE FAILED TO PROVE THEY SUFFERED INTENTIONAL DISCRIMINATION AND THEREFORE THEIR EQUAL PROTECTION AND TITLE VI DISCRIMINATION CLAIMS FAIL AS A MATTER OF LAW.

9

A plaintiff asserting a Fourteenth Amendment equal protection claim or a Title VI

10 racial discrimination claim must demonstrate not only that the challenged law enforcement

11 policy, pattern, or practice “had a discriminatory effect” but also “that it was motivated by a

12 discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 608 (1985) (emphasis

added); see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272-74 (1979); Arlington 13
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66; Washington v. Davis, 426 U.S. 14
229, 239-42 (1976); Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995) (stating that “a long 15
line of Supreme Court cases make clear that the Equal Protection Clause requires proof of

16 discriminatory intent or motive.”) (emphasis added); Wilkins v. City of Tempe, 2010 U.S.

17 District LEXIS 843 (D. Ariz. Jan. 5, 2010).

18

“[A] violation of Title VI, like a violation of the Equal Protection Clause, requires a

19 showing of intentional discrimination.” Alexander v Sandoval, 523 U.S. 275, 280 (2001)

20 (emphasis added). “It is beyond dispute… that [Title VI] prohibits only intentional

21 discrimination… [and] proscribes those racial classifications that would violate the Equal

22 Protection Clause or the Fifth Amendment.” Id.; see also Benally v. Kaye, 2005 U.S. Dist.

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

LEXIS 39751 at *19-20 (D. Ariz. 2005). Thus, “in the absence of proof of discriminatory animus,” a Title VI plaintiff cannot be awarded declaratory or injunctive relief. Gebray v. Portland Int’l Airport, 2001 U.S. Dist LEXIS 22747 at *11 (D. Oreg. 2001); see Meyers v. San Juan Sch. Dist, 905 F. Supp. 1544, 1573 (D. Utah 1995). Plaintiffs, therefore, must prove that the “decision makers in [their] case acted with discriminatory purpose.” McClesky v. Kemp, 481 U.S. 279, 292 (1987). “’Discriminatory purpose… implies more
23

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 24 of 35

1 than … intent as awareness of consequences. It implies that the decision maker… selected

2 or reaffirmed a particular course of action at least in part because of… its adverse effects

3 upon an identifiable group.’” Id. at 298 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S.

4 at 279).

5

To avoid summary judgment, a plaintiff “must produce evidence sufficient to permit

6 a reasonable trier of fact to find by a preponderance of the evidence that [the] decision… was
7 racially motivated.” Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th
Cir. 2001); see also Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir. 8
2003) (same); FDIC v. Henderson, 940 F.2d 465, 473 (9th Cir. 1991) (same); Cornwell v. 9
Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (explaining that a 10
plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on 11
the plaintiff’s subjective belief that the challenged action was [wrong].”). As demonstrated
12 below, the Plaintiffs have failed to produce “evidence sufficient to permit a reasonable trier
13 of fact to find by a preponderance of the evidence that [the MCSO’s conduct toward them]

14 was racially motivated.” Keyser, 265 F.3d at 754.

15

A. There is Insufficient Evidence of MCSO’s Alleged Traffic Stop Policy or

16

Practice having a Discriminatory Effect on Latinos and no Material

Factual Dispute Exists.

17

18

The essence of Plaintiffs’ Fourteenth Amendment and Title VI racial discrimination

19 claims is summarized in the First Amended Complaint:

20

Caucasian drivers and passengers involved in the same or similar acts or alleged

violations are treated differently and their vehicles stopped at much lower rates than

21

similarly situated Latino drivers and passengers pursuant to MCSO policy and

practice. Further Caucasian drivers and passengers are treated differently and less

22

intrusively and detained for shorter periods of time after their vehicles are stopped by

23

MCSO personnel than Latino drivers and passengers after being stopped. Latino

occupants are also treated differently and more intrusively by MCSO than Caucasian

24

occupants of the same vehicle

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

SOF at ¶ 121. In other words, Plaintiffs assert that the evidence will show that MCSO’s challenged law enforcement practice “had a discriminatory effect” on Latinos. Wayte, 470 U.S. at 608.
24

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 25 of 35

1

The Plaintiffs, however, are mistaken for several reasons. First, if Latinos were being

2 racially targeted by MCSO personnel during traffic stops, then the percentage of traffic stops

3 of Latinos would be expected to occur at a much greater percentage than their percentage of

4 the general population. This, however, is not happening. Plaintiffs’ own statistical expert,

5 Dr. Taylor conducted a statistical analysis of all the MCSO traffic stops conducted from

6 January 1, 2007 to October 31, 2009 and concluded that Latinos in Maricopa County are

7 stopped by MCSO personnel in roughly the same proportion to their share of Maricopa

County’s population. Id. at ¶ 122. Defense expert statistician Steve Camarota, Ph.D., 8

concurs: 9

[My] findings show that the Hispanic share of those stopped by the MCSO

10

deputies is roughly equal to their proportion of the county and the state’s overall

11

population. About one-third of stops are of individuals with a Hispanic last name,

which closely matches their share of the county and state populations. Analysis at the

12

sub-county level also tends to show stops in proportion to local population shares….

Equally important, despite a significant increase in concern over illegal

13

immigration in recent years in the county and state, there was no increase in the

14

Hispanic share of those stopped by MCSO between 2005 and 2009. Overall, the

surname analysis shows Hispanics are being stopped at a rate that reflects their

15

share of the population.

16 17 Id. at ¶ 123 (emphasis added).
Second, Dr. Taylor’s additional opinions that there are disproportionate percentages 18
of Latino’s stopped during MCSO saturation patrols, and that their traffic stop detentions are 19
longer than non-Latinos, is factually suspect. His saturation patrol analysis is irrelevant to 20
the Plaintiffs’ traffic stops because it does not consider the fact, as shown above already, 21 that: (1) the traffic stop of Mr. and Rodriguez was unrelated to a saturation patrol, and (2) 22 that the traffic stop of Ms. Meraz and Mr. Nieto, while occurring when a saturation patrol
23 was simultaneously on-going in the area, was unrelated to that saturation patrol. Id. at ¶¶ 43
24 (as to Mr. and Mrs. Rodriguez) and 64-88 (as to Ms. Meraz and Mr. Nieto). The analysis

25 also fails to take into account the fact that while Mr. Melendres’ traffic stop technically could

26 be considered as part of an MCSO saturation patrol, and was considered as such by Deputy

27 DiPietro, the operation was actually a small HSU detail targeting only specific vehicles that

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

had picked up persons from a suspected human smuggling drop house/day laborer location, 25

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 26 of 35

1 and did not involve the MCSO making general traffic stops of any vehicles other than those

2 that had visited the church property and picked-up passengers and where probable cause was

3 found to stop those particular vehicles. Id. at ¶ 12. Accordingly, four of the five Plaintiffs

4 were not stopped as part of an MCSO saturation patrol, and it is questionable whether

5 the final Plaintiff (Mr. Melendres) was stopped during the type of MCSO saturation patrol

6 complained of in Plaintiffs’ First Amended Complaint.

7

Dr. Taylor’s saturation patrol opinions are factually suspect for another reason. His

study is admittedly “quasi-experimental” in nature. Id. at ¶ 124. His “quasi-experimental” 8
study does not result in definitive findings or conclusions, only “inferences.” Id. His 9
saturation patrol analysis also: (1) fails to exclude those patrols that included a human 10
smuggling interdiction component, or otherwise exclude human smuggling load vehicles
11 found containing multiple illegal immigrants as occupants, which skews his saturation patrol

12 results; (2) fails to exclude duplicate records in the MCSO Computer Aided Dispatch

13 database, which skews his saturation patrol results; (3) excludes thousands of other cases that

14 should have been included in the analysis, which artificially inflates his saturation patrol

15 results (he admits that he excluded 18% of all MCSO traffic stops per year because they did

16 not “align” with Plaintiffs’ case theory or Plaintiffs’ “concerns”); and (4) fails to account for

17 any socio-economic variables that affected his saturation patrol model. Id.

18

Third, Dr. Taylor’s saturation patrol opinions are legally insufficient, standing alone,

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

to avoid summary judgment. Assuming, arguendo, that Dr. Taylor’s saturation patrol opinions are reliable about the impact that MCSO saturation patrols has on Latinos in Maricopa County, the opinion still is immaterial to the issue of whether these particular Plaintiffs were the subject of racial profiling by MCSO personnel. An official policy, practice, or act is not unconstitutional solely because it has a racially disproportionate impact. Castaneda v. Partida, 430 U.S. 482, 493 (1971). Dr. Taylor’s saturation patrol opinions, at most, might show disparate impact but not disparate treatment. An equal protection cause of action can only be based upon the latter. See Washington, 426 U.S. at 242 (“Disproportionate impact… is not the sole touchstone of invidious racial discrimination….”). Moreover, only in “rare cases [has] a statistical pattern of
26

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 27 of 35

1 discriminatory impact demonstrated a constitutional violation.” McCleskey, 481 U.S. at 293

2 n.12 (citing Gomillion v. Lightfoot, 364 U.S. 339 (1960); Yick Wo v. Hopkins, 118 U.S. 356

3 (1886)).

4

Finally, and perhaps most significant, the Defendants’ analysis set forth above and

5 below regarding the factual circumstances surrounding the traffic stop of each Plaintiff

6 shows that there is no discriminatory effect on the Plaintiffs. Each of their vehicles,
7 whether they were driving the vehicles or were mere passengers, was stopped by MCSO
personnel based on probable cause or reasonable suspicion, and the Plaintiffs’ race and/or 8
ethnicity had nothing to do with their traffic stops. 9
Based on the foregoing, the Plaintiffs have failed to produce “evidence sufficient to 10
permit a reasonable trier of fact to find by a preponderance of the evidence that” the 11
Plaintiffs have suffered a discriminatory effect as a result of the MCSO’s conduct. Keyser,
12 265 F.3d at 754. There is no material issue of disputed fact on this point, and summary
13 judgment is appropriate.

14

B. There is No Evidence that Any MCSO Personnel had Racially

15

Discriminatory Intent or Motive in Stopping, Questioning, or Detaining

the Plaintiffs.

16

17

There is another reason summary judgment is appropriate on Plaintiffs’ Fourteenth

18 Amendment and Title VI claims: there is no evidence that any MCSO personnel that

19 interacted with any of the individual Plaintiff had racially discriminatory intent or motive.

20

1. Melendres and Deputy DiPietro.

21

There is no evidence creating a genuine issue of material fact as to whether Deputy

DiPietro had racially discriminatory intent or motive in stopping the Melendres vehicle. 22
Before Deputy DiPietro found probable cause to stop the truck in which Mr. Melendres was 23
a passenger, he did not know or see the race of the truck’s driver or the race of the 24
passengers in the truck. SOF at ¶ 125. Race was not a factor in Deputy DiPietro’s finding 25
that he had probable cause to stop the truck:

26

Q. Did race of either the driver or the passengers of the truck play any role

27

in your decision to find probable cause to stop this truck?

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

27

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 28 of 35

1

A. No.

2

Q. Do you ever use race to stop vehicles?

3

A. No, I don't.

4

Q. Do you ever use race to find probable cause for traffic stops?

5

A. No.

6 Id. at ¶ 126.11 Even Mr. Melendres does not have an opinion on whether he was racially

7 profiled:

Q. You also claim in your lawsuit that you have suffered unlawful discrimination.

8

Do you believe that the deputies that you encountered on September 26, 2007,

9

were intentionally trying to deprive you of your constitutional rights?

10

A. I cannot say that. I can't be -- tell you for sure.

11
12 Id. at ¶ 128 (emphasis added). Defense expert Mr. Click opines that “[t]here is no evidence that Deputy DiPietro
13 knew the race or ethnicity of the vehicle’s occupants prior to the truck stopping or that race
14 or ethnicity played any role in Deputy DiPietro’s actions.” Id. at ¶ 129. On the other hand,
15 Plaintiffs’ liability expert Mr. Stewart testified at one point in his deposition to the general
16 conclusion that Deputy DiPietro must have had discriminatory intent or motive in stopping 17 the truck in which Mr. Melendres was a passenger. Mr. Stewart essentially “reasoned” that:
18 (a) Deputy DiPietro testified that, in his law enforcement experience in Maricopa County,
19 most day laborers were illegal aliens from Mexico; (b) the MCSO operation that date was

20 targeting a church suspected of being a drop-house for smuggled illegal aliens and a location

21 for such illegal aliens to be picked-up for day labor jobs; (c) Deputy DiPietro was instructed

22 to find probable cause for vehicles that picked-up passengers at the church and, before

23 finding such probable cause for the Melendres vehicle, he already had the belief that anyone
24 picked up at the church would be an illegal alien; and (d) because illegal immigrants from 25 Mexico are Latinos by definition, Deputy DiPietro must have been intending to discriminate 26 against Latinos. Id. at ¶ 130. In other words, Mr. Stewart conflates the MCSO’s targeting
of crimes regarding human smuggling with the targeting of Latinos. 27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

11 Similarly, Deputy Carlos Rangel does not racial profile because it is morally wrong and illegal. Id. at ¶ 127.
28

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 29 of 35

1

A closer examination of Mr. Stewart’s opinion, however, shows that he lacks factual

2 support for his general conclusion. The truth is Mr. Stewart admits that he lacks any factual

3 basis to support a conclusion that Deputy DiPietro acted with racially discriminatory intent

4 or motive in stopping the Melendres truck:

5

Q. Do you believe that Louis DiPietro had discriminatory intent or motivation as

to race in stopping the truck in which Mr. Melendres was a passenger?

6

7

A. I don’t know.

8

Q. Is it your opinion that Deputy DiPietro had a racially discriminatory intent or

motivation in stopping the truck in which Mr. Melendres was a passenger? 9

10

A. I don’t know.

11

Q. Is there any evidence that Deputy DiPietro knew the race of the driver of the

12

truck before stopping it?

13

A. I don’t know whether that information was given to him by the observer.

14

Q. Is there any evidence that Deputy DiPietro knew the race of any occupants in

15

the truck before stopping it?

16

A. I don’t recall whether that information was given by the observer either.

17

Q. Is there any evidence that Deputy DiPietro used race as a factor in any

18

form to decide to stop the truck?

19

A. No, sir.

20 Q. Is there any evidence that Deputy DiPietro knowingly harbored explicit bias

21

towards specific groups of people?

22

A. Not that I know of.

23

Q. Is there any evidence that Deputy DiPietro had unconscious bias toward certain

24

group of people?

25 A. We don’t know.
26

27 Id. at ¶ 131 (emphasis added). Based on the undisputed record before the Court, therefore,

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs have failed to prove with sufficient evidence that Deputy DiPietro was motivated 29

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 30 of 35

1 by racially discriminatory intent in making the traffic stop of the Melendres vehicle. Mr.

2 Melendres’ Fourteenth Amendment and Title VI claims fail as a matter of law and the Court

3 must dismiss those claims.

4

2. Mr. and Mrs. Rodriguez and Deputy Ratcliffe.

5

Before making the decision to conduct the traffic stop of the Rodriguez’ truck, and to

6 issue a citation to the truck’s driver, Deputy Ratcliffe did not see the race of the truck’s

7 driver or of any occupants of the truck. Id. at ¶ 132. Mrs. Rodriguez actually admits that

Deputy Ratcliffe was not acting with racially discriminatory intent or motive: 8

Q. Do you believe that Deputy Ratcliffe was intentionally trying to deprive you of

9

your constitutional rights?

10

11

A. No.

12 Id. at ¶ 133 (emphasis added).

Defense expert Mr. Click testified that there is no direct or circumstantial evidence that 13

Deputy Ratcliffe racially profiled or otherwise acted with racially discriminatory intent or 14
motive toward Mr. and Mrs. Rodriguez. Id. at ¶ 134. It is, therefore, not surprising that 15
Plaintiffs’ own expert, Mr. Stewart, has no opinion as to whether Deputy Ratcliffe had

16 racially discriminatory intent or motive in stopping the Rodriguez vehicle:

17

Q. Is it your opinion that Deputy Ratcliffe had discriminatory intent or motive in

18

stopping the Rodriguez vehicle?

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

A. Don’t know.
Id. at ¶ 135 (emphasis added).
At the most, Mr. Stewart offers a speculative opinion that Deputy Ratcliffe “maybe” had racially discriminatory intent or motive in issuing a traffic citation to Mr. Rodriguez. Id. at ¶ 136. However, there are a number of problems with Mr. Stewart’s “maybe” opinion. First, the “maybe” opinion lacks the required degree of probability to make it reliable and therefore admissible. California ex rel. Brown v. Safeway, Inc., 615 F.3d 1171, 1181 n.4 (9th Cir. 2010) (“An expert’s opinions that are without factual basis and are based on speculation or conjecture are inadmissible at trial and are inappropriate material for
30

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 31 of 35

1 consideration on a motion for summary judgment.”) (citation omitted). Second, even

2 assuming the Fourteenth Amendment issue in this case is broadly construed to include

3 whether Deputy Ratcliffe’s issuance of a traffic citation to Mr. Rodriquez for an admitted

4 traffic violation rises to the level of a constitutional violation, Mr. Stewart’s foundation for
5 his “maybe” opinion is built on unstable ground. Mr. Stewart has no direct or circumstantial
6 evidence showing that Deputy Ratcliffe used race as a factor in any form to decide to give a 7 citation to Mr. Rodriguez. Id. at ¶ 136.
Third, the sole basis for Mr. Stewart’s “maybe” opinion is speculative and relies on an 8
untenable interpretation of the evidence. Mr. Stewart bases his “maybe” opinion on the 9
reasoning that Deputy Ratcliffe stopped several non-Latino motorists on Bartlett Dam Road 10
the same day he stopped Mr. and Mrs. Rodriguez, did not give the non-Latino drivers 11
citations, referred the non-Latino drivers to a Tonto National Forest Ranger (who issued 12 citations to the non-Latino drivers), and the only citation Deputy Ratcliffe actually issued 13 was to Mr. Rodriguez, a Latino. Id. at ¶ 137. As such, Mr. Stewart concludes that Deputy
14 Ratcliffe intentionally treated Mr. Rodriguez differently than the non-Latinos drivers he
15 pulled over by issuing a citation to Mr. Rodriguez but referring the non-Latinos to the Tonto

16 National Forest Ranger for a determination on whether to issue a citation. Id. However,

17 Deputy Ratcliffe did not recall the race of the other drivers he referred to the Tonto National

18 Forest Ranger, and he actually observed the Forest Ranger give citations to those other

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

drivers regardless of their race. Id. at ¶ 138. Fourth, another MCSO officer working Lake Patrol with Deputy Ratcliffe, Deputy
Maltz, had on the same day allowed other motorists (of unknown races) to drive on the closed Bartlett Dam Road in order to go to the lake to repair either their recreational vehicles or boats that had been damaged in the storm. Id. at ¶ 139. Deputy Maltz was responsible for deciding whether to cite or warn those drivers, not Deputy Ratcliffe. Id. Deputy Ratcliffe has known Deputy Maltz for 2.5 years and does not believe that Deputy Maltz’ decision to allow other people to use Bartlett Dam Road to repair their property without the issuance of a traffic citation was based in any way on racial considerations. Id. at ¶ 140. Again, however, that was a decision of Deputy Maltz, not Deputy Ratcliffe and cannot, therefore, serve as a
31

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 32 of 35

1 basis for Mr. Stewart’s opinion as to Deputy Ratcliffe’s possible racially discriminatory

2 motive.

3

Based on the foregoing, Plaintiffs have failed to provide sufficient evidence that

4 Deputy Ratcliffe acted with racially discriminatory intent or motive toward Mr. and Mrs.

5 Rodriguez. Their Fourteenth Amendment and Title VI claims fail as a matter of law.

6

3. Meraz and Nieto and Deputies Armendariz, Kikes, and Beeks.

7

Deputy Kikes had probable cause to stop the vehicle driven by Mr. Nieto and

8 occupied by Ms. Meraz because he believed there was an emergency situation of some type
9 involving Deputy Armendariz. Id. at ¶ 85. Due to the vehicle’s window tinting, Deputy
10 Kikes could not see the race, sex, or other characteristics of the vehicle’s occupants. Id. at ¶ 11 86. While Mr. Nieto and Ms. Meraz are adamant that they were racially profiled, this 12 speculative testimony is insufficient to avoid summary judgment. Cornwell, 439 F.3d at
1028-29 n.6 (a plaintiff may not defeat a defendant’s summary judgment motion “by relying 13
solely on the plaintiff’s subjective belief that the challenged action was [wrong].” 14
In stark contrast to the speculative testimony of Mr. Nieto and Ms. Meraz, their own 15
liability expert’s opinions justify summary judgment in favor of the Defendants on these 16 Plaintiffs’ racial discrimination claims. Plaintiffs’ expert, Mr. Stewart, admittedly has no 17 evidence of racially discriminatory intent or motive by Deputy Armendariz. Id. at ¶ 141. 18 There is no evidence of racially discriminatory intent or motive by Deputy Beeks in drawing
19 his weapon. Id. at ¶ 142. There is no evidence that Deputy Kikes had racially
20 discriminatory intent or motive in making the traffic stop of the Meraz-Nieto vehicle. Id. at

21 ¶ 143. Finally, Mr. Stewart testified that there is no evidence that Ms. Meraz and Mr. Nieto

22 were racially profiled in either the traffic stop or during their subsequent treatment by the

23 MCSO deputies. Id. at ¶ 144. All Mr. Stewart has is his unsupported “suspicions” and “a

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

strong hint that” Deputy Kikes “may have been” racially motivated to make the traffic stop of Ms. Meraz and Mr. Nieto. Id. at ¶ 145. Such speculative testimony does not create a triable issue. Safeway, Inc., 615 F.3d at 1181 n.4 (speculative opinions “are inappropriate material for consideration on a motion for summary judgment.”)
Based on the foregoing, Plaintiffs have failed to provide sufficient evidence that
32

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 33 of 35

1 Deputies Armendariz, Kikes, or Beeks acted with racially discriminatory intent or motivation

2 toward Ms. Meraz and Mr. Nieto. Their racial profiling claim is subject to summary

3 dismissal.

4 VI. CONCLUSION

5

Although Plaintiffs have been subjected to the Defendants’ allegedly wrongful policy,

6 pattern, and practice of targeting Latinos for years since the filing of this action, the
7 evidentiary record establishes that Plaintiffs do not have a credible and genuine threat of
future injury. As a consequence, the Plaintiffs lack standing to seek the equitable remedies 8
pled in the First Amended Complaint. 9
The undisputed evidentiary record in this case further demonstrates that each of the 10
Plaintiffs’ traffic stops were properly predicated upon probable cause or reasonable suspicion 11
that Arizona law had been violated by the driver of each vehicle. As such, the Court must
12 dismiss the Plaintiffs’ Fourth Amendment claim and the Arizona Constitution Article II, § 8
13 claim as a matter of law.

14

Finally, the evidentiary record demonstrates that Plaintiffs have failed to come

15 forward with sufficient evidence that would allow a reasonable trier of fact to find by a

16 preponderance of the evidence that the Defendants’ conduct toward Plaintiffs had a racially

17 discriminatory effect or that Defendants’ conduct resulted from a racially discriminatory

18 intent. Accordingly, summary judgment is appropriate as to Plaintiffs’ Fourteenth

19 Amendment and Title VI claims.

20

DATED this 29th day of April, 2011.

SCHMITT, SCHNECK, SMYTH & HERROD,

21

P.C.

22

s/Timothy J. Casey______

Timothy J. Casey

23

Schmitt, Schneck, Smyth & Herrod, P.C.

1221 E. Osborn Rd., Suite 105

24

Phoenix, Arizona 85014

Telephone: (602) 277-7000

25

Facsimile:(602) 277-8663

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

MARICOPA COUNTY ATTORNEY’S OFFICE Maria Brandon Thomas P. Liddy Deputy County Attorneys
33

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 34 of 35

1

Litigation Practice Group

Civil Services Division

2

Maricopa County Attorney’s Office

222 N. Central, Suite 1100

3

Phoenix, Arizona 85004

602-506-8066

4

Co-counsel for Defendants Arpaio and MCSO

5

CERTIFICATE OF SERVICE

6

I hereby certify that on April 29, 2011, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 7 Notice of Electronic Filing to the following CM/ECF registrants:

8 The Honorable G. Murray Snow United States District Court
9 401 West Washington Street, Phoenix, Arizona 85003-2158
10
Stanley Young, Esq. 11 Stephen Chien, Esq.
Andrew Carl Byrnes, Esq. 12 COVINGTON & BURLING, LLP
333 Twin Dolphin Road 13 Redwood Shores, California 94065
Counsel for Plaintiffs 14
Daniel Pochoda, Esq. 15 Annie Lai, Esq.
ACLU FOUNDATION OF ARIZONA 16 3707 N. 7th Street, Suite 235
Phoenix, Arizona 85014 17 Counsel for Plaintiffs

18 Monica M. Ramirez, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION
19 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
20 San Francisco, California 94111 Counsel for Plaintiffs
21
Nancy Ramirez, Esq. 22 MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATION FUND 23 634 S. Spring Street, 11th Floor
Los Angeles, California 90014 24 Counsel for Plaintiffs

25 Maria Brandon Thomas P. Liddy
26 Deputy County Attorneys Litigation Practice Group
27 Civil Services Division Maricopa County Attorney’s Office
28 222 N. Central, Suite 1100

SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

34

Case 2:07-cv-02513-GMS Document 413 Filed 04/29/11 Page 35 of 35

1 Phoenix, Arizona 85004 Co-counsel for Defendants Arpaio and MCSO
2 s/Eileen Henry______
3 Eileen Henry, Paralegal SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

35

 </s> Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 1 of 40

1 Timothy J. Casey (#013492) SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
2 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540
3 Telephone: (602) 277-7000 Facsimile: (602) 277-8663
4 timcasey@azbarristers.com

5 Maria Brandon (#0004249) Thomas P. Liddy (#019384)
6 MARICOPA COUNTY ATTORNEY’S OFFICE Deputy County Attorneys
7 Litigation Practice Group Civil Services Division
8 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
9 Phoenix, Arizona 85004 602-506-8066
10 Co-counsel for Defendants Arpaio and MCSO
11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE DISTRICT OF ARIZONA

14 Manuel de Jesus Ortega Melendres, et al.,

No. CV 07-02513-PHX-GMS

15

Plaintiffs,

vs.

16

Joseph M. Arpaio, et al.

17

Defendants.

18

DEFENDANTS’ STATEMENT OF FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

19

20

21

Pursuant to Rule 56(b), Federal Rules of Civil Procedure, Defendants Joseph M.

22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Arpaio and the Maricopa County Sheriff’s Office submit the following Statement of Facts in Support of their Motion for Summary Judgment:
1. Plaintiffs have sued Sheriff Joseph M. Arpaio (“Arpaio”) and the Maricopa County Sheriff’ Office (“MCSO”) for their alleged violations of the Plaintiffs’ rights under the Fourth and Fourteenth Amendments to the United States Constitution, alleged violations of the Plaintiffs’ right under the Arizona Constitution’s Article II, Section 8, which prohibits unreasonable searches and seizures, and alleged violations of Plaintiffs’ right to be free of

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 2 of 40

1 racial discrimination pursuant to Title VI of the Civil Rights Act of 1964 which prohibits

2 racial discriminatory practices by local governmental entities. See Dkt.#26 (containing

3 Plaintiffs’ First Amended Complaint dated September 5, 2008).

4

2. Each of the individual Plaintiffs (Manuel de Jesus Ortega Melendres, Jessica

5 Quitugua Rodriguez, David Rodriguez, Velia Meraz, and Manual Nieto, Jr.) has been, during

6 motor vehicle traffic stops on public roadways, stopped, detained, questioned, and/or
7 searched by MCSO officers, allegedly in violation of their constitutional and statutory rights. 8 See Dkt.#26 (containing Plaintiffs’ First Amended Complaint dated September 5, 2008).
3. The Plaintiffs’ First Amended Complaint asserts that each of the individual 9
Plaintiffs were stopped, detained, questioned, and/or searched by MCSO officers allegedly 10
pursuant to an officially-sanctioned policy, pattern, and practice of racially profiling, 11 targeting, or otherwise discriminating against Latinos during motor vehicle traffic stops. 12 See Dkt.#26 at p. 3, lns. 15-25, ¶ 3; p. 3, ln. 26 to p. 4, ln. 1, ¶ 4 (alleging that “Plaintiffs
13 bring this action as representative of a class of Latino persons who as a result of racial

14 profiling, have been or will be stopped, detained, interrogated, or searched by Arpaio and his

15 agents in moving or parked vehicles in Maricopa County.”) (emphasis added).

16

4. Plaintiffs allege in their First Amended Complaint that the Defendants’

17 purported policy, practice, pattern, and practice is manifested not only on an “day-to-day”

18 basis during routine traffic stops conducted by MCSO deputies, but also during traffic stops

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

made during “crime suppression sweeps” or law enforcement saturation patrols. See Dkt.#26 at p. 3, p. 3, lns. 15-25, ¶ 3.
5. The gravamen of Plaintiffs’ lawsuit is the charge that MCSO deputies are racially profiling Latinos to make “pretextual and unfounded [traffic] stops,” and following those stops, engaged in “racially motivated questioning, searches and other treatment, and often baseless arrests.” See Dkt.#26 at p. 3, p. 3, lns. 15-25, ¶ 3. The Plaintiffs, therefore, seek declaratory and injunctive relief against the Defendants. See Dkt.#26 at pgs 29-30, ¶¶ A-F.
6. Plaintiff Manuel de Jesus Ortega Melendres is a resident of the Republic of Mexico. See Deposition of Plaintiff Manuel Melendres at p. 7, lns. 7-15, attached as
2

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 3 of 40

1 Exhibit 1.

2

7. Mr. Melendres legally entered the United States and visited Maricopa County

3 as a tourist between September 6, 2007 and September 26, 2007. See Deposition of Plaintiff

4 Manuel Melendres at p. 11, lns. 6-18, attached as Exhibit 1.

5

8. Under federal law, during Mr. Melendres’ visit to Maricopa County he was

6 required to keep with him (i.e., on his person) his B-1/B-2 tourist visa and an I-94 Form (that
7 allowed him to travel more than 25 miles north of the border with Mexico). See Deposition 8 of MCSO Deputy Carlos Rangel at p. 119, ln. 19 to p. 120, ln. 1, attached as Exhibit 2.
9. If a visiting foreign national, such as Mr. Melendres, does not have his tourist 9
visa or I-94 Form on his person, that person is legally “out of status” and a local law 10
enforcement officer certified under the federal government’s 287(g) program may lawfully 11 detain such a person to determine his status and/or in order to deliver him to federal 12 immigration authorities for a determination of his lawful presence in the United States (i.e.,
13 the United States Immigration and Customs Enforcement, or “ICE”). See Deposition of
14 MCSO Deputy Carlos Rangel at p. 119, ln. 19 to p. 120, ln. 1, attached as Exhibit 2 (“Q: If I

15 come to you and tell you I have an I-94 but I don't have it on me, am I in status? A. You're

16 out of status.”) (Q. And why am I out of status? A. Because you need to carry the B-1/B-2

17 and the I-94 together.”); see also p. 120, lns. 6-9, attached as Exhibit 2 (“Q. Does the fact

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

that Mr. Melendres did not have his I-94 form on his person at the time you spoke with him allow you under 287(g) to take him into detention? A. Yes.”); see also Filed Under Seal Defendants’ Supplemental Statement of Facts Re: Testimony of ICE Witnesses in Support of Their Motion for Summary Judgment at ¶ 26.
10. A person visiting the United States with the type of visa issued to Mr. Melendres, is not lawfully permitted to work for compensation or otherwise have employment. See Deposition of MCSO Deputy Carlos Rangel at p. 119, lns. 16-18, attached as Exhibit 2 (“Q. Are you permitted on a B-1/B-2 Visa, based on your ICE training, to work for compensation? A. No.”); see also Filed Under Seal Defendants’ Supplemental Statement of Facts Re: Testimony of ICE Witnesses in Support of Their Motion for Summary Judgment at ¶ 26.
3

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 4 of 40

1

11. If a foreign national visiting the United States on a tourist visa admits to a

2 287(g) certified law enforcement officer that he/she is working while as a tourist, that foreign

3 national is “out of status” and may be detained for delivery to ICE. See Deposition of

4 MCSO Deputy Carlos Rangel at p. 119, lns. 2-18, attached as Exhibit 2; see also Filed Under

5 Seal Defendants’ Supplemental Statement of Facts Re: Testimony of ICE Witnesses in

6 Support of Their Motion for Summary Judgment at ¶ 26.

7

12. On September 26, 2007, the MCSO’s Human Smuggling Unit (“HSU”) was in

8 Cave Creek, Arizona investigating a particular church in response to citizen complaints about the church serving as a possible “drop house” for human smuggling, and because “day
9 laborers” near the church were stepping out into the traffic on Cave Creek Road near the
10 church and causing traffic problems. See Deposition of MCSO Deputy Carlos Rangel at p.
11 27, ln. 9 to p. 28, ln. 12, attached as Exhibit 2 (see also p.28, lns. 3-6) (“Q. Was there some

12 sort of particular investigation that was going on there? A. I believe we were there because

13 of complaints from citizens of a possible drop house in the area. Q. So was the Human

14 Smuggling Unit on patrol in connection with investigating a possible drop house? A. Yes.”);

15 see also Deposition of MCSO Deputy Manuel Madrid dated 10/27/09 at p.47, ln. 19 to p. 48,

16 ln. 14, attached as Exhibit 3 (“Q. And do you recall what you were doing in Cave Creek that

17 day? A. We were doing a suppression patrol. Q. And what was the purpose of the

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

suppression patrol? A. We were there based on complaints from citizens to city hall that they had several individuals up there stepping out in traffic, creating traffic hazards, stopping vehicles on roadways. We were up there in response to that.”); see also Deposition of MCSO Deputy Louis DiPietro at p. 111, lns. 13-16 and p. 113, lns. 12-16, attached as Exhibit 4 (“Q. And based on your conversations with other officers, you knew that other officers of the MCSO were monitoring activity at or near a church suspected of being a drop house for human smuggling? * * * A. Yes, Yes.”); see also Deposition of MCSO Deputy Louis DiPietro at p. 46, ln. 21 to p. 47, ln. 9, attached as Exhibit 4 (“Q. What were you doing in Cave Creek that morning? A. I was assisting other deputies that were watching, I believe it was -- they were watching, I believe it was a church parking lot that had day laborers working from it or being picked up by people. Q. Were you assisting them as a K-9
4

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 5 of 40

1 officer or as, more as a patrol officer? A. More of a patrol because I had a marked vehicle.

2 Q. And do you know why they were watching this church? A. I believe they had

3 information that they were, there were illegal aliens being, on the property, and that they

4 were using that property as a point where they could be picked up as day laborers.”). As such

5 the HSU was conducting surveillance on the church and its property and conducted a narrow

6 traffic patrol that related exclusively to stopping for probable cause only those vehicles that

7 were observed to have picked up people congregating at the church property and that had left

8 the property. Id. 13. On September 26, 2007, Mr. Melendres testified that he wanted to go to some
9 location in Scottsdale to take photographs and that he needed a ride to that location, and a
10 friend named Jorge Morales from Mexico offered to arrange to have an unknown person in a
11 white colored pickup truck give him the ride. See Deposition of Plaintiff Manuel Melendres

12 at p. 14, ln. 17 to p. 17, ln. 6, attached as Exhibit 1.

13

14. Mr. Melendres sat in the right front seat of the truck, the unknown Caucasian

14 drove the truck, and Mr. Morales and another unknown person sat in the second row in the

15 extended cab pick-up truck and they ended up driving on Cave Creek Road. See Deposition

16 of Plaintiff Manuel Melendres at p. 17, lns. 16-22, attached as Exhibit 1.

17

15. Mr. Melendres and three other men were picked up at the church by the

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

unknown driver of the white colored pickup truck, and the church was under HSU surveillance. See Deposition of MCSO Deputy Louis DiPietro at p. 48, lns. 2-20, attached as Exhibit 4 (“Q. Was there some sort of plan that you were briefed on as to how to participate in this operation? A. There was going to be two marked units, two K-9 units; one east and one west of the location. And -- I don't remember who all was involved with Sergeant Madrid, who was all under him, but I know Sergeant Madrid was there. And they had somebody that had eyes on or some type of surveillance and would call out if they had a vehicle that picked up, you know, a group of suspected illegals and drove off the property. Kind of gave a description of the vehicle. And we were advised prior to going out that if you can find PC, stop it; if not, let it go. Q. And "if you can find PC," what did you understand that to mean? A. Probable cause. Q. Probable cause to make a traffic stop of that vehicle?
5

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 6 of 40

1 A. Correct.”); see also p. 49, ln. 4 to p. 50, ln. 5 attached as Exhibit 4 (“Q. If you were able

2 to develop probable cause to stop the vehicle, were you then advised to investigate whether

3 there were illegal aliens in the vehicle? A. I don't remember being briefed on that. Once the

4 vehicle was stopped, I asked the driver, you know, for his driver's license, registration and

5 insurance. And I asked: Who are these guys, who's in our vehicle? And he said he had
6 picked them up. And he was a construction worker of some sort and -- or appeared to be. 7 And I called for the, Sergeant Madrid, and they came and took over there. Q. Why did you 8 call Sergeant Madrid? A. The driver told me that he had picked them up to work. And I had
reasonable suspicion from that that they were day laborers and here illegally. Q. Did you 9
have any reason to believe that they were committing any sort of state crime? Violating any 10
state criminal law? A. Well, I'm not sure what the employer sanction laws and when they 11 came into effect or not. But I had reason to believe that they were here illegally. 12 Q. And so it was based on your belief that they were here illegally that you called Sergeant 13 Madrid? A. Yes.”) (emphasis added); see also p. 51, ln. 24 to p. 52, ln. 3, attached as Exhibit
14 4 (“Q. And so is it your understanding that that surveillance vehicle observed this particular
15 truck pick up persons from the parking lot and start driving away from the church? A. Yes.”)

16 (emphasis added).

17

16. MCSO Deputy Louis DiPietro was assigned by an HSU surveillance member

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

to follow the truck in which Mr. Melendres was a passenger and to look for probable cause to conduct a traffic stop of the truck. See Deposition of MCSO Deputy Louis DiPietro at p. 52, ln. 4 to p. 54, ln. 10, attached as Exhibit 4.
17. Deputy DiPietro paced the truck for 1.5 miles and determined it was speeding and that he had probable cause to make a traffic stop of the truck. See Deposition of MCSO Deputy Louis DiPietro at p. 53, lns. 9-18 (miles paced); p. 52, ln. 4 to p. 54, ln. 10 (probable cause), attached as Exhibit 4; see also p. 115, lns. 2-17 (“Q. Your testimony earlier in this deposition was that you estimated that perhaps you had traveled one and a half miles or so from the point you first began looking for probable cause on the truck to the point you actually made the decision that you had probable cause? A. Yes. Q. Okay. You determined that this driver, based on your pacing technique, had exceeded the posted speed
6

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 7 of 40

1 limit? A. Yes. Q. You told the plaintiffs' lawyer earlier that the posted speed limit was 25

2 miles per hour? A. Yes. Q. That based on your pacing technique, you determined the driver

3 was going 34 miles per hour? A. Yes.”).

4

18. Deputy DiPietro interacted with the truck’s driver, and based on information

5 provided by the driver and other indications, formed reasonable suspicion that the truck’s

6 occupants may have been in the country unlawfully. See Deposition of MCSO Deputy Louis

7 DiPietro p. 49, ln. 4 to p. 50, ln. 5; p. 54, ln. 19 to p. 55, ln. 11; attached as Exhibit 4; see

8 also Deposition of MCSO Deputy Carlos Rangel at p. 32, lns. 5-10, attached as Exhibit 2 (another indication to Deputy DiPietro was the observation that the truck’s passengers were
9 unable to speak the English language).
10 19. Deputy DiPietro called on his radio for a 287(g) MCSO deputy to assist at the
11 stop to investigate the occupants in the white truck. See Deposition of MCSO Deputy Carlos

12 Rangel at p. 28, lns. 13-24, attached as Exhibit 2.

13

20. MCSO Deputy Carlos Rangel arrived at the traffic stop involving Mr.

14 Melendres within a minute of receiving the call for a 287(g) deputy. See Deposition of

15 MCSO Deputy Carlos Rangel at p. 29, lns. 2-6, attached as Exhibit 2. Deputy Rangel was

16 287(g) certified at the time. Id. at p. 14, ln. 15 to p. 15, ln. 8, attached as Exhibit 2.

17

21. Deputy DiPietro told Deputy Rangel that the passengers in the truck did not

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

speak English and asked him if he would talk to the passengers. See Deposition of MCSO Deputy Carlos Rangel at p. 32, lns. 5-10, attached as Exhibit 2.
22. Deputy Rangel, a Latino himself, and fluent Spanish speaking deputy, asked the passengers for identification. See Deposition of MCSO Deputy Carlos Rangel at p. 34, lns. 1-13; p. 113, ln. 3 to p. 114, ln. 7, attached as Exhibit 2.
23. Deputy Rangel conducted his questioning of the truck’s passengers while Deputy DiPietro was simultaneously questioning the driver of the truck. See Deposition of MCSO Deputy Carlos Rangel at p. 33, lns. 20-25, attached as Exhibit 2 (“Q: I take it that Deputy DiPietro dealt with the driver and you were speaking with the passengers? A. Yes. Q. When you were speaking with the passengers, was he [Deputy DiPietro] at the same time talking to the driver? A. Yes.”).
7

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 8 of 40

1

24. The February 2007 Memorandum of Agreement between the MCSO and ICE,

2 a 287(g) deputy states:

3

The power and authority to interrogate any alien or person believed to be an alien as

to his right to be or remain in the United States (INA § 287(a)(1) and 8 C.F.R. §

4

287.5(a)(1))… [and] [t]he power to arrest without warrant any alien entering or

5

attempting to unlawfully enter the United States, or any alien in the United States, if

the officer has reason to believe the alien to be arrested is in the United States in

6

violation of law and is likely to escape before a warrant can be obtained. INA §

7

287(a)(2) and 8 C.F.R. § 287.5(c)(1).

8 See Memorandum of Agreement at p. 3, bullet point one and two, attached as Exhibit 5.

9

25. Deputy Rangel, as a 287(g) certified officer, looks for indicators of unlawful

10 presence in the United States such as the person providing him with a foreign identification

11 card, not having any identification from anywhere in the United States, and the inability to

12 speak the English language. See Deposition of MCSO Deputy Carlos Rangel at p. 21, ln. 3

13 to p. 22, ln 3, attached as Exhibit 2. Based on those indicators, Deputy Rangel is permitted

14 to question persons about their origin and whether they are lawfully present in the United

15 States. Id at p. 21, ln. 13 to p. 22, ln. 3 (“Q. What sort of questions did you believe that you

16 were able to ask to determine a person's origin? A. Where were you born? Where are your

17 parents from? And how did you enter the United States? Q. And how would you -- how
would you decide whom to ask these questions of? A. There are a number of indicators that 18
would lead me to believe a person is in the United States illegally. Based on those 19
indicators, I would proceed on enforcing the immigration law. Q. And what were the 20
indicators that you would consider? A. They would -- the subject would provide a foreign
21 identification card. Subject doesn't speak English. And subject not producing a United

22 States’ identification.”)

23

26. Mr. Melendres provided Deputy Rangel with his tourist visa but did not

24 provide an I-94 form. See Deposition of MCSO Deputy Carlos Rangel at p. 34, ln 20 to p.

25 35, ln. 10 attached as Exhibit 2.

26

27. Deputy Rangel asked the passengers in the truck whether they were going to

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

work, and two of them responded “yes, with one of the responders being Mr. Melendres. See Deposition of MCSO Deputy Carlos Rangel at p. 34, lns. 14-16, attached as Exhibit 2.
8

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 9 of 40

1

28. Deputy Rangel instructed those persons/passengers in the truck that said they

2 were going to work to exit or get out of the truck. See Deposition of MCSO Deputy Carlos

3 Rangel at p. 34, lns. 14-16; see also p. 35, lns.11-13, attached as Exhibit 2.

4

29. Based on the identification provided by Mr. Melendres and the others,

5 Deputy Rangel began to try to determine whether these persons/passengers were in the

6 United States illegally. See Deposition of MCSO Deputy Carlos Rangel at p. 35, lns. 14-23,

7 attached as Exhibit 2.

8

30. Mr. Melendres told Deputy Rangel that he had legally entered the United

States through a port of entry, had an I-94 form, but did not have the I-94 form with him at

9

the moment. See Deposition of MCSO Deputy Carlos Rangel at p. 35, ln. 6 to p. 36, ln. 20,

10 attached as Exhibit 2.

11

31. Mr. Melendres testified that he gave his I-94 Form to the deputy (i.e., Deputy

12 Rangel) that questioned him at the time of the stop. See Deposition of Plaintiff Manuel

13 Melendres at p. 9, ln. 23 to p. 10, ln. 5; see also p. 22, ln. 6-13, attached as Exhibit 1. Mr.

14 Melendres, however, has never produced in this litigation a copy of the I-94 Form that he

15 supposedly had on his person on September 27, 2007, and the one I-94 Form that he did

16 produce during this litigation does not cover the date of his September 26, 2007 stop and

17 detention. Exhibit 1 at p. 10, ln. 8 to p. 11, ln.5.

18

32. Based on Mr. Melendres not having his I-94 Form on him at the time of the

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

traffic stop, and that he stated that he was working while on his visa, Deputy Rangel detained Mr. Melendres with handcuffs and intended to have him delivered to ICE for verification of status. See Deposition of MCSO Deputy Carlos Rangel at p. 36, ln. 10 to p. 37, ln. 2, attached as Exhibit 2; see also p. 47, lns. 5-13, attached as Exhibit 2 (“Q. Do you have any reason to believe that ICE's conclusion that there was no reason to detain him was mistaken? A. Yes. Q. And what are those -- what -- please explain. A. During the traffic stop when I made contact, Mr. Melendres did not have his I-94 in his possession. Therefore, he was out of status. That's the reason why he was detained and transported to DRO.”); see also Exhibit 2 at p. 119, ln. 2 to p. 120, ln. 9 (explaining out-of-status character of a person on a B-1/B-2 visa and working for compensation and such information serving as grounds for detention).
9

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 10 of 40

1

33. Deputy Rangel told Mr. Melendres that he was being detained because he did

2 not have his I-94 Form with him. See Deposition of MCSO Deputy Carlos Rangel at p. 38,

3 lns. 19-25, attached as Exhibit 2. (“Q. Do you remember anything that was said to Mr.

4 Ortega during the time when he was handcuffed and searched? A. That he needed his I-94

5 with his B-1/B-2 Visa and that's why he was being detained. Q. Is that what you said to

6 him? A. Yes, I did.”). Mr. Melendres described Deputy Rangel as acting politely to him at

7 all times. See Deposition of Plaintiff Manuel Melendres at p. 27, ln. 25 to p. 28, ln.2,

8 attached as Exhibit 1 (“Q. Did the Spanish -- were you treated rudely by the Spanishspeaking officer who asked you for documentation? A. No.”).
9 34. The total length of time of Deputy Rangel’s questioning of the truck’s
10 passengers was fifteen (15) minutes. See Deposition of MCSO Deputy Carlos Rangel at p.
11 40, lns. 10-13; p 40, ln. 24 to p. 41, ln. 4, attached as Exhibit 2.

12

35. All the passengers from the truck were detained. See Deposition of MCSO

13 Deputy Carlos Rangel at p. 42, lns. 7-23, attached as Exhibit 2.

14

36. The passengers/detainees were taken to an MCSO substation and then

15 delivered to ICE’s Detention and Removal Office near Central Avenue and McDowell Road.

16 See Deposition of MCSO Deputy Carlos Rangel at p. 44, ln. 22 to p. 45, ln. 7, attached as

17 Exhibit 2. Mr. Melendres was in an MCSO holding cell before removal to ICE for “probably

18 about two hours.” See Deposition of Plaintiff Manuel Melendres at p. 25, lns. 10-15,

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

attached as Exhibit 1. Mr. Melendres was held another six to seven hours at ICE. See Deposition of Plaintiff Manuel Melendres at p. 25, ln. 16 to p. 26, ln. 4, attached as Exhibit 1.
37. ICE released Mr. Melendres from detention because ICE concluded that there was insufficient evidence that Mr. Melendres was working and that he did have an I-94 Form issued to him despite him being “out-of-status” (i.e., not having the form on him when questioned by Deputy Rangel). See Deposition of MCSO Deputy Carlos Rangel at p. 45, ln. 9 to p. 46, ln. 20, attached as Exhibit 2.
38. Plaintiffs’ First Amended Complaint asserts that an unknown MCSO deputy made allegedly crude and derogatory remarks to Mr. Melendres about lotion found in his
10

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 11 of 40

1 pocket. See Dkt#26 at p. 18, ¶¶ 61-62. Mr. Melendres, however, does not speak or

2 understand English well and did not personally hear such alleged comments. See Deposition

3 of Plaintiff Manuel Melendres at p. 6, lns. 5-11 and p. 7, lns. 2-6, attached as Exhibit 1 (not

4 understanding much English and having to be deposed through an interpreter); see also

5 Exhibit 1 at p. 31, ln. 1 to p. 33, ln. 1 (discussing Mr. Melendres’ knowledge of the alleged

6 crude and derogatory remarks). Such report of the crude remark is hearsay and was reported

7 to him via his friend Jorge Morales. Exhibit 1 at p. 33, ln. 8-11 (“Q. You heard from George

8 that they were talking about whether your lotion was used for masturbation; is that true? A. Yes, later on.”). MCSO Deputies DiPietro, Rangel, and Madrid deny making or hearing
9 such comments. See Deposition of MCSO Deputy Carlos Rangel at p. 120, ln. 12 to 121, ln.
10 1, attached as Exhibit 2; Deposition of MCSO Sgt. Manuel Madrid at p. 220, lns. 4-25,
11 attached as Exhibit 3; Deposition of MCSO Deputy Louis DiPietro at p. 120, ln. 23 to p. 121,

12 ln. 22, attached as Exhibit 4.

13

39. The MCSO Lake Patrol Division is responsible for policing the recreational

14 areas within Maricopa County and the Tonto National Forest. See Deposition of MCSO

15 Deputy Matthew Ratcliffe at p. 9, lns. 12-15, and lns. 20-22, attached as Exhibit 6. Lake

16 Patrol deputies conduct traffic related patrol duties near the recreational areas, perform

17 searches and dive missions in the lakes and rivers, and ATV patrols. Id.

18

40. On Sunday, December 2, 2007, the Maricopa County Department of

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Transportation, in order to try to protect the public’s safety, closed the road to Bartlett Lake, Bartlett Dam Road, because of storm damage that caused heavy flooding on it and had washed away parts of the road. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 91, ln. 25 to p. 93, ln. 10; see also p. 18, lns. 19-21, p. 23, lns. 17-18; p. 92, ln, 23 to p. 93, ln. 4 attached as Exhibit 6 (“Q. What are, based on your experiences, the concerns or the dangers of motorists driving on a damaged road? A. Well, on this particular road, anything from flash flood in that area, as well as damage to their vehicle or injuries they sustain due to a crash caused by the debris on the roadway.”).
41. There was a “Road Closed” sign posted by the MCDOT across Bartlett Dam Road indicating to approaching drivers that the road was closed. See Deposition of MCSO
11

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 12 of 40

1 Deputy Matthew Ratcliffe at p. 92, lns. 9-22, attached as Exhibit 6; See also Photographs of

2 Road Closed sign taken by Deputy Matthew Ratcliffe attached as Exhibit 9 (See Deposition

3 of MCSO Deputy Matthew Ratcliffe at p. 107, ln. 8 to p. 108, ln. 10, attached as Exhibit 6.

4 (“A. Due to the argumentative nature of the passenger in the vehicle [Mrs. Rodriguez],

5 [Deputy Ratcliffe] wanted to take photographs of the ‘Road Closed’ sign and the ‘Road

6 Closed Ahead’ signs for later defense in court.”); See also Deposition of MCSO Deputy

7 Matthew Ratcliffe at p. 42, lns 1-17, attached as Exhibit 6 (laying the foundation for the

8 photographs attached as Exhibit 9 to this Statement of Facts).

42. Deputy Ratcliffe was on patrol on Bartlett Dam Road on December 2, 2007.

9

See Deposition of MCSO Deputy Matthew Ratcliffe at p. 88, ln. 24 to p. 89, ln. 7, attached

10 as Exhibit 6.

11

43. No saturation patrol was conducted by the MCSO on December 2, 2007 and

12 neither Deputy Ratcliffe nor anyone from the MCSO was conducting a saturation patrol on

13 that date. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 89, lns. 12-25, attached

14 as Exhibit 6.

15

44. In the early afternoon of December 2, 2007, Deputy Ratcliffe observed a dark

16 colored truck driving toward his parked position on the closed Bartlett Dam Road and then

17 observed that it made a “u-turn” as it approached him and another officer. See Deposition of

18 MCSO Deputy Matthew Ratcliffe at p. 20, lns. 14-25 (type and color of vehicle and time of

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

day); p. 22, lns. 13-20 (discussing the truck’s u-turn as it approached the officers), attached as Exhibit 6.
45. Deputy Ratcliffe determined that the driver was present on Bartlett Dam Road unlawfully and decided to make a traffic stop of the vehicle and to issue a citation to the driver. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 23, lns. 14-18; see also p. 93, lns. 16-21, attached as Exhibit 6.
46. Before deciding to conduct the traffic stop and to issue a citation to the truck’s driver, Deputy Ratcliffe did not see the race of the truck’s driver or of any occupants of the truck. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 93, ln. 11 to p. 94, ln. 9, attached as Exhibit 6.
12

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 13 of 40

1

47. When the truck was stopped, Deputy Ratcliffe asked Mr. Rodriquez for his

2 driver’s license, vehicle registration, and proof of insurance documents. See Deposition of

3 MCSO Deputy Matthew Ratcliffe at p. 24, ln. 25 to p. 25, ln. 2, attached as Exhibit 6.

4

48. Deputy Ratcliffe asked Mr. Rodriquez for his Social Security number. See

5 Deposition of MCSO Deputy Matthew Ratcliffe at p. 25, lns. 3-6, ln. 2, attached as Exhibit

6 6.

7

49. Deputy Ratcliffe did not ask for Mr. Rodriguez’ Social Security card. See

8 Deposition of MCSO Deputy Matthew Ratcliffe at p. 24, ln. 25 to p. 25, ln. 2, attached as Exhibit 6. Deputy Ratcliffe never asks any driver for his Social Security card. Id. at p. 25,
9 lns. 15-17.
10 50. After obtaining identification from Mr. Rodriguez, Deputy Ratcliffe asked him
11 why he was driving his truck on the closed Bartlett Dam Road. See Deposition of MCSO

12 Deputy Matthew Ratcliffe at p. 26, lns. 7-25, attached as Exhibit 6. Mr. Rodriguez stated to

13 Deputy Ratcliffe that “he had driven around the [road closed] sign and was taking the kids

14 down to the lake.” Id. at p. 26, lns. 13-25 (“Q. What was that conversation? A. I asked them

15 why they were driving down the roadway. Q. And what do you recall them saying? A. Mr.

16 Rodriguez advised that he had driven around the sign and was taking the kids down to the

17 lake. Q. When you say ‘the sign,’ what sign are you referring to? A. The ‘Road Closed’

18 sign. Q. You don't recall him saying ‘Road Damaged Sign’? A. No, sir. Q. Or ‘Road

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Closed Ahead sign? A. No, sir. He stated the ‘Road Closed.’”); see also p. 101, lns. 3 to p. 102, ln. 12, attached as Exhibit 6.
51. Mr. Rodriguez admits that he saw a “Road Damaged” sign but drove past it. See Deposition of David Rodriguez at p. 11, lns. 2-11, attached as Exhibit 8 (“A: And once we were going down, I came upon -- before we hit the wash, there was a ‘Road Damaged’ sign that we came across, and we just kept going. And once we hit that, maybe about a quarter-mile to a half-mile there was a -- a turn, and then there was a long wash. And we started, you know, going through the wash a bit, but there was, you know, some -- some debris and stuff that -- because it had rained recently, and over the wash, and I had noticed that there was a sheriff Expedition and another Expedition next to it.”) (emphasis added); See
13

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 14 of 40

1 also Photographs of Road Closed sign taken by Deputy Matthew Ratcliffe attached as

2 Exhibit 9 (See Deposition of MCSO Deputy Matthew Ratcliffe at p. 107, ln. 8 to p. 108, ln.

3 10, attached as Exhibit 6. (“A. “Due to the argumentative nature of the passenger in the

4 vehicle [Mrs. Rodriguez], [Deputy Ratcliffe] wanted to take photographs of the ‘Road

5 Closed’ sign and the ‘Road Closed Ahead’ signs for later defense in court.”); See also

6 Deposition of MCSO Deputy Matthew Ratcliffe at p. 42, lns 1-17, attached as Exhibit 6

7 (laying the foundation for the photographs attached as Exhibit 9 to this Statement of Facts).
8 Mr. Rodriguez denied ever seeing a “Road Closed” sign. See Deposition of David Rodriguez at p. 17, lns. 10-11, attached as Exhibit 8.
9 52. Mr. and Mrs. Rodriguez asked Deputy Ratcliffe why he asked for David’s
10 Social Security number. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 25, lns.
11 18-23, attached as Exhibit 6. Deputy Ratcliffe explained that it was for identification
12 purposes and to fill in the blanks on the MCSO citation form. Id.; see also p. 96, lns. 10-24;

13 see also the MCSO Standard Traffic Citation form, attached as Exhibit 7.

14

53. Deputy Ratcliffe performed via radio a records check on the Rodriguez’ truck

15 and then issued a citation to Mr. Rodriguez for failure to obey a traffic control device (i.e.,

16 the “road closed” sign). See Deposition of MCSO Deputy Matthew Ratcliffe at p. 27, lns. 6

17 to p. 28, ln. 8, attached as Exhibit 6. He determined that a citation was appropriate in his

18 discretion because there was a safety risk with driving on the closed road. Id. at p. 28, lns.

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

4-8. 54. Upon receipt of the citation, Mr. Rodriguez asked Deputy Ratcliffe the effect
such a citation would have on his commercial driver’s license, and either Mr. or Mrs. Rodriguez told Deputy Ratcliffe that he/she did not see any other drivers on the closed road receiving citations. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 28, lns. 9-12; see also p. 106, lns. 10-16, attached as Exhibit 6. Deputy Ratcliffe responded by telling Mr. and Mrs. Rodriguez that he was only dealing with them and not dealing with other drivers at that time. Id. at p. 28, lns. 13-15.
55. Mrs. Rodriguez accused Deputy Ratcliffe of selective enforcement in issuing the traffic citation to her husband. See Deposition of MCSO Deputy Matthew Ratcliffe at p.
14

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 15 of 40

1 28, ln. 21 to p. 29, ln. 5, attached as Exhibit 6. Mrs. Rodriguez became “argumentative”

2 with Deputy Ratcliffe. Id. at p. 100, lns. 1-7; see also Deposition of David Rodriguez at p.

3 29, lns. 13-17, attached as Exhibit 8 (“Q. When was it that she [Mrs. Rodriguez] told Officer

4 Ratcliffe that -- about selective enforcement? A. When I had asked if I can -- if I can get a

5 warning, because the other people were getting warnings too.”). Mrs. Rodriguez became

6 “argumentative” with Deputy Ratcliffe. See Deposition of MCSO Deputy Matthew Ratcliffe

7 at p. 119, ln. 23 to p. 120, ln. 10, attached as Exhibit 6.

8

56. Neither Mr. nor Mrs. Rodriguez ever told Deputy Ratcliffe that they had not

observed the “Road Closed” sign or that they were ever off-road driving and did not see the

9

sign and must have missed it. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 100,

10 lns. 8-17, attached as Exhibit 6.

11

57. The Rodriguez’ testified that they were off-road driving and must have missed

12 observing the closed road sign. See Deposition of David Rodriguez at p. 10, ln. 7 to p. 12,

13 ln. 4, attached as Exhibit 8.

14

58. The total time for the Rodriguez traffic stop by Deputy Ratcliffe was

15 approximately ten (10) minutes. See Deposition of MCSO Deputy Matthew Ratcliffe at p.

16 33, lns. 10-12, attached as Exhibit 6.

17

59. Deputy Ratcliffe then drove behind the Rodriguez’ truck as it left the area for

18 roughly two miles, not to escort them out, or to harass or intimidate them, but in order for

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

him to take a picture of the “Road Closed” sign. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 107, ln. 8 to p. 108, ln. 10, attached as Exhibit 6. “Due to the argumentative nature of the passenger in the vehicle [Mrs. Rodriguez], [Deputy Ratcliffe] wanted to take photographs of the ‘Road Closed’ sign and the ‘Road Closed Ahead’ signs for later defense in court.”) Id. The pictures taken by Deputy Ratcliffe are attached as Exhibit 9 to this Statement of Facts.
60. Mr. Rodriguez pled responsible to the citation issued to him by Deputy Ratcliffe. See Deposition of David Rodriguez at p. 34, ln. 14 to p. 35, ln. 11, attached as Exhibit 8 (“Q. The citation, did you plead responsible for that citation? A. Yes. Q. So you admitted not obeying a traffic control device? A. When I got the -- yes, I had to sign for it
15

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 16 of 40

1 and I had to admit to it, yes. Q. In court did you end up paying a $120 fine? A. Yes.

2 Q. And you understood that that was admitting that you failed to obey a traffic control

3 device? A. Yes. Q. Okay. Explain for me, if you thought that this citation was wrongly

4 issued, why you did not contest it, why you did not challenge it in court? A. It was pretty

5 much going to be me against the officer, and in situations like that, it's usually the officer

6 that's going to come out on top, so that's why I just decided to get it -- to go ahead and just

7 pay it.”)

8

61. Deputy Ramon Armendariz is a member of the MCSO HSU and is 287(g)

certified. See November 24, 2009 Deposition of MCSO Deputy Ramon C. Armendariz at p. 9

16, lns. 17-23 (discussing when he joined the MCSO Human Smuggling Unit); p. 18, ln. 17

10 to p. 20, ln. 2 (discussing his decision to become 287(g) certified), attached as Exhibit 10.

11

62. Deputy Armendariz’ first language is Spanish and he is therefore fluent in

12 speaking that language. See Deposition of MCSO Deputy Ramon C. Armendariz at p. 20,

13 lns. 20-22, attached as Exhibit 10.

14

63. Deputy Armendariz worked the saturation patrol in the capacity of a patrol

15 officer where he was to conduct traffic stops and write citations. See Deposition of MCSO

16 Deputy Ramon C. Armendariz at p. 100, lns. 8-17, attached as Exhibit 10

17

64. Around 2:00 p.m., Deputy Armendariz made a traffic stop of a vehicle and the

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

vehicle pulled into a convenience mart/gas station located at the southeast corner of North Cave Creek Road and East Nesbit Road. See Deposition of MCSO Deputy Ramon C. Armendariz at p. 116, lns. 4-10 (time of stop); p. 123, lns. 21-23 (location of stop); p. 126, ln. 19 to p. 127, ln. 6 (location of stop); p. 131, lns. 5-11 (southeast corner of roads), attached as Exhibit 10
65. Deputy Armendariz parked his vehicle behind the stopped car. See Deposition of MCSO Deputy Ramon C. Armendariz at p. 132, lns. 11-23, attached as Exhibit 10. The vehicle stopped by Deputy Armendariz contained two men, Benjamin Moreno and Jorge Ramirez, and he conducted a radio check on both of the men. Id. at p. 123, ln. 24 to p. 124, ln. 6; p. 126, ln. 19 to p. 127, ln. 6, attached as Exhibit 10.
66. Following his radio check, Deputy Armendariz took both men into custody.
16

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 17 of 40

1 See Deposition of MCSO Deputy Ramon C. Armendariz at p. 129, lns. 15-19, attached as

2 Exhibit 10. Deputy Armendariz took the driver of the vehicle into custody for driving with a

3 suspended license and placed him inside his patrol car. See Deposition of MCSO Deputy

4 Ramon C. Armendariz at p. 135, lns. 5-13, attached as Exhibit 10.

5

67. Deputy Armendariz placed handcuffs on the car’s passenger and had the

6 passenger sit down on the front bumper of the MCSO patrol car. See Deposition of MCSO

7 Deputy Ramon C. Armendariz at p. 136, lns. 12-24, attached as Exhibit 10.

8

68. At that time, a dark colored vehicle pulled into the convenience mart/gas

station and parked directly behind Deputy Armendariz’ patrol car. See Deposition of MCSO 9

Deputy Ramon C. Armendariz at p. 136, ln. 25 to p. 137, ln. 3; p. 137, ln. 16-20, attached as

10 Exhibit 10. Deputy Armendariz was standing in front of his patrol car handling the detained

11 passenger of the car he stopped. Id. at p. 137, ln. 23 to p. 138, ln. 1.

12

69. The dark colored vehicle was playing load music, the passenger side windows

13 were down, and Deputy Armendariz could see a female passenger (later known to be

14 Plaintiff Velia Meraz) and a male driver (later known to be Plaintiff Manuel Nieto). See

15 Deposition of MCSO Deputy Ramon C. Armendariz at p. 139, ln. 2 to p. 140, ln. 6, attached

16 as Exhibit 10.

17

70. The female passenger (i.e., Ms. Meraz) started yelling repeatedly in Spanish

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

out her window at Deputy Armendariz’ detainee sitting on the bumper of the patrol car, “no diga nada,’ ‘no diga nada,’ you know, which means don’t – ‘don’t say anything,’ ‘don’t say anything’; ‘pida un abogado,’ ‘pida un abogado,’ which means, you know, ‘ask for a lawyer,’ ‘ask for a lawyer.’” See Deposition of MCSO Deputy Ramon C. Armendariz at p. 140, ln. 19 to p. 141, ln. 11, attached as Exhibit 10.
71. At first, Deputy Armendariz tried to ignore the yelling, but the female passenger (i.e., Ms. Meraz) kept yelling and he started to fear for his safety. See Deposition of MCSO Deputy Ramon C. Armendariz at p. 141, lns. 12-17; p. 142, lns. 5-23, attached as Exhibit 10. Deputy Armendariz, therefore, ordered the driver of the vehicle to leave deputy Armendariz’ vicinity or the location, or at least stay out of his way. Id. at p. 141, lns. 12-17.
72. In response to Deputy Armendariz, the female passenger (i.e., Ms. Meraz)
17

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 18 of 40

1 yelled several times that ‘we’re not going anywhere.” See Deposition of MCSO Deputy

2 Ramon C. Armendariz at p. 142, lns. 5-23, attached as Exhibit 10.

3

73. Deputy Armendariz again ordered that Meraz and Nieto leave. See Deposition

4 of MCSO Deputy Ramon C. Armendariz at p. 142, lns. 5-18, attached as Exhibit 10.

5

74. The female passenger (i.e., Ms. Meraz) started yelling at Deputy Armendariz

6 “fucking Sheriff Joe, fucking Nazi,” and “you guys don't have a right to do this.” See

7 Deposition of MCSO Deputy Ramon C. Armendariz at p. 143, lns. 3-8, attached as Exhibit

8 10.

75. Deputy Armendariz was worried about his safety and the safety of the two

9

men he had in custody. See Deposition of MCSO Deputy Ramon C. Armendariz at p. 143,

10 lns. 9-17; p. 144, lns. 12-18, attached as Exhibit 10.

11

76. Because the vehicle with the yelling passengers would not leave, Deputy

12 Armendariz called on his radio for back-up. See Deposition of MCSO Deputy Ramon C.

13 Armendariz at p. 144, lns. 12-18, attached as Exhibit 10 (“but when they refused to leave,

14 that's when I called for help.”); see also p. 214, ln. 25 to p. 218, ln. 11 (explaining the

15 reasons he called for back-up support).

16

77. MCSO Deputy Douglas Beeks heard Deputy Armendariz’ radio call for back-

17 up and described Deputy Armendariz’ voice as sounding “excited” and “agitated”. See

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

October 22, 2009 Deposition of MCSO Deputy Douglas W. Beeks at p. 148, lns. 10-15, attached as Exhibit 11. Deputy Beeks also recalls hearing words used by Deputy Armendariz that led Deputy Beeks to believe in good faith that “a vehicle had tried to run over or hit Deputy Armendariz as it left the area” and that a crime may have been committed. Id. at p. 148, lns. 16-23. Accordingly, Deputy Beeks was concerned for the safety of Deputy Armendariz. Id. at p, 148, lns. 16-20; see also Deposition of MCSO Deputy Michael Kikes at p. 69, ln. 17, to p. 70, ln. 9, attached as Exhibit 13 (“Q. So you were riding southbound on Cave Creek Road and you were listening to radio traffic. You heard Deputy Armendariz say something over the radio? A. Correct. Q. Do you recall what he said? A. Not exactly what he said -- Q. Okay. A. -- but I could tell by the pitch in his voice it wasn't just a regular call out for a license plate or something of that nature. Q. What do you mean by the
18

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 19 of 40

1 pitch in his voice? A. We have a tendency as deputies to be able to when we talk on the

2 radio to give a license plate or give an identification of somebody in a very monotone, very

3 easily recognizable voice that we can transmit every day. We could -- when something goes

4 awry, you could tell the excitability, you can tell a little bit about there's more than just a

5 regular traffic stop.”).

6

78. The male in the vehicle (i.e., Mr. Nieto) then opened his door and started to get

7 out. See Deposition of MCSO Deputy Ramon C. Armendariz at p. 145, ln. 24 to p. 146, ln.
8 21, attached as Exhibit 10. Deputy Armendariz believed that the male (i.e., Mr. Nieto) was going to get out of the car to “try to kick my ass”. Id. at p. 216, lns. 19-24.
9 79. The vehicle occupants (i.e., Ms. Meraz and Mr. Nieto) appeared very angry
10 and were acting “very threatening.” See Deposition of MCSO Deputy Ramon C.
11 Armendariz at p. 218, lns. 2-11 (acting angrily); p. 215, lns. 5-9 (acting very threatening),
12 attached as Exhibit 10. “[T]heir actions towards [Deputy Armendariz] were as if it was

13 personal towards [the deputy].” Id. at p. 217, lns. 3-4.

14

80. Deputy Armendariz testified as to his state of mind when he observed the male

15 in the vehicle (i.e., Mr. Nieto) open his door and start to get out: “I had other responsibilities

16 that I was taking care of. I had two people that I was in -- that I had in custody that I was

17 responsible for. I didn't know if he was going to come out with a gun. I didn't know if he

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

was going to come out with a knife. Am I going to have to -- am I going to have to defend myself while protecting my suspect that I have in custody? You know, is this going to turn into -- is he going to get out with a knife? Am I going to have to shoot him? Is he going to come out with a gun? Am I going to have to spray -- you know, pepper spray to get him away from me? I mean, just the array of, you know, what-ifs. That situation could have gone bad, really bad, really quick.” See Deposition of MCSO Deputy Ramon C. Armendariz at p. 217, ln. 12 to p. 218, ln. 1, attached as Exhibit 10.
81. Plaintiff Manuel Nieto, Jr. is a three-time convicted felon who spent 3.5 years in prison for domestic violence. See October 8, 2009 Deposition of Manuel Nieto, Jr., at p. 7, ln. 22 to p. 8, ln. 21 (fact of three felony convictions for domestic abuse); see also p. 10, ln. 25 to p. 11, ln. 1 (length of time in prison), attached as Exhibit 12. Mr. Nieto was only
19

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 20 of 40

1 released from his most recent prison time one month before the confrontation with Deputy

2 Armendariz. Id.

3

82. Seeing the male in the vehicle (i.e., Mr. Nieto) open his door and start to get

4 out, Deputy Armendariz grew more worried, in fact he was afraid, and ordered the man to
5 stay in his car or he would be arrested for disorderly conduct. See Deposition of MCSO
6 Deputy Ramon C. Armendariz at p. 145, ln. 24 to p. 146, ln. 21, p. 149, lns. 4-14 (“As I was 7 -- as I was getting more worried that they were actually going to get out of their car and 8 actually come towards my -- my direction, I moved the passenger, which is who I was
talking to on the front bumper. I walked around the other side of my patrol car and I put 9
him and secured him in the back. And at that point, as I secured him -- as I was securing him 10
in the back and I kept yelling at these people, "You need to leave. You need to get out of 11 here now," that's when they decided on leaving. And I put him in the back, they took off, 12 still cussing at me, you know.”); see also p. 214, ln. 25 to p. 215, ln. 4 (“Q. What was the 13 reason you called for backup? A. Not to put it in a bad way, but I was -- I was afraid. I was
14 afraid. I was afraid that the situation would have escalated further and my safety would have
15 been in jeopardy.”), attached as Exhibit 10.

16

83. The occupants of the vehicle (Meraz and Nieto) made “a big scene” at the

17 convenience mart/gas station. See Deposition of MCSO Deputy Ramon C. Armendariz at p.

18 148, ln. 25, attached as Exhibit 10.

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

84. MCSO Deputy Michael Kikes spotted the dark colored vehicle driving on North Cave Creek Road and activated his motorcycle’s lights and siren. See Deposition of MCSO Deputy Michael Kikes at p. 129, lns. 19-22 (discussion in context of already having his lights and sire on), attached as Exhibit 13.
85. Deputy Kikes testified that he believed that he had probable cause to stop the dark colored vehicle because he believed there was an emergency situation of some type involving Deputy Armendariz and the occupants of the vehicle Deputy Kikes was stopping. See Deposition of MCSO Deputy Michael Kikes at p. 129, lns. 4-18, attached as Exhibit 13.
86. Due to the vehicle’s window tinting, Deputy Kikes could not see the race, sex, or other characteristics of the vehicle’s occupants. See Deposition of MCSO Deputy
20

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 21 of 40

1 Michael Kikes at p. 129, ln. 23 to p. 130, ln. 18, attached as Exhibit 13.

2

87. The driver of the vehicle (i.e., Mr. Nieto) would not stop and drove another

3 300 feet until it turned into an auto shop instead of pulling over on the right side of the public

4 roadway as required by law. See Deposition of MCSO Deputy Michael Kikes at p. 130, ln.
5 19 to p. 132, ln. 2; see also p. 131, lns. 10-13 (“A. Well, first of all, the driver didn't
6 acknowledge that I was there and that he didn't use a turn signal and he didn't pull to the 7 right as what law states you need to pull to the right for an emergency vehicle.”), attached as 8 Exhibit 13.
88. Deputy Kikes was concerned about the driver’s (i.e., Mr. Nieto) behavior and 9
where he parked, and what that parking location meant. See Deposition of MCSO Deputy 10
Michael Kikes at p. 131, ln. 3 to p. 132, ln. 4, attached as Exhibit 13 (“Q. Was there 11 anything about that distance of 300 feet from the point you activated your lights and siren 12 until the point it -- the dark vehicle stopped that caused you any concern? A. Yes. Q. And 13 would you explain for me, what was that concern? A. Well, first of all, the driver didn't
14 acknowledge that I was there and that he didn't use a turn signal and he didn't pull to the right
15 as what law states you need to pull to the right for an emergency vehicle. He kept driving

16 and he kept going and then he finally pulled into a private -- somewhat private driveway.

17 Obviously, it's not a private driveway. It's a commercial driveway, but instead he remained

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

in the vehicle which, to us, is a very safety-oriented issue alarming to an officer. Q. Explain for us of those who do not have law enforcement training, why is pulling into even a commercial property of concern for officer safety? A. The surroundings, the nature of where he pulled, how he pulled in, the direction of where he was facing, heading. He could have drove backwards, hit us, anything. There is an escape route to the right. I look for escape routes. I look for a place where somebody can flee from the vehicle, get lost in a commercial area, get lost in the buildings and things like that.”).
89. Once the vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. See Deposition of MCSO Deputy Michael Kikes at p. 131, lns 17-19, attached as Exhibit 13 (“instead he [Mr. Nieto] remained in the vehicle which, to us, is a very safety-oriented issue alarming to an officer.”)
21

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 22 of 40

1

90. Manuel Nieto refused to roll down his window to speak with MCSO Deputy

2 Michael Kikes. See Deposition of MCSO Deputy Michael Kikes at p. 78, lns. 8-25, attached

3 as Exhibit 13.

4

91. Two unknown men in mechanic’s clothing immediately came out from the

5 auto repair shop and were “angry”, “yelling” and “cursing” at MCSO Deputy Michael Kikes.

6 See Deposition of MCSO Deputy Michael Kikes at p. 132, lns. 5-23, attached as Exhibit 13.

7

92. Deputy Beeks, now at the scene, saw the driver (Mr. Nieto) acting very

8 “belligerent”, “non-compliant”, and “almost hostile in nature” with and toward Deputy

Kikes, and he thought that the driver (Mr. Nieto) might drive his vehicle forward or 9
backward and, therefore, Deputy Beeks pulled his handgun for safety purposes. See October 10
22, 2009 Deposition of MCSO Deputy Douglas W. Beeks at p. 150, lns. 3-23; see also p.

11 151, lns. 12-18, attached as Exhibit 11.

12

93. Deputy Kikes opened the vehicle’s door, grabbed the driver (Mr. Nieto), and

13 removed Mr. Nieto from the vehicle where he then handcuffed Mr. Nieto. See Deposition

14 of MCSO Deputy Michael Kikes at p. 80, lns. 2-10; p. 80, ln. 23 to p. 82, ln. 2; see also p.

15 133, ln. 19 to p. 134, ln. 1 (“Q. Eventually I understand your testimony is that you ended up

16 taking the driver from the vehicle to the back of his SUV? A. Correct. Q. And the reason

17 for that was to create some distance or separation from the two men that were yelling curses

18 at you? A. Correct.”), attached as Exhibit 13.

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

94. Deputy Kikes was able to move the driver (Mr. Nieto) to rear of the vehicle away from the angry mechanics and obtain the driver’s license. See Deposition of MCSO Deputy Michael Kikes at p. 80, lns. 2-10, attached as Exhibit 13.
95. Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came back clear. See Deposition of MCSO Deputy Michael Kikes at p. 85, ln. 23 to p. 86, ln. 24, attached as Exhibit 13.
96. Deputy Beeks then contacted Deputy Armendariz to determine what had occurred between Deputy Armendariz and Ms. Meraz and Mr. Nieto. See Deposition of MCSO Deputy Michael Kikes at p. 85, ln. 23 to p. 86, ln. 24; see also p. 134, ln. 3 to p. 135, ln. 15 (“Q. You testified that eventually Deputy Beeks made some sort of contact with
22

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 23 of 40

1 Deputy Armendariz? A. Correct, by telephone, cell phone, he called back. Q. And your

2 understanding is that cleared up any confusion of exactly what had occurred with this dark

3 SUV and its occupants? A. Right. Q. There was a question as to why there was no citation

4 issued. That was because there was no moving violation? A. No crime had been
5 committed. Q. Okay. And that was confirmed after the stop had been made and
6 communication with Mr. -- Deputy Armendariz had been made? A. Right. After Deputy 7 Beeks advised me that nothing had taken place, that was just a gentleman of interest from the 8 traffic stop earlier, that nothing had been violated, that we could go ahead and let him go. Q.
Why in law enforcement -- strike that. Was there a concern that had you stopped to speak 9
with Armendariz first about what had occurred that the black SUV may not be able to be 10
found? A. Correct. Q. And I guess that is my next question is, before making that traffic 11 stop on the black SUV, why -- why couldn't you or another officer determine precisely why 12 you folks were not going to be following the black SUV and making the traffic stop? A. 13 Well, that all goes into exigent circumstances. We need to find out and stop right at that
14 point. We need to make a stop of that vehicle to not let it further -- either get away, either
15 hide whatever weapons may be -- or drugs or whatever the case may be inside that vehicle.

16 So we need to pursue that vehicle, have a stop and then go ahead and do our detective work

17 and find out exactly investigative of what is actually with that vehicle and why it needs to be

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

stopped.”), attached as Exhibit 13. 97. Following the communication between Deputies Beeks and Armendariz, Mr.
Nieto was released without being charged wither either a traffic violation (i.e., a failure to stop when directed) or for obstructing Deputy Armendariz. See Deposition of MCSO Deputy Michael Kikes at p. 85, ln. 23 to p. 86, ln. 24, attached as Exhibit 13.
98. Plaintiff Velia Meraz’ truthfulness is at issue for several reasons, including the fact she has a prior felony conviction for fraudulent schemes and artifices for writing money orders to herself while she was employed at Catholic Social Services as an immigration case worker. See Deposition of Plaintiff Velia Meraz at p. 7, ln. 22 to p. 9, ln. 19, attached as Exhibit 14.
99. Plaintiffs allege in the First Amended Complaint that since year 2007 they
23

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 24 of 40

1 have been subjected to the MCSO’s alleged official policy, pattern, and practice of stopping,

2 questioning, searching, and sometime arresting Latino persons without probable cause or

3 reasonable suspicion simply on the basis of their race. See Dkt.#26 at p. 3, lns. 15-25, ¶ 3; p.

4 3, ln. 26 to p. 4, ln. 1, ¶ 4. Plaintiffs further allege in their First Amended Complaint that the

5 MCSO’s challenged conduct occurs not only as a general practice of making traffic stops,

6 but also through making traffic stops during saturation patrols or so call “crime suppression

7 sweeps.” See Dkt.#26 at p. 3, p. 3, lns. 15-25, ¶ 3.

8

100. Mr. Melendres is a Mexican national and lives in Ciudad Obregon, Sonora,

Mexico, about a seven (7) hour bus trip from the border at Nogales, Mexico. See Deposition 9

of Plaintiff Manuel Melendres at p. 7, lns. 7-15, attached as Exhibit 1.

10 101. Mr. Melendres has returned to Maricopa County “once or twice” since his

11 September 2007 traffic stop. See Deposition of Plaintiff Manuel Melendres at p. 33, lns. 20-

12 23, attached as Exhibit 1.

13

102. When Mr. Melendres has visited Maricopa County on those occasions, Mr.

14 Melendres stays only for “some days or maybe a week.” See Deposition of Plaintiff Manuel

15 Madrid at p. 37, lns. 3-8, attached as Exhibit 1. During his one or two visits to Maricopa

16 County after the 2007 traffic stop, Mr. Melendres has not again been stopped, questioned,

17 detained, arrested, searched, or investigated by the MCSO since the traffic stop in September

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

2007. Id. at p. 34, ln. 8 to p. 35, ln. 5. 103. As to Mr. and Mrs. Rodriguez, they each testified that since their December
2007 traffic stop on Bartlett Dam Road by Deputy DiPietro, and although they live and work in Maricopa County, they each have had no other traffic stop encounters with the MCSO. See Deposition of Jessika Rodriquez at p. 58, ln. 16 to p. 59, ln. 6, attached as Exhibit 15; Deposition of David Rodriquez at p. 37, lns. 17-22, attached as Exhibit 8.
104. Indeed, Mrs. Rodriquez drives 20 miles roundtrip to work every day and estimates that she put roughly 20,000 miles on her personal car every year in Maricopa County but has never again been stopped by the MCSO. See Deposition of Jessika Rodriguez at p. 60, lns. 14-20; p. 61, lns. 11-21, attached as Exhibit 15.
105. Ms. Meraz testified that since her March 2008 traffic stop by the MCSO she
24

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 25 of 40

1 has had no other personal experience with the MCSO stopping her in any vehicle at any time

2 for any reason. See Deposition of Velia Meraz at p. 32, lns. 15-20, attached as Exhibit 14.

3

106. Mr. Nieto testified that he also has had no traffic stop encounters with the

4 MCSO since the March 2008 traffic stop. See Deposition of Manuel Nieto, Jr., at p. 36, lns.

5 14-16, attached as Exhibit 12.

6

107. Although Mr. Melendres speculates that the truck was not speeding, he has no

7 facts that would allow him to dispute the probable cause determination of Deputy DiPietro.

8 See Deposition of Plaintiff Manuel Melendres at p. 18, lns. 1-5, (speculative conclusion that the truck was not speeding); at p. 18, ln. 9 to p.19, ln. 17 (Q. But do you know what the
9 speed was of the truck shortly before it was stopped? A. No. Q. Do you know whether the
10 driver of the vehicle was driving at a speed in excess of the posted speed limit? A. No. Q. If
11 it's the sheriff's deputy's position that the driver was going too fast, do you have any facts to

12 dispute that position? A. Could you repeat the question? Q. Sure. My clients say they

13 stopped the vehicle because it was speeding. Do you have any facts that would allow you to

14 dispute that? A. No. *** Q. Do you contend, sir, that the stop was improper or illegal in

15 anyway? A. Well, if I showed him my documents -- well, I don't know the rules here. So

16 actually, I don't know if they have the right to stop the driver. I can't say, because it's not my

17 -- within my knowledge to say. Q. It is not within your knowledge to say whether the stop

18 was proper or not proper; true? A. Well, no, because the officers who pulled the car over,

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

they are the ones who know about that. I cannot say anything about that.”), attached as Exhibit 1.
108. Defendants’ law enforcement practices expert, Bennie R. Click, opines that that “Deputy DiPietro had probable cause to stop the vehicle in which Mr. Melendres was a passenger. Deputy DiPietro’s actions in stopping the vehicle conformed with standard police training and law enforcement practice, met the requirements set for in [A.R.S. section] 133883 and were reasonable.” See Report of Ben Click dated January 21, 2011, at p. 13, attached as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 (wherein he testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to
25

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 26 of 40

1 a reasonable degree of probability in his field of expertise).

2

109. Plaintiffs’ law enforcement practices/racial profiling expert witness, Robert L.

3 Stewart, has no factual basis to disagree with Deputy DiPietro’s probable cause

4 determination:

5

Q. Based on all the evidence that you have reviewed, did Deputy Louis DiPietro

have probable cause to stop the truck in which Mr. Melendres was a

6

passenger?

7

A. According to him.

8 Q. Is that a yes or a no?
9

10

A. His record reflects that he did.

11

Q. Do you have any direct evidence rebutting Deputy DiPietro’s testimony that he

12

had probable cause to stop the truck?

13

A. No, sir.

14

Q. Do you have any circumstantial evidence rebutting Deputy DiPietro’s

15

testimony that he had probable cause to stop the truck?

16

A. No, sir.

17 See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 60, ln. 12 to p. 18 61, ln. 2, attached as Exhibit 18.

19

110. Mr. Melendres was in an MCSO holding cell before removal to ICE for

20 “probably about two hours.” See Deposition of Plaintiff Manuel Melendres at p. 25, lns. 10-

21 15, attached as Exhibit 1. Mr. Melendres was held another six to seven hours by ICE at the

22 ICR DRO facility. Id. at p. 25, ln. 23 to p. 26, ln. 4.

23

111. Mr. Melendres was properly detained pursuant to Deputy Rangel’s 287(g)

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

authority. See Report of Ben Click dated January 21, 2011, at p. 14-15; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 (wherein he testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise); cf. Filed Under Seal Defendants’ Supplemental Statement of Facts Re:
26

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 27 of 40

1 Testimony of ICE Witnesses in Support of Their Motion for Summary Judgment at ¶ 26.

2

112. Mrs. Rodriguez admits there was probable cause to stop her vehicle. See

3 Deposition of Jessica Rodriguez at p. 30, lns. 7-21 (“Q. Do you believe now, in hindsight,

4 that [Deputy Ratcliffe] did have a good reason to pull you over? A. Yes. Q. And what is

5 that based on? A. On the citation issued to us, which was failure to obey a traffic device.

6 Q. All right. And so in hindsight, even though you weren't aware of it at the time of the

7 stop, you did realize that there was a "Road Closed" sign, right? A. Yes. Q. And that it

8 was illegal to travel on that road, wasn't it? A. Yes.”), attached as Exhibit 15. 113. Mrs. Rodriguez is not even critical of the traffic stop made by MCSO Deputy
9 Matthew Ratcliffe. See Deposition of Jessica Rodriguez at p. 31, 9-20) (“Q. All right. So
10 you're not critical of the initial stop, are you? A. No. Q. Okay. He was -- the initial stop,
11 the officer, you understand, was legally -- in your mind's eye, what he did was proper, wasn't

12 it? A. Yes.”), attached as Exhibit 15.

13

114. Defense expert Mr. Click testified that Deputy Ratcliffe had PC to stop the

14 Rodriguez truck. See Report of Ben Click dated January 21, 2011, at p. 23, attached as

15 Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln.

16 24 to p. 342, ln. 14, attached as Exhibit 17 (wherein he testified to the foundation for his

17 opinions and that his opinions in the report were the same he would provide at trial to a

18 reasonable degree of probability in his field of expertise).

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

115. Plaintiffs’ liability expert Mr. Stewart testified: Q. Based on all the evidence you’ve reviewed, did Deputy Ratcliffe have probable
cause to stop the Rodriguez vehicle on the road?
A. Yes. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 79, lns. 14-17, attached as Exhibit 18; see also p. 77, ln. 18 to p. 78, ln. 2.
116. Plaintiffs’ liability expert Mr. Stewart opined that Deputy Ratcliffe had probable cause to stop the Rodriguez truck even if Mr. Rodriguez did not see the “Road Closed” sign. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 77, ln. 18 to p. 78, ln. 2, attached as Exhibit 18.
27

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 28 of 40

1

117. MCSO Deputy Michael Kikes testified that he had probable cause to stop the

2 vehicle driven by Mr. Nieto and occupied by Ms. Meraz. See Deposition of MCSO Deputy

3 Michael Kikes at p. 129, lns. 4-18, attached as Exhibit 13 (“Q. Now, let's turn to the incident

4 that the plaintiffs' lawyer asked you questions about, the one involving Ms. Meraz and Mr.

5 Nieto. Tell us what was, in your judgment, the probable cause that allowed you to activate

6 your lights and siren to pull over what you described as the black SUV? A. I believed that

7 some emergency and some situation had taken part with Ramon Armendariz, Deputy

8 Armendariz. There was an emergency and that is why I pulled them over because -- not

knowing exactly what had happened, but there was some sort of emergency that took place at 9
that moment. Q. Did you believe that that emergency situation existed in what you believed 10
to be your good faith? A. Absolutely.”).

11

118. Defense expert Mr. Click opines that Ms. Meraz and Mr. Nieto obstructed

12 Deputy Armendariz in his investigation and arrest of the two stopped men and that they

13 could have been arrested by law enforcement for such obstructions. See Report of Ben Click

14 dated January 21, 2011, at p. 37, attached as Exhibit 16; see also March 18, 2011 Deposition

15 of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17

16 (wherein he testified to the foundation for his opinions and that his opinions in the report

17 were the same he would provide at trial to a reasonable degree of probability in his field of

18 expertise). Defense expert Bennie R. Click, therefore, testified that Deputy Kikes had

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

reasonable suspicion to stop the Nieto-Meraz vehicle. See Report of Ben Click dated January 21, 2011, at p. 35, attached as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 (wherein he testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
119. Plaintiffs’ liability expert Stewart agrees with Defense expert Click that MCSO Deputy Michael Kikes had reasonable suspicion that allowed him to properly stop the Meraz-Nieto vehicle. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 103, lns. 4-17, attached as Exhibit 18.
120. To the extent the Plaintiffs claim that Deputy Kikes’ treatment of Mr. Nieto
28

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 29 of 40

1 during the traffic stop violated his rights, such claim lacks merit. Even Plaintiffs’ liability

2 expert Mr. Stewart opines that Deputy Kikes acted reasonably in his post-stop conduct and

3 treatment of Mr. Nieto. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L.

4 Stewart at p. 105, lns. 3-6, attached as Exhibit 18 (“Q. Do you have any opinion whether

5 Deputy Kikes acted reasonable or unreasonable? A. I think for the circumstances that he

6 had, he acted reasonable.”).

7

121. The essence of Plaintiffs’ Fourteenth Amendment and Title VI racial

8 discrimination claims is summarized in their First Amended Complaint:

Caucasian drivers and passengers involved in the same or similar acts or alleged

9

violations are treated differently and their vehicles stopped at much lower rates than

10

similarly situated Latino drivers and passengers pursuant to MCSO policy and

practice. Further Caucasian drivers and passengers are treated differently and less

11

intrusively and detained for shorter periods of time after their vehicles are stopped by

12

MCSO personnel than Latino drivers and passengers after being stopped. Latino occupants are also treated differently and more intrusively by MCSO than Caucasian

13

occupants of the same vehicle

14 See Dkt.#26 at p. 11, lns. 3-10, ¶ 32 (containing Plaintiffs’ First Amended Complaint dated
15 September 5, 2008).

16

122. Plaintiffs’ own statistical expert, Ralph Taylor, Ph.D., conducted a statistical

17 analysis of all the MCSO traffic stops conducted from January 1, 2007 to October 31, 2009

18 and concluded that Latinos in Maricopa County are stopped by MCSO personnel in roughly

19 the same proportion to their share of Maricopa County’s population. See March 21, 2010

20 Deposition of Ralph Taylor, Ph.D. at 129, ln. 19 to p. 130, ln. 14, attached as Exhibit 21 (“Q.

21 What about for non-saturation patrol days? Would it be fair to categorize the percentage of

22 traffic stops as what you would expect given the population of Hispanics in Maricopa

23 County? A. I am looking at names checked, not traffic stops per se. And I—and you’ve

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

asked ---there’s something incomplete in your question. Q. [Question re-read to the witness]…. A. Oh. If you’re asking does the percentage of—for names checked on nonsaturation patrol days, does the percentage of names checked Hispanic appear to align with generally the Hispanic proportion of Maricopa County, my answer to that would be generally yes, but that is non-informative.”) (emphasis added); see also February 28, 2011
29

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 30 of 40

1 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 154, lns. 20-24, attached as Exhibit

2 18 (“Q. Did Mr. Taylor’s overall traffic stop analysis show that Hispanics in Maricopa

3 County are stopped in rough proportion to their share of Maricopa County’s population? A.

4 Yes, sir.”).

5

123. Defense expert statistician Steve Camarota, Ph.D, wrote a written report

6 containing his opinions and the “Summary of Findings” in his report provided the following:

7

[My] findings show that the Hispanic share of those stopped by the MCSO deputies is roughly equal to their proportion of the county’s and the state’s overall population.

8

About one-third of stops are of individuals with a Hispanic last name, which closely

matches their share of the county and state populations. Analysis at the sub-county

9

level also tends to show stops in proportion to local population shares…. Equally

10

important, despite a significant increase in concern over illegal immigration in recent

years in the county and state, there was no increase in the Hispanic share of those

11

stopped by MCSO between 2005and 2009. Overall, the surname analysis shows

12

Hispanics are being stopped at a rate that reflects their share of the population.

13 See January 20, 2011 Report of Steven Camarota, Ph.D., entitled “Report 1 Hispanic

14 Surname Analysis of Maricopa County Sheriff’s Office Patrol Activity 2005 to 2009” at p. 1,
15 attached as Exhibit 19 (underlining added for key sections of the report for the convenience
16 of the Court); see also March 22, 2011 Deposition of Defense Expert Steve Camarota, Ph.D. 17 at p. 122, lns. 13-16, attached as Exhibit 20 (foundation for his report). Dr. Camarota would
expect that if Latinos were being racially profiled by MCSO personnel during traffic stops 18
then the traffic stops of Latinos would be in a much greater percentages than their percentage 19
of the general population. See March 22, 2011 Deposition of Defense Expert Steve 20
Camarota, Ph.D. at p. 106, lns. 3-13, attached as Exhibit 20 (Q. You don’t come to a 21 conclusion affirmatively that the MCSO does not discriminate against Hispanics, correct? A. 22 My conclusion is that Hispanics are not stopped at rates higher than their overall population
23 share, and that if they were being targeted for enforcement, we would expect that they would
24 be stopped at rates higher than their population shares. That’s my conclusion.”); See also

25 January 20, 2011 Report of Steven Camarota, Ph.D., entitled “Report 1 Hispanic Surname

26 Analysis of Maricopa County Sheriff’s Office Patrol Activity 2005 to 2009” at p. 1, attached

27 as Exhibit 19.

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

124. Dr. Taylor’s saturation patrol opinions are based on a study that he 30

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 31 of 40

1 characterized as “quasi-experimental” in nature. See March 21, 2010 Deposition of Ralph

2 Taylor, Ph.D. at 46, lns. 6-10 (“Because that was not required by the quasi experimental

3 design used in my analysis.”); p. 46, lns. 11-18 (“The quasi- experimental design that I used

4 had tow types, of, if you will, non-treatment days.”); p. 48, ln. 12-17 (discussion of what is a
5 quasi-experimental study), attached as Exhibit 21. Dr. Taylor’s “quasi-experimental” study
6 does not result in definitive findings or conclusion, only “inferences.” See March 21, 2010 7 Deposition of Ralph Taylor, Ph.D. at 47, ln. 13 to p. 48, ln. 11, attached as Exhibit 21. Dr. 8 Taylor’s alternative opinions that there are disproportionate percentages of Latino’s stopped
during MCSO saturation patrols and that their traffic stop detentions are supposedly longer 9
than non-Latinos is factually suspect. Dr. Taylor’s saturation patrol analysis mistaken fails: 10
(1) to exclude those patrols that included a human smuggling interdiction component or 11 exclude load vehicles found with illegal immigrant; (2) to exclude duplicate records in the 12 Computer Aided Dispatch (“CAD”) database; (3) improperly excluded thousands of other 13 cases that should have been included in the analysis; and (4) failed to account for any socio-
14 economic variables in his statistical model. See January 20, 2011 Report of Steven
15 Camarota, Ph.D., entitled “Report 1 Hispanic Surname Analysis of Maricopa County

16 Sheriff’s Office Patrol Activity 2005 to 2009” at p. 1, 3-4. 20-33, attached as Exhibit 19

17 (underlining added for key sections of the report for the convenience of the Court); see also

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

March 22, 2011 Deposition of Defense Expert Steve Camarota, Ph.D. at p. 122, lns. 13-16_, attached as Exhibit 20 (foundation for his report; See March 21, 2010 Deposition of Ralph Taylor, Ph.D. at 47, ln. 13 to p. 48, ln. 11, attached as Exhibit 21 (wherein Dr. Taylor testified that his study leads only to “inferences” that might be drawn from the data); p. 56, lns. 5-7 (wherein Dr. Taylor testified that he excluded 18% of all MCSO traffic stops); p. 52, lns. 8-19 (wherein Dr. Taylor testified that he excluded 18% of all MCSO traffic stops because they did not “align” well with the Plaintiffs’ case theory or the Plaintiffs’ “concerns” about MCSO operations).
125. Before MCSO Deputy Louis DiPietro had ever found probable cause to stop the truck in which Mr. Melendres was a passenger, Deputy DiPietro did not know or see the race of the truck’s driver or the passengers in the truck. See Deposition of MCSO Deputy
31

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 32 of 40

1 Louis DiPietro at p. 115, ln. 18 to p. 116, ln. 5, attached as Exhibit 4.

2

126. Race was not a factor in Deputy Louis DiPietro’s finding that he had probable

3 cause to stop the truck:

4

Q. Did race of either the driver or the passengers of the truck play any role

in your decision to find probable cause to stop this truck?

5

6

A. No.

7

Q. Do you ever use race to stop vehicles?

8

A. No, I don't.

Q. Do you ever use race to find probable cause for traffic stops? 9
A. No. 10
See Deposition of MCSO Deputy Louis DiPietro at p. 116, lns. 7-16, attached as Exhibit 4.

11

127. .Deputy Carlos Rangel does not racially profile because it is morally wrong

12 and illegal. See Deposition of MCSO Deputy Carlos Rangel at p. 128, lns. 11-18, attached

13 as Exhibit 2.

14

128. Plaintiff Manuel Melendres does not have an opinion or position on whether he

15 was racially profiled by any MCSO deputy:

16

Q. You also claim in your lawsuit that you have suffered unlawful discrimination.

17

Do you believe that the deputies that you encountered on September 26, 2007, were intentionally trying to deprive you of your constitutional rights?

18 A. I cannot say that. I can't be -- tell you for sure.
19

20 See Deposition of Plaintiff Manuel Melendres at p, 38. lns. 18-25, attached as Exhibit 1.

21

129. Defense expert Bennie R. Click testified that ‘[t]here is no evidence that

22 Deputy [DiPietro] knew the race or ethnicity of the vehicle’s occupants prior to the truck

23 stopping or that race or ethnicity played any role in Deputy [DiPietro’s] actions. See Report

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

of Ben Click dated January 21, 2011, at p. 14, attached as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 (wherein he testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
32

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 33 of 40

1

130. Plaintiffs’ liability expert Robert L. Stewart testified that he believes Deputy

2 DiPietro must have had discriminatory intent or motive in stopping the truck in which Mr.

3 Melendres was a passenger. Mr. Stewart reaches this conclusion based on his “reasoning”

4 that: (a) Deputy DiPietro testified that, in his law enforcement experience in Maricopa

5 County, most day laborers were illegal aliens from Mexico; (b) the MCSO operation that

6 date was targeting a church suspected of being a drop house for smuggled illegal aliens and a

7 location for such persons to be picked-up for day laborer jobs; and (c) Deputy DiPietro was
8 instructed to find probable cause for vehicles that picked-up passengers at the church and before finding such probable cause he already drawn the conclusion that anyone picked up at
9 the church would be an illegal alien; and (d) because people from Mexico are Latinos by
10 definition, Deputy DiPietro must have been intending to discriminate against Latinos. See
11 February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 61, ln. 10 to p, 65,
12 ln. 1, attached as Exhibit 18.

13

131. Plaintiffs’ liability expert Robert L. Stewart testified at deposition to the

14 following:

15

Q. Do you believe that Louis DiPietro had discriminatory intent or motivation as

16

to race in stopping the truck in which Mr. Melendres was a passenger?

17

A. I don’t know.

18

Q. Is it your opinion that Deputy DiPietro had a racially discriminatory intent or

19

motivation in stopping the truck in which Mr. Melendres was a passenger?

20

A. I don’t know.

21

Q. Is there any evidence that Deputy DiPietro knew the race of the driver of the

22

truck before stopping it?

23

A. I don’t know whether that information was given to him by the observer.

24

Q. Is there any evidence that Deputy DiPietro knew the race of any occupants in

25

the truck before stopping it?

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

A. I don’t recall whether that information was given by the observer either. Q. Is there any evidence that Deputy DiPietro used race as a factor in any form to
33

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 34 of 40

1

decide to stop the truck?

2

A. No, sir.

3

Q. Is there any evidence that Deputy DiPietro knowingly harbored explicit bias

4

towards specific groups of people?

5 A. Not that I know of.
6

7

Q. Is there any evidence that Deputy DiPietro had unconscious bias toward certain group of people?

8 A. We don’t know.
9

10 See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 66, ln. 1 to p.

11 67, ln. 6, attached as Exhibit 18; see also Filed Under Seal Defendants’ Supplemental

12 Statement of Facts Re: Testimony of ICE Witnesses in Support of Their Motion for Summary

13 Judgment at ¶¶ 6-13, 20-21, and 23-24.
132. Before deciding to conduct the traffic stop of the Rodriguez truck, and to issue 14
a citation to the truck’s driver, Deputy Ratcliffe did not see the race of the truck’s driver or 15
of any occupants of the truck. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 93,

16 ln. 11 to p. 94, ln. 9, attached as Exhibit 6.

17

133. Mrs. Rodriguez testified that Deputy Ratcliffe was not acting with racially

18 discriminatory intent or motive.

19

Q. Do you believe that Deputy Ratcliffe was intentionally trying to deprive you of

20

your constitutional rights?

21

A. No.

22 See Deposition of Jessika Rodriguez at p. 55, ln. 25 to p. 56, ln. 4, attached as Exhibit 15.

23

134. Defense expert Mr. Bennie R. Click opines that there is no direct or

24 circumstantial evidence that Deputy Ratcliffe racially profiled or otherwise acted toward Mr.

25 and Mrs. Rodriguez with racially discriminatory intent or motive. See Report of Ben Click

26 dated January 21, 2011, at pgs. 23-24, attached as Exhibit 16; see also March 18, 2011

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 (wherein he testified to the foundation for his opinions and that his opinions in the report
34

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 35 of 40

1 were the same he would provide at trial to a reasonable degree of probability in his field of

2 expertise).

3

135. Plaintiffs’ liability expert Mr. Robert L. Stewart testified:

4

Q. Is it your opinion that Deputy Ratcliffe had discriminatory intent or motive in

stopping the Rodriguez vehicle?

5

6

A. Don’t know.

7 See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 84, lns. 16-19,

8 attached as Exhibit 18; see also Filed Under Seal Defendants’ Supplemental Statement of

9 Facts Re: Testimony of ICE Witnesses in Support of Their Motion for Summary Judgment at

10 ¶¶ 6-13, 20-21, and 23-24.

11

136. Plaintiffs’ liability expert Mr. Robert L. Stewart testified that that MCSO

12 Deputy Matthew Ratcliffe “maybe” had racially discriminatory intent or motive in issuing a
13 citation to Mr. Rodriguez. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 84, lns. 20-23, attached as Exhibit 18. Mr. Stewart, however, testified that he
14 had no direct or circumstantial evidence that Deputy Ratcliffe used race as a factor in any
15 form to decide to give a citation to Mr. Rodriguez. See February 28, 2011 Deposition of
16 Plaintiffs’ Expert Robert L. Stewart at p. 87, lns. 19-22, attached as Exhibit 18; see also

17 Filed Under Seal Defendants’ Supplemental Statement of Facts Re: Testimony of ICE

18 Witnesses in Support of Their Motion for Summary Judgment at ¶¶ 6-13, 20-21, and 23-24.

19

137. Mr. Stewart basis his “maybe” opinion on the reasoning that Deputy Ratcliffe

20 stopped several non-Latino motorists on Bartlett Dam Road the same day he stopped Mr. and

21 Mrs. Rodriguez, did not give them citations, referred the non-Latino drivers to the Tonto

22 National Forest Ranger (who issued citations to the non-Latino drivers), and the only citation

23 Deputy Ratcliffe actually issued was to Mr. Rodriguez, who is Latino. See February 28,

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 85, ln. 4 to p. 87, ln. 18, attached as Exhibit 18. As such, Mr. Stewart concludes that Deputy Ratcliffe intentionally treated the Rodriguez differently than the non-Latinos drivers he pulled over by issuing a citation to the Rodriguez but referring the non-Latinos to the Tonto National Forest Ranger. Id.
35

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 36 of 40

1

138. Deputy Ratcliffe did not recall the race of the other drivers he referred to the

2 Tonto National Forest Ranger, and he observed the ranger issue citations to those other

3 drivers. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 39, ln. 4 to p. 40, ln. 11,

4 attached as Exhibit 6.

5

139. Another MCSO officer working Lake Patrol with Deputy Ratcliffe, Deputy

6 Maltz, had on the same day allowed other motorists (of unknown races) to drive on the
7 closed Bartlett Dam Road in order to go to the lake to repair either their recreational vehicles 8 or boats that had been damaged in the storm. See Deposition of MCSO Deputy Matthew
Ratcliffe at p. 28, ln. 21 to p. 31, ln. 4 (p. 31, lns. 1-4; Deputy Maltz has stopped all the other 9
vehicles); see also p. 32, ln. 22 to p. 33, ln. 9 (“Q. What else did you say to the Rodriguez’ 10
at that time? A. As far as what, sir? Q. As far as the discussion that you were having with 11 them about selective enforcement. A. Just advising them that basically some people were 12 allowed to try to make repairs to their boats or RVs at that time. Q. Do you recall the race
13 or ethnicity of those other people? A. No, sir. Q. Were any of them Hispanic? A. I don't

14 recall, sir.”); see also p. 113, ln 9 to p. 114, ln. 13, attached as Exhibit 6 (other drivers

15 allowed to use road to repair property at the lake).

16

140. Deputy Ratcliffe has known Deputy Maltz for 2.5 years and does not believe

17 that Deputy Maltz’ decision to allow other people to use Bartlett Dam Road to repair their

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

property was based in any way on racial considerations. See Deposition of MCSO Deputy Matthew Ratcliffe at p. 114, lns. 17-24, attached as Exhibit 6.
141. Plaintiffs’ liability expert, Mr. Robert L. Stewart, has no evidence of racially discriminatory intent or motive by Deputy Armendariz. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart at p. 99, ln. 3-6; see also p. 97, ln. 18 to p. 98, ln. 5, attached as Exhibit 18; see also Filed Under Seal Defendants’ Supplemental Statement of Facts Re: Testimony of ICE Witnesses in Support of Their Motion for Summary Judgment at ¶¶ 6-13, 20-21, and 23-24.
142. Plaintiffs’ liability expert, Mr. Robert L. Stewart, testified that there is no evidence of racially discriminatory intent or motive by MCSO Deputy Douglas Beeks in withdrawing his weapon. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L.
36

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 37 of 40

1 Stewart at p. 101, lns. 5-6, lns. 17-19, attached as Exhibit 18; see also Filed Under Seal

2 Defendants’ Supplemental Statement of Facts Re: Testimony of ICE Witnesses in Support of

3 Their Motion for Summary Judgment at ¶¶ 6-13, 20-21, and 23-24.

4

143. Plaintiffs’ liability expert, Mr. Robert L. Stewart, testified that there is no

5 evidence that MCSO Deputy Michael Kikes had racially discriminatory intent or motive in

6 making the traffic stop of the Meraz-Nieto vehicle. See February 28, 2011 Deposition of
7 Plaintiffs’ Expert Robert L. Stewart at p. 103, ln. 18 to p. 104, ln. 1; p. 104, lns. 12-4; lns. 8 19-21, attached as Exhibit 18; see also Filed Under Seal Defendants’ Supplemental
Statement of Facts Re: Testimony of ICE Witnesses in Support of Their Motion for Summary 9
Judgment at ¶¶ 6-13, 20-21, and 23-24. 10
144. Plaintiffs’ liability expert, Mr. Robert L. Stewart, testified that there is no 11 evidence that Ms. Meraz and Mr. Nieto were racially profiled in either the traffic stop or 12 during their treatment by the MCSO deputies. See February 28, 2011 Deposition of
13 Plaintiffs’ Expert Robert L. Stewart at p. 108, lns. 10-13, attached as Exhibit 18; see also
14 Filed Under Seal Defendants’ Supplemental Statement of Facts Re: Testimony of ICE

15 Witnesses in Support of Their Motion for Summary Judgment at ¶¶ 6-13, 20-21, and 23-24.

16

145. Plaintiffs’ liability expert, Mr. Robert L. Stewart, testified that he only has his

17 “suspicions” that MCSO Deputy Michael Kikes may have been racially motivated to stop

18 Meraz and Nieto. See February 28, 2011 Deposition of Plaintiffs’ Expert Robert L. Stewart

19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

at p. 107, ln. 25 to p. 108, ln. 2, attached as Exhibit 18 (Q. What evidence do you have that anyone was racially motivated to stop these people 0Meraz and Nieto]? A. Only my suspicions.”) (emphasis added); see also p. 106, lns. 8-11 (Q: My question to you is, is it Robert Stewart’s opinion that Meraz and Nieto were racially profiled during the traffic stop? A. There is a strong hint that they may have been.”) (emphasis added).
146. The Plaintiffs’ own statistics expert, Ralph Taylor, Ph.D., has no opinion as to whether Plaintiff Mr. Melendres is likely to again face a future traffic stop by the MCSO. See March 21, 2010 Deposition of Ralph Taylor, Ph.D., at p. 163, ln. 20 to p. 164, ln. 13 (As to Mr. Melendres, Dr. Taylor opines that he estimates that Mr. Melendres would have “a higher chances of being stopped all else equal compared to that other hypothetical non-
37

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 38 of 40

1 Hispanic driver”): p. 164, lns. 14-20 (As to the probability that Mr. Melendres will be

2 stopped in a future saturation patrol, “I am not sure, because I – I don’t know his driving

3 patterns or what the future pattern of saturation patrol activities will be; its frequency, its

4 location and how that would link to where and how he drives.”); p. 165, lns. 1 to p. 166, ln.

5 24 (Dr. Taylor cannot opine on the probability that Mr. Melendres will be pulled over

6 because his data deals with a group and not individuals.), attached as Exhibit 21.

7

147. The Plaintiffs’ own statistics expert, Ralph Taylor, Ph.D., has no opinion as to

8 whether Plaintiffs Mr. and Mrs. Rodriguez are likely to again face a future traffic stop by the

MCSO. See March 21, 2010 Deposition of Ralph Taylor, Ph.D., at p. 166, ln. 25 to p. 167, 9
ln. 7, attached as Exhibit 21 (“Q. Do you know the probability of Rodriguez getting pulled 10
over again by Maricopa County sheriff’s deputies in a saturation patrol? A. No, I don’t.

11 But what I do estimate, and it’s my opinion, that his chances of being stopped during a major

12 saturation patrol are higher than would be the chances of a person driving with a non-

13 Hispanic name driving in exactly the same way, exactly the same type of vehicle.”); see also

14 p. 170, lns. 11-19 (discussing chances of the Rodriguez having an MCSO conducted traffic

15 during a non-saturation patrol: “no, I cannot give you those specific probabilities.”).

16

148. The Plaintiffs’ own statistics expert, Ralph Taylor, Ph.D., has no opinion as to

17 whether Plaintiffs Velia Meraz and Manuel Nieto, Jr., are likely to again face a future traffic

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

stop by the MCSO. See March 21, 2010 Deposition of Ralph Taylor, Ph.D., at p. 170, ln. 22 to p. 171, ln. 5, attached as Exhibit 21.
149. The Plaintiffs’ own statistics expert, Ralph Taylor, Ph.D., testified that if the Plaintiffs in this case have not again been subject to MCSO initiated traffic stops during “major saturation patrols” over a time span over several years – which are the undisputed facts -- he would wan to learn more information about the Plaintiffs’ driving, if the Plaintiffs were exposed to law enforcement, where the Plaintiffs were driving on those saturation patrol days, and where the Plaintiffs were not driving on those saturation patrol days. See March 21, 2010 Deposition of Ralph Taylor, Ph.D., at p. 172, ln. 23 to p. 173, ln. 16, attached as Exhibit 21.
150. Somos America’s representative, Ms. Lydia Guzman, has never experienced a
38

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 39 of 40

1 traffic stop by the MCSO. See Deposition of Lydia Guzman, at p. 29, lns. 19-21; p. 93, lns.

2 1-9, attached as Exhibit 22.

3

151. Somos America is a non-profit advocacy organization, with no paid staff, no

4 membership dues, and any person or entity that attends its monthly meetings may consider

5 itself a member of Somos American. See Deposition of Lydia Guzman, at p. 8, lns. 11-25

6 (Somos is a 501(c)(3) non profit organization); p. 11, ln. 16 to p. 12, ln. 4 (no paid
7 employees, only volunteers); p. 9, lns. 23-25 (anybody that attends a Somos meeting may 8 consider itself a member), attached as Exhibit 22.
152. Somos America has only 35 members such as Latino American Citizens, No 9
More Deaths, MECHHA, and various labor unions, and there is no admissible evidence that 10
any Somos America member -- or employee of a member organization -- has been subject to 11 an MCSO traffic stop. See Deposition of Lydia Guzman, at p. 22, lns. 22-25 (35 members); 12 p. 24-26 (listing of member organizations or entities); p. 29, lns. 19-21 and p. 93, lns. 1-9 (no
13 traffic stops personally witnessed by Lydia Guzman) attached as Exhibit 22.

14

DATED this 29th day of April, 2011.

15

SCHMITT, SCHNECK, SMYTH & HERROD,

P.C.

16

s/Timothy J. Casey______

17

Timothy J. Casey

Schmitt, Schneck, Smyth & Herrod, P.C.

18

1221 E. Osborn Rd., Suite 105

Phoenix, Arizona 85014

19

Telephone: (602) 277-7000

Facsimile:(602) 277-8663

20

Co-counsel for Defendants Arpaio and the MCSO

21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2011, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: The Honorable G. Murray Snow United States District Court 401 West Washington Street, Phoenix, Arizona 85003-2158 Stanley Young, Esq. Stephen Chien, Esq. Andrew Carl Byrnes, Esq.
39

Case 2:07-cv-02513-GMS Document 413-1 Filed 04/29/11 Page 40 of 40

1 COVINGTON & BURLING, LLP 333 Twin Dolphin Road
2 Redwood Shores, California 94065 Counsel for Plaintiffs
3 Daniel Pochoda, Esq.
4 Annie Lai, Esq. ACLU FOUNDATION OF ARIZONA
5 3707 N. 7th Street, Suite 235 Phoenix, Arizona 85014
6 Counsel for Plaintiffs

7 Monica M. Ramirez, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION
8 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
9 San Francisco, California 94111 Counsel for Plaintiffs
10 Nancy Ramirez, Esq.
11 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
12 634 S. Spring Street, 11th Floor Los Angeles, California 90014
13 Counsel for Plaintiffs

14 Maria Brandon, Esq. Thomas Liddy, Esq.
15 MARICOPA COUNTY ATTORNEY’S OFFICE Deputy County Attorneys
16 Litigation Practice Group Civil Services Division
17 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
18 Phoenix, Arizona 85004 602-506-8066
19 Co-counsel for Defendants Arpaio and MCSO

20 s/Eileen Henry______ Eileen Henry, Paralegal
21 SCHMITT, SCHNECK, SMYTH & HERROD, P.C.

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

40

 </s> COVINGTON & BURLING LLP 1 333 Twin Dolphin Drive
Suite 700 2 Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700 3 Facsimile: (650) 632-4800

4 Stanley Young (Pro Hac Vice)

syoung@cov.com 5 Andrew C. Byrnes (Pro Hac Vice)

6

abyrnes@cov.com Attorneys for Plaintiffs (Additional attorneys

7 for Plaintiffs listed on next page)

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, ) No. CV 07-2513-PHX-GMS

10 et al.,

)

)

11

Plaintiffs,

)

12

vs.

) PLAINTIFFS’ MOTION FOR ) PARTIAL SUMMARY JUDGMENT

13 Joseph M. Arpaio, et al.,

) ) ORAL ARGUMENT REQUESTED

)

14

Defendants.

) The Honorable Judge G. Murray Snow

) 15

16

17

18

19

20

21

22

23

24

25

26

27

28

Additional Attorneys for Plaintiffs: 1

2

COVINGTON & BURLING LLP 1 Front Street

3

San Francisco, CA 94111-5356 Telephone: (415) 591-6000

4

Facsimile: (415) 591-6091 Tammy Albarran (Pro Hac Vice)

5

talbarran@cov.com Kevin Hickey (Pro Hac Vice)

6

khickey@cov.com Matthew Steilen (Pro Hac Vice)

7

msteilen@cov.com Lesli Gallagher (Pro Hac Vice)

8 lgallagher@cov.com

9

ACLU FOUNDATION OF ARIZONA 3707 N. 7th St., Ste. 235

10

Phoenix, AZ 85014 Telephone: (602) 650-1854

11

Facsimile: (602) 650-1376 Daniel Pochoda (021979)

12

dpochoda@acluaz.org Anne Lai (330036*)

13

alai@acluaz.org *Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

15

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

16

San Francisco, California 94111 Telephone: (415) 343-0775

17

Facsimile: (415) 395-0950 Cecillia Wang (Pro Hac Vice)

18 cwang@aclu.org

19

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

20

634 South Spring Street, 11th Floor Los Angeles, California 90014

21

Telephone: (213) 629-2512 Facsimile: (213) 629-0266

22

Nancy Ramirez (Pro Hac Vice) nramirez@maldef.org

23

24

25

26

27

28

- ii -

1

TABLE OF CONTENTS

2 I. INTRODUCTION ...................................................................................................1

3 II. FACTUAL BACKGROUND .................................................................................3

4

A. Sheriff Arpaio Announces “Crackdown” on Illegal Immigration and

5

Begins Saturation Patrols in Effort to Get “Illegals”...........................................3

6

B. Sheriff Arpaio and MCSO Officers Endorse and Encourage Racial Profiling in Connection with Immigration Enforcement ....................................6

7

C. The MCSO’s Immigration Enforcement Activities Have Led to

8

Discriminatory Treatment of Hispanics in Maricopa County ............................8

9

D. Hispanics are Stopped at Significantly Higher Rates During Saturation Patrols .....................................................................................................................10

10 III. PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF ON THEIR

11

CLAIM THAT DEFENDANTS’ POLICIES AND PRACTICES VIOLATE THE FOURTEENTH AMENDMENT’S EQUAL PROTECTION CLAUSE..................12

12

A. Legal Standards ............................................................................................12

13

1. Summary Judgment ................................................................................12

14

2. Equal Protection Violations Under the Fourteenth Amendment ...........13

15

B. The Undisputed Record Shows Sheriff Arpaio and the MCSO Acted

16

with Discriminatory Intent ...................................................................................14

17

1. Sheriff Arpaio’s Statements Incorporate and Endorse Explicit Calls for Targeting Hispanics in Immigration Enforcement.........................................15

18

2. MCSO Saturation Patrols and Other Immigration Enforcement

19

Operations Are Responsive To Race-Based Requests for Action...................20

20

3. The Practices Adopted by MCSO on Saturation Patrols Encouraged Racial Profiling ..............................................................................................24

21

4. MCSO’s Failure to Adequately Train and Oversee its Officers

22

Demonstrates its Acceptance of Racial Profiling...........................................28

23

C. Statistical Evidence and the Stops of Putative Class Members Demonstrate that MCSO’s Operations Disparately Impact Hispanics ...........31

24 IV. CONCLUSION.......................................................................................................34

25

26

27

28

- iii -

1

Pursuant to Federal Rule of Civil Pr ocedure 56, Pl aintiffs Manuel de Je sus

2 Ortega Melendres, Jessica Quitugua Rodriguez, David Rodriguez, Velia Meraz, Manuel

3 Nieto, Jr. and Somos America/ We Are America (hereinafter “Plaintiffs”), on behalf of 4 themselves and a putative class of similarly situated persons, 1 respectfully request

5 summary judgment on the issu e of liability for violations of the Fourteenth Amendment

6 to the United States Constitution. ( See First Claim for Relief: Equal Protection, First

7 Amended Complaint at 25-26, Dkt. No. 26.)

8 I. INTRODUCTION

9

Under the guise of illegal immigration en forcement, Defendants Sheriff Jos eph

10 M. Arpaio and the Maricopa County Sheri ff’s Office (the “MCSO”) have instituted a

11 policy, pattern and practic e of targeting His panic2 drivers and passengers in Maricopa

12 County during traffic stops. In pa rticular, Sheriff Arpaio and the MCSO have relied on

13 race and ethnicity in the decision to cond uct saturation patrols or so-called “crime

14 suppression operations,” and in the im plementation of those patrols. As a result,

15 Hispanic drivers and passengers in Maricopa County are singled out for investigation for

16 potential immigration violations, and are disproportionately subjected t o stops,

17 detentions, questioning, searches, and other forms of law enforcem ent action. Such

18 selective enforcement is unconstitutional.

19

The undisputed e vidence shows that considerations of race and ethnicity have

20 infected the MCSO’s immigra tion enforcement operations at all levels, from the policy

21 decisions to “go after illegals, not the crime first” and to use saturation patrols as a

22 primary tactic in the MCSO’s “crackdown,” to the planning of saturation patrols by

23 MCSO leadership based on ra cially charged citizen compla ints, down to the systemic

24 pattern of discrim inatory traffic stops by MCSO deputies. In the face this pattern,

25

26

1 Plaintiffs concurrently bring (1) a rene wed motion for class certification, based on the pattern and practice of racially discriminatory traffic stops shown herein, and (2) a

27

motion for issue sanctions base d on Defendants’ prior willful emails and stat sheets.

destruction of relevant

28

2 Plaintiffs intend the terms “Hispanic” and “Latino” to be synonymous.

- 1 - -

1 Sheriff Arpaio and M CSO supervisors have refused to adopt rout ine law enforcement

2 measures to protect agains t racial profiling. Indeed , Sheriff Arpaio and MCSO

3 supervisors have instead taken steps that actually impede the detection of discriminatory

4 conduct.

5

Sheriff Arpaio’s inflammato ry public statements—in speeches, interviews and

6 his own book—equate undocumented immigrants with Mexicans and Hispa nics, and

7 disparage these groups. Sheriff Arpaio’s st atements are simply false as an assertion

8 about the Hispanic po pulation in Maricopa County, th e large majority of whom are

9 actually U.S. citizens or legal residents; they also encourage and condone racia l

10 profiling. By his own admission, Sheriff Ar paio has also endor sed and distributed for

11 use by his subordi nates in the MCSO explicit calls for ra cial profiling sent to him by

12 members of the publi c, asking him to take action agai nst dark-skinned Hispanics and

13 people speaking S panish. In just one exam ple out of m any, Arpaio received a letter

14 asking him to do a “r ound-up” at 29th Street and Gre enway in Phoenix and stating “If

15 you have dark skin, then you ha ve dark sk in. Unfort unately, that is the look of the

16 Mexican illegals who are here il legally.” Rather than corre ct the sender or ignore the

17 request to focus on dark-ski nned people, Sheriff Arpaio, believing that the l etter was

18 relevant “intelligence,” passed it on to Chief Br ian Sands with a note instructing Sands,

19 “Have someone handle this.” Sheriff Arpa io’s racially exp licit statements and

20 instructions supporting race-based policing, coupled with the ab sence of adequate

21 training and supervision withi n the MC SO, foster the unlawful use of race in the

22 MCSO’s immigration enforcement policies, especially during saturation patrols aimed at

23 apprehending undocumented immigrants.

24

As a result, Plaintiffs, put ative class memb ers, and members of Plaintiff Somos

25 America have been stopped and detained on the basis of their perceived ethnicity. All of

26 the named Plaintiffs are United States citizens or lawfully present in this country. The

27 discrimination that they have suffered is typical. Indeed, the data that is available shows

28 that Hispanics are stoppe d at significan tly higher rates by MCSO during saturation

- 2 - -

1 patrol operations than at other tim es, that officers involved in saturation patrols stop

2 Hispanics at significantly greate r rates than those w ho are not so involved, and that, on

3 average, stops of Hispanics lasted significan tly longer than stops of non-Hispanics.

4 Defendants’ own statistical expe rt does not contradict these findings. This undis puted

5 evidence of the MCSO’s racial ly discriminatory intent, including undisputed evi dence

6 of the dis parate impact of the MCSO’s policies and practices, warrants summary

7 judgment in favor of Plaintiffs on their equal protection claim.

8

Plaintiffs do not object to the enforcement of the i mmigration laws. However,

9 the Constitution requires th at such enforcement be free from racial and ethnic

10 discrimination. M CSO’s saturation patrols are unlawful ly motivated by racial

11 considerations and, both by design and in practice, target Hispanics in the hopes of

12 finding illegal immigrants, resu lting in systematic discrimi nation against Hispanics and

13 those who appear Hispanic. MCSO’s acti ons thus violate our nation’s fundamental

14 principle of equal treatment under laws, regardless of race.

15 II. FACTUAL BACKGROUND

16

As recounted in greater detail in the separate Statement of Facts in support of this

17 motion (“SOF”), filed herewith purs uant to Local Rule 56.1, the undisputed facts

18 demonstrate that MCSO has relied intentiona lly and unlawfully on race and/or ethnicity

19 as a factor in saturation pa trols and other im migration enforcement activities, with

20 resulting disparate effects on Hispanics.

21

A. Sheriff Arpaio Announces “Crackdown” on Illegal Immigration and

22

Begins Saturation Patrols in Effort to Get “Illegals”

23

Starting in 2006, Sheriff Arpaio announced a new focus for his over 3,000-person

24 agency: to find and lock up “ illegals.” SOF 1. When he made this policy decision,

25 Sheriff Arpaio made clear that he equate d “illegals” with His panics generally and

26 persons from Mexico in particular. He has st ated, for example, that “the only sanctuary

27 for illegal immigrants is in Me xico.” SOF 2. In a mag azine interview, Sheriff Arpaio

28

- 3 - -

1 stated that he “rarely run[s] across people other than Hispanics crossing the border

2 illegally.” SOF 12. Speaking at a press conference, addre ssing allegations that his

3 agency was targeting Hispanics, he added, “ I have to tell you something . . . . Where do

4 you think 99 percent of the people come from?” SOF 14.

5

According to Sheriff Arpaio’s public statements, these Mexican and Hispanic

6 immigrants were taking over t he southwestern United States in “epidemic” proportions,

7 bringing with them cultural disruption and disease. SOF 18-20. In his 2008 book, Joe’s

8 Law: America’s Toughest Sher iff Takes on Illegal Immigra tion, Drugs and Everything

9 Else That Threatens America , Sheriff Arpaio writes that Mexicans and Hispanics are

10 different from any ot her immigrant group known i n American history bec ause they

11 maintain “language[,] customs [and] beliefs” separate from the “mainstream.” SOF 16.

12 Sheriff Arpaio posits that Hispanics are tr ying to “reconquer” American soil through

13 their migration to the United States; he di stinguishes them from his ow n parents, w ho

14 immigrated from Italy, writing, “My parents did not regard any inch of American soil as

15 somehow belonging to It aly, so their arrival here never constituted a ‘reconquest.’”

16 SOF 16. Sheriff Arpaio’s book describes wh at he does as a law enforcement official,

17 and he admits that there is no firm line betw een his business as Sheriff and what he says

18 in his book, whic h he actively pr omotes. SOF 17. Sheriff Arpaio ha s also stated that

19 illegal immigration from Mexico is impactin g “our” culture due to Mexicans’ perceived

20 “failure to assimilate,” SOF 18, and has described immigrants coming over the Mexican

21 border as “dirty” and bringing disease into the United States. SOF 19-20.

22

In light of the pur ported threat that this group of im migrants posed, S heriff

23 Arpaio determined it was necessary to resp ond by launching a “c rackdown” on illegal

24 immigration. SOF 3. To implement this new priority, the Sheriff made several large-

25 scale changes at great financial and manpower cost to his agency. SOF 21. First, he

26 sought and secured an agreement with U. S. Immigration and C ustoms Enforcement

27 (ICE) to cross-certify 160 of his officers to arrest persons based on a suspected violation

28 of the federal immigration laws, pursuant to Section 287(g) of the federal immigration

- 4 - -

1 code. SOF 3.3 Second, Sheriff Arpaio created a sp ecialized unit within MCSO to find

2 and arrest illegal immigrants, called the Hu man Smuggling Unit (“ HSU”). SOF 4-5.

3 Third, he created and advertised a hotline where citizens of Maricopa County could call

4 with complaints about suspected illegal immigr ants. SOF 6. And finally, as discussed

5 in more detail below, he began conducting regular large-scale saturation patrols, known

6 as “crime suppression operations ,” where deputies and posse woul d “saturate valley

7 cities” in the hunt for illegal immigrants. SOF 7, 53.

8

While illegal immigration was not new to law enforcement in Maricopa County,

9 Sheriff Arpaio explicitly distinguished th e MCSO’s immigration enforcement program

10 from those of other law enf orcement officials: Rather than targeting immigrants who

11 were also criminal offenders, MCSO’s prog ram would “go after illegals, not the crime

12 first.” SOF 8; see also SOF 15. Sheriff Arpaio belie ves that the Hispanic illegal

13 immigrants, “by and large” have “certain a ppearances,” including “brown . . . skin

14 color.” SOF 13. They can be spotted, according to hi m, based on their “speech [and]

15 what they look like.” SOF 11. In Sheriff Arpaio’s vi ew, with hi s “pure program ,” it

16 was possible to simply send some deputies “right down there to the ma in street in Mesa

17 and arrest some illegals,” SOF 9, and that is exactly what the Sheriff set out to do.

18

During the MCSO’s high-pro file saturation patrols, which commenced in 2007

19 and continue to this day, th e agency deploys “the full res ources of the Sheriff’s Office”

20 to find and arrest significant num bers of purported illegal immigrants. S OF 7, 53.

21 Some saturation patrols have focused on “day laborer” areas, SOF 53, 112, which makes

22 perfect sense, since groups of Hispanic men waiting on the corner for day work are the

23 most visible manifestation of the growing Latino population in Ma ricopa County. The

24 MCSO refers to these areas as “magnets for [] illegal aliens.” SOF 53. During these

25 3 In October 2009, MCSO lost this author ity with respect to the enforcement of
26 federal immigration laws in the field (the au thority was retained for detention officers who process inmates in the ja ils). SOF 10. Despite the revocation of the agenc y’s
27 287(g) field authority, and despi te being a ware of this lawsuit, MCSO has made clear that Sheriff Arpaio will not change any of his illegal immigration policies; indeed,
28 MCSO has continued to conduct large-scale saturation patrols. SOF 10; 225-26.

- 5 - -

1 operations, MCSO officers follow vehicles that appear to have picked up day laborers,

2 develop probable cause of a traffic violation to conduct a traffic stop, a nd then continue

3 the investigation from there. SOF 117. MCSO officers could not know if the men being

4 picked up were illegal immigr ants, or even day laborers, but believed that most day

5 laborers were Hispanic. SOF 11 3. Indeed, Chief Sands coul d not think of a n instance

6 where the MCSO arrested a day laborer who was not Hispanic. SOF 89.

7

The MCSO also employs the tactic of us ing pretextual traffic stops for minor

8 traffic violations to screen drivers and passengers for potential violations of t he

9 immigration laws in other saturation patrols. SOF 114-15. The HSU still takes a lead

10 role, preparing the operations plans and giving the briefings. SOF 58-59. Officers are

11 encouraged to stop vehicles they observe violating any tr affic or motor vehicle law,

12 regardless of the seriousness or triviality of the infraction. SOF 118. MCSO officers

13 testified that they could find a violation in almost every case, even within two minutes.

14 SOF 116. Unlike on a regu lar patrol, where they prio ritize more serious traffic

15 violations, MCSO officers are given wide latitude on saturation patrols to conduct traffic

16 stops for minor violations. SOF 118, 124. They are al so encouraged to m aximize

17 contacts with drivers and pass engers and request identification, including from

18 passengers who have not committed any violation of the law. SOF 118, 126-28.

19

By the end of 2009, MCSO had conducted at least 13 large-scale saturation

20 patrols, as well as a number of smaller operations. SOF 60-73.

21

B. Sheriff Arpaio and MCSO Officers Endorse and Encourage Racial

22

Profiling in Connection with Immigration Enforcement

23

Sheriff Arpaio’s decision to launch a crackdown on illegal immigration was

24 based on having “hea rd the people speak.” SOF 22. Indeed, Sheriff Arpaio regularly

25 receives letters and emails ad vocating racial profiling as an effective tool for

26 immigration enforcement. SOF 25, 45; see also SOF 27-49. Much of this material is

27 crude, racially and ethnically de rogatory, and contains no infor mation about crim inal

28 activity. Id. Despite its offensive content and irrelevance to any legitimate law

- 6 - -

1 enforcement purpose, Sheriff Arpaio retains this material as part of hi s personal

2 “immigration file,” duplicates it, and ci rculates endorsed copies to MC SO command

3 staff. SOF 25-26, 44-46; see also, e.g., SOF 26-43, 47-49.

4

The record reveals a n umber of instances where Sheriff Arpaio circulated within

5 MCSO materials expressing explicit anti-Hispanic or anti-Mexican sentiments. SOF 44-

6 46; see also 25-43, 47-49. Exa mples include concerns about t he destruction of t he

7 American way of life due to the influx of Hispanic immigrants, reference to Ninth

8 Circuit Judge Mary Murguia (who previously was t he district judge assigned to this

9 case) as a “token female Hispanic judge,” and a set of fabricated immigration “statistics”

10 that present a derogatory picture of Spanis h speakers and Mexicans. SOF 44, 48-49. In

11 most instances, Sheriff Arpaio wrote thank-you notes in re sponse to these materials,

12 some of which were personalized and lengthy. SOF 26, 45, 47. Beyond these personal

13 responses, Sheriff Ar paio also e ndorsed the sentiments in such materials by sending

14 copies to Chief Sands and others in the MCSO’s leadership. See, e.g., SOF 45-49.

15

Sheriff Arpaio also receiv ed and circulated to MC SO leadership materials

16 explicitly promoting racial profiling in immi gration enforcement. SOF 26-43, 76-83,

17 85, 87, 93, 96-97, see also SOF 51. Many of these lette rs include requests for Sheriff

18 Arpaio or the M CSO to ta ke action against individuals whom the sender apparentl y

19 believes are illegal immigrants based on the colo r of their skin, the language they speak,

20 or other characteristics associated with His panic ethnicity. SOF 25, 27, 29, 31, 33-34 ,

21 37-43, 76, 78, 80-84, 87, 90-92, 96. M ost of these requests do not describe any actual

22 criminal activity or trigger any need for police action. SOF 25, 27, 29, 31-34, 37-38, 39-

23 43, 76-78, 80-84, 97-88, 91, 96- 97. The r ecord shows num erous instances in which

24 Sheriff Arpaio annotated such requests and forwarded them to other m embers of t he

25 MCSO leadership, primarily Chief Brian Sands , who is charged w ith selecting sites for

26 saturation patrol operations. SOF 26, 28, 30, 32-33, 36-37, 39, 42-43, 74-75, 77, 79, 81-

27 82, 85, 90, 93, 97. In some cases, Arpaio has told his sta ff that the directive is “for our

28 operation,” or used similar language to indicate his intent. SOF 79, 85, 90, 93, 97. On

- 7 - -

1 several occasions, letters espousing racial antipathy were indeed followed shortly

2 thereafter by saturation patrol operations in the areas requested. SOF 79, 86, 91, 95, 98.

3

A number of MCSO officers, including officers in the HSU, and posse members

4 also distributed i nappropriate materials—emails containing offensi ve images targeting

5 “Mexicans” or m aking exaggerated claims about undocumented immigrants or

6 Mexicans—using their county email account s. S OF 145-151. To na me just two

7 examples out of many, HSU Sergeant Palmer fo rwarded the same “statistics” as Sheriff

8 Arpaio and also sent an email with an atta chment entitled, “Indian yoga versus Mexican

9 yoga” depicting a man in a yoga pose with the subtitle s “Indian Yoga” “Requires years

10 of practice to achieve,” and a man who appears to be passed out fr om intoxication with

11 the subtitle “Mexican Yoga” “Requires about 3-4 hours to achieve.” SOF 147-148.

12

C. The MCSO’s Immigration Enforcement Activities Have Led to

13

Discriminatory Treatment of Hispanics in Maricopa County

14

The treatment of the Plaintiffs in this ca se—and of other individuals in Maricopa

15 County who have suffered similar harms—provide vivid examples of the impact of the

16 MCSO’s policies on Hispanics in Maricopa County.

17

During one of the earlier suppression patrols in September 2007, Plaintiff Manuel

18 de Jesus Ortega Me lendres was stopped by the M CSO after an under cover unit

19 identified the vehicle he was riding in as having picked up several men who appeared to

20 be day laborers at a churc h in Cave Cree k. SOF 171- 72, 174-75, 177. Prior to the

21 patrol, the MCSO had conduct ed an undercover investig ation at the church, but

22 discovered no information pertaining to human smuggling, drop houses or even illegal

23 immigration. SOF 173. Detectives knew only that Hispanic men were using the church

24 to find day wor k. Id. Deput y Louis DiPiet ro, who sto pped the vehicle, did not have

25 reason to believe that any of the Hispanic passengers had committed any violation of the

26 law (other than the fact that he believes most day laborers look Hispanic and are illegal

27 immigrants), but he detained the passengers so that H SU Deputy Carlos Ra ngel could

28 come and “check the[ir] status.” SOF 113, 176, 179, 181-82. He did not cite or furthe r

- 8 - -

1 detain the white driver of the vehicle, wh o was allowed to leave the scene. SOF 178;

2 see also SOF 180. Deputy Ra ngel’s investigation resulted in Mr. Ortega Melendres

3 being erroneously detained for seven to eight hours before his eventual release by ICE.

4 SOF 183-85.

5

Plaintiffs David and Jessika Rodri guez were also treated differently base d on

6 their ethnicity. As the Rodriguezes were ta king their children down to Bartlett Lake in

7 December 2007, they were st opped by 287(g)-certified De puty Matthew Ratcliffe and

8 cited for failing to heed a “Road Closed” sign. SOF 139, 186-87, 193. Deputy Ratcliffe

9 issued Mr. Rodriguez a citation even though Mr. Rodriguez informed him that they must

10 have entered the road past the point of the sign, and even though none of the other, non-

11 Hispanic motorists driving on th at same stretch of r oad were receiving citations. SO F

12 189, 190-93; see also 197-98. Deputy Ratcliffe then demanded that Mr. Rodriguez

13 provide his Social Security number for the citation, even though MCSO policy does not

14 require this. SOF 188, 193-196.

15

Plaintiffs Manuel Nieto and Velia Meraz were stopped at gunpoint during one of

16 MCSO’s large immigration satu ration patrol operations in Ma rch 2008. SOF 200, 209.

17 After 287(g)-certified Deputy Ramon Charley Armendariz heard them advising two of

18 his detainees to “rem ain silent” and “ask fo r a law yer” in S panish, he sent backup

19 officers to pursue Mr. Nieto and Ms. Meraz th ough they had left t he scene. SO F 140,

20 201-05. The backup officers had no reason to think that the pair were dange rous. SOF

21 204-06. Neverthele ss, they pulled them over, drew their weapons, and forcefull y

22 removed Mr. Nieto from the vehicle. SOF 207-10. Mr. Nieto and Ms. Meraz were

23 released without any citation or charge af ter deputies learned that the y were U.S .

24 citizens. SOF 211-13.

25

In addition to the na med Plaintiffs, other putative cl ass members have be en

26 subject to selective enforcem ent and aggre ssive police action ba sed on t heir race or

27 ethnicity. See, e.g., 215-224 (detailing additional stops ). For exa mple, Jorge Urteaga

28 was stopped during a saturation patrol in B uckeye in January 2009. SOF 215. Despite

- 9 - -

1 having provided a valid drivers license, th e officer asked him where he was from and

2 whether he could “prove” that he was a U.S. citizen. Id. The citation he received for an

3 alleged registration violation was later dismissed. Id. Jerry Cosio was also stoppe d and

4 arrested during a saturation patrol, in J uly 2009 in the Southeast Valley. SO F 219.

5 When he was waiting at a substation, he overhead the MCSO officer telling another that

6 “he doesn’t count because he’s American.” Id.

7

Daniel and Eva Magos were stopped in December 2009 after an officer made eye

8 contact with Mr. Magos. SOF 216. The of ficer had to make a sudden U-turn to pull

9 them over. Id. Mr. Magos and his wife were aske d to provide identification, but Mr.

10 Magos was told that his registration “was n’t important.” Id. He received no citation

11 and was eventually released, but not before the officer co nducted a baseless pat down.

12 Id. When he asked the officer for his badge number, even though he could have been

13 complaining about any nu mber of problems with the stop, the officer told him, “Don’t

14 go thinking this is racial profiling.” Id.

15

Lino Garcia has been stopped multiple tim es in or near hi s neighborhood of

16 Avondale. SOF 217. Each time, his girlfrie nd (who is also Hispanic) was also asked to

17 provide identification. Id. Mr. Garcia was often stoppe d for a m inor violation such as

18 having a license plate light that w as “too dark” or “too bright.” Id. He was not cited on

19 any occasion, but was once asked for his Social Security number. Id.

20

Sergio Martinez Villaman was stopped during a saturation pa trol in June 2008 in

21 Mesa. SOF 218. Although he provi ded a valid visa and an Arizona identification card,

22 the officer still arrested him fo r “failure to provide ID.” Id. Mr. Villaman’s passenger

23 was also asked whether he had identification or spoke English. Id. Mr. Villaman’s case

24 was never prosecuted, but he spent almost two weeks in jail. Id.

25

D. Hispanics are Stopped at Significantly Higher Rates During

26

Saturation Patrols

27

At Plaintiffs’ request, Dr. Ralph B. Tayl or conducted a study based on t he names

28 called into MC SO’s Computer Aided Dispatch (CAD) database, which records

- 10 - -

1 information from calls by MCSO officers to central dispatch made during MCSO traffic

2 stops, to determine the ethnic com position of individuals stopped by the M CSO. SOF

3 227-30, 233, 236. Dr. Taylor determined whether the surname was Hispanic using data

4 from the U .S. Census on the m ost common Hispanic surnames, wh ich is a generall y

5 accepted technique for determin ing Hispanic ethnicity. See SOF 234-35. D r. Taylor

6 focused on traffic stop activity on days in which a major saturation patrol operation was

7 conducted by M CSO (“saturation patrol days ”), as compared to other, non-saturation

8 patrol control days. SO F 237, 239-43. H e also exa mined the traffic stop patterns of

9 officers who were actively work ing on a saturation patrol, as compared to other MCSO

10 officers. SOF 238, 244-47.

11

Dr. Taylor made three key undispute d findings: (1) MCS O officers were more

12 likely to stop Hispanics 4 on saturation patrol days as compared to control days; ( 2)

13 MCSO officers assigned to satur ation patrols were more likely to stop Hispanics than

14 were other MCSO officers who w ere not involved in saturation patrols, particularly on

15 saturation patrol da ys; and ( 3) stops i nvolving Hispanic individuals were significantly

16 longer than stops where no Hispanic surname was called into dispatch. SOF 239-49.

17

Comparing MCSO activity on saturation pa trol days to all non-saturation patrol

18 days, Dr. Tayl or found t hat Hispanic individuals were be tween 26% to 29. 9%5 more

19 likely to be stopped on satura tion patrol days as com pared to all other days. SOF 241.

20 Using dates one week before a nd one we ek after a saturation patr ol as c ontrols, Dr.

21

4 To be m ore precise, because of th e nature of MCS O’s Computer-Aided

22

Dispatch (CAD) data, Dr. Taylor looked at the names checked by MCSO officers during traffic stops when an MCSO office r calls a name into dispatch. See SOF 235-26. For

23

simplicity, and becaus e Defendants’ expert uses the s ame methods to determ ine the ethnic composition of persons stopped by the MCSO, SOF 252, this motion will refer to

24

“Hispanic persons stopped” as opposed to “Hispanic nam es checked” w hen summarizing Dr. Taylor’s results. Similarly, although it is possible that an indi vidual

25

with a “ Hispanic” name might not be Hispan ic, and vice versa, these effects roughl y cancel each out to produce an accurate estimate in the aggregate, SOF 234; indeed,

26

Defendants’ own statistical expert relie s on t he same widely-used sur name-based analysis to infer the ethnicity of persons st opped and to detect pa tterns in those stops.

27 SOF 252.

5 The percentage ranges presented depend on the particular percentage cutoff used

28 to define whether a surname is Hispanic. See SOF 235.

- 11 - -

1 Taylor found that Hispanic individuals were 28.8% to 34.8% more likely to be stoppe d

2 on saturation patrol days. SOF 239. When compared to control dates precisely one year

3 before the saturation patrol day, the differences were even larger: Hispanics were 36.2%

4 to 39.5% more likely to be stopped on saturation patrol days. SOF 240.

5

Further, when a nalysis was lim ited only to the MCSO office rs known to have

6 participated in saturation patrols,6 those actively working in a saturation patrol operation

7 were 34.1% to 40% more likely to stop Hi spanic persons as compared to officers never

8 involved in saturation patrol operations . SOF 244. Looking to activit y just on

9 saturation patrol days, the MCSO officers actively working a saturation patrol operation

10 were 46% to 53.7% more likely to stop Hisp anic persons than th e MCSO officers also

11 working on those days but not involved in the saturation patrol. SOF 245.

12

Dr. Taylor’s report also reveals t hat stops where at least one Hispanic name was

13 checked were 21% to 25% longer than stops in wh ich no His panic surname was

14 checked. SOF 248-49. This result controls for both the dispos ition of stop (e.g.,

15 whether it concludes i n an arrest), and for the number of na mes checked during a stop.

16 Id. All the results reported above are highly st atistically significantly at the p < .001

17 level, meaning there is a less than one in a thousand odds that they could have occurred

18 purely by chance. SOF 242-43, 246-48.

19 III. 20 21 22 23

PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF ON THEIR CLAIM THAT DEFENDANTS’ POLICIES AND PRACTICES VIOLATE THE FOURTEENTH AMENDMENT’S EQUAL PROTECTION CLAUSE
A. Legal Standards
1. Summary Judgment

24

Summary judgment is ap propriate when “there is no genui ne dispute as to a ny

25 material fact and the movant is entitled to judgment as a matter of law..” Fed. R. Civ. P.

26 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). “Only disputes

27

6 An MCSO officer’s participation i n a given saturation patrol is determined by

whether the officers’ name appears on MCSO’s “Sign-in Roster” or “Arrest List” for the

28 particular saturation patrol. SOF 238.

- 12 - -

1 over facts that m ight affect the outcom e of the suit under the governing law will

2 properly preclude the entr y of s ummary judgment.” Anderson v. Liberty Lobby, Inc .,

3 477 U.S. 242, 248 (1986).

4

The movant bears the initial responsi bility of presenting the basis for its motion

5 and identifying those portions of the record that it believes demons trate the absence of a

6 genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d

7 1070, 1076 (9th Cir.2001) (en banc). If the movant meets its b urden with a properly

8 supported motion, the burden then shifts to the non-movant to present specific facts that

9 show there is a genuine issue for trial. Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819-20

10 (9th Cir.1995). The non-movant may not rest on mere allegations and denials, but must

11 present evidence of specific, disputed facts. See Anderson, 477 U.S. at 248.

12

2. Equal Protection Violations Under the Fourteenth Amendment

13

Plaintiffs assert that Sheriff Arpaio an d the MCSO have applied facially neut ral

14 policies and traffic laws in an intentionally discriminatory manner against Hispanics.

15 To succeed on a claim of selective enforcem ent in violation of the Equal Protection

16 Clause, Plaintiffs must prove that the Defenda nts’ actions “had a discriminatory effect

17 and [were] motivated by a discriminatory purpose.” Farm Labor Org. Comm. v. Ohio

18 State Highway Patrol , 308 F.3d 523, 533- 34 (6th Cir. 2002) (citing Wayte v. United

19 States, 470 U.S. 598, 608 (1985) ); see also Whren v. United Stat es, 517 U.S. 806, 813

20 (1996) (“[T]he Cons titution prohibits selective enforcem ent of the law based on

21 considerations such as race.”). “In additio n to the showing of discriminatory purpose

22 and effect, plaintiffs seeking to enjoin alleged selective enforcement must demonstrate

23 the police misconduct is part of a polic y, plan, or a pe rvasive pattern.” Rosenbaum v.

24 City and County of San Franci sco, 484 F.3d 1142, 1153 (9 th Cir. 2007) (internal

25 quotation marks and citation omitted).

26

To show discriminatory pur pose, Plaintiff need only dem onstrate that

27 impermissible considerations, such as race or ethnicity, were one “motivating factor” in

28

- 13 - -

1 the enforcement decisions of Sh eriff Arpaio and the MCSO. See Vill. of Arlingt on

2 Heights v. Metro. Housing Dev. Cor p., 429 U.S. 252, 265- 66 (1977). It is not required

3 that Plaintiffs show that the c hallenged action rested solely, or even primarily, on

4 racially discriminatory purposes. See id. at 265. “Determ ining whether invidious

5 discriminatory purpose was a motivating factor demands a sensitive inquiry into suc h

6 circumstantial and direct evidence of intent as m ay be available.” Arlington Heights,

7 429 U.S. at 266; accord Washington v. Davis , 426 U. S. 229, 242 ( 1976) (finding that

8 discriminatory purpose “may often be inferre d from the totality of relevant facts”). In

9 Arlington Heights, the Supreme Court identified th e following non-exhaustive list of

10 areas of inquiry where the Court may find ev idence of discrim inatory intent: (1)

11 discriminatory impact; (2) the historical c ontext; (3) the sequence of events leading to

12 challenged conduct; (4) substanti ve and procedural departures from norms; and (5) the

13 contemporary statements of decisionmakers. 429 U.S. at 266-68; see also Doe v. Vill. of

14 Mamaroneck, 462 F. Supp. 2d 520, 547-48 (S.D. N.Y. 2006) (applying Arlington

15 Heights factors to Village’s campaign against day laborers).

16

B. The Undisputed Record Shows Sheriff Arpaio and the MCSO Acted

17

with Discriminatory Intent

18

The undisputed facts in this case, as established through documentary evidence,

19 deposition testimony, expert opinions, and any adverse inferences entered by the Court,7

20 demonstrate that the actions of Sheriff Arpaio and the MCSO are motivated by a

21 discriminatory purpose and have a discrim inatory effect on H ispanic motorists and

22 passengers in Maricopa County. Sheriff Ar paio and the MCSO ins tituted a pattern or

23 7 While the undisputed evidence presente d herein shows discrim inatory intent
24 alone, Plaintiffs are also entitle d to rely on any adverse infe rences entered by the Court against the Defendants for th eir willful spoliation of evid ence, as additional evidence
25 further supporting that conclusion. Those in ferences include, but are not lim ited to, the fact that: (1) that MCSO has followed a pattern of conducting saturation patrols based on
26 citizen complaints that describe no crim inal activity and express ethnic animus; (2) MCSO’s decision to “crack down” on illega l immigration is mo tivated by citizen
27 communications that describe no crim inal activity and express ethnic animus ; and (3) MCSO’s saturation patrol policies were mo tivated by anti-His panic sentiments and
28 negative stereotypes of persons of Mexican descent.

- 14 - -

1 practice of selecting locations for saturation patrols based, in part, upon racially-charged

2 citizen complaints and in an effort to target indivi duals of Mexican a nd Hispanic

3 ethnicity, whom Arpaio public ly and explicitly equates to “illegals”. The record

4 contains both direct and circumstantial ev idence of discriminatory intent, including

5 strong statistical evidence of discriminatory effect.

6

The undisputed record shows that the MCSO, led by Sheriff Arpaio: (1) launched

7 and publicized a “crackdown” on illegal immigration in which Hispanic or Mexican

8 individuals were targeted; (2) distributed, en dorsed and acted upon materials advocating

9 racial profiling, requesting police action based on not hing more than Hispanic

10 appearance, and containing inaccurate and derogatory characterizations of Hispanics; (3)

11 selected locations for saturation patrols in reliance upon such ma terials, specifically

12 intending to go after Hispanics; and yet, despite these actions, (4) has done little to

13 nothing to preve nt or detect unlawful raci al profiling, thereby departing from normal

14 practices in law enforcement agencies. Ba sed on the undisputed evidence, the MCSO

15 has, and continues to, act with discriminatory intent, resulti ng in discrimination against

16 the named Plaintiffs and the class they represent.

17

1. Sheriff Arpaio’s Statements Incorporate and Endorse Explicit Calls

18

for Targeting Hispanics in Immigration Enforcement

19

As detailed above, Sheriff Arpaio’s p ublic statements and ot her evidence

20 demonstrate that his im migration “crackdown” is focused on a single ethnic group—

21 Hispanics. See supra Section II.A. Sheriff Arpaio has repeatedly equated illegal

22 immigration with having Mexican ancestry, speaking Spanish, or being Hispanic, S OF

23 2, 11-14, failing to a cknowledge the fact th at a majority of Hispanics in Maricopa

24 County are, indeed, not illegal immigrants. According to hi m, a focus on Hispanics is

25 justified, because “Where do you think 99 percent of the people come from?” SOF 14.

26

The record demonstrates that Sheriff Arpa io’s decision to fundamentally shift his

27 agency’s priorities in the direction of immi gration enforcement was made “because of”

28 its adverse effects on Hispanic s, not “in spite of” them . McKlesky v. Kemp , 481 U.S.

- 15 - -

1 279, 298 (1987) (internal quotation and citation omitted). The historical backdrop of his

2 decision, the growing resentment of Hispanics among Sheriff Arpaio’s constituency, and

3 Arpaio’s contemporaneous statements provide ample insight i nto his discrim inatory

4 purpose. See Arlington Heights, 429 U.S. at 266-68.

5

When Sheriff Arpaio announce d his unprece dented “crackdown,” he stated that

6 he was responding to the pe ople’s “frustration” and t hat he had “heard the people

7 speak.” SOF 22. Indeed, Sheriff Arpaio maintains a file of newspaper clippings, letters,

8 and emails from constituents about illegal immigration. SOF 23. Sheriff Arpaio

9 chooses what goes into this file himself, a nd often passes materials contained therein to

10 others within the MCSO. SOF 24, 26, 45-49; see also SOF 27-43, 51, 76-83, 85, 87, 93,

11 96-97. The conte nts of the file include a large collection of letters expressing anti-

12 Hispanic sentiments, SOF 25-49, and reveal that the “frustrations” and sentiments of the

13 people the Sheriff was res ponding to when he initiated the saturation patrols were

14 directed towards Mexican and Hispanic indivi duals in particular, as opposed to illegal

15 immigration in general.

16

For example, one letter complains ab out “Mexicans…on the corner…peddling

17 their old corn, peanuts, etc,” and expressed frustration “at how the police officers ignore

18 these Mexicans when they are speeding right by them.” SOF 31. Though there was no

19 information about t he peddlers’ immigration status, Sheriff Arpaio responded with a

20 note stating that he w ould “give the info to my illegal immigration OFFICERS to look

21 into.” SOF 32 (emphasis added). Prio r to the implementa tion of the MCSO’s

22 “crackdown” on illegal immigration, Arpaio forwarded to Chief Hendershott a 2005

23 letter from the Minutemen Project asking him to “investigate and deport illegal

24 immigrants when they are spotted in our cities,” and asking wh y it was that “day

25 laborers stand on our cities stre et corners every day of the year without fear of being

26 questioned?” SOF 39. Sheriff Arpaio’s di rective to Chief Hender shott was that they

27 “should have a meeting (internally) and decide how to respond.” Id.

28

- 16 - -

1

Additional materials in Sheriff Arpaio’s file include crude com parisons between

2 Hispanics and “wild feral animals,” predicti ons that “AZ w ould now also be facing a

3 70% population of H ispanics and S panish language domination,” and claims that

4 Hispanic immigrants “would destroy our historical ‘American way of life’” and fail to

5 practice “American values.” SOF 44, 47. Sh eriff Arpaio also endorsed a nd circulated

6 to Chief Sands a set of false “statistics” that Sheriff Arpaio felt were relevant to Sands’

7 enforcement activities, SOF 49, despite having reason to do ubt their veracity. Under

8 “illegal alien contributions,” these “statistics” listed the number of Spa nish language

9 radio stations in Phoe nix and the number of Spanish speakers in Los Angel es County,

10 along with a claim that 83% of warrants for murder in Ph oenix are for illegal aliens—a 11 number that even Sheriff Arpaio later said “does not sound right.” Id.8 Sergeant Brett

12 Palmer, an HSU supervisor, also circulated th e same set of fabricated “statistics” to his

13 officers without bothering to verify their validity. Id.; see also SOF 147.

14

By responding to these sen timents, Sheriff Arpaio put his im primatur on his

15 constituents’ sentiments agains t Hispanics and their views that Hispanics should be

16 targeted for law enforcement ba sed upon their race or ethnicity. This conduct violates

17 the Equal Protection Clause, which flatly

prohibits government officials from

18 responding to popular racial prejudice” by “effectuating the desires of private citizens”

19 where officials are “aware of the [racial ] motivations of the private citizens.” United

20 States v. Yonkers Bd. of Educ. , 837 F.2d 1181, 1224-25 (2d Cir. 1987) (quoting United

21 States v. City of Birmingham, Mich., 538 F. Supp. 819, 828 (E.D. Mich. 1982). Indeed,

22 Plaintiffs need not even prove that Sheriff Arpaio himself held racial animus in order to

23 establish racially discriminatory intent if he adopted his policies in response to public 24 sentiment that he knew wa s racially inspired. Id.9 While “[p]rivate biases m ay be

25

26

8 Sheriff Arpaio admits that he never ch ecked the validity of the num bers before circulating them. SOF 49. An article in the Los A ngeles Times debunked the fake

27 statistics before Arpaio forwarded them to MCSO personnel. Id.

9 Plaintiffs, of course , also offer proof that Sheriff Arpaio’s actions were

28 motivated by his own racial prejudice.

- 17 - -

1 outside the reach of the law,” a govern mental body may not sidestep the Equal

2 Protection Clause by “bowing to the hypothetical effects of private prejudice that they

3 assume to be both widely and deeply held.” Palmore v. Sidoti, 466 U.S. 429, 43 3

4 (1984) (citing Palmer v. Thompson, 403 U.S. 217, 260-261 (1971)).

5

The rhetoric employed by the authors and endorsed by Sheriff Arpaio is precisely

6 the type of “‘camouflaged’ racial expres sions” that courts ha ve found to prove

7 discriminatory intent. Smith v. Town of C larkton, 682 F. 2d 1055, 1063- 66 (4th Cir.

8 1982) (discussing references, for example, to the “influx of ‘undesirables’”); Greater

9 New Orleans Fair Housing Action Center v. St. Bernar d Parish, 648 F. Supp. 2d 805,

10 810-12 (E.D. La. 2009) (finding discrim inatory intent based on statem ents from

11 residents that proposed housing development tenants would not share the same “values”

12 and would threaten the co mmunity’s “way of life” and adm ission by planning

13 commission chair that he was voting in c onsideration of t he “health a nd welfare”

14 concerns raised by the public).

15

Sheriff Arpaio has not only adopted the racial sentimen ts of his constituents, he

16 has expressed them as his own in public

statements gratuitously stigmatizing

17 undocumented immigrants fro m Mexico. Sheriff Arpaio went out of hi s way to

18 emphasize that the illegal immigration issu e had become an “epidemic,” and that

19 immigration from Mexico is impacting our culture due to a failure to “assimilate” into

20 “mainstream” America. SOF 16, 18-20. He pointed out to the media that immigrants

21 from Mexico were “all dirty” and brought di sease. SOF 19-20. This serves a s

22 additional evidence that his policy decisions are motivated by such attitudes. Village of

23 Mamaroneck, 462 F. Supp. 2d at 549 (stigm atizing statements by public officials about

24 day laborers constituted “some evidence of ra cism”). Similarly, the circulation of

25 similar materials by others within the MCSO, and in partic ular HSU, demonstrate that

26 their individual actions are also motivated by such attitudes. SOF 145-151.

27

In addition to circulating racially de rogatory materials through the MCSO,

28 Sheriff Arpaio forwarded to his staff materials from cons tituents explicitly advocating

- 18 - -

1 racial profiling in im migration enforcement. SOF 26- 43, 76-83, 85, 87, 93, 96-97, see

2 also SOF 51. By doing so, Sh eriff Arpaio was communicating both his agreement with

3 these messages and his intent to see them realiz ed in MCSO’s anti -illegal immigration

4 enforcement activities. For example, in response to a letter from one constituent opining

5 that Arpaio has the “right” to “investigate people based on the color of their skin,”

6 relaying that her Italian mother had been profiled during World Wa r II, and explaining

7 that she felt racial profiling was “the right thing to do,” Sheriff Arpaio wrote a personal

8 thank-you letter, stating “I especially en joyed reading the story of your Italian

9 grandmother and her experiences after coming into the country legally.” SOF 40

10 (emphasis in ori ginal). In response to another letter co -authored by t wo of S heriff

11 Arpaio’s constituents explaining that “[s]topping Mexicans to be sure they are legal is

12 not racist…our state is a border state to Mexico, so of course, there will be more

13 Mexican illegals here than any other ethni c group!” Sheriff Ar paio sent a thank- you

14 letter to the authors, sent a co py to Chief Sands, and requested three copies for himself.

15 SOF 43. Sheriff Arpaio also forwarded Chief Sands a letter stating that “[t]heir claim

16 about your profiling in doing your job is ri diculous. Where else would you look for

17 illegal aliens except in neig hborhoods where they reside?” SOF 27-28. And when a

18 constituent suggested that Mu slim terrorists may be hiding amongst dark skinned

19 Hispanic immigrants, Sheriff Arpaio again sent a thank-you letter and forwarded a copy

20 to Chief Sands SOF 33.

21

Sheriff Arpaio also m aintained in his file, and circulated to ot hers, a number of

22 emails from an individual who writes activel y on illegal immigratio n issues and whom

23 Sheriff Arpaio has m et personally. SO F 34-38. In one such ema il, this individual

24 writes, regarding Hispanics, that “What our open border crowd calls racial profiling is

25 what I call reasonable suspicion and probable cause, both of which are legal grounds for

26 further reaction . . . . If it wa lks like a du ck and quacks like a du ck . . . .” SOF 34.

27 Sheriff Arpaio retained two copies of th e email for him self and forwarded a copy t o

28 Chief Sands. SOF 36.

- 19 - -

1

The sheer number of tim es Sheriff Arpaio did t his demonstrates that his

2 circulation of the materials was no accident. See Keyes v. Sch. Dist., 413 U.S. 189, 207

3 (1973) (“The prior doing of other similar acts, whether clearly a part of a scheme or not,

4 is useful as reducing the possibility that the act in question wa s done with innoce nt

5 intent.” (internal quotation omitted)). Furthe rmore, the sentiments expressed in these

6 letters were also reflected in Sheriff Arpa io’s own statements. By defini tion, it is

7 impossible to tell a person’s immigration status, which is a com plex issue of federal

8 administrative law dependin g on multiple factual circum stances, based on observable

9 behaviors (absent seeing the person cross the border or finding the person hi ding in a

10 smuggling load). But Sheriff Arpaio had a solution to this problem: His deputies could

11 “take care of the situation” by selecting who to target for investigation based on their

12 “speech, what they look like, if they look like they came from another country.” SOF

13 10-11. This type of m essage from the h ead of an age ncy inevitably influenced

14 operations in the field. See Mamaroneck, 462 F.Supp.2d at 543 (“[T]he law recognizes

15 that a government that sets out to discrim inate intentionally in its enforcement of some

16 neutral law . . . will rarely if ever fail to ac hieve its purpose.”). Sheriff Arpaio believes

17 that illegal immigrants from M exico “by a nd large” have “certain appearances,”

18 including “brown…skin color.” SO F 13; see also SOF 14. MCSO therefore cast a

19 broad net i n its quest to a pprehend more undocumented immigr ants, capturing many

20 Hispanic individuals legally residing in Arizona—including citizens—who shared these

21 same characteristics.

22

2. MCSO Saturation Patrols and Other Immigration Enforcement

23

Operations Are Responsive To Race-Based Requests for Action

24

Apart from the decisions to use satura tion patrols as a way to investigate

25 Hispanics for potential immigrat ion law violations, Sheriff Arpaio’s files reveal that he

26 passed on num erous directives to others w ithin the MCSO leadersh ip to respond t o

27 citizen requests for police action against Hispan ics at particular locations, a practice that

28 is undisputedly contrary to gener ally accepted law enforcem ent practice. SOF 25- 43,

- 20 - -

1 50, 52, 76- 97, 101. I n particular, many messages are sent to Chi ef Sands, who is i n

2 charge of planning saturation patrols, and who understands that he is to do

3 “whatever[he] can” about the th ese citizen complaints. SOF 26, 28, 30, 32- 33, 36-37,

4 39, 42-43, 74-75, 77, 79, 81-82, 85, 90, 93, 97. For example, one letter stated that “dark

5 skin” is “the look of the Me xican illegals who are here ille gally,” urged Sheriff Arpaio

6 to “come over to 29th Street/Greenwa y Parkway area and r ound them all up”—

7 suggesting pointedly that im migration enforcement should target dark ski nned people.

8 SOF 78. Sheriff Arpaio forwarded this le tter onto Chief Sands with a note that said,

9 “Have someone handle this,” because, acc ording to him , he was “buil ding up

10 intelligence on crime areas in the city.” SOF 79. MCSO conducted several saturation

11 patrols in the area near 29th Street and Greenway. Id.

12

Sheriff Arpaio also received a comp laint from a constitu ent about “a large

13 amount of these Mexicans” in a parking lot who “swarmed around my car, and I was so

14 scared and alarmed, and the only alternativ e I had wa s to m anually direct them away

15 from my car.” SOF 80. Sheriff A rpaio forwarded the letter on to Chief Deput y Trombi

16 with a note for him to keep a file on these complaints, and also to have someone contact

17 the author. SOF 81. Arpaio admits that th e letter refers to no cr ime, SOF 87, thus it

18 appears his instruction was ba sed on the constituent having been scared of “these

19 Mexicans.” Sheriff Arpaio received and passed along numerous a dditional requests for

20 saturation patrols from citizen s who complained about day laborers “attempting to flag

21 down” prospective employers, or Mexicans “h anging out . . . o n the corner,” by letter

22 and phone. SOF 76-77, 82.

23

MCSO witnesses candidly admit that the agency often relies on citizen

24 complaints in planning immi gration enforcement. Both Chief Sands and Li eutenant

25 Sousa of the HSU testified that saturation pa trols are regularly initiated based on citizen

26 complaints. SOF 75. Sheri ff Arpaio testified that he sends requests to Chief Sands

27 because they “may assist hi m in the future on any operati on he has.” SOF 99. Chief

28

- 21 - -

1 Sands confirmed, “We respond to citizen’s complaints on a lot of things. Sometimes we

2 have crime suppressions, sometimes they’re handled in a different way.” SOF 100.

3

The record contains several instances where enforcement operations directly

4 followed racially charged requests for sweeps in the same ar ea. Here, saturation patrols

5 followed closely in time after Ar paio received racially motivated citizen complaints and

6 forwarded them to Sands a nd other subordinate officials. In addition, Sheriff Arpaio

7 issued contemporaneous statements that th e patrols were initiated in response to

8 complaints from the public. Th is constitutes highly compelling proof that the saturation

9 patrols were motivated by discriminatory intent. Arlington Heights, 429 U.S. at 266-68;

10 see also Yonkers Bd. of Educ., 837 F.2d at 1224-25; Greater New Orleans Fair Housing

11 Action Center, 648 F. Supp. 2d at 810-12.

12

For example, in August of 2008 Sheriff Arpaio rece ived a letter complaining

13 about people speaking Spanish at a McDonald’s and suggesting to Sheriff Arpaio that he

14 should “check out Sun City.” SOF 83. The letter clearly equates speaking Spanish with

15 illegal alien status. SOF 83-84. At least one circuit court has cautioned that placing any

16 criminal significance on the fact that a pe rson speaks Spanish can be a pr etext for

17 discrimination due to the “close connection between the Spanish language and a specific

18 ethnic community.” Farm Labor Organizing Comm. 308 F.3d 523 at 539-40. However,

19 rather than informing the auth or that spea king Spanish is not ill egal, or i gnoring the

20 request, Sheriff Arpaio wrote a note on the lette r stating that he would “look into it” and

21 passed the letter on to Chief Sands with a ha ndwritten notation, “for our operation.”

22 SOF 84-85. Two weeks later, on August 13-14, 2008, the MCSO conducted a saturation

23 patrol in Sun City. SOF 86.

24

Sheriff Arpaio received a letter dated May 8, 2008, from a constituent in Mesa

25 stating that he “ha[s] yet to see the police stop in order to determine whether these day

26 laborers are here under legitimate circumstances,” and “believe[d]” that they were in th e

27 country illegally.” SOF 87. Sheriff Arpaio sent the letter to Sands and marked it to

28 draw Sands’ attention to the portion quoted above as “inte lligence,” even though, as he

- 22 - -

1 admits, the letter does not describe any viola tion of the law. SO F 88-90. On May 24,

2 2008, Sheriff Arpaio received another letter urging that Mesa “needs” a “sweep,” noting

3 that the head of Mesa’s police union is Hi spanic, and commenting “[t]his is what you

4 get from Mesa.” SOF 91. Sheriff Arpaio wrot e, “I will be going in to Mesa” and sent a

5 copy to Chief Sands. SOF 93. Chief Sands testified that he assu mes that the author

6 believed that the individuals were undoc umented immigrants because they were “dark-

7 complected people.” SOF 92. Soon th ereafter, the MCSO conducted two saturation

8 patrol operations in the Mesa area. SOF 95 . In an MCSO news release announcing the

9 first operation, Arpaio stated that he was se nding his officers in “[i]n keeping with his

10 promise to the public.” Id.

11

In another example, MCSO officials rece ived an October 2, 2007 email that had

12 been forwarded to them by John Kross, th e Town Manager of Queen Creek. SOF 96.

13 The author complained of Hispanic men loitering on the corner “being silly,” “jeering ”

14 at her and making people in the town feel “uncomfortable.” Id. Sheriff Arpaio testified

15 that he could not tell if a crime had been committed based on the email, but nevertheless

16 he passed it on to his people “to look int o” because the MCSO “would be remiss in our

17 duties not to respond.” SOF 97. The MCSO did a sweep in Queen Creek on October 4,

18 2007. SOF 98. In the Operations Plan fo r the sweep, MCSO described the operation as

19 having been based on “emails from the town council in refere nce to the da y laborers in

20 the city.” SOF 98.

21

Sheriff Arpaio and other MCSO commanders repeatedly acknowledged that these

22 constituent letters did not desc ribe any criminal activity an d that any supposed “crimes”

23 were never investigated. SOF 81, 84, 88, 97 . It follows, then, that when the MCSO

24 says it initiated saturation patrols based on citizen complaints, th ey were relying on

25 these and other similar compla ints that contained only ra cial stereotyping and no

26 information about s pecific criminal activity. See Keyes, 413 U.S. at 207-08 (“[A]

27 finding of illicit intent as to a meaningf ul portion of the item under conside ration has

28 substantial probative value on the question of illicit intent as to th e remainder.”). The

- 23 - -

1 failure to s ubject the complain ts to any real scrutiny serv es as additional evidence of

2 improper purpose. See, e.g., Mamaroneck, 462 F. Supp. 2d at 531, 554 (“To the extent

3 Village officials did receive complaints from residents concerning the behavior of the

4 day laborers, the Village took no steps to investigate and dete rmine whether those

5 complaints were genuine . . . .”).

6

Further, the selection of neighborhoods in Maricopa County where Hispanic day

7 laborers were known to gather further evidences a discriminatory intent. SOF 53 (citing

8 to MCSO news releases about the sites of saturation patrols), SO F 112, 117. The

9 description of those areas as hot spots for crime, “unless properly l imited and factually

10 based, can easily serve as a pr oxy for race or ethnic ity.” United States v. Montero-

11 Camargo, 208 F. 3d 1122, 1138 (9th Cir. 2000) (“We must be particularly careful to

12 ensure that a ‘high crime’ area factor is not used with respect to entire neighborhoods or

13 communities in which members of minority grou ps go about their da ily business, but is

14 limited to . . . locations where particular crimes occur with unusual regularity.”).

15

These instances show a pattern of Sher iff Arpaio receiving racially charged

16 requests for action and M CSO acting on t hem. It is clear, then , that the MCSO’s

17 saturation patrols were initiated to target a particular protected group, Hispanics, and not

18 to target any actual criminal activity.

19

3. The Practices Adopted by MCSO on Saturation Patrols

20

Encouraged Racial Profiling

21

MCSO’s practices on saturation patrols constitute a stark departure from both the

22 MCSO’s past practice and the typical practi ce of American law enforcement agencies

23 with respect to saturation patr ol operations. Such departures from the norm can “afford

24 evidence that improper purposes are playing a role.” Arlington Heights, 429 U. S. at

25 267. S ubstantive departures from norms are particularly probative of discrim inatory

26 intent when the “factors usually considered important to the deci sionmaker” favor the

27 opposite decision than the one actually taken. Id.

28

- 24 - -

1

Saturation patrols are a tactic historically used by law enfor cement agencies to

2 combat a spike in a particular type of crime or to address a sudden concern about violent

3 crime in a limited geographical area, such as that which would arise from a gang turf

4 war. SOF 104-05. During such operations, officers are provided with information about

5 a particular criminal activity or a pattern of criminal activity, and directed to go out and

6 target individuals who officers have reason to believe are involved in that activity. SOF

7 105. Prior to Sheriff Arpaio’s institution of the recent spate of saturation patrols, MCSO

8 acted in accord with this generally accepted practice, focusing such patrols on known

9 problems with DUI or some other specific criminal activity. SOF 103. Conducting

10 saturation patrols without such a focus woul d be counter productive, as they require

11 agencies to devote a si gnificant amount of resources to a particular area for a particular

12 period of time. See SOF 21, 104-105.

13

In contrast, however, the MCSO saturation patrols that ar e at issue in this case

14 were not spurred by any identif ied need for such a s ubstantial use of age ncy resources,

15 such as comparative crime an alysis or a nalysis of tra ffic hazards. SO F 107. HS U

16 Lieutenant Sousa confirmed that the saturation patrols were not prompted by any spike

17 in traffic problems. SOF 109. Even Defe ndants’ police practices expert, Mr. Bennie

18 Click, testified that he did not see any indi cation that the patrols were conce rned with

19 DUI or traffic problems. SOF 108. Contrary to the normal practice for such operations,

20 MCSO officers also do not a ppear to have been briefed on any specific criminal targets

21 for the operations, or provided with any intelligence on spec ific crimes. SOF 105-06.

22 Officers were simply instructed to go out and “enforce the laws.” SOF 102.

23

The MCSO has thus apparently taken the position that the saturation patrols were

24 focused on crime generally. Id. This claim is contrary to the logic of saturation patrols

25 and serves as an indi cation that “improper purposes are playing a role.” Arlington

26 Heights, 429 U.S. at 267. MCSO’s protestation shows that Defenda nts are self-

27 conscious about the inherent problems associated with operations that simply attempt to

28 “round up” or “sweep [up] ” illegal im migrants. See SOF 56-57. Bas ed on t he

- 25 - -

1 undisputed evidence, however, there is no doubt that saturation patrols were focused on

2 illegal immigration. That wa s their genesis, and the s entiment was regularly reinforced

3 by Sheriff Arpaio’s own statem ents. SOF 53- 55. Though super visors might not have

4 discussed the purpose of the saturation patrols explicitly in briefings, officers understood

5 by the time they got in to the field w ho they were supp osed to look for. SOF 110.

6 Indeed, Defendants’ expert agree d that th e purpose of the operat ions was to im pact

7 illegal immigration. SOF 111 (statement by Mr. Click that “[T]he general information

8 to officers . . . was that th is is a—an illegal immigrat ion enforcement effort.”); see also

9 SOF 125 (agreement by Plaintiffs’ expert, Mr. Robert Stewart).

10

Other departures from the norm serve as additional evidence of improper

11 purposes. Arlington Heights, 429 U.S. at 267. In the field, during the saturation patrols,

12 officers conduct pretextual traffic stops f or minor violations as a launching point for

13 investigations into citizenship and immigration status. Such low-level traffic stops are

14 contrary to MCSO’s written guidelines on traffic enforcement and officers’ approach on

15 regular patrol. SOF 118, 12 4. Furt her, the practice du ring saturation pa trols of

16 contacting passengers and asking them for identification is unusual. SOF 126-28.

17 Given that the lack of identification is co nsidered by the MCSO to be grounds for

18 initiating questioning about citizen ship and immigration status, SOF 182, both of these

19 practices appear to have been adopted in order to maximize opportunities fo r

20 immigration screenings. Mr. Ortega Me lendres, for example, was detained an d

21 questioned about his documents for no reason other than the fa ct that he was riding as a

22 Hispanic passenger in a vehicle that had be en pulled over by M CSO. SOF 179, 181.

23 Several Hispanic indi viduals who provi ded declarations, includi ng those stoppe d on

24 saturation patrols, also reported that their passengers were asked t o produce

25 identification even though there was no reason to think they had violated the law. SOF

26 216-18, 222 (describing the experience of Diona Solis, whose son and three other young

27 boys aged 9 to 13 were as ked for identification return ing from a Boy Scout cam ping

28

- 26 - -

1 trip). In addition, Mr. Rodrig uez and Mr. Garcia were aske d for their Social Security

2 numbers, another potential indicator of immigration status. SOF 188, 217.

3

The experiences of nam ed Plaintiffs and putative cl ass members who—after

4 being stopped—were never issued citations or whose alleged infractions w ere never

5 pursued provide further evidence that the stops were pretextual. See SOF 206 (Mr.

6 Nieto and Ms. Meraz were released after Deputy Armendariz told officers that there was

7 no reason to hold them), SOF 216-17, 221 (describing the experience of Garrett Smith,

8 whose Hispanic family was stopped when he allegedl y exceeded the speed limit by 5

9 mph during a saturation patrol, but whom the deputy declined to cite after he satisfied

10 himself that Mr. Smith’s 14-year old son was not being smuggled), SOF 223 (describing

11 the experience of J ulio Mora, who was st opped with his father for no reason); see also

12 SOF 215 (Mr. Urteaga’s citation dismissed ), 218 (Mr. Villaman’s citation ne ver filed),

13 220 (describing the experien ce of Lorena Escamilla, who was pushed against her car

14 “belly first” while she was five m onths pregnant and whose charges were “crossed out ”

15 by the deputy by the time she got t o court). Such conduct ha s been found t o be

16 probative evidence of racial profiling. Farm Labor Organizing C omm., 308 F.3d at

17 535-36 (officer questioned driver and tw o passengers about t heir immigration status

18 after deciding not to issue a speeding citation).

19

The MCSO’s assertion that it instituted a “zero tolerance” policy that eliminated

20 discretion on certain operations does not st and up to scru tiny. While som e MCSO

21 witnesses testified that there was a zero to lerance policy that required officers to stop

22 any vehicle they observed violating the traffic code, SOF 118, other witnesses stated this

23 was not in fact possible and backed away from this position. SOF 120 (citing to

24 testimony of Lieutenant Sousa and Chief Sands that zero tolerance policy did not extend

25 to the initial decision to stop a vehicle and testimony of Deputies Armendariz and Kikes

26 that there is no way to avoid using discretion); see also SOF 121. Further, the MCSO

27 does not do any m onitoring or follow up to make sure that its officers are applyi ng the

28 zero tolerance policy equally, or at all. SOF 123. It appears that the policy was m erely

- 27 - -

1 adopted in name, as a defensiv e measure to deflect allegations of racial profiling. SOF

2 119. In fact, in the opi nion of Mr. St ewart, a zero tolerance policy under these

3 circumstances would actually allow officers to make more traffic stops of Hispanics for

4 minor traffic violations without fear of reprimand. SOF 122.

5

4. MCSO’s Failure to Adequately Train and Oversee its Officers

6

Demonstrates its Acceptance of Racial Profiling

7

The MCSO has failed to institute basic law enforcement safeguards to prevent

8 racial profiling, and has even taken steps to hinder its own ability to detect and address

9 racial profiling. The MCSO’s refusal to ta ke these standar d measures is yet anothe r

10 departure from law enforcement norms and evidence of discriminatory intent. Arlington

11 Heights, 429 U.S. at 267. The failure to adopt generally accepted m easures to detect

12 racial profiling in particular suggests an effort on the M CSO’s part to conceal unlawf ul

13 practices and implicitly allow them to continue. See Chavez v. United States, No. 01-

14 000245, 2010 WL 3 810629, at *4 (D. Ariz. June 21, 20 10) (denying motion to dismiss

15 plaintiffs’ allegations of racial profiling).

16

Contrary to generally accepted pr actice, the MCS O does not ha ve any a gency-

17 wide written policy concerning racial profiling. SOF 129-30, 143. To the extent that

18 some of the MCSO’s informa tional bulletins or unit-wide policies include a prohibition

19 on racial profiling, they do not provide officer s with any definition of racial profiling.

20 SOF 131. Such a definition would be crucial. SOF 143. The Arizona Peace Officer

21 Standards and Traini ng Board (AZ POST) materials, which t he MCSO produced as

22 evidence that MCSO officers receive training on racial profiling, prohibits only profiling

23 based solely on race. SOF 133. Saturation patrol operation plans that mention racial

24 profiling also only prohibit profiling based solely on race in the decision about whether

25 or not to call a 287(g) officer to investigat e an indivi dual’s immigration status. SOF

26 132. MCSO officers admittedly use race as a factor in de termining whether individuals

27 are illegally in the United States. SOF 135 -136 (officers rely on “apparent Mexican

28 ancestry” as a factor in i mmigration investigations); see also SOF 137 (citing t o

- 28 - -

1 testimony of Sergeant Palmer that “speak[ing] only Spanish” and presence in an “illegal

2 alien locale” are additional bases for investigation). A proper written definition of racial

3 profiling would have made clear to MCSO officers that any reliance on race or ethnicity

4 is inappropriate, even in immigration inves tigations, unless it pertained to a specific 5 suspect description.10 See Chavez v. Ill. State Police , 251 F.3d 612, 64 7 (7th Cir. 2001)

6 (existence of a policy prohibiting racial profiling not sufficient if message is “not always

7 clear . . . What really matters, ultimately, is how official policies are interpreted and

8 translated into actual practice[] . . . .”) (quoting State v. Ballard, 752 A.2d 735, 744 (N.J.

9 Super. Ct. App. Div. 2000)).

10

In addition, based on the testimony of MCSO officers, it appears that MCSO has

11 not attempted to provide its officers with a ny in-house training on racial profiling .

12 There is also no requirement that officers receive regular training on this issue. S OF

13 142. As a result, the most that officers could recall learning ab out profiling came fro m

14 their basic academy training or, for a small subs et of officers, the “b rief training block”

15 in ICE’s 287(g) training. SOF 134, 138-41. This level of training wholly failed to equip

16 officers for the c hallenges of conducting immigration enforcement in the largely-urban

17 context of Maricopa County, where many Hisp anic motorists are U.S. citizens and legal

18 residents. SOF 144.

19

MCSO supervisors exhibited a cavalier attit ude towards their supervisory duties.

20 The MCSO makes no effort to document the race or ethnicity of individuals stopped or

21 contacted by officers on traffic stops. SOF 155. To the extent that citizen contacts are

22 recorded by officers, those notes have been intentionally destroyed. SO F 156, 162.

23 Saturation patrol operations plans detail no sp ecific role for s upervisors, SOF 159, and

24 supervisors merely stay at the command post rather than being out on traffic stops. See,

25 e.g., SOF 158. Yet, despite ha ving no m eans of verifying wh ether or not officers are

26 10 See Montero-Camargo, 208 F.3d at 1132 & n. 22 (“Hispanic appearance is of
27 little or no use in determini ng which particular individuals among th e vast Hispanic populace should be s topped by law enforcement official s on the lookout for illegal
28 aliens.”).

- 29 - -

1 engaging in racial profiling, supervisors stated that they simply “trust” their subordinates

2 not to racially profile. SOF 157-58, 164-65; see also 166 (no officer ever disciplined for

3 racial profiling). Though t hey acknowledge that selective enforc ement of the traffic

4 laws is a possibility, supervisor s said that as long as there was a reason for the traffic

5 stop (i.e., a traffic violation, how ever minor), that “ended the inquiry” for them. SOF

6 157. This statement is particularly dist urbing given the tremendous amount of latitude

7 that officers are given in conducting traffic stops on saturation patrols. SOF 168.

8

When presented with data that all but one of the motorists arrested on a saturation

9 patrol were Hispanic, HSU’s Sergeant Madrid and Lieutenant Sousa both dismissed this

10 disparity, stating, respectively, that “it me ans nothing” and “[i]t’s not a c oncern.” SOF

11 160. N o meaningful after-action de briefings have be en conducted with of ficers to

12 provide an opportunity for incidents of conc ern to be a ddressed. SOF 163. And w hen

13 citizens have attempted to file complaints arising from their traffic stops, they have been

14 given the run-around and have eventually gave up. S OF 214, 216, 220; see also SOF

15 199 (cursory investigation of Rodriguez stop). These failures in supervision do not meet

16 generally accepted practices. SOF 167-68. Even Defendants’ expert agreed that the

17 attitude expressed by Sergeant Palmer and shared by other supervisors is not “generally 18 acceptable.” SOF 169.11

19

One particularly egregious example of the MCSO’s lack of oversight can be seen

20 in the regular circulation of inappropriate emails by MCSO officers using their count y

21 email accounts. For e xample, one officer circ ulated a photo of a m ock driver’s license

22 for a state called “Mexifornia,” which incl uded a photograph depicting st ereotypical

23 Mexican facial features and attire. SOF 145 . Sheriff Arpaio ackn owledged that this

24 email could be offensive, id., but could not say w hether its circulation violated a

25 department policy. SOF 152. Multiple officers distributed “Mexican Word of the Day”

26 11 The fact that ICE was occasionally on scene and made aware of the saturation
27 patrols provides no com fort that racial pr ofiling was not occurring. ICE officials have made it clear that they had no basis to ev aluate whether MCSO was engaged in racial
28 profiling or not. SOF 170.

- 30 - -

1 emails making fun of Me xican accents. SOF 146. Still othe rs circulated fake statistics

2 or jokes a bout Mexicans or Me xican culture. SOF 147-48. Posse members also sent

3 emails dehumanizing immigrants, including one email praising an anti-immigration

4 program from the 1950s known as “Operation Wetback.” SOF 151.

5

Many of these emails were circulat ed or forwarded by officers and even

6 supervisors that were centrally involved in th e saturation patrols or stops of nam ed

7 plaintiffs. SOF 148-50. For exa mple, Sergeant Palmer sent the em ail about “Mexican

8 Yoga.” SOF 148. Suc h emails are direct evidence of th e officers’ racial bias. In

9 addition, the fact that these emails were allo wed to circulate over a sustained period of

10 time demonstrates MCSO’s tolerance for s uch attitudes within its agency. SOF 154.

11 The examples of such inappropriate material that was circulated are too numerous for

12 Plaintiffs to fully catalogue here. But it is undisputed that such materials have no place

13 in a professional police organizat ion. Even Defendants’ expert agreed that such em ails

14 are racially derogator y and s hould “absolutely” be dealt with by a law e nforcement

15 agency “as soon as it surface[s].” SOF 153.

16

C. Statistical Evidence and the Stops of Putative Class Members

17

Demonstrate that MCSO’s Operations Disparately Impact Hispanics

18

There is little doubt that the MCSO’s immigration enforcement operations— and

19 saturation patrols in particular—ha ve had a marked effect on Hi spanic drivers and

20 passengers in Maricopa County . Suc h evidence proves discriminatory effect and also

21 provides additional evidence of discriminatory intent. Arlington Heights, 429 U.S. at

22 266; Bradley v. United States , 299 F.3d 197, 206 & n.11 (3d Cir. 2002); Chavez, 251

23 F.3d at 637-45; State v. Sot o, 734 A.2d 350, 360- 61 (N.J. Super. Ct. 1996) (finding

24 unrebutted statistical evidence of racial prof iling established discrim inatory purpose).

25 Courts have permitted statistical evidence to pr ove discriminatory effect to address “the

26 crucial question of whether one class is bei ng treated differently from another class that

27 is otherwise similarly situated.” Chavez, 251 F.3d at 638.

28

- 31 - -

1

As detailed in Section II.D above, Dr. Taylor’s analysis of MCSO’s CAD

2 database revealed thre e principal findings about the effect of saturation patrols on t he

3 stopping of Hispanics: (1 ) MCSO officers are more lik ely to stop Hispanics on

4 saturation patrol days as compared to other days; (2) MC SO officers actively working

5 on a saturation patrol are much more likely to stop Hispanics than other MCSO officers;

6 and (3) stops involving a Hispanic individual were significantly longer than other stops.

7 SOF 239-49.

8

MCSO officers actively w orking on a satu ration patrol were appr oximately 50%

9 more likely to stop Hispanics than other officers working that very same day. SOF 245.

10 These results are highly statistically signi ficant and were found across a number of

11 different models. SOF 242-43, 246-47. In all cases, stops of Hispanics were shown to

12 be more likely to be stopped on saturati on patrol days and by officers wor king a

13 saturation patrol as compared to MCSO ac tivity on ot her days. SO F 239-41, 244-45.

14 This pattern is consistent with the other evid ence that Hispanic s are targeted on

15 saturation patrol days. Moreover, stops involving Hispanics were about 25% longer on

16 average than other st ops, SOF 248, w hich suggests that MCSO officers investigate

17 Hispanic individuals more closely in an effort to find undocumented immigrants.

18

Dr. Taylor’s analysis draws strength from the use of internal benchmarking. See

19 Chavez, 251 F.3d 644-45 (discussing importance of accurate benc hmarking); Anderson

20 v. Cornejo, 355 F.3d 1021, 1024 (7th Cir. 2004) (same). That is, instead of comparing

21 MCSO traffic stops patterns to some extern al measure—such as the overall percentage

22 of Hispanics in Maricopa C ounty—Dr. Taylor’s models compare (1) MCSO stop

23 activity on saturation patrols days to MCSO stop activity on other days, and (2) MC SO

24 stop activity by satur ation patrol involved officers to st op activity by other MCSO

25 officers. SOF 250. In this way, Taylor’s methodology controls for various factors, such

26 as socioeconomic variables or differential rates of offe nding or exposure to law

27 enforcement officials by Hispanic individuals—because such factors are likely to remain

28 constant as between saturation patrol days and non-saturation patrols days.

- 32 - -

1

Dr. Taylor’s basic conclusions are undisputed. Defendants’ statistical expert, Dr.

2 Steven Camarota, a researcher for the Ce nter for Immigration Studies, a thi nk tank that

3 advocates for greater restrictions on immigrati on, SOF 251, does not directly refute Dr.

4 Taylor’s findings; indeed, he did not try to replicate Dr. Taylor’s analysis of the effect of

5 saturation patrols on Hispanic stop rates. SOF 256. Rather, he tries to point out

6 deficiencies in the data and in the way Dr. Taylor handled it. But Dr. Cam arota

7 acknowledges that meaningf ul conclusions about M CSO’s activity can be found by

8 examining the CAD database. SOF 252. In fact, Dr. Camarota admits that the disparity

9 in the stop rate of His panics on saturation patrol days exis ts, and that Hispanics are in

10 fact more likely to be stop ped on saturation patrol da ys. SOF 253. Dr. Camarota also

11 acknowledges that higher stop rates for Hispanics can indicate that Hispanics are being

12 targeted. SO F 254. Dr. Cam arota also does not de ny that M CSO stops involving

13 Hispanic persons lasted longer than stops involving non-Hispanics. SOF 255.

14

Other statistical evidence corroborates th e disparate impact demonstrated in Dr.

15 Taylor’s analysis of the MC SO stop data. HSU Sergeant Madrid acknowledges that all

16 but one of the persons arrested in a Marc h 2008 saturation patr ol operation in N orth

17 Phoenix appeared to have Hispa nic surnames. SOF 160. Even as suming that MCSO

18 was intent on seeki ng out undocumented immigrants, and that all of the undocumented

19 immigrants had Hispanic surnames, this only accounts for a portion of the arrestees with

20 Hispanic surnames. Only ab out two-thirds of the arrest ees were suspected of being

21 undocumented immigrants—the rest were fo r other crimes, such as DUI. SOF 62.

22 Unless Hispanic individuals co mmit such crimes at significa nt greater freque ncy than

23 other groups, this disparity suggests that Hispanics are being stopped and investigated in

24 greater frequency. Similarly, Chief Sands acknowledged that 90 percent of arrests made

25 during smaller saturation patrols in Fountain Hills were Hispanic, even though that area

26 is predominantly “non-Hispanic.” SOF 161.

27

In sum, the traffic stop patterns in the MCSO’s CAD database reveal that

28 Hispanics are stopped at significantly greate r rates during saturation patrols than w ould

- 33 - -

1 be expected in the absence of racial targeti ng. It is difficult to imagine more direct

2 evidence of discriminatory im pact that the extensive s tatistical analyses conducted by

3 Dr. Taylor, and Defendants’ pu t forward no evidence, beyond speculation, that directly

4 refutes these results.

5

As discussed, MCSO’s practices have also exacted a human cost in the form of

6 the discriminatory impact on the nam ed Plaintiffs and other put ative class m embers.

7 Some of the Plaintiffs and class members were clearly treated differently than non-

8 Hispanics. Mr. Ortega Melendres, for exampl e, was detained for further investigation

9 into his immigration status while the Caucasia n driver was released without a citation.

10 SOF 178-79, 181; see also 180. The R odriguezes were cited while the other drivers on

11 the same stretch of road were not. SOF 192, 197-98. The Smith family was singled out

12 from others on the roa d disobeying the speed limit. SOF 221. Yet despite this pattern,

13 individuals like Mr. Magos are told by officers, “[D]on’t go thinking this is racial

14 profiling.” SOF 216. Plaintiffs and class members have expressed decreased trust in

15 law enforcement as a result, which is why ra cial profiling is anathe ma to our criminal

16 justice system:

17

For many law-abiding citiz ens their only contact with the criminal justice

system is via interaction with the police, predominantly during traffic stops.

18

Any hint of racism in policing erodes the public support so necessary to law

enforcement efforts. The re ality is that very few in nocent victims of racial

19

profiling ever come forward with complaints. Instead, these victims simply

retain vivid memories of their police encounter for future reference.

20

Martinez v. Vill. of Mount Pr ospect, 92 F. Supp. 2d 780, 782 (N.D.Ill. 2000). These

21 actions are unlawful, and should not be allowed to continue.

22

23 IV. CONCLUSION

24

For all the reasons stated herein, Plaintiffs respectfully request that the court grant

25 summary judgment in their favor on the claim that Sh eriff Arpaio and MCSO are

26 violating the Fourteenth Amendment to the United States Constitution.

27

RESPECTFULLY SUBMITTED this 29th day of April, 2011.

28

By /s/ Stanley Young

- 34 - -

Stanley Young (Pro Hac Vice)

1

Andrew C. Byrnes (Pro Hac Vice)

COVINGTON & BURLING LLP

2

333 Twin Dolphin Drive

Suite 700

3

Redwood Shores, CA 94065-1418

4

Tammy Albarran (Pro Hac Vice)

Lesli Gallagher (Pro Hac Vice)

5

Kevin J. Hickey (Pro Hac Vice)

Matthew Steilen (Pro Hac Vice)

6

1 Front Street

San Francisco, CA 94111-5356 7

ACLU FOUNDATION OF ARIZONA

8

Daniel Pochoda

Annie Lai

9

3707 N. 7th St., Ste. 235

Phoenix, Arizona 85014

10

Telephone: (602) 650-1854

Facsimile: (602) 650-1376 11

ACLU FOUNDATION

12

IMMIGRANTS’ RIGHTS PROJECT

Cecillia Wang

13

39 Drumm Street

San Francisco, California 94111

14

Telephone: (415) 343-0775

Facsimile: (415) 395-0950 15

MEXICAN AMERICAN LEGAL

16

DEFENSE & EDUCATIONAL FUND

17

Nancy Ramirez 634 South Spring

Street,

11th

Floor

Los Angeles, California 90014

18

Telephone: (213) 629-2512 x136

Facsimile: (213) 629-0266

19

Attorneys for Plaintiffs

20

21

22

23

24

25

26

27

28

- 1 -

1

CERTIFICATE OF SERVICE

2

I hereby certify that on th e 29th day of April, 2011 I caused the attach ed

3 document to be electronically transmitted to the Clerk’s Office using the CM/ECF

4 System for filing and transm ittal of a Notice of Electroni c Filing to the following

5 CM/ECF Registrants: 6

Thomas P. Liddy tliddy@mail.maricopa.gov

7

Maria R. Brandon

brandonm@mail.maricopa.gov 8

Timothy P. Casey

9

timcasey@azbarristers.com’

10

Attorneys for Defendant Sheriff Joseph Arpaio and the

Maricopa County Sherriff’s Office

11

12

/s/ Stanley Young

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

 </s> Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 1 of 35

1 Timothy J. Casey (#013492) SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
2 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540
3 Telephone: (602) 277-7000 Facsimile: (602) 277-8663
4 timcasey@azbarristers.com

5 Maria Brandon (#0004249) Thomas P. Liddy (#019384)
6 MARICOPA COUNTY ATTORNEY’S OFFICE Deputy County Attorneys
7 Litigation Practice Group Civil Services Division
8 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
9 Phoenix, Arizona 85004 602-506-8066
10 Co-counsel for Defendants Arpaio and MCSO

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 Manuel de Jesus Ortega Melendres, et al.,
14 Plaintiffs,
15 vs.

16 Joseph M. Arpaio, et al.

17

Defendants.

No. CV 07-02513-PHX-GMS
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

18

(Oral Argument Requested)

19

20 Defendants Joseph M. Arpaio (“Arpaio) and the Maricopa County Sheriff’s Office
21 (“the MCSO”) submit this Response in opposition to Plaintiffs’ Motion for Partial Summary
22 Judgment (Dkt#421). Plaintiffs have presented no direct evidence and insufficient 23 circumstantial evidence on which to base a finding, as a matter of law, that Defendants’ 24 employ a policy, pattern, or practice that has a racially discriminatory effect on Plaintiffs and
25 was based on racially discriminatory intent or motive as to Plaintiffs. Plaintiffs, therefore,
26 are not entitled to judgment in their favor, and the Court should deny their Motion and grant

27 the Defendants’ pending Motion for Summary Judgment.

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

This Response is supported by the following Memorandum of Points and Authorities,

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 2 of 35

1 the Defendants’ Rule 56(e)(2), F.R.C.P., and Rule 56.1(b). L.R.C.P., Response to Plaintiffs’

2 Statement of Facts and Controverting Statements of Facts concurrently filed this date,

3 Defendants’ pending Summary Judgment Motion (Dkt#413) and supporting Statement of

4 Facts (Dkt#413-1), Defendants’ Supplemental Statement of Facts re: Testimony of ICE

5 Witnesses in Support of their Summary Judgment Motion (Dkt# 449), the Court’s entire file

6 in this matter, and any oral argument the Court may wish to hear.

7

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION 8
Plaintiffs move for summary judgment on one of their three liability claims. That 9
liability claim is their Fourteenth Amendment claim that each of the named Plaintiffs during 10
the operation of a vehicle on a roadway in Maricopa County was stopped, detained,
11 questioned, and/or searched by MCSO deputies allegedly in violation of their Fourteenth

12 Amendment right to equal protection under the law. See Defendants’ Local Rule 56.1(b)(2)

13 Separate Statement of Additional Facts (“SSOF”) beginning at p. 144, ¶ 1. The Plaintiffs,

14 however, give little attention -- indeed, almost none at all -- to whether they were stopped in

15 their vehicles because of their race or ethnicity, or whether race-neutral probable cause or

16 reasonable suspicion justified the traffic stop. The Plaintiffs further fail to address the

17 complete absence of any evidence that they interacted with specific MCSO deputies who had

18 racially discriminatory intent or motive in regards to the Plaintiffs concerning their

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

respective traffic stops or that the challenged MCSO policy, pattern, or practice was a cause of any allegedly improper action by any of those deputies concerning Plaintiffs or their respective traffic stops.
The Plaintiffs’ avoidance of these issues, however, is not surprising. There is no evidence, let alone undisputed evidence, that would allow summary judgment in Plaintiffs’ favor or even supporting the named Plaintiffs’ claim that they were stopped for any reasons other than race-neutral probable cause or reasonable suspicion. There is also no evidence that any MCSO deputy that interacted with the Plaintiffs had racially discriminatory intent or motive or acted pursuant to an MCSO policy, pattern, or practice that had racially discriminatory intent or motive.
2

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 3 of 35

1

Given the complete dearth of evidence supporting their Fourteenth Amendment

2 claims, the Plaintiffs choose instead to focus on the amorphous macro level to try to create

3 the illusion of a racially prejudiced law enforcement agency motivated to conduct saturation
4 patrols, and traffic stops during those patrols, because of racially discriminatory intent, 5 motive, or animus against Latinos.1 In support of their policy, pattern, or practice claim, the
6 Plaintiffs argue that the undisputed evidence establishes that: (a) Arpaio is racially 7 prejudiced against Latinos (Motion at p. 17, n. 2) and his racial prejudice against Latinos has
“infected the MCSO’s immigration enforcement operations at all levels” (Id. at p. 1, lns. 198
20); (b) Arpaio’s “inflamatory public statements” (Id. at p. 2, ln. 5) “foster the unlawful use 9
of race in the MCSO’s immigration policies, especially during saturation patrols” (Id. at p. 2, 10
lns. 21-22); (c) Arpaio receives letters from private citizens which sometimes contain 11
racially offensive or insensitive comments about Latinos or Mexican nationals, and that 12 Arpaio somehow agrees with, approves of, or adopts those writers’ racial comments as his 13 own by simply sending “thank-you” notes to the authors or by forwarding the letters to an
14 MCSO chief for evaluation and/or independent investigation (Id. at pgs. 15-24); (d) Arpaio
15 allegedly has initiated specific saturation patrols in response to specific “racially charged
16 citizen complaints” (Id. at p. 1, lns. 22-24); and (e) the MCSO’s “saturation patrols are

17 unlawfully motivated by racial considerations and, both by design and practice, target

18 Hispanics in the hopes of finding illegal immigrants, resulting in the systematic

19 discrimination against Hispanics and those who appear Hispanic.” (Id. at p. 3, 10-14).

20

All of Plaintiffs’ arguments are factually and legally wrong. While the Plaintiffs

21 argue that they do not object to the enforcement of the immigration laws, just the manner in

which the MCSO is enforcing those laws, the facts show that the Plaintiffs are improperly 22
conflating the MCSO’s lawful and proper enforcement of the law, including those laws 23
related to illegal immigration, with the unlawful and illegal targeting of Latinos based on 24
their race or ethnicity.
25

26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

1 For brevity, when Defendants refer in this Response to the terms “racial” or “racially” they also mean to include
“ethnicity” or the consideration of a persons’ ethnicity.
3

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 4 of 35

1 II. 2

THE LEGAL STANDARD FOR PROVING EQUAL PROTECTION VIOLATIONS UNDER THE FOURTEENTH AMENDMENT.

3

Plaintiffs “assert that [Defendants] have applied facially neutral policies and traffic

4 laws in an intentionally discriminatory manner against Hispanics.” (Motion at p. 13, lns. 12-

5 14). To support this claim under the Fourteenth Amendment, the Plaintiffs must prove that

6 the Defendants’ challenged law enforcement policy, pattern, or practice “had a

7 discriminatory effect” and “that it was motivated by a discriminatory purpose.” Wayte v.

8 United States, 470 U.S. 598, 608 (1985); see also Pers. Adm’r of Mass. v. Feeney, 442 U.S.

9 256, 272-74 (1979); Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66;

10 Washington v. Davis, 426 U.S. 229, 239-42 (1976); Navarro v. Block, 72 F.3d 712, 716 (9th

11 Cir. 1995).

12

“[A] violation of … the Equal Protection Clause requires a showing of intentional

13 discrimination.” Alexander v Sandoval, 523 U.S. 275, 280 (2001) (emphasis added). Thus,
“in the absence of proof of discriminatory animus,” a plaintiff cannot be awarded declaratory 14
or injunctive relief. Gebray v. Portland Int’l Airport, 2001 U.S. Dist LEXIS 22747 at *11 15
(D. Oreg. 2001); see Meyers v. San Juan Sch. Dist, 905 F. Supp. 1544, 1573 (D. Utah 1995). 16
Plaintiffs, therefore, must prove that the “decision makers in [their] case acted with 17
discriminatory purpose.” McClesky v. Kemp, 481 U.S. 279, 292 (1987). “’Discriminatory
18 purpose… implies more than … intent as awareness of consequences. It implies that the

19 decision maker… selected or reaffirmed a particular course of action at least in part because

20 of… its adverse effects upon an identifiable group.’” Id. at 298 (quoting Pers. Adm’r of

21 Mass. v. Feeney, 442 U.S. at 279). A plaintiff “must produce evidence sufficient to permit a

22 reasonable trier of fact to find by a preponderance of the evidence that [the] decision… was

23 racially motivated.” Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th

24 Cir. 2001); see also Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir.

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

2003) (same); FDIC v. Henderson, 940 F.2d 465, 473 (9th Cir. 1991) (same). As shown below, Plaintiffs’ have failed to prove that Defendants’ challenged law
enforcement policy, pattern, or practice “had a discriminatory effect” and “that it was motivated by a discriminatory purpose.” Waytes, 470 U.S. at 608. They are not entitled to
4

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 5 of 35

1 summary judgment.

2 III. THERE IS NO EVIDENCE OF A FOURTEENTH AMENDMENT

3

VIOLATION AS TO THE NAMED PLAINTIFFS AND, THEREFORE, PLAINTIFFS’ POLICY, PATTERN, OR PRACTICE CLAIM FAILS AS A

4

MATTER OF LAW.

5 As mentioned above, the Plaintiffs attempt to gloss over the fatal fact that they were
6 not stopped in their vehicles because of their race or ethnicity. Plaintiffs similarly present no
7 evidence that they interacted with specific MCSO deputies who had racially discriminatory
8 intent or motive in regards to the Plaintiffs and the three traffic stops. Plaintiffs’ omission

9 requires denial of their Motion.

10

There is no Fourteenth Amendment violation under a policy, pattern, or practice claim

11 that seeks equitable relief unless such policy, pattern, or practice, resulted in a constitutional

12 injury to the named Plaintiffs. Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v.

13 Jenkins, 515 U.S. 70, 88-89 (1995). The Supreme Court’s decisions in Lewis and Jenkins
14 make clear that, in an action seeking injunctive relief, the only constitutional violations (i.e.,
15 injuries) that are relevant are those suffered by the named plaintiffs – that is, those are the 16 only “inadequacies which the suit empower[s] the court to remedy” and are the only injuries 17 “relevant to the question of whether the named plaintiffs are entitled to the injunctive relief
they seek.” Lewis, 518 U.S. at 357 (emphasis added). Plaintiffs have provided no evidence 18
of a constitution injury to themselves. Accordingly, their Motion fails as a matter of law. 19
A. Stop One - Melendres and Deputy DiPietro. 20
MCSO Deputy Louis DiPietro stopped the truck in which Plaintiff Melendres was a 21 passenger. SSOF at ¶ 2. There is no evidence that Deputy DiPietro had a racially 22 discriminatory intent or motive in deciding to stop, or in actually stopping, the Melendres 23 vehicle. Before Deputy DiPietro found probable cause to stop the truck in which Mr.
24 Melendres was a passenger, he did not know or see the race of the truck’s driver or the race
25 of the passengers in the truck. Id. at ¶ 3; see United States v. Montero-Camargo, 208 F.3d

26 1122, 1139-40 (9th Cir. 2000) (no constitutional violation occurs when officer did not know

27 the race of the driver or vehicle occupants before actually stopping the vehicle.). Neither

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

race nor ethnicity was a factor in Deputy DiPietro’s finding that he had probable cause to 5

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 6 of 35

1 stop the truck. Id. at ¶ 4. Even Mr. Melendres does not have an opinion on whether he was

2 racially profiled:

3

Q. You also claim in your lawsuit that you have suffered unlawful discrimination.

Do you believe that the deputies that you encountered on September 26, 2007,

4

were intentionally trying to deprive you of your constitutional rights?

5 A. I cannot say that. I can't be -- tell you for sure.
6

7 Id. at ¶ 5 (emphasis added).

8

Defendants’ police practices expert, Bennie Click, testified that “[t]here is no

9 evidence that Deputy DiPietro knew the race or ethnicity of the vehicle’s occupants prior to

10 the truck stopping or that race or ethnicity played any role in Deputy DiPietro’s actions.” Id.

11 at ¶ 6. Plaintiffs’ own police practices-racial profiling expert, Robert Stewart, testified that

12 he lacks any factual basis to support a conclusion that Deputy DiPietro acted with racially
discriminatory intent or motive in stopping the Melendres truck. Id. at ¶ 7. 13
In addition, the evidence demonstrates that Deputy DiPietro made the traffic stop 14
involving Mr. Melendres based on race-neutral probable cause. Id. at ¶ 8; see also Longmire 15
v. Starr, 2005 U.S. Dist. LEXIS 18388 *7 (N.D. Tex. 2005) (in light of the facts showing the 16
traffic stop of the plaintiff was based on race-neutral probable cause, “Plaintiff cannot
17 establish that the allegedly discriminatory purpose was a motivating factor in the officer’s

18 decision to stop his vehicle.”).

19

Based on the record before the Court, therefore, Plaintiffs have failed to prove that

20 Deputy DiPietro was motivated by racially discriminatory intent in making the traffic stop of

21 the Melendres vehicle or that he was acting pursuant to any MCSO policy, pattern, or

22 practice promoting or fostering the targeting of Latinos. Instead, Deputy DiPietro stopped

23 Mr. Melendres, whose race and ethnicity were unknown to him at the time, for a violation of

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

a state traffic law. Because Mr. Melendres’ Fourteenth Amendment claim fails, Plaintiffs’ policy, pattern, or practice claim based upon his stop also must fail. Lewis, 518 U.S. at 357; Jenkins, 515 U.S. at 88-89.
B. Stop Two - Mr. and Mrs. Rodriguez and Deputy Ratcliffe. MCSO Deputy Matthew Ratcliffe made the traffic stop of the Rodriguez Plaintiffs.
6

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 7 of 35

1 SSOF at ¶ 9. Before making the decision to conduct the traffic stop of the Rodriguez’ truck

2 and to issue a citation to the truck’s driver (Mr. Rodriguez), Deputy Ratcliffe did not see the

3 race or ethnicity of the truck’s driver or its occupants. Id. at ¶ 10; see Montero-Camargo,

4 208 F.3d at 1139-40 (no constitutional violation when officers did not know the race of the

5 driver or vehicle occupants before actually stopping the vehicle.); see also United States v.

6 Hernandez-Bustos, 2005 U.S. LEXIS 16311, *4 ¶ 3 (D. Kan. 2005) (no racial profiling when

7 the officer made the traffic stop without knowing or seeing the driver’s race or ethnicity).

Mrs. Rodriguez even candidly admitted that Deputy Ratcliffe was not acting with racially 8

discriminatory intent or motive:

9

Q. Do you believe that Deputy Ratcliffe was intentionally trying to deprive you of

10

your constitutional rights?

11

12

A. No.

Id. at ¶ 11 (emphasis added). 13

Defense expert Mr. Click testified that there is no evidence that Deputy Ratcliffe used 14
race in any manner in regards to the traffic stop or citation issuance or otherwise acted with

15 racially discriminatory intent or motive toward Mr. and Mrs. Rodriguez. Id. at ¶ 12. It is,

16 therefore, not surprising that Plaintiffs’ own expert, Mr. Stewart, has no opinion as to

17 whether Deputy Ratcliffe had racially discriminatory intent or motive in stopping the

18 Rodriguez vehicle. Id. at ¶ 13

19

The evidence, therefore, demonstrates that Deputy Ratcliffe made the traffic stop

20 involving the Rodriguez Plaintiffs, whose race and ethnicity were unknown to him at the

21 time, for a violation of a race-neutral state traffic law. Id. at ¶ 14; see also Longmire , 2005

22 U.S. Dist. LEXIS 18388 *7. Based on the foregoing, Plaintiffs have failed to prove that
23 Deputy Ratcliffe acted with racially discriminatory intent or motive toward Mr. and Mrs. 24 Rodriguez, or acted pursuant to any MCSO policy, pattern, or practice promoting or 25 fostering the targeting of Latinos. Because the Rodriguez Plaintiffs’ Fourteenth Amendment 26 claim fails, Plaintiffs’ policy, pattern, or practice claim based on their stop also must fail.
Lewis, 518 U.S. at 357; Jenkins, 515 U.S. at 88-89. 27

28

SCHMITT, SCHNECK, SMYTH &

7

HERROD, P.C.

Professional

Corporation

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 8 of 35

1

C. Stop Three - Meraz and Nieto and Deputies Armendariz, Kikes, and

2

Beeks.

3

MCSO Deputy Michael Kikes made the traffic stop of siblings Mr. Nieto and Ms.

4 Meraz. SSOF at ¶ 15. Due to the Meraz-Nieto vehicle’s window tinting, Deputy Kikes

5 could not see the race, ethnicity, or other characteristics of the vehicle’s occupants. Id. at ¶

6 16; see also Montero-Camargo, 208 F.3d at 1139-40 (no constitutional violation when

7 officers did not know the race of the driver or vehicle occupants before actually stopping the

8 vehicle.); United States v. Eliseo-Gonzalez, 2009 U.S. LEXIS 91831 *4 (M.D. Fla. 2009)

9 (“[N]o racial profiling took place in this case. The officer testified that he could not see

10 inside the vehicle when it passed his position and could not observe race or gender because

11 of the dark tint.”).

12

Plaintiffs’ expert, Mr. Stewart, testified that he has no evidence of racially

discriminatory intent or motive by Deputy Kikes in making the traffic stop of the Meraz13

Nieto vehicle. Id. at ¶ 17. There is no evidence that MCSO Deputy Ramon Armendariz, 14
who had the initial interaction with the Plaintiffs and called for back-up that led to the traffic
15 stop of Meraz and Nieto made by Deputy Kikes, had any racially discriminatory intent or

16 motive in regards to Meraz and Nieto. Id. at ¶ 18. There is no evidence of racially

17 discriminatory intent or motive by Deputy Douglas Beeks in drawing his weapon to his side

18 (without pointing it) when he joined Deputy Kikes after the traffic stop of Meraz and Nieto.

19 Id. at ¶ 19. Even expert Mr. Stewart admitted that there is no evidence that Plaintiffs Meraz

20 and Nieto were racially profiled in either the traffic stop or during their subsequent treatment

21 by the MCSO deputies. Id. at ¶ 20. In fact, Mr. Stewart also testified that Deputy Kikes

22 acted “reasonably” in his post-stop conduct and treatment of Mr. Nieto. Id. at ¶ 111.

23

Finally, the evidence demonstrates that Deputy Kikes made the traffic stop involving

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs Meraz and Nieto either on race-neutral probable cause or race-neutral reasonable suspicion. Id. at ¶ 21; see also Longmire, 2005 U.S. Dist. LEXIS 18388 *7. Based on the foregoing, therefore, Plaintiffs have failed to prove that any deputy that interacted with the Plaintiffs Meraz and Nieto acted with racially discriminatory intent or motive, or acted pursuant to any MCSO policy, pattern, or practice promoting or fostering the targeting of
8

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 9 of 35

1 Latinos. Because the Plaintiffs Meraz and Nieto’s Fourteenth Amendment claims fail,

2 Plaintiffs’ policy, pattern, or practice claim based upon this stop also must fail. Lewis, 518

3 U.S. at 357; Jenkins, 515 U.S. at 88-89. Moreover, because there is no evidence that any of

4 the named Plaintiffs’ constitutional rights were violated during any of the three stops at

5 issue, Plaintiffs’ entire Fourteenth Amendment claim including their policy, pattern, or

6 practice claim fails as a matter of law.

7

IV.

THE EVIDENCE CONCLUSIVELY ESTABLISHES THAT DEFENDANTS DID NOT ACT WITH RACIALLY DISCRIMINATORY INTENT AGAINST

8

LATINOS, AND THAT NO POLICY, PATTERN, OR PRACTICE OF THE

DEFENDANTS VIOLATED THE PLAINTIFFS’ FOURTEENTH

9

AMENDMENT RIGHTS.

10

11

Plaintiffs argue that Defendants “instituted a pattern or practice of selecting locations

12 for saturation patrols based, in part, upon racially-charged citizen complaints and in an effort
to target individuals of Mexican and Hispanic ethnicity, who Arpaio publicly and explicitly 13
equates to ‘illegal.’” (Motion at p. 14, ln. 22 to p., 15, ln. 3). Not only is this argument 14
irrelevant given the absence of any constitutional violation concerning the three traffic stops 15
involving the named Plaintiffs, but it is also factually and legally unsupportable. 16
Plaintiffs’ argument, indeed their entire Motion, is based upon their conflating the
17 MCSO’s lawful and race-neutral enforcement of laws relating to illegal immigration with the

18 MCSO supposedly unlawfully targeting Latinos. In other words, because the MCSO seeks

19 to enforce laws related to illegal immigration, Plaintiffs argue that the MCSO targets Latinos

20 in general in order to identify and arrest illegal immigrants. This argument is factually

21 unsupported and legally wrong as shown below.

22

A. The MCSO Policy of Enforcing Laws Relating to Illegal Immigration is

Race-Neutral, the Use of Saturation Patrols is a Reasonable and Common

23

Law Enforcement Technique, and the Discovery of Illegal Immigrants

24

During Such Patrols is Not Evidence of Defendants’ Alleged Racial

Prejudice or Animus against Latinos.

25

26

Against “the backdrop of rampant illegal immigration, escalating drug and human

27 trafficking crime, and serious public safety concerns,” in 2006-07 Arpaio established an

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

additional law enforcement focus for the MCSO. See United States v. Brewer, 703 9

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 10 of 35

1 F.Supp.2d 980, 985 (D. Ariz. 2010) (the “SB1070” case wherein the court discussed the

2 “backdrop” of illegal immigration related problems facing Arizona that the Legislature tried

3 to remedy). Arpaio determined that public safety in Maricopa County would be promoted by

4 the MCSO’s enforcement of federal immigration laws under the federal government’s 287(g)

5 program (which allows specially trained and certified local enforcement officers to enforce

6 federal immigration law) while concurrently enforcing Arizona laws related to human

7 smuggling. See, e.g., A.R.S. § 13-2319 (Arizona’s human smuggling statute); see also SSOF

at ¶ 22. This is a reasonable race-neutral policy decision for Arpaio to make. 8

Defense expert Mr. Click testified:

9

Arizona’s proximity to the Mexican border results in enforcement issues not

10

faced by non-border states. Major smuggling corridors have been identified that

11

lead from the Mexico border to Maricopa County and beyond. This can result in

different and reasonable law enforcement policies in Maricopa County than in other

12

parts of the country. Arizona has specific immigration-related statutes that many

other states do not have. These statutes make certain immigration related

13

activities a crime and therefore can impact agency policies.

14 Id. at ¶ 27 (emphasis added). Even Plaintiffs’ own expert, Mr. Stewart, acknowledged that
15 crime related to illegal immigration is a problem in Maricopa County, and that human
16 smuggling is a significant problem in Maricopa County. Id. at ¶ 23. A local law
17 enforcement agency, such as the MCSO, has broad discretion in setting its enforcement

18 policies. Id. at ¶ 24. Mr. Stewart testified that a local law enforcement agency has broad

19 discretion in determining what problems, concerns, or crimes it should prioritize for

20 enforcement. Id. at ¶ 25. Arpaio, therefore, properly designated illegal immigration as an

21 additional law enforcement focus for the MCSO. Id. at ¶ 26.

22

Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that the MCSO had

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

the authority under the February 2007 ICE-MCO Memorandum of Agreement (“MOA”) to perform pure immigration enforcement, that is to enforce the immigration law regardless of whether a specific illegal immigrant was suspected of engaging in so-called serious crime. Id. at ¶ 31. The MOA expressly allowed MCSO 287(g) certified deputies to enforce federal immigration law. Id. at ¶ 32. More specifically, the MCSO personnel certified with 287(g) authority by ICE are expressly allowed to stop and interrogate any person “believed” to be an
10

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 11 of 35

1 alien as to his/her right to be or remain in the United States. See 8 U.S.C. § 1357; 8 C.F.R. §

2 287.5, et seq. Also, 287(g) certified deputies are permitted to make warrantless arrests. Id.

3

Mr. Kidd further testified that the MCSO “has the authority to enforce the state laws,

4 and some of those [Arizona] laws do include immigration related matters.” Id. at ¶ 33. In

5 addition, Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix during the MOA,
6 testified that it was completely proper for MCSO deputies to make traffic stops of motorists
7 under Arizona law and then call for a 287(g) certified deputy to determine if someone in the stopped vehicle might be unlawfully present in the country. Id. at ¶ 34.
8 While the MCSO saturation patrols were designed to generally address crime in a
9 given geographic area, another focus of the patrols was the enforcement of the laws related
10 to illegal immigration. Id. at ¶ 109. “[T]he Supreme Court stated that ‘entering or remaining
11 unlawfully in this country is itself a crime.’” Medina v. Holder, __ F.3d ___, 2011 U.S.
12 LEXIS 5341 (9th Cir. 2011) (emphasis added) quoting from INS v. Lopez-Mendoza, 468
13 U.S. 1032, 1038 (1984); but see Gonzales v. City of Peoria, 722 F.2d 468, 476 (9th Cir.
14 1983) (illegal entry in the United States is a crime but an alien’s mere unlawful presence in
15 the United States is only a civil violation), overruled on other grounds by Hodgers-Durgin v.

16 de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc); see also United States v. Santana-

17 Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (Utah state trooper had probable cause to

18 arrest an alien without a warrant after the alien told the trooper that he was illegally present

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

in the United States). Regardless of whether an illegal immigrant’s unlawful presence in Maricopa County is a civil or criminal violation of the law, the fact remains that MCSO deputies that were 287(g) certified during the time pertinent to this lawsuit were authorized to enforce federal immigration law, whether criminal or civil. See 8 U.S.C. § 1357; 8 C.F.R. § 287.5, et seq. ; see also SSOF at ¶ 110.2
There is nothing about the use of a saturation patrol that is, in itself, indicative of racially discriminatory intent or motive by Defendants. Police practices expert Mr. Click
2 The United States Supreme Court has held that local law enforcement has the inherent authority to enforce the civil provisions of the federal immigration law. Muehler v. Mena, 544 U.S. 93, 101 (2005); see also United States v. Brewer, __ F.3d ___ , 2011 U.S. LEXIS 7413 (9th Ci. 2011), No. 10-16645 D.C. No. 2:10-cv-01413 SRB OPINION at pgs. 4882-87 (partial dissent by Judge Bea) (9th Cir. April 11, 2011). The Ninth Circuit, however, has recently held to the contrary as to civil violations but without limiting the inherent authority to enforce the criminal provisions of federal
11

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 12 of 35

1 testified that a saturation patrol is a long-standing, common, and reasonable tool of law

2 enforcement, and that it is an agency policy decision as to what particular problems are to be

3 addressed by or with a saturation patrol. Id. at ¶ 27. Mr. Click testified:

4

Saturation patrol operations have long been an accepted strategy used by law

enforcement agencies to address specific crime problems in a particular location…. It

5

is an agency policy decision to use saturation patrols to address a particular

6

problem.

7

Saturation patrols/crime suppression/task force operations usually involve officers

making increased number of lawful traffic stops and street contacts. The goal of

8

these lawful stops and contacts is [to] discover other crime. This can also have a

9

deterrent effect. Lawful stops and contacts are also used to gather intelligence about

criminal activity.

10

11

The specific criminal activity that is identified as the focus of a saturation patrol

operations is any agency policy decision. This is a common law enforcement

12

practice. The Sheriff has the authority to designate illegal immigration an

enforcement priority. 13

14 Id. (emphasis added).

15

Because of Maricopa County’s proximity to the Mexican border, one of the facts

16 faced by the MCSO necessarily is the relative commonality of the racial or ethnic

17 composition of the illegal immigrants that are encountered in the county. The illegal
immigrants indentified in the county are generally not from China, the Caribbean, North 18
Africa, Eastern Europe, or the Indian subcontinent. They are predominately from Mexico 19
and other countries south of the Arizona border. Several MCSO deputies testified that, in 20
their professional experience, most illegal immigrants they have discovered in Maricopa
21 County are from Mexico, or Central or South American. Id. at ¶ 28. Arpaio’s experience is

22 the same. Id. at ¶ 29. The fact that most illegal immigrants discovered in Maricopa County

23 are from Mexico, and thus Latino by definition, is neither shocking nor indicative of racial

24 animus against Latinos by the Defendants. According to the objective and race-neutral

25 evidence, “[i]t is well established that illegal immigrants in Arizona and in the United

26 States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has

27 estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not

28
immigration law . Brewer, at p. 4848.

SCHMITT, SCHNECK, SMYTH & HERROD, P.C.

12

Professional

Corporation

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 13 of 35

1 including the rest of Latin America.” Id. at ¶ 30. It is not surprising, therefore, that when

2 the MCSO conducts saturation patrols it will encounter Latinos that are Mexican nationals or

3 from Central or South America that are unlawfully in the United States. See United States v.

4 Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir.

5 2006), cert. denied, 549 U.S. 1188 (2007) (“In the poultry-producing region of Scott County,
6 Mississippi, as the [ICE] agent testified without contradiction, the population of illegal aliens
7 is predominately Hispanic, not (non-Hispanic) white. Accordingly, the district court did not err by finding that the officers’ decision to approach Vandyck’s house and to question him
8 when he came to the door was justified.”).
9 In summary to this point, Plaintiffs have failed to prove that Defendants’ policy of
10 enforcing the laws, including those related to illegal immigration, was motivated by racially
11 discriminatory intent or motive against Latinos. They have also failed to prove that the
12 Defendants’ use of saturation patrols as a law enforcement technique, a technique that has
13 inevitably lead to the MCSO’s discovery and arrest of illegal immigrants that are, given the
14 county’s proximity to the Mexican border, predominantly Latino, is an unreasonable law
15 enforcement technique or that it is driven by discriminatory intent to target Latinos and not

16 merely violators of federal or Arizona law.

17

B. MCSO Saturation Patrols are Initiated, Planned, and Executed Based on

Race-Neutral Considerations.

18 Plaintiffs have a two-pronged approach in their effort to prove that Defendants are
19 motivated by racial animus toward Latinos in initiating, planning, and executing saturation

20 patrols. First, they argue that Arpaio’s public statements show he has racial animus toward

21 Latinos. (Motion at p. 17, n. 9).3 Second, Plaintiffs argue that Arpaio somehow adopted,

22 approved, and agreed with citizen letters that expressed racially offensive or insensitive

23 remarks about Latinos and called for the racial targeting of Latinos. Both arguments are

24 incorrect and wholly unsupported by the evidence.

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

3 It is important to note that Plaintiffs do not attempt to prove that a single MCSO deputy that interacted with any of the named Plaintiffs in any way had racially discriminatory intent or motive, either in making the respective traffic stop or in his post-stop treatment of the named Plaintiffs, or acted pursuant to the challenged policy, pattern, or practice. Moreover, in apparent recognition of the evidentiary deficiencies with their first argument, Plaintiff represent that they “need not even prove that Sheriff Arpaio himself held racial animus in order to establish racially discriminatory intent if he adopted his policies in response to public sentiment that he knew was racially inspired.” (Motion at p. 17, lns. 22-24).
13

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 14 of 35

1

1. Arpaio’s Statements Do Not Show Racial Animus.

2

Plaintiffs attribute racial animus against Latinos to Arpaio and his policy of enforcing

3 the laws related to illegal immigration because of certain public statements he has made

4 during his recent career. Plaintiffs claim that Arpaio has indicated racial animus against

5 Latinos when he: (a) publicly announced an MCSO “crackdown” on illegal immigration; (b)

6 publicly used the terms “illegals,” “illegal aliens,” or “day laborers;” (c) publicly described

7 the illegal immigration problem in the county as an “epidemic;” (c) warned in early 2009

that illegal immigrants could transmit swine flu, and supposedly said that all Mexican 8

nationals were “dirty;” (d) wrote in one of his books the opinion that illegal immigrants from 9
Mexico are failing to assimilate into U.S. culture; (e) publicly stated that most illegal 10
immigrants in the county are from Mexico and have certain “appearances;” and (f) publicly

11 stated “where do you think 99 percent of the [illegal immigrants] come from?”

12

Plaintiffs’ argument is not persuasive. They have offered the Court no legal authority

13 from the Ninth Circuit or elsewhere that supports their argument that any of Arpaio’s

14 remarks (or alleged remarks), in isolation or collectively, amount to direct or circumstantial

15 evidence of racial animus against Latinos. They offer no authority that Arpaio’s remarks

16 constitute the sort of hidden or “camouflaged racial expression” that courts have found to be

17 evidence of racially discriminatory intent by a public official. Smith v. Town of Clarkton,

18 682 F,2d 1055, 1063-66 (4th Cir. 1982) (compare here the references to the “influx of
19 undesirables”). To the contrary, each of Arpaio’s remarks concern illegal immigration and
20 reflects race-neutral facts or opinion about the reality and nature of illegal immigration in
21 Maricopa County. Moreover, there simply is no legal authority equating a public official’s 22 (or law enforcement officer’s) publicly stated opposition to illegal immigration to animus
toward the race/ethnicity of the illegal immigrants. 23
The race-neutral reality is that Arizona is a border state and that Maricopa County is a 24
well-recognized major human smuggling corridor. SSOF at ¶ 35. Most of the illegal 25
immigrants in the county, given the countries they are originally from, are, by definition 26 Latinos. Id. at ¶¶ 28-30. Most day-laborers in this county, in the experience of many 27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

14

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 15 of 35

1 MCSO deputies, are illegal immigrants. Id. at ¶ 36. Plaintiffs’ own racial profiling expert,

2 Mr. Stewart, testified that crime related to illegal immigration is a problem in Maricopa

3 County. Id. at ¶ 23. Defendants respectfully submit that a resident of this county can oppose

4 “rampant” illegal immigration without having racial or ethnic animus toward the illegal

5 immigrants themselves. Brewer, 703 F.Supp.2d at 985 (describing the illegal immigration
6 situation in Arizona as “rampant”). A reasonable person could not interpret Arpaio’s public
7 comments as anything other than an expression of his opposition to, and desire to remediate, the undisputed problem of illegal immigration. Arpaio’s comments certainly are not
8 evidence of racial or ethnic animus toward Latinos.
9 As for Arpaio’s comment about the appearance of illegal immigrants in Maricopa
10 County, there is nothing racially discriminatory about such a comment. This is especially
11 true when considering the context in which Arpaio made the comment. The context shows
12 that Arpaio was attempting to articulate the ICE-approved indicators that the MCSO’s
13 287(g) certified deputies could use to determine a suspect’s unlawful presence in the
14 United States. He was not talking about using appearance to make traffic stops. Under the
15 ICE 287(g) program, there are a number of ICE-approved “indicators” that a local law

16 enforcement officer who is 287(g) certified is trained by ICE to look for in determining

17 whether a person may be in the United States unlawfully. One of the ICE-approved

18 indicators is that person’s race or ethnicity, including Mexican ancestry. Id. at ¶ 38; see

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

also United States v. Montero-Camargo, 208 F.3d 1122, 1134 n.21 (9th Cir. 2000) (“Nor do we preclude the use of race or ethnic appearance as one factor relevant to reasonable suspicion or probable cause….”); United States v. Brignoni-Ponce, 422 U.S. 873, 885-87 (1975) (“the apparent Mexican ancestry of the occupants” is a relevant factor among others in an immigration investigation); cf. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994) (holding that a consensual encounter by law enforcement may be based on a suspect’s racial appearance).
ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in determining whether someone may be in the United States unlawfully. Id. at ¶ 39. Although ICE approves of the use of race as one indicator, among several other
15

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 16 of 35

1 indicators, as a basis to form reasonable suspicion of unlawful presence or status, the MCSO

2 does not use race as an indicator or factor to make vehicle stops under Arizona law. Id.

3 at ¶ 40.

4

Another ICE-approved indicator of unlawful presence is that the person does not

5 speak the English language. Id. at ¶ 41. Additional ICE-approved indicators of unlawful

6 presence are: (a) an overcrowded vehicle; (b) none of the occupants have luggage or only

7 small items of property easily transported; (c) the people in the vehicle are unrelated or do

not know each other; (d) whether the people in the vehicle are dressed in a disheveled 8
manner; (e) pungent body odor of the people in the vehicle; and (f) the vehicle is located a 9
known human smuggling corridor. Id. at ¶ 42. When Plaintiffs complain of MCSO 287(g) 10
certified deputies focusing on a person’s ability to speak only the Spanish language, or
11 general “appearance,” that complaint ignores the facts and the context of using such factors

12 only when determining immigration status.

13

As for Arpaio’s alleged comment that all Mexican nationals are “dirty,” the evidence

14 does support Plaintiffs’ argument. Arpaio gave an interview with GQ magazine online in

15 late 2008 or early 2009. In that story, there is a statement attributed to him or his spouse that

16 illegal immigrants coming over the Mexican border are “dirty.” That statement was likely

17 taken out of context by the reporter. According to Arpaio,

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

It reflects my views only that those that come across the border and do not go through the proper checks, through the regular ports to come in here with no checks at all. And there is no way to determine whether they have a disease or not. I can talk about swine flu, tuberculosis and I believe I was referring to those instances when people come across without doing the proper checks.
Id. at ¶ 43 (emphasis added). Moreover, it is important to note that ICE-approved indicators for unlawful presence include appearance related factors such as whether, as mentioned above, the suspects are dressed in a disheveled manner and have pungent body odor. Id. at ¶ 42.
In conclusion, after nearly four years of litigation in this case, the Plaintiffs have come forward with insufficient evidence that Arpaio’s remarks, or alleged remarks, would “permit a reasonable trier of fact to find by a preponderance of the evidence” that he held racial or
16

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 17 of 35

1 ethnic animus against Latinos. Keyser, 265 F.3d at 754. There also is insufficient evidence

2 that would “permit a reasonable trier of fact to find by a preponderance of the evidence” that

3 Defendants’ illegal immigration enforcement and saturation patrol policy “was racially

4 motivated.” For all the reasons set forth herein, summary judgment in Plaintiffs’ favor is

5 inappropriate.

6

2.

7

8

Arpaio Did Not Adopt, Approve of, Agree with, or Endorse Citizen Letters that Expressed Racially Offensive or Insensitive Remarks about Latinos or that Asked the MCSO to Engage in the Racial Targeting of Latinos.

9

Arpaio receives numerous letters from citizens about illegal immigration. Arpaio

10 saves the letters he receives. As such, Plaintiffs have selected and cited to several letters that

11 Arpaio has received over the years from citizens that have expressed racially or ethnically

12 offensive or insensitive remarks about Latinos and/or called for the MCSO to target Latinos

13 based solely on their race or ethnicity. Plaintiffs use those letters to argue that Arpaio
14 “adopted the racial sentiments of his constituents” (Motion at p. 18, ln. 15) by, among other
15 things, writing “thank-you” notes to the letters’ authors (Id. at p. 17, lns. 14-16) (“By 16 responding to these sentiments, Sheriff Arpaio put his imprimatur on his constituents’ 17 sentiments against Hispanics and their views that Hispanics should be targeted for law
enforcement based on their race or ethnicity.”). Plaintiffs’ argument is legally and factually 18
wrong. 19
First, Arpaio did not and does not agree with the offensive or insensitive remarks 20
about Latinos that were contained in the cited letters. Arpaio, for example, testified that he 21 did not agree with the comments made by one author about Ninth Circuit Court of Appeals 22 judge Mary Murguia, the former judge presiding over this litigation. Id. at ¶ 44. In fact, 23 Arpaio thought the author’s comments were “rather nasty. And this is their opinion. It
24 doesn’t mean it is my opinion. I’ve been a federal official, law enforcement official, for 26
25 years. I have respect for the courts, and I don’t agree with that.” Id. (emphasis added).

26

When he was asked whether he agreed with racially offensive language in another

27 citizen letter, Arpaio testified that “I don’t agree with that.” Id. at ¶ 45 (emphasis added).

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

When he was questioned about the contents of another letter from a citizen named Richard 17

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 18 of 35

1 H., Arpaio testified that he had “no knowledge of percentages or whatever he’s talking

2 about. Once again, that’s his comment, not mine.” Id. at ¶ 46. Moreover, when

3 questioned about whether he agreed with Richard H.’s racially charged statement, Arpaio

4 responded: “Once again, that’s his statement, and I don’t know what context he’s talking

5 about, about ducks or whatever he’s mentioning…. I can’t read his mind. This is his

6 opinion, not mine.” Id. at ¶ 47 (emphasis added).

7

When a citizen named Carol B. indicated that racial profiling was, in her lay opinion,

a desirable and harmless law enforcement tool because her own Italian mother experienced it 8
many years ago, Arpaio testified that “This is just her comments, her opinions. I have no 9
comment on her comment. I wasn’t there. I wasn’t involved with her family.” Id. at ¶ 10
48 (emphasis added).
11 When Arpaio was questioned about whether he agreed with the racially charged

12 comments contained within another letter co-written by citizens Sarah M. and Erika S.,

13 Arpaio made it abundantly clear that he did not adopt, agree with, or endorse their

14 comments. Id. at ¶ 59. When he was asked whether he agreed with the racially charged

15 language in another citizen’s letter, Arpaio testified that he did not even understand what the

16 author was thinking and “I can’t believe what he’s thinking when he wrote this.” Id. at ¶

17 60 (emphasis added).

18

As for other citizen letters containing actual, or perceived, racially charged language

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

that the Plaintiffs cite to in their Motion (i.e., documents OSLS00004525, OSLS0005154, Melendres MCSO 76267, Melendres MCSO 71945, OSLS001235, OSLS0001057, and OSLS001058-60), Plaintiffs did not even question Arpaio during his deposition as to whether he agreed with those racially charged statements. However, given Arpaio’s prior testimony when he was asked whether he agreed with other citizens’ racially offensive remarks, it is reasonable to assume that Arpaio would have similarly disagreed with the offensive remarks in each of these documents as well.
Finally, the Plaintiffs’ argument that citizen letters asking the MCSO to act unlawfully by racially profiling Latinos triggered Defendants’ law enforcement action is not supported by the evidence. Arpaio testified that racial profiling is morally wrong and his
18

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 19 of 35

1 deputies do not engage in such conduct. Id. at ¶ 49. Deputy Chief Brian Sands, the MCSO

2 person that actually makes the decisions of where, when, and how to do a saturation patrol,

3 testified that racial profiling is morally wrong and illegal. Id. at ¶ 50. MCSO Lieutenant

4 Joseph Sousa, the head of MCSO’s Human Smuggling Unit (“HSU”), and one of the top

5 planners for executing and supervising saturation patrols, testified that racial profiling is

6 prohibited by MCSO policy, is illegal, and HSU members do not racially profile. Id. at ¶ 51.

7

Sergeant Manuel Madrid, who is one of two supervising sergeants for the HSU, who

works directly for Lt. Sousa, and who is a Latino himself, testified that racial profiling is 8

illegal, the factor of a person’s race or ethnicity can never be used in making a traffic stop, 9
and the HSU members he supervises do not racially profile. Id. at ¶ 52. Sergeant Brett 10
Palmer, the remaining supervisory sergeant for HSU, testified that racial profiling is wrong

11 and illegal, and that the HSU members he supervises do not racially profile. Id. at ¶ 53.

12

The testimony of the MCSO deputies who interacted with the named Plaintiffs is in

13 accord. Louis DiPietro, the deputy that made the traffic stop on Plaintiff Melendres, knows

14 and understands that racial profiling is illegal. Id. at ¶ 54. Race was not a factor in his

15 finding of probable cause to stop the truck in which Plaintiff Melendres was a passenger. Id.

16 Matthew Ratcliffe, the deputy that made the traffic stop on the Rodriguez Plaintiffs knows

17 and understands that racial profiling is illegal and wrong. Id. at ¶ 55. Race was not a factor

18 in his finding of probable cause to stop the Rodriguez Plaintiffs. Id. Michael Kikes, the

19 deputy who made the traffic stop on Plaintiffs Meraz and Nieto knows and understands that

20 racial profiling is illegal and wrong. Id. at ¶ 56. Race was not a factor in Deputy Kikes’

21 finding of probable cause to stop Plaintiffs Meraz and Nieto. Id. In addition, after extensive

review of the case file, defense expert Mr. Click opined: 22

The 3 incidents that are the basis of this suit do not support [Plaintiffs’ claim] that the

23

deputies engaged in improper tactics such as racial profiling and improper stops to

24

carry out their responsibilities.

25

Every MCSO deputy and supervisor deposed understood, without equivocation, that

26

racial profiling is wrong, a serious crime and could result in the loss of their jobs. This understanding by all personnel is a strong motivator not to racially profile any

27

person.

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

19

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 20 of 35

1 Id. at ¶ 61.

2

Second, Arpaio’s “thank-you” notes sent to the letters’ authors were not

3 endorsements, approval, or adoptions of the letters’ content. The “thank-you” notes were

4 merely a courtesy and acknowledgement by a public official that a citizen had written a letter

5 to him. Arpaio, via his secretary, normally writes “thank-you” notes to all people who write

6 to him, regardless of the content of the letters. Id. at ¶ 57.

7

Third, Plaintiffs offer the Court no legal authority from the Ninth Circuit or any

jurisdiction standing for the proposition that a public official who receives a citizen 8

complaint expressing or implying racial prejudice has thereby adopted, approved of, agreed 9
with, or endorsed the contents of those letters simply because he sent a “thank-you” note to 10
the author, and/or because he forwarded the letter to a management level person on his staff.

11 Likewise, the Plaintiffs offer no legal authority that supports their novel argument that

12 Arpaio, by failing to “correct the sender” (Motion at p. 2, ln.16) as to his/her opinions or

13 racial prejudice or by failing to rebuke him/her for expressing such opinions, has thereby

14 adopted, agreed, or approved of the citizens’ opinions or prejudice. City of Cuyahoga Falls,

15 Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 196 (2003) (“[O]ur well

16 established First Amendment admonition that government may not prohibit the expression of

17 an idea simply because society finds the idea itself offensive or disagreeable, dovetails with

18 the notion that all citizens, regardless of the content of their ideas, have the right to petition

19 their government.”) (citations and internal quotations omitted). Arpaio is under no

20 obligation to “correct” or rebuke every citizen letter writer as to his/her opinions or lay-

21 person view of the law.

22

In conclusion to this point, Plaintiffs offer no evidence that would “permit a

reasonable trier of fact to find by a preponderance of the evidence” that Arpaio “adopted the 23

racial sentiments of his constituents” or placed “his imprimatur” on those expressions and,

24 therefore, “was racially motivated” in his law enforcement policy regarding enforcing the

25 laws related to illegal immigration. Keyser, 265 F.3d at 754. Plaintiffs, therefore, are not

26 entitled to judgment as a matter of law based upon these citizen communications.

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

20

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 21 of 35

1

3. Defendants Did Not, and Do Not, Conduct Saturation Patrols Based

2

on Citizen Letters that Express Racially Offensive or Insensitive Remarks about Latinos or that ask the MCSO to Engage in the

3

Targeting of Latinos.

4 Plaintiffs next argue that, because Arpaio sent to certain of his executive management
5 staff copies of citizen letters that expressed racially offensive or insensitive remarks about
6 Latinos and/or called for racial targeting of Latinos, Arpaio must have agreed with the
7 letters’ content in toto and/or the MCSO must have used those letters to make decisions
8 about where and when to conduct saturation patrols. This argument is, once again, factually

9 unsupportable. The evidence shows that the MCSO selects sites for saturation patrols based

10 on race and ethnicity neutral factors.

11

Arpaio forwards letters to executive staff in his office when he believes the letters

12 may be of interest to them. SSOF at ¶ 62. In regards to the letters that Plaintiffs assert are

13 racially charged, Arpaio forwarded those letters predominately to one person, Chief Brian
14 Sands. Arpaio forwarded the letters to Chief Sands so he could determine whether there was
15 any factual information contained within the letters that was worthy of MCSO independent 16 investigation. Id. at ¶ 78. The forwarding of such letters from the top executive to a 17 subordinate executive is standard practice among law enforcement administration and is
precisely what defense expert Bennie Click did when he received such letters as Chief of 18
Police of the Dallas, Texas police department. Id. at ¶ 71. 19
As for Plaintiffs’ reliance upon Arpaio not checking the accuracy of statistics about 20
illegal immigration in a particular document before he forwarded it to management level 21 staff, Arpaio testified that he sent the document to Chiefs Sands and Freeman so they could 22 check on it “[b]ecause this is another piece of intelligence. It could be true, or it could not. 23 That’s why I sent it to them.” Id. at ¶ 78. The document is “[j]ust another intelligence-type
24 report, whether it’s true or not, I think that they [Chiefs Sands and Freeman] should
25 look at it.” Id.

26

Chief Sands makes the decisions of where, when, and how to do a saturation patrol.

27 Id. at ¶ 63. There are a multitude of different law enforcement factors that Chief Sands used

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

to determine whether to conduct a saturation patrol, and where it is conducted. Id. The race 21

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 22 of 35

1 or ethnicity of people, however, plays no role in Chief Sands’ selection of saturation patrol

2 locations. Id. at ¶ 64. The ethnic constituency in a neighborhood plays no role in selecting

3 locations for saturation patrols. Id. at ¶ 65. Even with an additional MCSO emphasis on

4 enforcing laws related to illegal immigration, the MCSO still does not focus or target

5 areas believed to contain a high percentage of illegal immigrants. Id. at ¶ 66. Chief

6 Sands testified:

7

[T]he [illegal] immigration problems that we have are so widespread throughout Maricopa County there [are] very few places you can go [on a saturation patrol]

8

where you are not going to encounter an illegal alien. Whether to focus on a group

of people standing on a corner because they look a certain way is not good practice

9

and would certainly be easier to just go up and start grabbing people off the street

10

corner because they are day-laborers, but it is not a practice or anything that we

condone in the sheriff’s office.

11

12 Id. (emphasis added). Similarly, HSU Lt. Sousa testified that the areas for saturation patrols

13 are not selected because they may have a high concentration of suspected illegal aliens. Id.

14 at ¶ 67.

15

The sites for saturation patrols are determined by Chief Sands based on a combination

16 of the following types of factors:

17

• The area’s crime history and statistics. Id. at ¶ 68(A).

18

• Intelligence and data regarding possible criminal activity at the possible site. Id. at ¶

68(B). 19

• Requests for assistance in a particular area from Arizona Legislators and information 20

offered in the request. Id. at ¶ 68(C). 21
• Requests for assistance from city officials for a particular area. Id. at ¶ 68(D).
22 • Information provided by local police officers from other law enforcement agencies.

23 Id. at ¶ 68(E).

24

• Requests for assistance from private citizens in the community providing information

25

about possible criminal activity; but such information provided by private citizens is

26

independently evaluated and confirmed by the MCSO. Id. at ¶ 67(8).

27

When evaluating private citizen complaints, including the letters that Plaintiffs

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

complain about in their Motion, the MCSO conducts an independent investigation of the 22

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 23 of 35

1 complaint to determine its legitimacy and whether there is any basis to do anything. Id. at ¶

2 69. “Generally speaking, [Chief Sands] likes to know what is going on in the community as

3 a whole relative to crime before we do a saturation patrol.” Id. More specifically as to how

4 the MCSO handles citizen complaints that may be made by persons who express racial

5 prejudice, Chief Sands testified:

6

Q. How do you satisfy yourself that a complaint that you are about to act on was

not motivated by race or ethnicity?

7

A. I ignore it, unless there is some type of crime relative to it that would still

8

lead to the discovery of that crime, not excluding the person or the information

9

source’s information for giving us that information. To ignore all information

would be contrary to good law enforcement.

10

11

Q. So even if you have reason to believe that a complaint may be motivated by

racism, you would not discount the complaint solely on that basis?

12

A. If the complaint is racial only in itself, there is no follow-up done on it.

13

There is no need to follow up on a complaint about someone that is Irish or

14

Jewish or ethnically Mexican that lives in a house with a whole group of other

people. I mean, there is no need to follow up. That would be – there is no crime

15

involved.

16 Q. If you believe a crime may be involved, you might pursue that tip even though

17

you have reason to believe that the tip was also made on some improper

consideration of race or ethnicity? 18

19

A. Keep in mind I am not supporting racial or prejudicial attitudes in the

community at all when I say this, but sometimes the information sources that

20

we end up using in law enforcement are people that are in involved in – in

21

criminal elements in their community or neighborhood they live in and oftentimes these people give us information. It can be corroborated to solve

22

a murder or human smuggling case, that person may be, in fact, motivated by

ulterior motives of his own, and I am just being honest with you in saying that

23

he may be racially prejudiced at the same time and its- it would be hard to

24

disqualify that information and say that the information source doesn’t like

certain groups of people so we are not going to- we are not going to

25

investigate the crime that he might very well be a witness to.

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Id. at ¶ 70 (emphasis added). As for Plaintiffs’ argument that Chief Sands blindly initiated saturation patrols when
23

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 24 of 35

1 Arpaio forwarded him letters containing racially charged language, that argument is

2 nonsense. For example, when Chief Sands was asked whether he agreed with a particular

3 citizen author’s statement in a letter he received from Arpaio that stated that “we have too

4 many dysfunctional Hispanics already here,” Chief Sands expressly rejected the author’s

5 statement. Id. at ¶ 77. Chief Sands never drew the conclusion that, because Arpaio merely

6 forwarded him a citizen’ letter, he was to initiate a saturation patrol on that basis. Id. Expert

7 Mr. Click succinctly summarized the evidence about Chief Sands’ handling of racially

charged letters that Arpaio had forwarded to him: 8

I don’t think that—certainly Chief Sands is by just the nature of his position has been

9

around a long time, and I don’t think he’s going to be influenced by an email like this.

10

It would be just more informative or more just educational as to what a citizen is

saying out there.

11

12 Id. at ¶ 79.

13

The MCSO also, in fact, rejected race and ethnicity-based information that it received

14 from its illegal immigration “hot-line” or telephone tip-line. Chief Sands testified:

15

Q. Are you aware of your office having received tips relating to illegal

immigration that have come from persons or members of groups that have

16

expressed hatred for illegal immigrants?

17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

A. I don’t typically receive all these tips or the communication so it is hard for me to analyze what motivates people that are giving us information. I will say, though, that I have sat in on meetings over tips that have come in and when there is no need to follow up on something based on the caller’s information and it only attributed—the information is only attributed to somebody’s ethnicity or appearance, we don’t follow up on it. Whether those are racially motivated complaints, I wouldn’t know. But when the information is only such directed towards a group of people or a business or—and just solely on their race or ethnicity, we don’t follow-up on it.
Id. at ¶ 72 (emphasis added).
Plaintiffs’ charge that the MCSO conducted saturation patrols solely because a
location was frequented by day-laborers is not true. When the MCSO received citizen
complaints about day-laborers, the MCSO independently investigated the complaints and
only took official action when it determined that criminal activity existed. Id. at ¶ 107.
24

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 25 of 35

1 Chief Sands does not select locations for saturation patrols because of the sole factor that

2 there are day-laborers at a particular location. Id. While some saturation patrols involved

3 sites where day-laborers were located, every saturation patrol in an area with day-laborers
4 was conducted because there were race and ethnicity-neutral factors related to criminal
5 activity occurring at the site that controlled Chief Sands’ decision to conduct a particular
6 saturation patrol at a particular location. Id. at ¶ 108; compare Doe v. Vill. of Mamaroneck, 7 462 F.Supp.2d 520, 531 ¶ 89 (S.D.N.Y 2006) (“To the extent Village officials did receive
complaints from residents concerning the behavior of the day laborers, the Village took no 8
step to investigate and determine whether those complaints were genuine and/or whether 9
they were motivated consciously or unconsciously, by racial animus towards the day 10
laborers.”) (emphasis added). 11
The MCSO, therefore, consistently rejected racially or ethnically charged citizen 12 complaints when there was no mention of any facts indicating criminal activity. Id. at ¶ 73. 13 When there was criminal activity identified in the citizen complaint, the MCSO
14 independently evaluated the same. Id. In addition, Mr. Click, the defense expert, testified
15 that “[t]he method by which the MCSO chooses target areas for saturation patrols is

16 reasonable and consistent with standard law enforcement practices.” Id. at ¶ 74

17 (emphasis added). As for citizen complaints that contained actual or perceived racially

18 prejudiced comments, Mr. Click concluded that the “MCSO took steps not to respond to

19 requests to that [which] would have amounted to racial profiling.” Id. at ¶ 75. Finally,

20 Plaintiffs’ own expert, Mr. Stewart, testified that each of the MCSO saturation patrols was

21 justified under law enforcement standards:

Q. Have you formed the opinion that any particular MCSO saturation patrol was

22

unjustified or unwarranted?

23
A. Based on crime data? 24

25

Q. For any reason.

26

A. I did not draw that conclusion.”

27 Id. at ¶ 76 (emphasis added).
28

SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

25

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 26 of 35

1

In conclusion, Plaintiffs’ argument that the MCSO conducted saturation patrols based

2 on the offensive comments of citizens is unsupported by the evidence and is, quite simply,

3 wrong. Their own police practices racial profiling expert agrees that each saturation patrol

4 was justified on race-neutral grounds. Accordingly, Plaintiffs offer no evidence that would

5 “permit a reasonable trier of fact to find by a preponderance of the evidence that [Arpaio]”

6 “adopted the racial sentiments of his constituents” or placed “his imprimatur” on those

7 expressions by forwarding some of these letters to Chief Sands, or that Chief Sands ordered a

saturation patrol in a given area based upon citizens’ racial prejudice. Keyser, 265 F.3d at 8

754. Summary judgment in Plaintiffs’ favor is inappropriate.

9

4. The MCSO’s Saturation Patrol Policies and Practices Were

10

Reasonable, Appropriate, and Industry Standard and Did Not

11

Encourage Racial Profiling of Latinos.

12

Plaintiffs argue that Defendants’ “practices on saturation patrols constitute a stark

13 departure from both MCSO’s past practice and the typical practice of American law

14 enforcement agencies with respect to saturation patrols” and, therefore, “afford evidence that

15 improper purposes are playing a role.” (Motion at p. 24, lns. 21-24). This argument is

16 mistaken.

17

First, Plaintiffs are critical of Arpaio’s decision to use saturation patrols as a tool to

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

identify and deter crime, which inevitably in Maricopa County will also lead to the discovery of persons who are violation of the United States immigration laws. The evidence, however, shows that there is nothing particularly unique about the MCSO saturation patrols. “Saturation patrol operations have long been an accepted strategy used by law enforcement agencies to address specific crime problems in a particular location…. It is an agency policy decision to use saturation patrols to address a particular problem.” SSOF at ¶ 27. “The Sheriff has the authority to designate illegal immigration an enforcement priority.” Id. On the other hand, what is unique to MCSO saturation patrols is the inevitable identification and arresting of illegal immigrants. But that uniqueness is not the result of racial or ethnic animus, but instead of the race-neutral realities of Maricopa County’s geography relative to Mexico and the nature of illegal immigration in this county, state, and nation at present. As
26

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 27 of 35

1 set forth above already, Mr. Click testified:

2

Arizona’s proximity to the Mexican border results in enforcement issues not faced by

3

non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and

4

reasonable law enforcement policies in Maricopa County than in other parts of the

country. Arizona has specific immigration-related statutes that many other states do

5

not have. These statutes make certain immigration related activities a crime and

6

therefore can impact agency policies.

7 Id. at ¶ 27. Finally, Mr. Click testified that the MCSO saturation patrols were reasonably 8 and appropriately planned, executed, supervised and de-briefed. Id. at ¶ 80. There is “no 9 stark departure” from reasonable, standard law enforcement practice.

10

Second, Plaintiffs are critical of the MCSO’s use of so-called pre-textual traffic stops

11 because those stops can be used “as a launching point for investigations into immigration

12 status.” That criticism is misplaced. The MCSO makes only lawful traffic stops based on

13 probable cause or reasonable suspicion that a violation of the traffic code or vehicle code

14 exists. Id. at ¶ 8. The MCSO does not use race or ethnicity as an indicator or factor to

15 make vehicle stops. Id. at ¶ 82.

16

Plaintiffs’ use of the term “pre-textual traffic stops” also has a negative implication

17 that is not consistent with the law permitting, under Fourth Amendment analysis, the police
to make lawful traffic stops even if the subjective intent of the stopping officer is to discover 18
another crime. Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Robinson, 19
414 U.S. 218, 221 n.1 (1973); United States v. Ramirez, 473 F.3d 1026, 1030-31 (9th Cir. 20
2007); United States v. Willis, 431 F.3d 709, 715 (9th Cir. 2005); Rodriquez v. California
21 Highway Patrol, 89 F.Supp.2d 1131, 1139 (N.D. Cal. 2000). Even Plaintiffs’ expert, Mr.

22 Stewart, admits that a traffic stop can be made for probable cause even if the stopping police

23 officer has some other race-neutral motivation to stop the motorist. SSOF at ¶ 83.

24 Defendants’ expert, Mr. Click, testified about the traffic stop component of saturation

25 patrols:

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops and contacts is also used to gather intelligence about criminal
27

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 28 of 35

1

activity.

2 Id. at ¶ 84. Accordingly, there is “no stark departure” from reasonable, standard law 3 enforcement practice.

4

Third, Plaintiffs are critical of the MCSO’s saturation patrol practice of asking all

5 passengers in stopped vehicles, regardless of race or ethnicity, for identification. There is

6 nothing unusual or unconstitutional about such a technique. The MCSO acted reasonably

7 when it instituted a policy of asking all passengers in a vehicle stopped during a saturation

8 patrol for their identification. Id. at ¶ 85. This policy was created in an effort to reduce the

9 potential for racial profiling by deputies during saturation patrols. Id. Mr. Click testified:

10

Sergeant [Manuel] Madrid reasonably instituted a policy in the HSU [Human

Smuggling Unit] that all passengers in vehicles that had been stopped would be

11

contacted. He stated that this was done to avoid the appearance that deputies could

12

pick and chose whom they contacted.

13 Id.; see also INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question

14 an individual although they lacked reasonable suspicion that the individual was an illegal
15 alien); Mena, 544 U.S. at 101 (local law enforcement officers could ask passengers about
16 their immigration status: “mere police questioning does not constitute a seizure…. Hence, 17 the officers did not need reasonable suspicion to ask Mena for her name, date and place of
birth, or immigration status.”) (emphasis added). There is “no stark departure” from 18
reasonable, standard law enforcement practice. 19
Fourth, Plaintiffs criticize the MCSO’s use of a “zero-tolerance” policy requiring 20
deputies to stop all vehicles they observed that had either a moving or equipment violation. 21 This policy was “a reasonable practice… that removed the deputies’ discretion to pick and 22 chose who they stopped” and was intended to reduce the potential of racial profiling during
23 saturation patrols. SSOF at ¶ 86. Plaintiffs’ argument that it is unclear whether the MCSO
24 actually implemented the zero-tolerance policy during large scale saturation patrols is not

25 supported by the facts. There was a zero tolerance policy for traffic stops during all

26 large scale saturation patrols. Id. at ¶ 87. Accordingly, Plaintiffs’ reliance on the

27 testimony of Chief Sands, Lt. Sousa, and Deputy Armendariz to support Plaintiffs’ argument

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

that deputies still had broad discretion when deciding which vehicles to stop during a large 28

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 29 of 35

1 scale saturation patrol is mistaken. Id. at ¶ 88. There is “no stark departure” from

2 reasonable, standard law enforcement practice.

3

Fifth, Plaintiffs criticize the MCSO for supposedly not having a policy prohibiting

4 racial profiling. The evidence, however, shows that the MCSO has a policy prohibiting

5 racial profiling. Id. at ¶ 89. In addition, defendants’ expert Mr. Click testified:

6

The MCSO maintains comprehensive and detailed policies and procedures that all

personnel are required to have a working knowledge of. A number of MCSO

7

policies prohibit racial profiling. The MCSO policies are reasonable and

conform to nationally recognized standards. 8

9 Id. at ¶ 90 (emphasis added). The MCSO, via Lt. Sousa and Sgts. Madrid and Palmer, also 10 instructed the deputies who were to participate in a saturation patrol during the pre-patrol 11 briefing for each patrol that they were not to racially or ethnically profile any person during

12 the saturation patrol. Id. at ¶ 91. Accordingly, there is “no stark departure” from reasonable,

13 standard law enforcement practice.

14

Sixth, Plaintiffs criticize the MCSO for supposedly not training deputies about racial

15 profiling, or for failing to properly supervise deputies during saturation patrols. The MCSO
16 deputies, however, were appropriately trained about racial profiling. They were trained 17 about racial profiling, first at the police academy, and again when they actually started their
work at the MCSO, and, if the deputy underwent 287(g) certification with ICE, again at the 18
five-week long ICE training academy. Id. at ¶ 92. Finally, as to whether the MCSO 19
provided appropriate supervision during its saturation patrols, expert Mr. Click testified that 20
the “Operations Plans were reasonable and met the standard of care. There is no evidence 21 that there was confusion over the objective of the operations, personnel assignments or the 22 specific duties to be performed.” Id. at ¶ 93. He further testified that the “level of
23 supervision required generally depends on a deputies’ training, experience and past

24 performance. There is no evidence that any deputy lacked supervision.” Id. There is “no

25 stark departure” from reasonable, standard law enforcement practice.

26

Finally, Plaintiffs criticize the MCSO for not documenting the race or ethnicity of

27 individuals stopped or contacted by deputies during all traffic stops. Expert Mr. Click,

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

however, testified that the MCSO acted reasonably and appropriately in not collecting data 29

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 30 of 35

1 about the race/ethnicity of persons stopped or contacted by the MCSO and provided detailed

2 explanation for the reasons why such data collection is not standard in law enforcement. Id. 3 at ¶ 94.4 There is “no stark departure.”

4

In conclusion to these points, Plaintiffs offer insufficient evidence that would “permit

5 a reasonable trier of fact to find by a preponderance of the evidence that” the MCSO’s

6 policies or practices were so outside the law enforcement mainstream “that improper

7 purposes are playing a role” in such patrols. Keyser, 265 F.3d at 754. Plaintiffs are not

entitled to summary judgment. 8

V. PLAINTIFFS’ SATURATION PATROL STATISTICS DO NOT ESTABLISH

9

THAT THE NAMED PLAINTIFFS’ FOURTEENTH AMENDMENT RIGHTS

10

WERE VIOLATED.

11 Plaintiffs argue that Dr. Ralph Taylor’s statistical evidence about saturation patrols
12 “proves discriminatory effect and also provides additional evidence of discriminatory

13 intent.” (Motion at p, 31, lns. 20-21). This argument is not persuasive.

14

First, the saturation patrol statistical evidence is irrelevant to whether the Defendants’

15 policy, pattern, or practice had a discriminatory effect on the named Plaintiffs, or whether

16 their Fourteenth Amendment rights were violated. It is undisputable that the traffic stop of

17 Mr. and Mrs. Rodriguez was unrelated to a saturation patrol. SSOF at ¶ 96. It is

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

undisputable that the traffic stop of Ms. Meraz and Mr. Nieto, while occurring when a
saturation patrol was simultaneously on-going in the area, was unrelated to that saturation
patrol. Id. at ¶ 97. While Mr. Melendres’ traffic stop technically could be considered as part
of a small MCSO saturation patrol, and was considered as such by Deputy DiPietro, the
operation was actually a small HSU detail targeting only specific vehicles that had picked up
persons from a suspected human smuggling drop house/day laborer location and did not
involve the MCSO making general traffic stops of any vehicles other than those that had
4 Plaintiffs point to isolated incidents of individuals within the MCSO who violated policy and circulated emails that were racially/ethnically offensive and/or inappropriate. They use these incidents in an effort to prove that Arpaio and the HSU detectives had racially discriminatory intent or motive against Latinos. Plaintiffs, however, offer no evidence that these emails resulted in any MCSO deputy or employee having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. Indeed, there is no evidence that would support such a causal connection. Additionally, as soon as the person with day-to-day responsibilities for the HSU, Lt. Sousa, learned of the same he became “livid” and immediately stopped all such emails. SSOF at ¶ 95.
30

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 31 of 35

1 visited the church property and picked-up passengers and where probable cause or

2 reasonable suspicion was found sufficient to stop those particular vehicles. Id. at ¶ 98.

3 Accordingly, at least four of the five named Plaintiffs, and perhaps even all five of the

4 named Plaintiffs, were not stopped as part of an MCSO saturation patrol. Saturation

5 patrol statistics showing disparities among race for traffic stops made as part of a saturation

6 patrol are irrelevant to Plaintiffs’ Fourteenth Amendment claim. See Rule 401 and 402, Fed.

7 R. Evid.
Second, the only type of statistical evidence that possibly might even be arguably 8
relevant to the claims of the named Plaintiffs is the evidence about traffic stop disparities on 9
non-saturation patrol days. Plaintiffs’ statistical expert, Dr. Taylor, conducted a statistical 10
analysis of all MCSO traffic stops conducted from January 1, 2007 to October 31, 2009 and 11
concluded that Latinos in Maricopa County are stopped by MCSO personnel in roughly the
12 same proportion to their share of Maricopa County’s population. SSOF at ¶ 99. Defense

13 expert statistician Steve Camarota, Ph.D., holds the same opinion:

14

[My] findings show that the Hispanic share of those stopped by the MCSO

15

deputies is roughly equal to their proportion of the county and the state’s overall

population. About one-third of stops are of individuals with a Hispanic last name,

16

which closely matches their share of the county and state populations. Analysis at the

17

sub-county level also tends to show stops in proportion to local population shares…. Equally important, despite a significant increase in concern over illegal

18

immigration in recent years in the county and state, there was no increase in the

Hispanic share of those stopped by MCSO between 2005 and 2009. Overall, the

19

surname analysis shows Hispanics are being stopped at a rate that reflects their

20

share of the population.

21 Id. at ¶ 100 (emphasis added). These statistics show that no MCSO policy, pattern, or 22 practice had a disproportionate effect on the named Plaintiffs given that they were not

23 stopped as part of saturation patrol.

24

Third, assuming, arguendo, that Plaintiffs’ saturation patrol statistics are somehow

25 relevant to the named Plaintiffs’ claims, the statistics, at best, show only that Defendants’

26 policy, pattern, or practice had a disproportionate impact on Latinos in general during

27 saturation patrols, not the disparate treatment of Latinos during saturation patrols. An

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

31

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 32 of 35

1 official policy, pattern, or practice is not unconstitutional solely because it has a racially

2 disproportionate impact. Castaneda v. Partida, 430 U.S. 482, 493 (1971); see also Vill. Of

3 Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-65 (1977) (“[O]fficial

4 action will not be held unconstitutional solely because it results in a racially
5 disproportionate impact.”) (emphasis added). Dr. Taylor’s saturation patrol opinions, and
6 the inferences that can be reasonably drawn from those opinions, do not prove disparate 7 treatment of Latinos. An equal protection cause of action can only be based upon disparate
treatment. Washington v. Davis, 426 U.S. 229, 242 (1976) (“Disproportionate impact is not 8
irrelevant, but it is not the sole touchstone of invidious racial discrimination….”). Moreover, 9
only in “rare cases [has] a statistical pattern of discriminatory impact demonstrated a 10 constitutional violation.” McClesky v. Kemp, 481 U.S. 279, 293 n.12 (1987).5 11
Fourth, Dr. Taylor’s saturation patrol opinions are unreliable. Hernandez-Bustos, 12 2005 U.S. LEXIS 16311, *4 ¶ 19 (“The court is convinced that the [statistical evidence] 13 offered by the defendant has so many problems that it cannot be relied upon to establish
14 discriminatory effect.”). Dr. Taylor’s study is admittedly “quasi-experimental” in nature.
15 SSOF at ¶ 101. His “quasi-experimental” study does not result in definitive findings or

16 conclusions, merely “inferences.” Id. at ¶ 102.

17

Dr. Taylor’s saturation patrol analysis: (1) fails to exclude those patrols that included

18 a human smuggling interdiction component, or otherwise exclude human smuggling load

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

vehicles found containing multiple illegal immigrants as occupants, which skews his saturation patrol results; (2) fails to exclude duplicate records in the MCSO Computer Aided Dispatch database, which skews his saturation patrol results; (3) excludes thousands of other cases that should have been included in the analysis, which artificially inflates his saturation patrol results (he admits that he excluded 18% of all MCSO traffic stops per year because they did not “align” with Plaintiffs’ case theory or Plaintiffs’ “concerns”); and (4) fails to account for any socio-economic variables that affected his saturation patrol model. Id. at ¶ 103; contrast Lacy v. Villeneuve, 2005 U.S. Dist. LEXIS 31639 * 14 (W.D. Wash. 2005)
5 “Even when statistical evidence of disparate impact is offered, its role is limited to creation of a rebuttable prima facie case that race is a motivating factor in the challenged action.” United States v. Avery, 137 F.3d 343, 356 (6th Cir. 1997). As shown throughout this Response, and in Defendants’ pending Motion for Summary Judgment, Defendants’ alleged
32

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 33 of 35

1 (there, plaintiff’s expert “examined comprehensive data of all [Washington State Patrol]

2 arrests” and concluded “that the data ‘strongly support’ the conclusion that Trooper

3 Villeneuve intentionally targets individuals for traffic stops based on race.”) (emphasis

4 added); Giron v. City of Alexandria, Ark., 693 F.Supp.2d 904, 938-39 (E.D. Ark. 2010)

5 (detailed numerical and statistical evidence demonstrated that Officer Leah intentionally

6 targeted Latinos for traffic stops and citations because of their race or nationality).

7

Finally, saturation patrols are infrequent events and do not occur on a daily, weekly,

or even monthly basis. Id. at ¶ 104. Saturation patrols are, by their very nature, special 8

operations intended to address concerns about criminal activity or possible problems in the 9
community. Id. at ¶ 105. For the 34-month time period covered by Plaintiffs’ Motion 10
addressing January 1, 2007 to October 31, 2009, there were only thirteen (13) large scale

11 saturation patrols conducted by the MCSO. Id. at ¶ 106. The argument that such patrols

12 have a discriminatory effect on the named Plaintiffs, therefore, is not persuasive. Id. Indeed,

13 none of the named Plaintiffs have reported being stopped by the MCSO since their traffic

14 stops that form the basis of this suit. For the reasons discussed in Defendants’ Motion for

15 Summary Judgment, this fact prevents Plaintiffs from establishing their entitlement to the

16 broad injunctive relief they request.

17

The Plaintiffs’ saturation patrol statistics are not “sufficient to permit a reasonable

18 trier of fact to find by a preponderance of the evidence that [the Defendants’ policy, pattern,

19 or practice]… was racially motivated” or had a discriminatory effect as to the named

20 Plaintiffs. Keyser., 265 F.3d at 754. As a consequence, Plaintiffs are not entitled to

21 summary judgment in their favor.

22 VI. CONCLUSION
Based on the foregoing, Plaintiffs are not entitled to judgment as a matter of law, and 23
genuine issue of material fact also preclude summary judgment in favor of Plaintiffs. The 24
Court, therefore, should deny their Motion and grant the Defendants’ Motion for Summary
25 Judgment pending before the Court.

26

DATED this 3rd day of June, 2011.

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

policy, pattern, and practice regarding saturation patrols in planned, initiated, and executed on race-neutral factors.
33

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 34 of 35

1

SCHMITT, SCHNECK, SMYTH & HERROD,

P.C.

2

s/Timothy J. Casey______

3

Timothy J. Casey

Schmitt, Schneck, Smyth & Herrod, P.C.

4

1221 E. Osborn Rd., Suite 105

Phoenix, Arizona 85014

5

Telephone: (602) 277-7000

Facsimile:(602) 277-8663

6

Co-counsel for Defendants

7 CERTIFICATE OF SERVICE
8
I hereby certify that on June 3, 2011, I electronically transmitted the attached 9 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
Notice of Electronic Filing to the following CM/ECF registrants: 10
The Honorable G. Murray Snow 11 United States District Court
401 West Washington Street, 12 Phoenix, Arizona 85003-2158

13 Stanley Young, Esq. Andrew Carl Byrnes, Esq.
14 COVINGTON & BURLING, LLP 333 Twin Dolphin Road
15 Redwood Shores, California 94065 Counsel for Plaintiffs
16
Daniel Pochoda, Esq. 17 Annie Lai, Esq.
ACLU FOUNDATION OF ARIZONA 18 3707 N. 7th Street, Suite 235
Phoenix, Arizona 85014 19 Counsel for Plaintiffs

20 Monica M. Ramirez, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION
21 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
22 San Francisco, California 94111 Counsel for Plaintiffs
23
Nancy Ramirez, Esq. 24 MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATION FUND 25 634 S. Spring Street, 11th Floor
Los Angeles, California 90014 26 Counsel for Plaintiffs

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Maria Brandon, Esq. Thomas Liddy, Esq. MARICOPA COUNTY ATTORNEY’S OFFICE
34

Case 2:07-cv-02513-GMS Document 452 Filed 06/03/11 Page 35 of 35

1 Deputy County Attorneys Litigation Practice Group
2 Civil Services Division Maricopa County Attorney’s Office
3 222 N. Central, Suite 1100 Phoenix, Arizona 85004
4 Co-counsel for Defendants Arpaio and MCSO

5 s/Eileen Henry______ Eileen Henry, Paralegal
6 SCHMITT, SCHNECK, SMYTH & HERROD, P.C.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

35

 </s> Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 1 of 174

1 Timothy J. Casey (#013492) SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
2 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540
3 Telephone: (602) 277-7000 Facsimile: (602) 277-8663
4 timcasey@azbarristers.com

5 Maria Brandon (#0004249) Thomas P. Liddy (#019384)
6 MARICOPA COUNTY ATTORNEY’S OFFICE Deputy County Attorneys
7 Litigation Practice Group Civil Services Division
8 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
9 Phoenix, Arizona 85004 602-506-8066
10 Co-counsel for Defendants Arpaio and MCSO

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

Manuel de Jesus Ortega Melendres, et al., No. CV 07-02513-PHX-GMS

14

Plaintiffs,

15 vs.

DEFENDANTS’ RESPONSE TO

PLAINTIFFS’ STATEMENT OF FACTS

16 Joseph M. Arpaio, et al.

IN SUPPORT OF PLAINTIFFS’

MOTION FOR PARTIAL SUMMARY

17

Defendants.

JUDGMENT AND CONTROVERTING

STATEMENT OF FACTS

18

19

20 Pursuant to Rule 56(e)(2), Federal Rules of Civil Procedure, and Local Rule of Civil
21 Procedure 56.1(b), defendants Joseph M. Arpaio (“Arpaio”) and the Maricopa County
22 Sheriff’s Office (“MCSO”) hereby submit their Response to Plaintiffs’ Separate Statement of 23 Fact in Support of Plaintiffs’ Motion for Partial Summary Judgment (Dkt#422) as follows:
24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 2 of 174

1 2 3
I. 4 5 6 7 8
II. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

TABLE OF CONTENTS DEFENDANTS’ LOCAL RULE 56.1(b)(1) RESPONSE, CONTROVERTING STATEMENT OF FACTS, AND OBJECTIONS TO PLAINTIFFS’ SEPARATE STATEMENT OF FACTS OFFERED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT…………………………………………………………….3 DEFENDANTS’ LOCAL RULE 56.1(b)(2) SEPARATE STATEMENT OF ADDITIONAL FACTS THAT EITHER ESTABLISH A GENUINE ISSUE OF MATERIAL FACT OR OTHEWISE PRECLUDE JUDGMENTIN FAVOR OF PLAINTIFFS AND THAT ARE CITED WITHIN THEIR RESPONSIVE MEMORANDUM SUBMITTED IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARYJUDGMENT………………….......................................144
2

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 3 of 174

1 I. 2 3

DEFENDANTS’ LOCAL RULE 56.1(b)(1) RESPONSE, CONTROVERTING STATEMENT OF FACTS, AND OBJECTIONS TO PLAINTIFFS’ SEPARATESTATEMENT OF FACTS OFFERED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT.

4 PLAIN 5 TIFFS
’ 6 STAT 7 EMEN
T OF 8 FACT
NO. 9 1
10
11

DEFENDANTS’ RESPONSE, RULE 56(c)(2) OBJECTIONS,AND CONTROVERTING STATEMENT OF FACT WHERE APPROPRIATE
Disputed. Defendants object on the ground set forth below to the use of the particular exhibits identified below for purposes of summary judgment motion practice. The Court should strike the exhibits identified below.

12

Controverting Statement: This statement is misleading as stated and as

13

used in the motion.

14

Defendants do not dispute that Arpaio in the 2006-07 time period,

15

against the backdrop of rampant illegal immigration, escalating drug and

human trafficking crime, and serious public safety concerns, established

16

an additional focus for the MCSO wherein it would enforce federal

17

immigration law under the federal government’s 287(g) program (allowing local enforcement officer to enforce federal immigration law)

18

and the power of local law enforcement agencies to enforce Arizona law

related to human smuggling. See A.R.S. § 13-2319, (Arizona’s Human

19

Smuggling statute). Even Plaintiffs’ police practices/racial profiling

20

expert, Robert L. Stewart admits that: (a) crime related to illegal

immigration is a problem in Maricopa County; and (b) that human

21

smuggling is a crime in Arizona and is a problem in Maricopa County.

22

See Deposition of Robert L. Stewart at p. 31, ln. 23 to p. 32, ln. 4 (for point “a”) and p. 34, lns. 12-17 (for point “b” above), attached as Exhibit

23

17.

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that the ICE-MCSO Memorandum of Agreement expressly allowed MCSO 287(g) certified deputies to enforce federal immigration law. Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 55, ln. 14 to p. 56, ln. 11; see also p. 52, lns. 8-25, attached as Exhibit 2. Mr. Kidd further testified that Arpaio “has the authority to enforce the state laws, and some of those [Arizona] laws do include immigration related
3

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 4 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

matters.” Id. at p. 56, lns. 14-19; see also p. 53. lns. 3-7 (emphasis added).
The testimony cited in Plaintiffs’ Statement of Fact paragraph 110 contradicts the statement in the motion it is offered to support. The Plaintiffs’ Statement of Fact at ¶ 110 demonstrates that the cited MCSO deputies understood that “one of the purposes” or one of the focuses of the MCSO saturation patrols in which they were involved was illegal immigration. In addition, Plaintiffs’ statement here directly conflicts with their own proffered statement of fact at paragraph 102 (“In this litigation, some MCSO officers have taken the position that the saturation patrols are designed to address crime generally. Officers were instructed to simply ‘enforce the law’ or ‘enforce the traffic laws.’”).
Objections: Document ORT78-80 is a Washington Post news article dated 05/21/06 and is inadmissible hearsay. There are no applicable exceptions, and Plaintiffs do not quote any alleged statement by any Defendant in the article that arguable may constitute an admission of a party opponent. As such, the Plaintiffs’ may not rely on this document to prove the truth of the matters set forth therein.
Document ORT84-85 is an Arizona Republic news article dated 03/02/07 alleged to quote Arpaio. It is inadmissible hearsay and unreliable. See F.R.E. 403. Arpaio testified that he did not recall making the statement referenced in the news articles and “I will say it is probably taken out of context.” (Arpaio Deposition I at p. 38, lns.5-8, attached as Hickey Dec. Ex 4). This alleged statement, therefore, lacks authenticity and foundation, and is unreliable. It cannot be used to support Plaintiffs Statement of Fact (Dkt#422) (“PSOF”) paragraph No. 1.
Disputed.
Controverting Statement: Plaintiffs’ statement is misleading and mischaracterizes the evidence in an attempt to unfairly attribute racially discriminatory intent or motive to Arpaio for his decision to enforce laws related to illegal immigration.
The undisputed, objective, and race-neutral evidence shows that “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” See
4

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 5 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Defendants’ Statement of Facts (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; Dkt#413-1 at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report). As stated by the Fifth Circuit in United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007), “Although ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultry-producing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non-Hispanic) white. Accordingly, the district court did not err by finding that the officers’ decision to approach Vandyck’s house and to question him when he came to the door was justified.” (emphasis added). Arpaio’s professional experience in his law enforcement career as Sheriff is that most of the illegal immigrants he has observed in Maricopa County are originally from Mexico, or Central or South America. See Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns. 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 1723; p. 219, lns. 1-12, attached as Exhibit 16.
Other MCSO personnel that have learned from their law enforcement experience in Maricopa County that most illegal immigrants in Maricopa County are from Mexico, or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11; Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; and Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14.
There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for in determining whether a person may be in the United States unlawfully. One of the ICE approved indicators is that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether
5

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 6 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

someone may be in the United States unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it couldn’t—it is not to be used solely. It is never to be used just as a—as an individual factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p. 151, lns. 49 (“MCSO 287(g) officers can consider race as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”).
Although ICE approves of the use of race as one indicator, among several other indicators, as a basis to form reasonable suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
While Plaintiffs’ statement sets forth facts that are largely undisputed as to Arpaio’s quotes from his own MCSO News Release, and in equating illegal aliens/immigrants discovered in Maricopa County as coming predominantly from the Republic of Mexico given that Arizona is a border state with that nation, this paragraph does not support the statement set forth in the Motion. Plaintiffs Motion (at p.3, lns. 24-26) which is supposedly supported by PSOF No. 2 makes a statement that is different from the facts that are set forth in PSOF No. 2. The Motion states: “When he [Arpaio] made this policy decision, Sheriff Arpaio made clear that he equated ‘illegals’ with Hispanics generally and persons from Mexico in particular.” (Motion at p.3, lns. 24-26). Neither PSOF No. 2 nor the evidence listed therein supports the Plaintiffs’ statement in their Motion that Arpaio equated illegal immigrants with “Hispanics generally.” Arpaio was referring specifically to illegal immigrants from Mexico.
Document ORT104 is an MCSO News Release. It states nothing that would allow a reasonably objective person that was not advocating for a particular outcome to conclude that Arpaio equated “illegals with Hispanics generally”. To the contrary, the News Release states that the MCSO responded to Queen Creek citizen complaints regarding day laborers harassing school children at a bus stop and that the MCSO investigated the complaint and eventually arrested 16 illegal aliens under the federal immigration law.
Defendants do not dispute the quotes attributed to Arpaio in Document
6

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 7 of 174

1
2
3
4
5
6 7 3 8 4
5 9
6 10
7 11
12
13
14
15
16
17
18
19
20
21
22 23 8
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

ORT104; however, they dispute the characterization, implied meaning, and interpretation Plaintiffs ascribe to the quotes.
Objections: Document ORT78-80 is a Washington Post news article dated 05/21/06 and is hearsay and inadmissible. There are no exceptions and Plaintiffs do not quote any alleged Arpaio statement in the article. As such, the Plaintiffs’ may not rely on this document to support this statement of fact.
Admit
Admit
Admit
Admit
Disputed
Controverting Statement: Plaintiffs’ Motion (p. 5, ln. 7) states that Arpaio began to “hunt for illegal immigrants” and relies on this statement as support for the remainder of Plaintiffs’ argument therein. The evidence cited by Plaintiffs in support of PSOF No. 7 does not support the argumentative conclusion that illegal aliens were “hunted” or the subject of a hunt.
The cited evidence shows that the MCSO “has been at the forefront of the fight against illegal immigration” and that its personnel will be, through saturation patrols, on “roadways and highways commonly used as transportation corridors for human trafficking” targeting “vehicles commonly used to move human cargo to destination inside and outside the county [i.e., so-called load vehicles]. If a vehicle is stopped for cause, anyone inside who is determined to be an illegal alien by the Sheriff’s immigration [i.e., 287(g) certified deputies] will be arrested and jailed.” ORT42-22, Hickey Dec. Ex. 9.
Defendants do not dispute the other quotations set forth in PSOF No. 7. Admit with clarification.
There is nothing unique or extraordinary about addressing the presence of illegal immigrants even if they are not involved in crime. It is a policy decision by the specific law enforcement agency on when and to what extent they take action to address illegal immigrants discovered in their jurisdiction. For example, when the MCSO entered into its agreement with ICE in 2007, the George W. Bush Administration gave wide discretion to ICE and local law enforcement agencies operating under the 287(g) program as to the arresting of illegal immigrants
7

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 8 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 9 18 10 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

regardless of whether they were suspected of engaging in serious crime. After the election of President Barrack Obama, however, the federal government changed its policy priorities and desired ICE and local 287(g) agencies to arrest only illegal aliens suspected of serious crime. See Deposition Alonzo Pena at p. 150, ln. 21 to p. 155, ln. 4 (in particular p. 153, lns. 154, ln. 24); see also p. 274, ln. 11 to p. 275, ln 17, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 233, lns. 7-13 (ICE policy priorities changed after January 2009), attached as Exhibit 2.
In addition, Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.
Finally, Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio had the authority under the ICE-MCO Memorandum of Agreement to do pure immigration enforcement. Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20 (the MOA “does not limit the type of enforcement”), attached as Exhibit 2.
Admit.
Partial Admit and Partial Dispute.
Controverting Statement: Defendants do not dispute that effective October 16, 2009, the ICE-MCSO Memorandum of Agreement was modified to terminate the MCSO’s 287(g) authority in the field. Plaintiffs, however, suggest that ICE terminated the agreement because it determined that MCSO had violated the agreement or otherwise acted unlawfully and that somehow the MCSO saturation patrols should stop. (Motion at p. 5, fn. 3). That suggestion is not correct.
The termination decision was the result of a change in policy priorities of the new administration of President Barrack Obama. After the 2008 general election, the federal government changed its policy priorities and desired ICE and local 287(g) agencies to arrest only illegal immigrants suspected of serious crime. See Deposition Alonzo Pena at p. 150, ln. 21 to p. 155, ln. 4 (in particular p. 153, lns. 154, ln. 24); see also p. 274, ln. 11 to p. 275, ln 17, attached as Ex. 1; see also Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click
8

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 9 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

dated January 21, 2011, at p. 49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise) wherein Mr. Click testified:
“The 287(g) agreement with the MCSO was not renewed in October, 2009 for field operations because of a change in focus and priorities by the new federal administration. See ICE managers’ Mr. Pendergraph’s, Mr. Pena’s and Mr. Kidd’s statements. The 287(g) agreement was continued for detention operations.”
Id.
The MCSO maintains authority to enforce immigration related laws. Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio “has the authority to enforce the state laws, and some of those [Arizona] laws do include immigration related matters.” Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 56, lns. 14-19; see also p. 53. lns. 3-7, attached as Exhibit 2 (emphasis added).
The ICE agents with knowledge of MCSO saturation patrols did not have concerns or complaints about the effectiveness or lawfulness of the patrols. See Defendants’ Supplemental Statement of Facts re Testimony of ICE Witnesses in Support of their Motion for Summary Judgment dated April 29, 2011 (Dkt# 414 and 415) (motion to file same under) at ¶¶ 5-10, 12-13, and 19-25. According to ICE Assistant Special Agent in Charge Jason Kidd, he was knowledgeable or aware of the fact that the MCSO saturation patrols were using violations of the Arizona motor vehicle equipment and moving codes to make traffic stops of persons. Id. at ¶ 21. Mr. Kidd was further knowledgeable or aware of the fact that during MCSO conducted traffic stops MCSO deputies were encountering people in the United States unlawfully. Id. Mr. Kidd never expressed in writing, or verbally, to the MCSO any concerns about the MCSO using traffic stops and during those stops identifying people in the country unlawfully. Id.
According to ICE Assistant Special Agent in Charge Jason Kidd, under the 287(g) program, the MCSO had the highest rate of encountering and removing persons that were in the United States unlawfully of any local law enforcement agencies in a 287(g) program in the country. Id. at ¶ 251.
9

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 10 of 174

1 2 11 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement: While the Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion. Plaintiffs unfairly attempt to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because of a statement based on his law enforcement experience and, in proper context, a statement that merely restates some of the ICEapproved indicators of unlawful presence in the United States.
There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for in determining whether a person may be in the United States unlawfully. Cf. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questioning does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”). One such ICE approved indicator is that the person does not speak the English language. See Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as Exhibit 10; see Deposition of Ramon Armendariz at p. 44, lns. 1-4, attached as Exhibit 8; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5, attached as Exhibit 11.
Another number of ICE additional approved indicators are: (a) an overcrowded vehicle; (b) none of the occupants have luggage or only small items of property easily transported; (c) the people in the vehicle are unrelated or do not know each other; (d) whether the people in the vehicle are dressed in a disheveled manner; (e) pungent body odor of the people in the vehicle; (f) the vehicle is located in a known human smuggling corridor. See Deposition of Carlos Rangel dated 10/20/09 at p. 95, ln. 12 to p. 96, ln. 12 attached as Exhibit 11; see Deposition of Manuel Madrid dated 10/27/09 at p. 38, ln. 9 to p. 39, ln. 4, attached as Exhibit 10; see Deposition of Brett Palmer dated 11/09/10 at p. 38, ln. 21 to p. 39, ln. 14, attached as Exhibit 12.
Another of the ICE approved indicators is that of a person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the
10

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 11 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
12 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

exercise of 287(g) authority in the determination of whether someone may be in the United States unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it couldn’t—it is not to be used solely. It is never to be used just as a—as an individual factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p. 151, lns. 49 (“MCSO 287(g) officers can consider race as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”).
The Fifth Circuit’s decision in United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) is instructive. There, the Court held that “[a]lthough ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultry-producing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (nonHispanic) white. According, the district court did not err by finding that the officers’ decision to approach Vandyck’s house and to question him when he came to the door was justified.” (emphasis added).
Although ICE approves of the use of race as one indicator, among several other indicators, as a basis to form reasonable suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion in that it unfairly attempts to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because he has set as a law enforcement priority for his office the enforcement of law related to illegal immigration. In other words, Plaintiffs conflate the MCSO’s targeting of crimes regarding human smuggling or illegal immigration with the targeting of Latinos because of their race.
11

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 12 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Arpaio’s professional experience in his law enforcement career as Sheriff is that most of the illegal immigrants he has observed in Maricopa County are originally from Mexico, or Central or South America. See Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns. 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 1723; p. 219, lns. 1-12, attached as Exhibit 16. This is neither shocking nor indicative of racial animus against Latinos. According to the objective and race-neutral evidence, “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” Defendants’ Statement of Facts (Dkt#413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report). Arpaio’s professional experience is no more derived from personal racial animus toward Latinos than is the conclusion reached by the Pew Hispanic Center.
Arpaio’s professional experience is no more derived from personal racial animus toward Latinos than are the objective experiences of other MCSO personnel that have learned that most illegal immigrants in Maricopa County are from Mexico, or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11; Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; and Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; see also United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) (“Although ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultryproducing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non-Hispanic) white.”).
12

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 13 of 174

1 13 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement: While the Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion. Plaintiffs unfairly attempt to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because of a statement based on his law enforcement experience and, in proper context, a statement that merely restates, perhaps in-artfully, one of the ICE-approved indicators of unlawful presence in the United States.
There are a number of ICE-approved articulable “indicators” that a local law enforcement officer who is 287(g) certified is trained by ICE to look for when determining whether a person may be in the United States unlawfully. One of the ICE-approved indicators is that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether someone may be in the United States unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it couldn’t—it is not to be used solely. It is never to be used just as a—as an individual factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p. 151, lns. 49 (“MCSO 287(g) officers can consider race as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”); see also United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) (“Although ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultry-producing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non-Hispanic) white.”).
Although ICE approves of the use of race as one indicator, among several other indicators, as a basis to form reasonable suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
13

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 14 of 174

1 2 14 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 15 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement: While the Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion. Plaintiffs unfairly attempt to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because of a statement based on his law enforcement experience and the undisputed facts that most illegal immigrants are from Mexico. The evidence shows that “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” DSOF (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).
The Fifth Circuit’s decision in United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) is instructive. There, the Court held that “[a]lthough ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultry-producing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (nonHispanic) white. According, the district court did not err by finding that the officers’ decision to approach Vandyck’s house and to question him when he came to the door was justified.” (emphasis added). Disputed.
Controverting Statement: There is nothing unusual about law enforcement discovering, and seeking to discover, illegal immigrants regardless of whether the particular illegal immigrant committed a state crime.
Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio had the authority under the ICE-MCO Memorandum of Agreement to do pure immigration enforcement. See Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20 (the MOA “does not limit the type of enforcement”), attached as Exhibit 2.
Mr. Kidd further testified 287(g) authority could be used during or
14

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 15 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

following a lawful traffic stop because “[w]hat mattered was that there was a legitimate law enforcement encounter. So it could be anything from a traffic violation to a criminal violation that they were able to encounter those people that was a legitimate law enforcement encounter.” Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 171, ln. 18 to p. 172, ln. 5), attached as Exhibit 2.
According to Jason Kidd, he was knowledgeable or aware of the fact that the MCSO saturation patrols were using violations of the Arizona motor vehicle equipment and moving codes to make traffic stops of persons. See Defendants’ Supplemental Statement of Facts re Testimony of ICE Witnesses in Support of their Motion for Summary Judgment dated April 29, 2011 (Dkt# 414 and 415) (motion to file same under) at ¶ 21. Mr. Kidd was further knowledgeable or aware of the fact that during MCSO conducted traffic stops MCSO deputies were encountering people in the United States unlawfully. Id. Mr. Kidd never expressed in writing, or verbally, to the MCSO any concerns about the MCSO using traffic stops and during those stops identifying people in the country unlawfully. Id.
Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1. Whether the immigration suspect was involved in a crime or not is immaterial. Id.
The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonably degree of probability in his field of expertise that that MCSO’s use of saturation patrols is a long-standing, common, and reasonable tool of law enforcement, and that is an agency policy decision as to what particular problem to address with a saturation patrol. More specifically, Mr. Click testified:
“Saturation patrol operations have long been an accepted strategy used by law enforcement agencies to address specific crime problems in a particular location. They generally are of short duration, nor more than several days, because the additional personnel needed for the operation are taken from other assignments. Historically, saturation patrols have targeted gangs, drugs, alcohol, DUI, and curfew violations.
15

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 16 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

They are also used to address traffic issues such as high collision locations. The saturation patrols not only address crime problems, but also reassure the residents and businesses that their crime concerns are being addressed. A strong law enforcement presence also deters crime in the area. Saturation patrols play an important role in the practice of community policing. It is an agency policy decision to use saturation patrols to address a particular problem.
Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops and contacts is also used to gather intelligence about criminal activity.
The specific criminal activity that is identified as the focus of a saturation patrol operations is any agency policy decision. This is a common law enforcement practice. The Sheriff has the authority to designate illegal immigration an enforcement priority.
Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and reasonable law enforcement policies in Maricopa County than in other parts of the country. Arizona has specific immigration-related statutes that many other states do not have. These statutes make certain immigration related activities a crime and therefore can impact agency policies.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Admit in part and disputed in part.
Controverting Statement: Defendants do not dispute the following: (a) that in 2008 Arpaio published a book with co-author Len Sherman titled: Joe’s Law: America’s Touhest Sheriff Takes on Illegal Immigration, Drugs, and Everything Else that Threatens America;” (b) the book
16

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 17 of 174

1 2 3 4 5 6 7 8 9 10
17 11
18 12
19 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

discusses illegal immigration at length; (c) the book suggests that immigrants from Mexico have displayed a difference in assimilating into American society as compared to historical experiences with other immigrant groups; and (d) the book addresses Arpaio’s immigrant parents from Italy.
As for the book’s discussion on the concept of Mexican “reconquista” or reconquest of certain land in the southwestern United States, Arpaio testified that he was not familiar with that concept and attributed statements about “reconquista” in the book to those of his co-author, Len Sherman. See deposition of Joseph Arpaio dated 12/16/09 at p. 13, ln. 14 to p. 17, ln. 3, attached as Exhibit 16. More specifically, Arpaio testified that he did not agree with the statements about reconquest (Id. at p. 16, lns. 6-8) or that immigrants from Mexico had hopes different from his Italian parents (Id. at p. 16, lns. 20-23). Admit.
Admit.
Admit in part and disputed in part.
Controverting Statement: Defendants admit that Arpaio has described illegal immigration as an “epidemic”. There is no evidence cited by Plaintiffs wherein Arpaio has described legal immigration as an “epidemic.”
While Defendants admit that Arpaio gave an interview with GQ magazine online in late 2008 or early 2009, the statement attributed to him that illegal immigrants coming over the Mexican border as being “dirty” was likely taken out of context by the reporter. According to Arpaio,
“It reflects my views that only those that come across the border and do not go through the proper checks, through the regular ports to come in her with no checks at all. And there is no way to determine whether they have a disease or not. I can talk about swine flu, tuberculosis and I believe I was referring to those instances when people come across without doing the proper checks.”
Deposition of Joseph Arpaio dated 12/16/09 at p. 19, ln. 17 to p. 20, ln. 12, attached as Exhibit 16 (emphasis added).
Objections: The document ORT528-535 is inadmissible hearsay in that it is a web online story containing opinions and argument of its author, and the Plaintiffs have not demonstrated the foundation for the
17

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 18 of 174

1 2 3 4 5
20 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

authenticity or reliability of any statement therein that is attributed to Arpaio. As such, the supposed Arpaio statements lack authenticity and foundation to serve as admissions by a party opponent. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969). Admitted in part and disputed in part.
Controverting Statement: While Defendants admit the contents of the MCSO New Release at document ORT000637-39, the contents of the news release, as used by Plaintiffs in their motion is misleading, not given in context, and ignores the environment in which the statement was made.
Pursuant to Rule 201, Federal Rules of Evidence, the Court may take judicial notice that in the winter and spring of 2009, there was an influenza problem in the United States associated with the “swine flu.” See Center for Disease Control and Prevention (“CDC”) documents at http://www.cdc.gov/h1n1flu/ga.htm (entitled “2009 H1N1 Flu (“Swine Flu”) and You”); http://www.cdc.gov/h1n1flu/cdccresponse.htm (entitled “The 2009 H1N1 Pandemic Summary and Highlights April 2009 to April 2010”). The CDC considered the swine flu a pandemic. Id.
The Court may also take judicial notice that people in Mexico were affected severely with the global swine flu and that over 150 people were reported to have died from the form of influenza. See www.cbsnews.com/stories/2009/04/28/health/main4973082shtml?tag=c ontentMain:contentBody (entitled “CDC Warns Swine Flu Death Likely in US. More than 60 Cases Confirmed: Obama asks for $1.5 billion to fight Fast Spreading Disease.”) (confirming reported deaths of 159 persons in Mexico from swine flu).
In addition, for completeness purposes pursuant to Rule 106, Federal Rules of Evidence, the following other sections of the news release ought in fairness to be considered contemporaneously with the isolated section used by the Plaintiffs:
“’No one has talked about the people who are coming into the United States illegally as being a potential source of the spread of swine flu,’ Sheriff Arpaio said today. ‘Unlike those who legally enter this country, and thus can be easily checked for disease, the very nature of illegal immigration –evading authorities, and unchecked and
18

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 19 of 174

1 2 3 4 5 6 7 8 9 10 11 12 21 13 22 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

untraceable contact with different people – actively promotes the spread of a communicable disease. If this health crisis doesn’t serve as a wakeup call to politicians who advocate open borders and who fight this illegal immigration issue at every turn, then our nation could find itself in serious trouble on a number of levels.’”
*** “’It takes an average of seven (7) days for illegal immigrants from the southern Mexican states to be smuggled into Maricopa County,’ Arpaio says. ‘If illegal aliens are exposed to swine flu in Mexico, by the time they arrive in the U.S, the disease is fully infectious. Deputies are exposed to illegal aliens on average about 10 to 12 hours while are arrests are in process.’”
See ORT000638, attached to Plaintiffs’ Statement of Facts as Exhibit 208 (emphasis added).
Admit.
Disputed.
Controverting Statement: This statement states the evidence out of context and is misleading as used in the Plaintiffs’ Motion (at p.16, lns. 5-8) because it is intended to draw a causal link between selected constituent correspondence received by Arpaio and the Defendants’ decisions to conduct certain saturation patrols or their decision to enforce laws related to illegal immigration.
For completeness purposes pursuant to Rule 106, Federal Rules of Evidence, the following other sections of the news release (ORT421-22) ought in fairness to be considered contemporaneously with the isolated section used by the Plaintiffs so the cited terms are in context:
“Date: July 20, 2007
***
Maricopa County Sheriff Joe Arpaio, who has been at the forefront of the fight against illegal immigration during the past two years [i.e., since 2005] with a workforce of 4,000 employees, announced an expanded and concentrated crackdown on the [illegal immigration] problem on Friday, July 20, 2007 at his Tent City Jail.
Arpaio said that more than 200 armed Sheriff’s deputies…will saturate valley cities as well as roadways and highways commonly used as
19

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 20 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

transportation corridors for human trafficking.
***
*** 160 immigration trained deputies and officers… will be out en masse to enforce both the state and federal anti illegal immigration law which allow them to arrest and jail anyone stopped for cause and determined to be in the country unlawfully.
‘We are quickly becoming a full fledged anti illegal immigration agency,’ Arpaio says. ‘In the jails and on the streets, we have our employees trained and anxious to make a large dent in the illegal immigration problem. We have heard the people speak, we understand their frustration and will continue to do all that we can to reduce the number of illegal aliens making their way into the United States and Maricopa County.’”
See ORT421-22 (empahsis added). It is clear, therefore, from the appropriate context of the news release, that: (a) the MCSO is targeting human smuggling load vehicles, not people based on their race or ethnicity; (b) load vehicles can be stopped only for cause; (c) the MCSO intends to enforce Arizona and federal laws related to illegal immigration; and (d) the MCSO, and Arpaio in particular, is not expanding the “crackdown” in response to the specific constituent correspondence cited by the Plaintiffs throughout their, the vast majority of which were written by third parties and sent to Arpaio after the July 20, 2007 date of the news release.
The Plaintiffs’ statement, as used by Plaintiffs in the motion, is also misleading because it suggests that there is something wrong with, or otherwise unlawful about, Arpaio’s law enforcement policies or priorities or his use of the saturation patrol law enforcement technique. That is not the case.
Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio had the authority under the ICE-MCO Memorandum of Agreement to do pure immigration enforcement. See Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20 (the MOA “does not limit the type of enforcement”), attached as Exhibit 2.
Mr. Kidd further testified 287(g) authority could be used during or following a lawful traffic stop because “[w]hat mattered was that there
20

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 21 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

was a legitimate law enforcement encounter. So it could be anything from a traffic violation to a criminal violation that they were able to encounter those people that was a legitimate law enforcement encounter.” Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 171, ln. 18 to p. 172, ln. 5), attached as Exhibit 2.
According to Jason Kidd, he was knowledgeable or aware of the fact that the MCSO saturation patrols were using violations of the Arizona motor vehicle equipment and moving codes to make traffic stops of persons. See Defendants’ Supplemental Statement of Facts re Testimony of ICE Witnesses in Support of their Motion for Summary Judgment dated April 29, 2011 (Dkt# 414 and 415) (motion to file same under) at ¶ 21. Mr. Kidd was further knowledgeable or aware of the fact that during MCSO conducted traffic stops MCSO deputies were encountering people in the United States unlawfully. Id. Mr. Kidd never expressed in writing, or verbally, to the MCSO any concerns about the MCSO using traffic stops and during those stops identifying people in the country unlawfully. Id.
Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition of Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1. Whether the immigration suspect was involved in a crime or not is immaterial. Id.
The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonably degree of probability in his field of expertise that that MCSO’s use of saturation patrols is a long-standing, common, and reasonable tool of law enforcement, and that is an agency policy decision as to what particular problem to address with a saturation patrol. More specifically, Mr. Click testified:
“Saturation patrol operations have long been an accepted strategy used by law enforcement agencies to address specific crime problems in a particular location…. It is an agency policy decision to use saturation patrols to address a particular problem.
Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops
21

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 22 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
24 23
25 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

and contacts is also used to gather intelligence about criminal activity.
The specific criminal activity that is identified as the focus of a saturation patrol operations is any agency policy decision. This is a common law enforcement practice. The Sheriff has the authority to designate illegal immigration an enforcement priority.
Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and reasonable law enforcement policies in Maricopa County than in other parts of the country. Arizona has specific immigration-related statutes that many other states do not have. These statutes make certain immigration related activities a crime and therefore can impact agency policies.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Plaintiffs’ police practices/racial profiling expert, Robert Stewart, testified that a local law enforcement agency has discretion in setting its enforcement policies. See Deposition of Robert L. Stewart at p. 26, lns. 19-23, attached as Exhibit 17. Mr. Stewart testified also that a local law enforcement agency has discretion in determining what crimes it should prioritize for enforcement. Id. at p. 26, ln. 25 to p. 27, ln. 4; see also p. 27, ln. 23 to p. 28, ln. 1.
Admit.
Admit.
Disputed.
Controverting Statement:
(A) Defendants Do Not Endorse, Adopt, or Agree with Private Citizen Communications that Call for Illegal and Immoral Conduct, including calls for the Racial Profiling of Latinos.
22

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 23 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Defendants admit that Arpaio, as an elected official, receives and saves many letters or communications from private citizens and news clippings. Defendants, however, dispute the statement, as it is used in Plaintiffs’ motion, that any of the citizens’ letters cited by the Plaintiffs in their Motion that actually call for racial profiling, or that are fairly perceived as calling for racial profiling, ever caused or resulted in Arpaio or the MCSO engaging in racial profiling. The evidence shows that Defendants understand and agree that racial profiling is illegal and morally wrong, and that the MCSO does not, in fact, engage in such conduct:
Arpaio testified that racial profiling is morally wrong. See Deposition of Joseph Arpaio dated 12/16/09 at p. 113, lns. 10-11; 115, lns. 2-17, attached as Exhibit 16; see also Arpaio Deposition dated 11/16/10 at p. 77, lns. 22-23, attached as Exhibit 15. Arpaio further testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I can say, we don’t do that. We don’t stop people by their appearance.”).
MCSO Deputy Chief Brian Sands makes the decision of where, when, and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. Chief Sands testified that racial profiling is morally wrong. Id. at p. 147, ln. 20 to p. 148, ln. 5, attached as Exhibit 14. Chief Sands further understands that racial profiling is illegal. See Deposition of Brian Sands dated 11/15/10 at p. 92, ln. 24 to p. 93, ln. 1, attached as Exhibit 14.
MCSO Lieutenant Joseph Sousa, the head of MCSO’s Human Smuggling Unit (“HSU”), and one of the top planners for executing and supervising saturation patrols, testified that racial profiling is prohibited by MCSO policy, is illegal, and HSU members do not racially profile. See Deposition of Joseph Sousa dated 12/10/09 at p.135, ln. 24 to p. 136, ln. 17, attached as Exhibit 5; see also Sousa Deposition dated 10/22/10 at p. 30, lns. 14-17, attached as Exhibit 19.
HSU Sergeant Manuel Madrid, one of two supervising sergeants for the unit, and a Latino himself, testified that racial profiling is illegal, that race or ethnicity can never be used in making a traffic stop, and that the HSU members he supervises do not racially profile. See Deposition of Manuel Madrid dated 10/27/09 at p. 20, lns. 14-23; p. 195, lns. 15-17l, and p. 202, 18-22, attached as Exhibit 10.
HSU Sergeant Brett Palmer, the remaining supervisory sergeant for the
23

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 24 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

unit, testified that racial profiling is wrong and illegal, and that the HSU members he supervises do not racially profile. See Deposition of Brett Palmer dated 10/23/09 at p. 36, lns 10-25; p. 135, lns. 5-25; p. 139, ln. 21 to p. 140, ln 18; p. 145, lns. 12-25; and p. 153, lns. 13-15, attached as Exhibit 9.
Louis DiPietro, the deputy that made the traffic stop on Plaintiff Melendres, knows and understands that racial profiling is illegal. See Deposition of Louis DiPietro dated 10/21/09 at p. 87, lns. 17-19, attached as Exhibit 13. Race was not a factor in Deputy DiPietro’s finding that he had probable cause to stop the truck in which Plaintiff Melendres was a passenger. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 125-126
Matthew Ratcliffe, the deputy that made the traffic stop on the Rodriguez Plaintiffs knows and understands that racial profiling is illegal and wrong. See Deposition of Matthew Ratcliffe dated 10/15/09 at p. 115, lns.18-25, attached as Exhibit 6. Race was not a factor in Deputy Ratcliffe’s finding that he had probable cause to stop the truck in which the Rodriguez Plaintiffs were driving or occupying. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 132-135.
Michael Kikes, the deputy that made the traffic stop on the Plaintiffs Meraz and Nieto knows and understands that racial profiling is illegal and wrong. See Deposition of Michael Kikes dated 02/15/10 at p. 46, lns. 14-17, p. 108, lns. 9-15, attached as Exhibit 7. Race was not a factor in Deputy Kikes’s finding that he had probable cause to stop the truck in which Plaintiffs Meraz and Nieto were driving or occupying. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 85-86.
Defendants further refer the Court to the contraverting statement set forth below in section (B) regarding the MCSO’s receipt and evaluation of private citizen complaints, the MCSO’s handling of the same when they appear racially charged, and the MCSO’s independent investigation of the complaint made to determine its legitimacy and whether there is any basis for law enforcement action. See Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed discussion of the MCSO rejecting racially motivated tips by citizens that provide no evidence of criminal activity).
24

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 25 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

(B) Defendants Do Not Take Official Action, or Plan or Conduct Saturation Patrols, Based on Private Citizen Communications that Express solely Racial Prejudice or that Call for Illegal and Immoral Conduct, including calls for the Racial Profiling of Latinos.
Defendants dispute the statement, as it is used in Plaintiffs’ motion, that any of the citizens’ letters or tips cited by the Plaintiffs in their Motion that actually call for racial profiling, or that are fairly perceived as calling for racial profiling or motivated by racial prejudice, ever caused or resulted in Arpaio or the MCSO taking official action such as conducting a saturation patrol. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors:
MCSO Deputy Chief Brian Sands makes the decision of where, when, and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. There are a multitude of different law enforcement reasons a saturation patrol is conducted, and conducted in a particular area. Id. at p. 71, lns. 9-16. The race or ethnicity of people, however, play no role in Chief Sands’ selection of saturation patrol locations. Id. at p. 182, ln. 24 to p.183, ln. 4. The ethnic constituency in a neighborhood plays no role in selecting locations for saturation patrols. Id. at p. 183, lns. 6-15. Even with an MCSO emphasis on enforcing laws related to illegal immigration, the MCSO does not focus or target areas believed to contain a high percentage of illegal immigrants. Id. at p. 94, ln. 22 to p. 95, ln. 10 (“the [illegal] immigration problems that we have are so widespread throughout Maricopa County there [are] very few places you can go [on a saturation patrol] where you are not going to encounter an illegal alien. Whether to focus on a group of people standing on a corner because they look a certain way is not good practice and would certainly be easier to just go up and start grabbing people off the street corner because they are day laborers, but it is not a practice or anything that we condone in the sheriff’s office.”) (emphasis added); see also Deposition of Joseph Sousa dated 12/10/09 at p. 96, ln. 25 to p. 97, ln. 11, attached as Exhibit 5 (areas for saturation patrols are not selected because they may have a high concentration of suspected illegal aliens).
Sites for saturation patrols are determined based on a combination of the following types of information or factors:
• The area’s crime history and statistics. Id. at p. 71, lns. 9-16; p.
25

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 26 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

139, ln. 7 to p.140, ln. 5; p. 142; lns. 5-25; and p. 143, lns. 7-16; see also Deposition of Joseph Sousa dated 12/10/09 at p. 89, lns. 20 to p. 91, ln. 23, attached as Exhibit 5.
• Intelligence and data regarding possible criminal activity at the possible site Id. at p. 71, lns 9-16; p. 124, ln. 19 to p. 125, ln. 13; p. 133, lns. 7-19; p. 138, ln. 5 to p. 139, ln. 4; p. 139, ln. 7 to p.140, ln. 5; p. 142, lns. 5-25; p. 143, lns. 7-16; p. 143, ln. 24 to p.144, 15; and p.146, ln. 9 to p.147, ln. 15.
• Requests for assistance in a particular area from Arizona Legislators and information offered in the request. Id. at p. 133, ln. 23 to p. 134, ln. 9.
• Requests for assistance from city officials for a particular area. Id. at p. 71, lns. 9-16.
• Information provided by local police officers from other law enforcement agencies. Id. at p. 80, ln. 18 to p. 81, ln. 2.
• Requests for assistance from private citizens in the community providing information about possible criminal activity; but such information provided by private citizens is independently evaluated and confirmed by the MCSO. Id. at 71, lns. 9-16; p. 79, lns.17-22. In evaluating private citizen complaints, there is an independent investigation of the complaint made to determine its legitimacy and whether there is any basis to do anything. Id. at p. 82, lns. 5-23) (“Generally speaking, I [Chief Sands] likes to know what is going on in the community as a whole relative to crime before we do a saturation patrol.”); see Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed discussion of the MCSO rejecting racially motivated tips that provide no evidence of criminal activity).
More specifically as to how the MCSO handles citizen complaints that may be made by persons with racial prejudice, Chief Brian Sands testified as follows:
“Q. How do you satisfy yourself that a complaint that you are about to act on was not motivated by race or ethnicity?
A. I ignore it, unless there is some type of crime relative to it that would still lead to the discovery of that crime, not excluding the person or the information source’s information for giving us that information. To ignore all information would be contrary to good law enforcement.
Q. So even if you have reason to believe that a complaint may be motivated by racism, you would not discount the complaint solely on that basis?
26

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 27 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

A. If the complaint is racial only in itself, there is no follow-up done on it. There is no need to follow up on a complaint about someone that is Irish or Jewish or ethnically Mexican that lives in a house with a whole group of other people. I mean, there is no need to follow up. That would be – there is no crime involved.
Q. If you believe a crime may be involved, you might pursue that tip even though you have reason to believe that the tip was also made on some improper consideration of race or ethnicity?
A. Keep in mind I am not supporting racial or prejudicial attitudes in the community at all when I say this, but sometimes the information sources that we end up using in law enforcement are people that are in involved in – in criminal elements in their community or neighborhood they live in and oftentimes these people give us information. It can be corroborated to solve a murder or human smuggling case, that person may be, in fact, motivated for ulterior motives of his own, and I am just being honest with you in saying that he may be racially prejudiced at the same time and its- it would be hard to disqualify that information and say that the information source doesn’t like certain groups of people so we are not going to- we are not going to investigate the crime that he very well be a witness to.”
Deposition of Brian Sands dated 12/14/09 at p. 82, ln. 24 to p. 84, ln. 12, attached as Exhibit 14 (emphasis added).
Chief Sands further testified:
“Q. Are you aware of your office having received tips relating to illegal immigration that have come from persons or members of groups that have expressed hatred for illegal immigrants?
A. I don’t typically receive all these tips or the communication so it is hard for me to analyze what motivates people that are giving us information. I will say, though, that I have sat in on meetings over tips that have come in and when there is no need to follow up on something based n the caller’s information and it only attributed—the information is only attributed to somebody’s ethnicity or appearance, we don’t follow up on it. Whether those are racially motivated complaints, I wouldn’t know. But when the information is only such directed towards a group of people or a business or—and just solely on their race or ethnicity, we don’t follow-up on it.”
See Deposition of Brian Sands dated 12/14/09 at p. 84, ln. 24 to p. 85, ln. 16, attached as Exhibit 14 (emphasis added).
27

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 28 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs’ police practices and racial profiling expert, Robert Stewart, testified that he did not draw the conclusion, based on his analysis, that any saturation patrol was unjustified or unwarranted:.
“Q. Have you formed the opinion that any particular MCSO saturation patrol was unjustified or unwarranted?
A. Based on crime data?
Q. For any reason.
A. I did not draw that conclusion.”
See Deposition of Robert Stewart at p. 23, lns. 14-21, attached as Exhibit 17. (emphasis added).
Defendants police practices expert, Bennie Click, testified that “[t]he method by which the MCSO chooses target area for saturation patrols is reasonable and is consistent with standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Objections: Defendants object to the following documents as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): (1) Melendres MCSO 075852, Ex. 11 to Arpaio Depo. II; (2) Melendres MCSO 075859, Ex. 12 to Arpaio Depo. II; (3) OSLS002976-89; and (4) OSLS0004172. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”). Defendants also object to the documents on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio receives letters and communications from private citizens, and
28

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 29 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 27 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

writes thank-you notes to those citizens for their communications, and on occasion, will send a copy of the citizen communications to members of his executive management staff for appropriate determination, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere writing of a “thank-you” note by an elected official in response to a citizen’s communication to him does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same.
Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4. The testimony amply demonstrates that Arpaio does not agree with, adopt, or endorse everything that a person writes to him in a letter. Id. at p. 23, lns. 5-23 (“This is their comment, not mine.”); (as to whether he agrees with a comment, “No, I have no idea what he’s talking about.”); (as to whether he disagrees with a comment, “I have no comment at all on that [as to whether he disagreed with a letter’s statement]. Many people write me letter and make different comments and opinions.”)
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS02990. See Cox v. Amerigas Propane, Inc., 2005
29

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 30 of 174

1 2 3 4 28 5 6 7 8 9 10 11 12 13 14 15 16 17 18 29 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author and forwarded it to select executive in MCSO management, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere forwarding of a letter or communication to select executive does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS02990. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same. Moreover, Plaintiffs never even questioned Arpaio about this communication to determine his position regarding its contents.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as
30

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 31 of 174

1 2 3 4 5 6 30 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 31 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS003221. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio wrote a thank-you note for the cited letter, and sent a copy of the citizen communication to Chief Sands, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere writing of a “thank-you” note by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of the citizen communication or took official action because of the same.
Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4. The testimony amply demonstrates that Arpaio does not agree with, adopt, or endorse everything that a person writes to him in a letter. Id. at p. 23, lns. 5-23 (“This is their comment, not mine.”); (as to whether he agrees with a comment, “No, I have no idea what he’s talking about.”); (as to whether he disagrees with a comment, “I have no comment at all on that [as to whether he disagreed with a letter’s statement]. Many people write me letter and make different comments and opinions.”)
In addition, the mere forwarding of the letter to Chief Sand also does not mean Arpaio adopts, agrees, or endorses all of the contents of the letter. Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or
31

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 32 of 174

1 2 3 4 5 6 7 8 9 10 11
32 12 13 14 15 16 17 18 19
33 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

took official action because of the same. Moreover, Plaintiffs never even questioned Arpaio about this communication to determine his position regarding its contents.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS003259-60. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter and that he indicated he would forward it to his illegal immigration officers to look into, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere forwarding of a letter or communication to a select executive does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it or forward it to select executive management, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same. Moreover, Plaintiffs never even questioned Arpaio about this communication to determine his position regarding its contents.
Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated
32

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 33 of 174

1 2 3 4 5 6 7 8 9 10 11
34 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS003243-44. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received the stated email that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it or forwarding it to select executive management, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of it. Moreover, when question about whether he agreed with Richard H.’s statement, Arpaio responded: “Once again, that’s his statement, and I don’t know what context he’s talking about, about ducks or whatever he’s mentioning…. I can’t read his mind. This is his opinion, not mine.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 85, ln. 18 to p. 86, ln. 24, attached as Exhibit 15. (emphasis added).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 072425, Ex. 13 to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
33

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 34 of 174

1 35 2 3 4 5 6 7 36 8 9 10 11 12 13
37 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement. While Defendants agree with the statement that Richard H. is known to Arpaio to have written on the subject of illegal immigration, the actual testimony of whether Arpaio has talked to Richard H personally in the past is that Arpaio “may have met him one time.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 85, ln. 18 to p. 86, ln. 24, attached as Exhibit 15. (emphasis added).
Disputed.
Controverting Statement: While Defendants admit that Arpaio forwarded Melendres MCSO 07425 to Chief Brian Sands, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere forwarding of the email does not mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of it. In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Disputed.
Controverting Statement: While Defendants admit that Richard H. has sent other correspondence advocating racial profiling and that Arpaio retained copies of such correspondence and circulated some to select MCSO executive management, the mere receipt or forwarding of the correspondence does not mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of it. When questioned about the contents of Melendres MCSO 075284, Arpaio testified that he had “no knowledge of percentage or whatever he’s talking about. Once again, that’s his comment not mine.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 88, ln. 22 to p. 89, ln. 23, attached as Exhibit 15.
As for documents OSKS00004525 and OSLS0005154, Plaintiff did not even question Arpaio as to whether he agreed or not with Richard H’s statements.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do
34

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 35 of 174

1 2 3 4 5 6 7 38 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 39 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

not object to any comments or notes written by Arpaio on the hearsay communication): (1) Melendres MCSO 075284, Ex. 14 to Arpaio Depo. II; (2) OSLS0004525; and (3) OSLS00005154. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the documents on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants admit that Richard H. has sent two other emails wherein he equates probable cause to racial profiling and Arpaio kept the emails in his file, Defendants disputed that the mere receipt or preservation of such communications means that Arpaio adopts, agrees, or endorses all of the contents of such emails. To the contrary, Arpaio testified that racial profiling is morally wrong. See Deposition of Joseph Arpaio dated 12/16/09 at p. 113, lns. 10-11; 115, lns. 2-17, attached as Exhibit 16; see also Arpaio Deposition dated 11/16/10 at p. 77, lns. 22-23, attached as Exhibit 15. Arpaio further testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I can say, we don’t do that. We don’t stop people by their appearance.”).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): (1) Carveout MCSO 0209953-54; and (2) Carveout MCSO 297781. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the emails on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: Defendants admit that in 2005 an organization calling itself the Minutemen Project wrote Arpaio and
35

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 36 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
40 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

stated the cited matters in their correspondence. They further admit that Arpaio sent a note to his then Chief Deputy, David Hendershott, about how to respond to the communication from the Minutemen Project. Defendants, however, dispute that the mere receipt of such a communication and seeking staff direction on how to respond to it means that Arpaio adopts, agrees, or endorses all of the contents of such emails or took any official action in response to the same. In addition, Plaintiffs never questioned Arpaio regarding his position as to anything stated by the author.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS0005516. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: Plaintiffs do not cite correctly what Carol B reported. While Defendants admit that in July 2007 Carole B. sent a letter to Arpaio stating that Carole B.’s Italian mother was subject to racial profiling and that “she [i.e., the mother] believe it was the right thing to do,” and Arpaio wrote a thank you note, Defendants dispute that the mere receipt of such a communication and writing a “thank-you” note means that Arpaio adopts, agrees, or endorses Carole B.’s recitation of her Italian mother’s opinion (or if that opinion is held by Carol B.) that racial profiling is the right thing to do. Moreover, when asked whether he agreed with Carole B’s opinion, or more accurately, with the opinion of Carol B.’s Italian mother, Arpaio testified that “This is just her comments, her opinions. I have no comment on her comment. I wasn’t there. I wasn’t involved with her family.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 277, ln. 23 to p. 278, ln. 11, attached as Exhibit 15 (emphasis added).
Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio
36

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 37 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 41 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): MCSO 068791-92, Ex. 42 to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Defendants also object to document OSLS000121 because it is irrelevant as to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that CT S. wrote the referenced communication and it contained the comments described and that Arpaio wrote a “thank you” letter stating he will “continue to fight the [illegal immigration] problem facing our country, Defendants dispute that such receipt and writing a “thank-you” note means that Arpaio adopts, agrees, or endorses all of the contents of the communication or took any official action in response to the same. In addition, Plaintiffs never questioned Arpaio regarding his position as to anything stated by CT S. in document OSLS000591-95.
Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as
37

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 38 of 174

1 2 3 4 5
42 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
43 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS000591-95. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Diana E authored a 200-page book on illegal immigration that contains the referenced chapter and sent a copy of the same to Arpaio, Defendants dispute that such receipt and forwarding to select executive management means that Arpaio adopts, agrees, or endorses all of the contents of the book or the referenced chapter in the book. In addition, Plaintiffs never questioned Arpaio regarding his position as to anything stated by Diana E in her book or the referenced chapter.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 74447-74738. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Sarah M. and Erika S wrote the referenced letter to Arpaio and that it contained the referenced comments, the Defendants dispute that the mere receipt of the letter, sending a thank you note, and sending a copy of the letter to Chief Brian Sands means that Arpaio adopts, agrees, or endorses all of the contents of the letter. Arpaio provided a detailed explanation of why he sent a thank you letter to these authors and it is abundantly clear that he did not adopt or agree or endorse their comments. See Deposition of Joseph Arpaio dated 11/16/10 at p. 107, ln. 20 to p. 109, ln. 14, attached as Exhibit 15.
38

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 39 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
44 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 078209, Ex. 17 to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Defendants also object to document Melendres MCSO 076783, Ex. 10 to Arpaio Depo. II on the grounds of relevance. It is immaterial to whether Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio has received and retained some letters and emails from private citizens that contain language that is, or reasonably could be interpreted, as “racially charged” and “stigmatizing towards Hispanic” and illegal immigrants, Defendants dispute that the mere receipt and keeping of such communications means that Arpaio adopts, agrees, or endorses all of the contents of the communication.
When Arpaio was asked whether he agreed with the referenced language in document Melendres MCSO 76123, Ex. 24 to Arpaio Depo. II, Arpaio testified that “I don’t agree with that.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 160, ln. 19 to p. 161, ln. 10, attached as Exhibit 15.
When Arpaio was asked whether he agreed with the referenced language in document Melendres MCSO 7540304, Ex. 23 to Arpaio Depo. II, Arpaio testified that he did not even understand what the author was thinking and “I can’t believe what he’s thinking when he wrote this.”
39

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 40 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 45 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

See Deposition of Joseph Arpaio dated 11/16/10 at p. 157, lns. 18-25, attached as Exhibit 15.
Plaintiffs never asked Arpaio whether he agreed with any comments contained within documents Melendres MCSO 76267, Melendres MCSO 71945, OSLS001235, OSLS0001057, and OSLS001058-60. However, given Arpaio’s prior testimony when he was asked whether he agreed with arguably less offensive remarks, it is reasonable to conclude that it is likely that Arpaio would have testified, had he been asked by Plaintiffs, that he disagreed with the offensive remarks in each of the foregoing documents.
Arpaio provided a detailed explanation of why he sent a thank you letter to these authors and it is abundantly clear that he did not adopt or agree or endorse their comments. See Deposition of Joseph Arpaio dated 11/16/10 at p. 107, ln. 20 to p. 109, ln. 14, attached as Exhibit 15
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): (1) Melendres MCSO 76123, Ex. 24 to Arpaio Depo. II; (2) Melendres MCSO 7540304, Ex. 23 to Arpaio Depo. II; (3) Melendres MCSO 76267; (4) Melendres MCSO 71945; (5) OSLS001235; (6) OSLS0001057; and (7) OSLS001058-60. Defendants also object to the foregoing documents on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio has written “thank-you” notes to private citizens, including those that may have expressed or used racially offensive opinions or comments, and circulated on some occasions to select executive management copies of the same, Defendants dispute that this means that Arpaio adopts, agrees, or endorses all of the contents of the communication or that it resulted in any official action, such as a saturation patrol. Arpaio, via his secretary, normally writes “thank-you” notes or letters to
40

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 41 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 46 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above, and their responses to Statement of Facts Nos. 26 to 45.
Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): (1) Melendres MCSO 76123, Ex. 24 to Arpaio Depo. II; (2) Melendres MCSO 77958, Ex. 3 to Sand Depo. II (3) OSLS01235; (4) OSLS0001057; and (5) OSLS001058-60. Defendants also object to the foregoing documents on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: This statement is misleading as used in the Motion because it suggests, without actually proving, that MCSO executive staff, such as Chief Brian Sands, assume that Arpaio agrees with the contents of everything that is forwarded to them and that they would or should take official action, such as conducting a saturation patrol, without any MCSO independent analysis. As to the cited document MCSO074133, Ex. 2B to Arpaio Depo. II, Arpaio testified that he did not agree with the comments made by the author. See Deposition of Joseph Arpaio dated 11/16/10 at p. 27, ln. 5 to p. 28, ln. 25, attached as Exhibit 15. In fact, Arpaio thought the comments were “rather nasty. And this is their opinion. It doesn’t mean it is my opinion. I’ve been a federal official, law enforcement official, for 26 years. I have respect to the courts, and I don’t agree with that.”). Id. (emphasis added).
As for the citation to Chief Brian Sands’ deposition for the principal that every document that Arpaio forwards to him is something that Arpaio agrees with, Plaintiffs’ mischaracterize the testimony following a confusing, and ambiguous question. For example, the following is the question and answer:
41

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 42 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 47 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

“Q. Has the Sheriff ever, to your memory, forwarded to you, for your information, any statements that you know the sheriff disagrees with?
Mr. Liddy: Objection. Form of the question. A. I can’t think of any right offhand.”
Deposition of Brian Sands dated 11/15/10 at p. 218, lns. 18-24, attached as Exhibit 18. Moreover, there are times when Chief Sands does not know the reason Arpaio forwards a citizen’s letter to him. Id. at p. 33, ln. 21 to p. 34, ln. 9 (he did not know why Arpaio forwarded to him the letter from John B. (Melendres MCSO 77958, Ex. 3 to Sands Depo. II) stating that certain countries allow their citizens to “run amuck like wild feral [sic] animals” and that “we have too many dysfunctional Hispanics [in the United States] already.”)..
In light of the testimony of Arpaio set forth elsewhere in this Response, it is unfair, inappropriate, and unreasonable for the Plaintiffs to conclude from Chief Sand’s answer that he has “knowledge” that Arpaio agreed with the contents of every citizen communication he forward to Chief Sands. It is also unreasonable to conclude that Chief Sands believed that Arpaio agreed with every document and thus initiated a saturation patrol in response to the same. See Deposition of Brian Sands dated 12/14/09 at p. 82, ln. 24 to p. 84, ln. 12, attached as Exhibit 14 (emphasis added). In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above, and their responses to Statement of Facts Nos. 26 to 45.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received an email from a private citizen that contained racially prejudiced statement and forwarded it to Chief Brian Sands, there is no evidence that either Arpaio or Chief Sands agreed with, adopted or endorsed the contents of the letter in any manner or took any action based on the same.
To the contrary, the evidence shows that Chief Sands did not take any action in response to the letter. See Deposition of Brian Sands dated 11/15/10 at p. 33, ln. 21 to p. 34, ln. 9, attached as Exhibit 18. When Plaintiffs asked Chief Sands whether he agreed with the author’s statement that “we have too many dysfunctional Hispanics already here,” he expressly rejected the statement. Id. at p. 34, ln. 21 to p. 35, ln. 4.
42

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 43 of 174

1 2 3 4 5 6 7 8 9 10 48 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 77958, Ex. 3 to Sands Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). This document is also objectionable because it is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio received an email from a private citizen that was racially prejudiced and unfavorable to United States District Court Judge Mary Murguia and forwarded it to select MCSO management executives, Defendants dispute this statement as it is used in Plaintiffs’ motion. Arpaio forwarded the email to select MCSO management executive because they were involved in the MCSO programs related to illegal immigration and the handling of litigation cases involving the MCSO. See Deposition of Joseph Arpaio dated 11/16/10 at p. 27, ln. 5 to p. 28, ln. 25, attached as Exhibit 15. Arpaio testified that he did not agree with the comments made by the author. Id. In fact, Arpaio thought the comments were “rather nasty. And this is their opinion. It doesn’t mean it is my opinion. I’ve been a federal official, law enforcement official, for 26 years. I have respect to the courts, and I don’t agree with that.”). Id. (emphasis added).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): MCSO074133, Ex. 2B to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by
43

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 44 of 174

1 2
49 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

admissible evidence”).
Disputed.
Controverting Statement: While the Defendants do not dispute that Arpaio sent a copy of document Melendres MCSO 076783 to executive management, namely Chiefs Brian Sands and Scott Freeman, that Arpaio did not check the document for accuracy, and that Arpaio testified that some of the statistics in the document did not sound accurate, this statement contains unsupported argument and, as used in the motion, is misleading. Defendants dispute that: (a) the Los Angeles Times discredited the document; (b) that Arpaio sent it to his “officers” other than Chiefs Sands and Freeman.
The evidence cited by Plaintiffs does not support the statement that the Los Angeles Times newspaper discredited the document.
The evidence cited does not support the statement or suggestion that Arpaio forwarded document Melendres MCSO 076783 to anyone in the MCSO other than Chiefs Sands and Freeman. It is, therefore, misleading to suggest that Sgt. Brett Palmer, who received the document on his own, received the document from Arpaio or believed he was to act on it pursuant to Arpaio’s desire. To the contrary, Sgt Palmer received the document from another deputy at MCSO. See Ex. 5 to Palmer Depo. II at p. 1(Hickey Dec. Ex. 62); see also Deposition of Brett Palmer dated 11/09/10 at p. 50, ln. 19 to. p. 51, ln. 5, attached as Exhibit 12 (“Q. Do you remember receiving this email from Detective Little? A.. It is familiar to me, yes.”).
The evidence shows that Sgt. Palmer did not agree with all of the contents of the document. See Deposition of Brett Palmer dated 11/09/10 at p. 50, ln. 19 to. p. 54, ln. 6, attached as Exhibit 12
The evidence shows that Arpaio did not agree with all of the contents of the document. See Deposition of Joseph M. Arpaio dated 11/16/10 at p. 73, lns. 11-19, attached as Exhibit 15 (“Does not sound right….”).
As for Arpaio not checking the document’s statistics for accuracy, Arpaio testified that he sent it to Chiefs Sands and Freeman so they could check on it “[b]ecause this is another piece of intelligence. It could be true, or it could not. That’s why I sent it to them.” See Deposition of Joseph M. Arpaio dated 11/16/10 at p. 72, lns. 8-14, attached as Exhibit 15; see also p. 72, lns. 4-6 (The document is “[j]ust another intelligence-type report, whether its true or not, I think that they
44

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 45 of 174

1 2 3 4 5 6 7 8 9 10 11 50 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

[Chiefs Sands and Freeman] should look at it.”).
Finally, there is no evidence cited by Plaintiffs or elsewhere that the MCSO took any official action in response to, or in regards to, the document.
Objections: Defendants object to the document Melendres MCSO as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”). They also object to it on the grounds of relevance. The document is immaterial to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.
Disputed
Controverting Statement: While Defendants do not dispute that this statement contains the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart, they dispute that Arpaio forwarded communications received from third party private citizens, including communications that contain actual or perceived racial prejudiced or offensive comments, to any MCOS deputies other than executive members of his management staff, namely Chief Brian Sands, for his information, consideration, and possible evaluation. The MCSO acted reasonable or pursuant to the law enforcement standard of care in its handling of citizen complaints of all types.
Defense police practices expert Bennie Click testified the “[t]he method by which the MCSO chooses target areas for saturation patrols is reasonable and consistent with standard law enforcement practices.” As for citizen complaints that contained actual or perceived racially prejudice comments, the “MCSO took step not to respond to request to that [which] would have amounted to racial profiling.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
The MCSO consistently rejected racially charged citizen complaints
45

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 46 of 174

1 2 3 4 5 6 7 8 9 10 11 12 51 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

when there was no mention of any facts indicating criminal activity, and when there was criminal activity identified, the MCSO independently evaluated the same. See Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed discussion of the MCSO rejecting racially motivated tips by citizens that provide no evidence of criminal activity).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Disputed
Controverting Statement: While Defendants do not dispute that this statement contains the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart, they dispute that it is accurate in this case. To the contrary, the evidence shows that Arpaio’s circulation of materials to executive management, namely Chief Brian Sands, did not convey the message that the particular communication’s contents were truthful, accurate, or appropriate for action. Moreover, the mere forwarding of such communications did not “communicate [Arpaio’s] desire for the agency’s operations” and there is no evidence offered by Plaintiffs or elsewhere that the MCSO took action based solely on the actual or perceived racial prejudices of any third party communication.
Defense police practices expert Bennie Click testified the “[t]he method by which the MCSO chooses target areas for saturation patrols in reasonable and consistent with standard law enforcement practices.” As for citizen complaints that contained actual or perceived racially prejudice comments, the “MCSO took step not to respond to request to that [which] would have amounted to racial profiling.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
46

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 47 of 174

1 2 3 4 5 6 7 8 9 10 11 12 52 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The MCSO consistently rejected racially charged citizen complaints when there was no mention of any facts indicating criminal activity, and when there was criminal activity identified, the MCSO independent evaluated the same. See Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed discussion of the MCSO rejecting racially motivated tips by citizens that provide no evidence of criminal activity).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.
Disputed.
Controverting Statement: While Defendants do not dispute the cited portions of expert Bennie Click’s deposition testimony, they state that Mr. Click’s opinions are taken out of context and are, therefore, misleading as used in the Motion. In proper context, Mr. Click’s opinion as cited does not support Plaintiffs’ statement as used in their motion.
More precisely, Mr. Click testified as follows in regard to an email sent by a Mr. H.:
“Q. [In regards to Arpaio forwarding Mr. H.’s email to Chief Sands], [w]ould that be appropriate to do by the Sheriff?
A. Well, I’m not sure whether it’s appropriate or inappropriate. I don’t know if I can comment on that. I think you’ve got a citizen out there. I mean, it well may be that the intention is that you need to be careful of taking any action based on, you know, an email like this because we’re not really sure who this guy is. But I think it gives you a sense. We talk about having community meetings and getting a sense of what, you know, community feedback is. And maybe it wasn’t done for that purpose. I don’t know what his purpose is. I don’t think that— certainly Chief Sands is by just the nature of his position has been around a long time, and I don’t think he’s going to be influenced by an email like this. It would be just more informative or more just educational as to what a citizen is saying out there.”
47

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 48 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 53 27 54 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

See Deposition of Bennie Click at p. 163, ln.16 to p. 164, ln. 22, attached as Exhibit 20 (emphasis added); see also p. 164, ln. 20 to p. 165, ln. 16 (unlikely that someone with Chief Sands’ law enforcement experience would take any action based just on this email).
It is also clear that Mr. Click was stating his personal practice, and not a law enforcement standard of care opinion, when he stated that he would not have responded to the email of Mr. H. Id. at p. 166, ln. 20 to p. 166, ln. 15.
Most notable, is that Mr. Click, as a former police chief of the City of Dallas, Texas, would have handled Mr. H.’s email in the same or similar way as it was handled by Arpaio:
“Q. But would you expect and want the head—in terms of best practices the head of a law enforcement agency, like the MCSO, to indicate, well, we can’t help this kind of stuff. Some racist folks out there, but, of course, we don’t want to have anything to do with them. You would want that to take place in some way, shape, or form, don’t you?
A I certainly don’t think you align yourself with people that have views that you should do something that that’s unlawful or unconstitutional.
Q. And if you had seen this particular letter as head of the Dallas Department, what would you have done upon receiving it?
A. I would have given it to probably my administrative assistant and may have shared it with one of my chiefs. I would have interpreted it as, you know, here we’ve got a person out there that appears—and we don’t know his intent was, but appears to suggest that we need to just assume that people coming—and I think he uses Mexico here, but he talks about Latinos—that we should just assume that just because they’re Latino that that’s probable cause or reasonable suspicion. But I don’t think they’re going to put much weight on something like this.”
Id. at p. 167, lns. 1-24 (emphasis added).
Admit.
Admit.
48

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 49 of 174

1 55 2 56

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

57 58 59

Admit.
Disputed.
Controverting Statement: While Defendants do not dispute that a single MCSO employee, Detention Officer Jennifer McGlone, referred to MCSO HSU saturation patrols as “roundups of illegal immigrants,” they dispute that the single statement by a single employee in the MCSO means that the MCSO, in the field, is conducting “roundups” or otherwise acting unlawfully or illegally.
The MCSO has some 4,000 employees. Some employees are on the field side of operations, such as Enforcement and the Human Smuggling Unit (“HSU”). Other employees are on the detention side of MCSO operations. Detention officers at the MCSO are not deputies and not equipped with the same authority as deputies. Lt. Jennifer McGlone is on the detention side of operations and thus works in the County jails. She is a detention officer, not a field officer. It is, therefore, not suprising that someone that lacks field authority of a deputy, and is in neither Enforcement nor HSU would mischaracterize the MCSO saturation patrols in a manner similar to what lay people might characterize it.
There are no “roundups of illegal immigrants.” See Deposition of Joseph Sousa dated 12/10/09 at p. 96, ln. 25 to p. 97, ln. 3, attached as Exhibit 5 (sites for saturation patrols also are not selected because they may have a high concentration of suspected illegal immigrants). When Lt. Sousa learned that Lt. McGlone was using the term “roundup,” he contacted Lt. McGlone’s supervising commander to let the detention side know “that’s not we [HSU or Enforcement] do. These saturation patrols are not illegal [immigrant] roundups or sweeps.” See Deposition of Joseph Sousa dated 10/22/10 at p. 26, ln. 2 to p. 29, ln. 22, attached as Exhibit 5
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact Nos. 25 and 112. .
Objection: The witness lacks the foundation for the statement.
Admit.
Admit.
Admit.
49

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 50 of 174

1 60 2 61
3 62
4 63
5 64 6 65 7 66 8 67 9 68 10 69 11 70
71 12
72 13
73 14
74 15
75 16
17
18
19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Disputed. Controverting Statement: This statement is misleading because it isolates facts and takes them out of context and does not address other facts that explain what role, if any, a citizen complaint has on the consideration of whether to conduct a saturation patrol.
Defendants dispute the statement, as it is used in Plaintiffs’ motion, that any of the citizens’ letters or tips cited by the Plaintiffs in their Motion that actually call for racial profiling, or that are fairly perceived as calling for racial profiling or motivated by racial prejudice, ever caused or resulted in Arpaio or the MCSO taking official action such as conducting a saturation patrol. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors:
MCSO Deputy Chief Brian Sands makes the decision of where, when, and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. There are a multitude of different law enforcement reasons a saturation patrol is conducted, and conducted in a particular area. Id. at p. 71, lns. 9-16. The race or ethnicity of people, however, plays no role in Chief
50

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 51 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Sands’ selection of saturation patrol locations. Id. at p. 182, ln. 24 to p.183, ln. 4. The ethnic constituency in a neighborhood plays no role in selecting locations for saturation patrols. Id. at p. 183, lns. 6-15. Even with an MCSO emphasis on enforcing laws related to illegal immigration, the MCSO does not focus or target areas believed to contain a high percentage of illegal immigrants. Id. at p. 94, ln. 22 to p. 95, ln. 10 (“the [illegal] immigration problems that we have are so widespread throughout Maricopa County there [are] very few places you can go [on a saturation patrol] where you are not going to encounter an illegal alien. Whether to focus on a group of people standing on a corner because they look a certain way is not good practice and would certainly be easier to just go up and start grabbing people off the street corner because they are day laborers, but it is not a practice or anything that we condone in the sheriff’s office.”) (emphasis added); see also Deposition of Joseph Sousa dated 12/10/09 at p. 96, ln. 25 to p. 97, ln. 11, attached as Exhibit 5 (areas for saturation patrols are not selected because they may have a high concentration of suspected illegal aliens).
Sites for saturation patrols are determined based on a combination of the following types of information or factors:
• The area’s crime history and statistics. Id. at p. 71, lns. 9-16; p. 139, ln. 7 to p.140, ln. 5; p. 142; lns. 5-25; and p. 143, lns. 7-16; see also Deposition of Joseph Sousa dated 12/10/09 at p. 89, lns. 20 to p. 91, ln. 23, attached as Exhibit 5.
• Intelligence and data regarding possible criminal activity at the possible site Id. at p. 71, lns 9-16; p. 124, ln. 19 to p. 125, ln. 13; p. 133, lns. 7-19; p. 138, ln. 5 to p. 139, ln. 4; p. 139, ln. 7 to p.140, ln. 5; p. 142, lns. 5-25; p. 143, lns. 7-16; p. 143, ln. 24 to p.144, 15; and p.146, ln. 9 to p.147, ln. 15.
• Requests for assistance in a particular area from Arizona Legislators and information offered in the request. Id. at p. 133, ln. 23 to p. 134, ln. 9.
• Requests for assistance from city officials for a particular area. Id. at p. 71, lns. 9-16.
• Information provided by local police officers from other law enforcement agencies. Id. at p. 80, ln. 18 to p. 81, ln. 2.
• Requests for assistance from private citizens in the community providing information about possible criminal activity; but such information provided by private citizens is independently evaluated and confirmed by the MCSO. Id. at 71, lns. 9-16; p. 79, lns.17-22. In evaluating private citizen complaints, there is an independent investigation of the complaint made to determine its legitimacy and whether there is any basis to do anything. Id. at p.
51

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 52 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

82, lns. 5-23) (“Generally speaking, I [Chief Sands] like to know what is going on in the community as a whole relative to crime before we do a saturation patrol.”); see Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed discussion of the MCSO rejecting racially motivated tips that provide no evidence of criminal activity).
More specifically as to how the MCSO handles citizen complaints that may be made by persons with racial prejudice, Chief Brian Sands testified as follows:
“Q. How do you satisfy yourself that a complaint that you are about to act on was not motivated by race or ethnicity?
A. I ignore it, unless there is some type of crime relative to it that would still lead to the discovery of that crime, not excluding the person or the information source’s information for giving us that information. To ignore all information would be contrary to good law enforcement.
Q. So even if you have reason to believe that a complaint may be motivated by racism, you would not discount the complaint solely on that basis?
A. If the complaint is racial only in itself, there is no follow-up done on it. There is no need to follow up on a complaint about someone that is Irish or Jewish or ethnically Mexican that lives in a house with a whole group of other people. I mean, there is no need to follow up. That would be – there is no crime involved.
Q. If you believe a crime may be involved, you might pursue that tip even though you have reason to believe that the tip was also made on some improper consideration of race or ethnicity?
A. Keep in mind I am not supporting racial or prejudicial attitudes in the community at all when I say this, but sometimes the information sources that we end up using in law enforcement are people that are in involved in – in criminal elements in their community or neighborhood they live in and oftentimes these people give us information. It can be corroborated to solve a murder or human smuggling case, that person may be, in fact, motivated for ulterior motives of his own, and I am just being honest with you in saying that he may be racially prejudiced at the same time and its- it would be hard to disqualify that information and say that the information source doesn’t like certain groups of
52

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 53 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 76 19 77 20 78 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

people so we are not going to- we are not going to investigate the crime that he very well be a witness to.”
Deposition of Brian Sands dated 12/14/09 at p. 82, ln. 24 to p. 84, ln. 12, attached as Exhibit 14 (emphasis added).
Chief Sands further testified:
“Q. Are you aware of your office having received tips relating to illegal immigration that have come from persons or members of groups that have expressed hatred for illegal immigrants?
A. I don’t typically receive all these tips or the communication so it is hard for me to analyze what motivates people that are giving us information. I will say, though, that I have sat in on meetings over tips that have come in and when there is no need to follow up on something based n the caller’s information and it only attributed—the information is only attributed to somebody’s ethnicity or appearance, we don’t follow up on it. Whether those are racially motivated complaints, I wouldn’t know. But when the information is only such directed towards a group of people or a business or—and just solely on their race or ethnicity, we don’t follow-up on it.”
Deposition of Brian Sands dated 12/14/09 at p. 84, ln. 24 to p. 85, ln. 16, attached as Exhibit 14 (emphasis added).
Admit.
Admit.
Disputed.
Controverting Statement: Defendants do not dispute that private citizen Gina M. authored a letter dated June 24, 2008 that contained the referenced language, and requested a saturation patrol at the area specific, and that she sent that letter to Arpaio. Defendants, however, dispute that: (1) Plaintiffs have fully and accurately characterized the contents of the letter; (2) that Arpaio supposedly agreed with the racially charged language in Gina M.’s letter; and (3) that Gina M.’s letter had a causal link to a saturation patrol that occurred near the area identified in her letter.
Gina M.’s letter identified gunshots and criminal activity in the area where she requested a saturation patrol. See Deposition of Joseph M.
53

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 54 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Arpaio dated 11/16/10 at p. 115, ln. 8 to p. 116, ln. 24, attached as Exhibit 15. Chief Brian Sands testified that Gina M.’s letter, while stating her perception that illegal aliens were the cause of crime in the area did state facts indicative of criminal activity and appropriate of independent evaluation by the MCSO See Deposition of Brian Sands dated 11/15/10 at p. 97, ln. 19 to p. 98, ln. 16, attached as Exhibit 18. Chief Sand does not remember if he took any action in response to Gina M.’s letter. Id. at p. 95, lns. 17-19.
As for the racially charged language, when Plaintiffs asked Arpaio whether he agreed with it, Arpaio stated no. Exhibit 15 (Arpaio II Depo) at p. 118, ln. 8 to p. 119, ln. 2.
Finally, as for Plaintiffs’ argument that Gina M’s letter caused or was a cause of the MCSO conducting a saturation patrol near the requested area of 29th Street/Greenway Parkway, that argument is inaccurate. Gina M’s letter requesting a saturation patrol in the area of 29th Street/Greenway Parkway is dated June 24, 2008. The saturation patrol that the MCSO conducted that would have possibly covered the area of 29th Street/Greenway Parkway was the MCSO saturation patrol that was centered at Cave Creek and Bell Road in March, 2008—nearly four (four) months before Gina M ever wrote her letter. See Deposition of Brian Sands dated 11/15/10 at p. 99, lns. 8-15, attached as Exhibit 18. While the MCSO conducted other saturation patrols later in time in that area requested by Gina M, Chief Sands does not recall whether Gina M.’s letter was used as source for MCSO analysis as to whether to conduct those saturation patrols. Id. at p. 99, ln. 16 to p. 104, ln. 22. At most, it is possible that the MCSO used Gina M.’s letter in its decisionmaking process about whether to do a saturation patrol in the area. Chief Sands explained:
“Q. If you get a letter like this from a member of the public begging you, or begging the sheriff’s office, to come to a particular location, would that play a role in your decision making about where to have a crime saturation patrol?
A. If there are shots being fired out on an apartment complex on a routine basis, it might be something that we’d utilize to do a saturation patrol.
Q. So you could have used this letter in your decision-making process about where to do a saturation patrol?
A. Oh, certainly. That’s a serious crime. People randomly shooting
54

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 55 of 174

1 2 3 4 5 6 7 8 79 9 10 11 12 80 13 14 15 16 17 18 19 20 21 22 23 24 81 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

off guns is and has been a big problem in this community. We’ve had people murdered by falling bullets. People do get concerned about that. And that’s why the state, I think, tow years ago, enacted it as a felony offense.”
Id. at p. 104, lns. 3-22 (emphasis added).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Disputed.
Controverting Statement: Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 78 set forth above.
Disputed.
Controverting Statement. While Defendants do not dispute the cited date or portion of Stella C.’s letter and Arpaio’s receipt of the same, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the racial language in Stella C.’s letter and/or that Stella’s C.’s letter had an causal link to any official MCSO action.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Objections: Defendants object to document Melendres MCSO 074346, Ex. 19 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated. Disputed.
Controverting Statement. While Defendants do not dispute that Arpaio forwarded the May 26, 2009 letter of Stella C. to Chief David Trombi and directed him to keep the letter and contact the author and the letter indicates no criminal activity, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the racial language in Stella C.’s letter and/or that Stella’s C.’s letter had an causal
55

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 56 of 174

1 2 3 4 5 82 6 7 8 9 10 11 12 13 14 15 16 17 18 19 83 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

link to any official MCSO action.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Disputed.
Controverting Statement. While Defendants do not dispute the cited date or portion of Bob and Lynette W’s letter, Arpaio’s receipt of the same, and that Arpaio forward the letter to Chief Brian Sands, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the contents of the letter and/or that the letter had any causal link to any official MCSO action.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Objections: Defendants object to document Melendres MCSO 76087, Ex. 21 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.
Disputed.
Controverting Statement. While Defendants do not dispute the cited date or portion of Gail V.s letter, and Arpaio’s receipt of the same, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the contents of the letter and/or that the letter had any causal link to any official MCSO action.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Objections: Defendants object to document Melendres MCSO 076091, Ex. 11 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written
56

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 57 of 174

1

2

3

4

5 84 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21 85 22

23

24

25

26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

86

by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.
Disputed.
Controverting Certificate: While Defendants do not dispute that the letter contained no evidence of criminal activity and that Arpaio wrote the thank you note with the cited language, they dispute that Arpaio supposedly agreed with the contents of the letter and/or that the letter had any causal link to any official MCSO action.
Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4. The testimony amply demonstrates that Arpaio does not agree with, adopt, or endorse everything that a person writes to him in a letter. Id. at p. 23, lns. 5-23 (“This is their comment, not mine.”); (as to whether he agrees with a comment, “No, I have no idea what he’s talking about.”); (as to whether he disagrees with a comment, “I have no comment at all on that [as to whether he disagreed with a letter’s statement]. Many people write me letter and make different comments and opinions.”)
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Disputed.
Controverting Statement. While Defendants do not dispute the cited evidence, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio acted solely on requests from private citizens to conduct saturation patrols. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Admit in part and disputed in part.
57

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 58 of 174

1 2 3 4 5 6 7
87 8 9 10 11 12 13 14 88 15 89 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Controverting Statement: While Defendants admit they conducted a saturation patrol in Sun City on August 13-14, 2008, they deny that the citizen communications contained within statement nos. 82 and 83 were the cause of such patrol and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Admit.
Objections: Defendants object to document Melendres MCSO 7540304, Ex. 23 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.
Admit.
Disputed.
Controverting Statement: While Defendants do not dispute this statement as to its accurate description of Chief Brian Sands’ testimony, they dispute that it shows racially discriminatory intent or motive of Chief Sands or the MCSO law enforcement policies to enforce law relating to illegal immigration.
MCSO deputies testified that it was their professional law enforcement experience, not merely their unfounded beliefs, that most day laborers or most illegal immigrants in Maricopa County are from Mexico. For example, Deputy Louis DiPietro testified that, in his experience, most day laborers in Maricopa County are from Mexico or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13. Deputy Carlos Rangel, based on his experience, shares this observation. See Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11. It is the law enforcement experience of others in the MCSO that most illegal immigrants in Maricopa County originate from Mexico or Central or South America. See, e.g., Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of
58

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 59 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 90 21 22 23 91 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16.
This law enforcement experience by MCSO personnel is neither surprising nor indicative of racially discriminatory intent, motive, or animus by those persons. It is undisputed that Arizona is a border state near the Republic of Mexico, Maricopa County is a major human smuggling corridor, and the objective, race-neutral evidence shows that “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” See Defendants’ Statement of Facts (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report); see also Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg 49, attached thereto as Exhibit 16 (“Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond.”); see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Certificate. The evidence that Plaintiffs cite does not support the statement that Arpaio asked for “police action against the day laborers” based on the “intelligence.”
Disputed.
Controverting Statement. While Defendants do not dispute the cited evidence, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio acted solely on requests from private citizens to conduct saturation patrols. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set
59

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 60 of 174

1
2 3 4 5 6 7 8
92 9
93 10 11 12 13 14 15 16 17 94 18 95 19 20 21 22 23 24 25
96 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

forth above.
Objections: Defendants object to document Melendres MCSO 76195, Ex. 22 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.
Admit.
Admit in part and deny in part.
Controverting Statement: While Defendants admit they conducted a saturation patrol in Mesa at the cited time periods, they deny that actual or perceived racially prejudiced statement made by third parties were the cause of such patrol and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Admit.
Admit in part and deny in part.
Controverting Statement: While Defendants admit they conducted a saturation patrol in Mesa at the cited time periods, they deny that actual or perceived racially-prejudiced statements made by third parties were the cause of such patrol and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Disputed.
Controverting Statement: While Defendants do dispute that the MCSO received a letter dated October 3, 2007 from Debora B. that had been forwarded by the Town Manager of Queen Creek and that Debora
60

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 61 of 174

1

2

3

4

5

6

7

8

9

10

11

12

13 97

14

15

16

17

18 98
19

20

21

22

23

24

25

26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

99

B. made the cited statements, they deny that actual or perceived raciallyprejudiced statements made by third parties were the cause of saturation patrols and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Objections: Defendants object to document Melendres MCSO 7524447, Ex. 30 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.
Disputed.
Controverting Statement: While the Defendants do not dispute the cited information, it is misleading as used in Plaintiffs’ motion because the evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Disputed.
Controverting Statement: While Defendants do not dispute that statement, it is misleading and mischaracterizes the evidence. Emails from town council members are just one consideration in determining whether and where to conduct a saturation patrol. Defendants deny that actual or perceived racially- prejudiced statements made by third parties were the cause of such patrol and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.
Admit.
61

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 62 of 174

1 100 2 3 4 5 6 7 101 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed. Controverting Statement: While Defendants do not dispute that statement, it is misleading and mischaracterizes the evidence. Emails from town council members are just one consideration in determining whether and where to conduct a saturation patrol. Defendants refer the Court to their Response to Plaintiffs’ statement no. 25 at section (B), which is expressly incorporated herein by this reference.
Disputed. Controverting Statement: While Defendants do not dispute that this statement accurately reflects the opinion of Plaintiffs’ police practices and racial profiling expert Robert Stewart, it lacks foundation, and is misleading and mischaracterizes the evidence.
Plaintiffs’ police practices and racial profiling expert, Robert Stewart, testified that he did not draw the conclusion, based on his analysis, that any saturation patrol was unjustified or unwarranted:.
“Q. Have you formed the opinion that any particular MCSO saturation patrol was unjustified or unwarranted?
A. Based on crime data?
Q. For any reason.
A. I did not draw that conclusion.”
See Deposition of Robert Stewart at p. 23, lns. 14-21, attached as Exhibit 17. (emphasis added).
Defendants police practices expert, Bennie Click, testified that “[t]he method by which the MCSO chooses target areas for saturation patrols is reasonable and is consistent with standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
The materials Arpaio forwards, whether racially charged or perceived as
62

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 63 of 174

1 2 3 4 5 6 7 8 102 9 103 10 104 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

racially charged, are forwarded to executive management at MCSO and not line deputies. The communications that contain actual or perceived racially charged information may also contain information showing knowledge of criminal activity. Where it does so, the MCSO conducts its own analysis to verify such information or otherwise determine if some official action is necessary or appropriate. If the communications contain on racially offensive information, nothing becomes of the communication and it serves no purposes. Defendants refer the Court to their responses to Plaintiffs’ statements nos. 25-48 above, and expressly incorporate the same herein by this reference.
Admit.
Admit.
Disputed.
The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO’s use of saturation patrols is a long-standing, common, and reasonable tool of law enforcement, and that is an agency policy decision as to what particular problem to address with a saturation patrol. More specifically, Mr. Click testified:
“Saturation patrol operations have long been an accepted strategy used by law enforcement agencies to address specific crime problems in a particular location. They generally are of short duration, nor more than several days, because the additional personnel needed for the operation are taken from other assignments. Historically, saturation patrols have targeted gangs, drugs, alcohol, DUI, and curfew violations. They are also used to address traffic issues such as high collision locations. The saturation patrols not only address crime problems, but also reassure the residents and businesses that their crime concerns are being addressed. A strong law enforcement presence also deters crime in the area. Saturation patrols play an important role in the practice of community policing. It is an agency policy decision to use saturation patrols to address a particular problem.
Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops and contacts is also used to gather intelligence about criminal activity.
63

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 64 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 105 17 18 19 20 21 22 106 23 24 25 26
107 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The specific criminal activity that is identified as the focus of a saturation patrol operations is any agency policy decision. This is a common law enforcement practice. The Sheriff has the authority to designate illegal immigration an enforcement priority.
Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and reasonable law enforcement policies in Maricopa County than in other parts of the country. Arizona has specific immigration-related statutes that many other states do not have. These statutes make certain immigration related activities a crime and therefore can impact agency policies.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement. This statement is misleading and takes the testimony of Defendants’ expert Bennie R. Click out of context to suggest that Defendants, namely Arpaio, are improperly using saturation patrols to deal with crime, and problems associated with illegal immigration. Defendants, therefore, refer the Court to their response above to paragraph no. 104 and incorporate the same herein by this reference.
Admit with clarification.
MCSO deputies were instructed to look for all violations of the traffic and motor vehicle code. See, e.g., Madrid Depo I at p. 221, lns. 16-23 (traffic stops)(Hickey Dec. Ex. 50); Palmer Depo. I at p. 57, ln. 12 to p. 58, ln. 16 (traffic stops) (Hickey Dec. Ex. 56); Kikes Depo at p. 47, ln. 4 to p. 49, ln. 15 (traffic stops) (Hickey Dec. Ex. 49).
Disputed.
Controverting Statement: While Defendants do not dispute that they did not conduct so-called comparative analysis of crime or traffic
64

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 65 of 174

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
108 24
109 25
110 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

hazards to determine a saturation patrol or selection of a site for the patrol, they dispute this statement as used in the motion. The evidence shows that saturation patrols were selected based on a number of raceneutral factors. See Defendants’ Response and Controverting Statement as to Plaintiffs’ Statement of Fact Nos. 25 and 112, and expressly incorporated herein by this reference (MCSO used statistics and crime data). In addition, Plaintiffs’ police practices and racial profiling expert, Robert Stewart, testified that he did not draw the conclusion, based on his analysis, that any saturation patrol was unjustified or unwarranted:.
“Q. Have you formed the opinion that any particular MCSO saturation patrol was unjustified or unwarranted?
A. Based on crime data?
Q. For any reason.
A. I did not draw that conclusion.”
See Deposition of Robert Stewart at p. 23, lns. 14-21, attached as Exhibit 17. (emphasis added).
Defendants police practices expert, Bennie Click, testified that “[t]he method by which the MCSO chooses target area for saturation patrols is reasonable and is consistent with standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Objection: Defendants object to Plaintiffs’ statement because it is irrelevant to the site selection for a saturation patrol.
Admit.
Admit.
Disputed.
Controverting Statement: This statement is misleading as stated and as used in the motion. The cited testimony does not establish that the cited MCSO deputies understood that “the focus” of saturation patrols
65

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 66 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 111 18 112 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

was on illegal immigration. Instead, the testimony demonstrates that the cited MCSO deputies understood that “one of the purposes” or one of the focuses of the saturation patrols in which they were involved was illegal immigration. In addition, Plaintiffs’ statement here directly conflicts with their own proffered statement of fact at paragraph 102, above (“In this litigation, some MCSO officers have taken the position that the saturation patrols are designed to address crime generally. Officers were instructed to simply ‘enforce the law’ or ‘enforce the traffic laws.’”).
Defendants’ police practice expert Mr. Bennie Click testified that “[i]t is an agency policy decision to use saturation patrols to address a particular problem,” Arpaio “has the authority to designate illegal immigration an enforcement priority,” “Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states,” and Arizona law “make certain immigration related activities a crime and therefore can impact agency policies.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Admit.
Disputed.
Controverting Statement: MCSO Deputy Chief Brian Sands makes the decision of where, when, and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. Chief Sands does not select locations for saturation patrols because of the sole factor that there are day-laborers, or so-called day-laborers at a particular location. Id. at p. 183, lns. 1620. While some saturation patrols involved day laborers, every saturation patrol in an area with day laborers was conducted because there were other factors related to criminal activity which guided Chief Brian Sands’ decision to conduct a particular saturation patrol at a particular location. Id. at p. 183, lns. 21-25; see also Deposition of Manuel Madrid dated 10/27/09 at p. 86, ln. 17 to p. 87, ln. 4, attached as Exhibit 10 (day laborers at site of saturation patrol had been harassing children going to school); Deposition of Joseph Sousa dated 12/10/09 at p. 111, ln. 11 to p. 112, ln. 1, attached as Exhibit 5 (day laborers at site
66

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 67 of 174

1 2 3 4 5 6 7 8 9 10 11 113 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

of saturation patrol were being aggressive toward other citizens; day laborers congregating in area were “making catcalls at little girls;” ICE advised MCSO “that day laborers were also being forced to work human smuggling charges off.”); Deposition of Joseph Sousa dated 12/10/09 at p. 94, lns. 20-24, attached as Exhibit 5 (sites are not selected because they have a high concentration of day laborers); Id. at p. 96, ln. 25 to p. 97, ln. 3 (site for saturation patrols also are not selected because they may have a high concentration of suspected illegal immigrants); see also Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12 (On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems.).
Disputed.
Controverting Statement: The cited MCSO deputies testified that it was their professional law enforcement experience, not merely their unfounded beliefs, that most day laborers or most illegal immigrants in Maricopa County are from Mexico. For example, Deputy Louis DiPietro testified that, in his experience, most day laborers in Maricopa County are from Mexico or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13. Deputy Carlos Rangel, based on his experience, shares this observation. See Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11. It is the law enforcement experience of others in the MCSO that most illegal immigrants in Maricopa County originate from Mexico or Central or South America. See, e.g., Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 1821, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16.
This experience by MCSO personnel is neither surprising nor indicative of racially discriminatory intent, motive, or animus by those persons. It
67

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 68 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 114 15 16 17 18 115 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

is undisputed that Arizona is a border state near the Republic of Mexico, Maricopa County is a major human smuggling corridor, and the objective, race-neutral evidence shows that “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” See Defendants’ Statement of Facts (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report); see also Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg 49, attached thereto as Exhibit 16 (“Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond.”); see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement: Defendants dispute this statement for the same reasons the dispute statement No. 115 below, and therefore refer the Court to Defendants’ Response to statement No. 115, which is expressly incorporated herein by this reference.
Disputed.
Controverting Statement. This statement is misleading as stated and as used in the motion because Plaintiffs suggest that MCSO traffic stops are based on the race or ethnicity of the driver or the occupants of the vehicle. That is not true.
The MCSO does not use race as an indicator or factor to initiate or make vehicle stops. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
The MCSO makes only lawful traffic stops based on probable cause or reasonable suspicion that a violation of the traffic code or vehicle code exists. See, e.g., Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 17, and 107-109 (Deputy DiPietro had probable cause to stop the truck in which Plaintiff Melendres was a passenger); at ¶¶ 44-45, 51-52, and 113-
68

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 69 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

116 (Deputy Ratcliffe had probable cause to stop the Plaintiff Rodriguez truck because it was driving on a closed road); and at ¶¶ 117-119 (Deputy Kikes had either probable cause or reasonable suspicion to stop the Plaintifs Meraz and Nieto).
Plaintiffs’ use of the term “pre-textual traffic stops” has a negative implication that is not consistent with the law permitting, under Fourth Amendment analysis, the police to make lawful traffic stops even if the subjective intent of the stopping officer is to discover another crime. See Whren v. United States, 517 U.S. 806, 810 (1996) (subjective intentions or motivations of the stopping officer in making the traffic stop is irrelevant under Fourth Amendment analysis); United States v. Robinson, 414 U.S. 218, 221 n.1 (1973) (“a traffic violation arrest would not be rendered invalid under the Fourth Amendment by the fact that it was a mere pretext for a narcotics search.”); United States v. Ramirez, 473 F.3d 1026, 1030-31 (9th Cir. 2007) (pre-textual traffic stops based on probable cause that are also motivated by some other reason do not violate Fourth Amendment); United States v. Willis, 431 F.3d 709, 715 (9th Cir. 2005) (same); Rodriquez v. California Highway Patrol, 89 F.Supp.2d 1131, 1139 (N.D. Cal. 2000) (same).
Even Plaintiffs’ police practices/racial profiling expert, Robert L. Stewart admits that a traffic stop can be made for probable cause even if the stopping police officer has some other motivation to stop the motorist. See Deposition of Robert L. Stewart at p. 36, lns. 13-16; p. 115, lns. 4-8; p. 118, lns. 10-14, attached as Exhibit 17.
The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonably degree of probability in his field of expertise that MCSO’s use of traffic stops as an element of saturation patrols is a long-standing, common, and reasonable tool of law enforcement, and that is an agency policy decision as to what particular problem to address with a saturation patrol. More specifically, Mr. Click testified:
“Saturation patrol operations have long been an accepted strategy used by law enforcement agencies to address specific crime problems in a particular location. They generally are of short duration, nor more than several days, because the additional personnel needed for the operation are taken from other assignments. Historically, saturation patrols have targeted gangs, drugs, alcohol, DUI, and curfew violations. They are also used to address traffic issues such as high collision locations. The saturation patrols not only address crime problems, but also reassure the residents and businesses that their crime concerns are being addressed. A strong law enforcement presence also deters crime
69

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 70 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 116 23 117 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

in the area. Saturation patrols play an important role in the practice of community policing. It is an agency policy decision to use saturation patrols to address a particular problem.
Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops and contacts is also used to gather intelligence about criminal activity.
The specific criminal activity that is identified as the focus of a saturation patrol operations is any agency policy decision. This is a common law enforcement practice. The Sheriff has the authority to designate illegal immigration an enforcement priority.
Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and reasonable law enforcement policies in Maricopa County than in other parts of the country. Arizona has specific immigration-related statutes that many other states do not have. These statutes make certain immigration related activities a crime and therefore can impact agency policies.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Admit.
Disputed.
Controverting Statement: While Defendants do not dispute that on some saturation patrols undercover units would identify vehicles that were suspected of being engaged in the human smuggling of illegal immigrants, an Arizona crime, they dispute that they were targeting “day laborers” solely because they were “day laborers.”
MCSO Deputy Chief Brian Sands makes the decision of where, when, 70

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 71 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. Chief Sands does not select locations for saturation patrols because of the sole factor that there are day-laborers, or so-called day-laborers at a particular location. Id. at p. 183, lns. 16-20. While some saturation patrols involved day laborers, every saturation patrol in an area with day laborers was conducted because there were other factors related to criminal activity which guided Chief Brian Sands’ decision to conduct a particular saturation patrol at a particular location. Id. at p. 183, lns. 2125; see also Deposition of Manuel Madrid dated 10/27/09 at p. 86, ln. 17 to p. 87, ln. 4, attached as Exhibit 10 (day laborers at site of saturation patrol had been harassing children going to school); Deposition of Joseph Sousa dated 12/10/09 at p. 111, ln. 11 to p. 112, ln. 1, attached as Exhibit 5 (day laborers at site of saturation patrol were being aggressive toward other citizens; day laborers congregating in area were “making catcalls at little girls;” ICE advised MCSO “that day laborers were also being forced to work human smuggling charges off.”); Deposition of Joseph Sousa dated 12/10/09 at p. 94, lns. 20-24, attached as Exhibit 5 (sites are not selected because they have a high concentration of day laborers); Id. at p. 96, ln. 25 to p. 97, ln. 3 (site for saturation patrols also are not selected because they may have a high concentration of suspected illegal immigrants); see also Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12 (On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems.).
Several MCSO deputies testified that it was their professional law enforcement experience, that most day laborers or most illegal immigrants in Maricopa County are from Mexico. For example, Deputy Louis DiPietro testified that, in his experience, most day laborers in Maricopa County are from Mexico or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13. Deputy Carlos Rangel, based on his experience, shares this observation. See Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11. It is the law enforcement experience of others in the MCSO that most illegal immigrants in Maricopa County originate from Mexico or Central or South America. See, e.g., Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of
71

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 72 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 118 21 119 22 120 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16.
This experience by MCSO personnel is not indicative of racially discriminatory intent, motive, or animus by those persons. It is undisputed that Arizona is a border state near the Republic of Mexico, Maricopa County is a major human smuggling corridor, and the objective, race-neutral evidence shows that “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” See Defendants’ Statement of Facts (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report); see also Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg 49, attached thereto as Exhibit 16 (“Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond.”); see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Admit.
Admit.
Disputed.
Controverting statement: While Defendants do not dispute that Chief Brian Sands testified that “it is difficult to have a so-called zero tolerance policy on traffic stops,” Plaintiffs’ statement as used in the motion is misleading and takes Chief Sands’ testimony out of context. Chief Sands did not testify that the zero tolerance policy was not in effect or used during traffic stops, he was merely testifying to the realities in Maricopa County that it was difficult to apply the policy to each and every traffic violation given the traffic volume in Maricopa County and the volume of violations experienced by deputies.
72

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 73 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

In proper context, Chief Sands testified that because there is so much traffic, “[t]he zero tolerance [as to traffic stops] is not a hard and fast rule that you will make every traffic violator that you see. You may only have the opportunity to stop one of three at the same given time. So in itself, it is difficult to have a so-called zero tolerance policy on traffic stops.” See Deposition of Brian Sands dated 12/14/09 at p. 123, lns. 917, attached as 14; see also p. 123, ln. 18 to p. 124, ln. 18 (questions that immediately follow address that the goal is to stop as many vehicles as possible).
Plaintiffs’ citation to the testimony of MCSO Deputy Ramon Armendariz also is taken wholly out of context. Plaintiffs never questioned Deputy Armendariz about the zero tolerance policy during saturation patrols. In fact, when Plaintiffs questioned Deputy Armendariz about his discretion used during traffic stops, the line of questioning was not related to saturation patrols or his later membership in the Human Smuggling Unit, but to his every-day traffic patrol operations during his prior assignment to the MCSO Special Assistance Unit (“SAU”) for Maricopa County District. See deposition of Ramon Armendariz dated 11/24/09 at p. 26, ln. 13 to p. 30, ln. 10, attached as Exhibit 21.
There was a zero tolerance policy for traffic stops during saturation patrols: i.e., a deputy that observed a moving violation or equipment code violation would be required to stop the vehicle. See Deposition of Brett Palmer dated 10/23/09 at p.56, ln. 2 to p. 58, ln. 16, attached as Exhibit 9 (zero tolerance policy on saturation patrols adopted to try to stop every vehicle with a violation and write tickets to all to avoid charges of racial profiling); see also p. 94, ln. 20 to p. 95, ln. 1 (zero tolerance policy for any traffic or vehicle violations); p. 98, ln. 18 to p. 99, ln. 17 (the zero tolerance for arrests made and the zero tolerance policy for traffic violators); see also Deposition of Manuel Madrid dated 10/27/09 at p. 125, ln. 12 to p. 127, ln. 7, attached as Exhibit 10 (on large scale saturation patrols, there was a zero tolerance policy to pull over and cite all infractions); p. 130, lns. 18-23 (same); see also Deposition of Joseph Sousa dated 12/10/09 at p. 144, lns. 22-25 (on zero tolerance operation, any vehicle that is observed to violate the vehicle or traffic code that can be stopped will be stopped).
Defense police practices expert Bennie Click testified:
“In order to reduce the potential of racial profiling during saturation
73

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 74 of 174

1 2 3 4 5 6 7 8 9 121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 122 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be stopped. This is a reasonable practice. Zero tolerance removed the deputies’ discretion to pick and choose who they stopped.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg 46, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in instituting a zero tolerance policy in an effort to reduce the potential for racial profiling during saturation patrols. Mr. Click testified:
“In order to reduce the potential of racial profiling during saturation patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be stopped. This is a reasonable practice. Zero tolerance removed the deputies’ discretion to pick and chose who they stopped. Sergeant [Manuel] Madrid reasonably instituted a policy in the HSU [Human Smuggling Unit] that all passengers in vehicles that had been stopped would be contacted. He stated that this was done to avoid the appearance that deputies could pick and chose whom they contacted.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in instituting a zero tolerance policy in an effort to reduce the potential for
74

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 75 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

racial profiling during saturation patrols. Mr. Click testified:
“In order to reduce the potential of racial profiling during saturation patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be stopped. This is a reasonable practice. Zero tolerance removed the deputies’ discretion to pick and chose who they stopped. Sergeant [Manuel] Madrid reasonably instituted a policy in the HSU [Human Smuggling Unit] that all passengers in vehicles that had been stopped would be contacted. He stated that this was done to avoid the appearance that deputies could pick and chose whom they contacted.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
In addition, the MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in not collecting data about the ethnicity of persons stopped or contacted by the MCSO. Mr. Click testified:
“The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling effect on law enforcement activity, putting the communities’ safety at great risk. Not collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best. These include such as community demographics, officer experience level, officer training, officer performance history, officer work ethic, location assigned, traffic/pedestrian volume, different duties, call volume and the nature of investigations officer can be involved in.
Mandated data collection is suspect when used to determine the race or ethnicity of persons officer stopped. In many instances, a person’s race or ethnicity is not obvious. Race may be easier to determine because of kin color, however, ethnicity is less apparent. Many people have
75

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 76 of 174

1 2 3 4 5 6 7 8 9 10 11 123 12 13 14 15 16 17 18 19 20 21 22
124 23 24 25 26 125 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

surnames that are not indicative of their ethnicity. A number of ethnic groups have similar physical characteristics. Most countries have citizens of various races and ethnicities and country of origin may be misleading. Even self-identification is problematic because of the increasing number of persons with mixed racial and ethnic backgrounds. Officers misidentifying a person’s race or ethnicity can be controversial in itself and could create a perception of a racially or ethnically insensitive department.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 45-46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise). Disputed.
Controverting Statement. While Defendants do not dispute that they did not perform a data analysis to ensure that the zero tolerance was being applied, they dispute that they did nothing to ensure that its saturation patrols were conducted professionally and lawfully. The MCSO conducts a debriefing after each operation to identify any issues that need to be addressed in future operations. See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise). The nature of the debriefing and what is included in an after-action report is ultimately a decision made by the Sheriff or his designee. Id.
Admit in part and disputed in part.
Controverting Statement: Defendants do not deny this statement as it relates to regular operations but dispute it as to traffic enforcement techniques during special operations such as saturation patrols.
Disputed.
Controverting Statement. While Defendants do not dispute that the cited statement contains the opinions of Plaintiffs’ law enforcement
76

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 77 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 126 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

expert Robert Taylor, this statement is disputed as used in Plaintiffs’ motion.
The duties of the MCSO Human Smuggling Unit during saturation patrols is to go out and enforce all traffic laws and, in the course of enforcing all traffic laws, any criminal offenders are taken into custody and booked. See Deposition of Joseph Sousa dated 12/10/09 at p. 25, lns. 20-24, attached as Exhibit 5.
The finding of illegal immigrants during saturation patrols is a secondary result of the patrol. Id. at p. 38, lns. 6-20; see also p. 39, lns. 5-11.
“When we have a crime suppression operation, we – our intent is to go out and saturate the area that we are targeting and the effect is to arrest as many violators of the law as you can. With the [illegal] immigration problem as large as it is in our community, the probability seems to be quite high that you are going to encounter people that are here illegally as you arrest people.” See Deposition of Brian Sands dated 12/14/09 at p. 86, ln. 21 to p. 87, ln. 6, attached as Exhibit 14.
Disputed.
Controverting Statement. The cited section does not pertain to motor vehicle stops during saturation patrols involving a 287(g) certified officer. The authority cited by Plaintiffs makes the distinction clear between questioning conducted by a 287(g) certified MCSO deputy and a non-certified deputy.
During saturation patrols, to avoid charges of selective enforcement, MCSO deputies would ask all passengers for identification. See Deposition of Bennie Click at p. 228, ln. 4 to p. 229, ln. 17, attached as Exhibit 20.
This was a reasonable and proper law enforcement practice. See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 48, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
In addition, Mr. Alonzo Pena, the Special Agent in Charge for ICE 77

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 78 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 127 17 18 19 20 21 128 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.
Finally, Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio had the authority under the ICE-MCO Memorandum of Agreement to do pure immigration enforcement. Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20 (the MOA “does not limit the type of enforcement”), attached as Exhibit 2.
Both federal and state officials with wide discretion to ask persons about immigration status. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questing does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”).
Disputed.
Controverting Statement: While Defendants do not dispute this statement, it is misleading and taken out of context as used in Plaintiffs’ motion. The Court is referred to Defendants’ response to Plaintiffs’ statement no. 126, immediately above, which is expressly incorporated contained herein by this reference.
Disputed.
Controverting Statement: The cited testimony of Lt. Joe Sousa of the Human Smuggling Unit is misleading and taken out of context. While Lt. Sousa testified that MCSO deputies have wide discretion to question passengers on immigration violations, this testimony was, in proper context, in reference to MCSO 287(g) certified deputies. See Deposition of Joseph Sousa dated 12/10/09 at p. 74, ln. 25 to p. 79, ln. 2, attached as Exhibit 5 (making clear that Sousa is discussing the discretion of 287(g) certified deputies).
The law also provides both federal and state officials have wide
78

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 79 of 174

1 2 3 4 5 6 129 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

discretion to ask persons about immigration status. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questing does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”).
Disputed.
Controverting Statement: While Defendants do not dispute that Arpaio and defense expert Bennie Click did not identify a specific MCSO written policy limited only to the prohibition of racial profiling, this statement as used in the motion is misleading and taken out of context.
• The MCSO has a policy prohibiting racial profiling. See Deposition of Brian Sands dated 12/14/09 at p. 194, lns. 14-17, attached as Exhibit 14.
• The MCSO instructs each of its deputies that are to participate in a saturation patrol during the pre-saturation patrol briefing that they are not to racially profile any person during the up-coming saturation patrol that day. Id. at p. 194, lns. 18-21; see also p. 195, lns. 2-5.
• Each MCSO deputy has undergone education and training about the improper and unlawful use of race in law enforcement, i.e., racial profiling, while at the police academy at the start of their law enforcement careers. Id. at p. 194, ln. 22 to p. 195, ln. 1. When the deputy graduates from the police academy and joins the MCSO for active duty, he or she is taught about the MCSO policy and prohibition against racial profiling. Id.
• Each MCSO deputy that underwent ICE education and training to become 287(g) certified to enforce federal immigration law learned about the law enforcement prohibition against racial profiling. Id. at p. 195, lns. 6-10.
• Defendants’ expert Bennie Click testified: “The MCSO maintains comprehensive and detailed policies and procedures that all personnel are required to have a working knowledge of. A number of MCSO policies prohibit racial profiling. The MCSO policies are reasonable and conform to nationally 79

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 80 of 174

1 2 3 4 5 6 7 130 8 9 10 11 12 13 131 14 132 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

recognized standards.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement: While Defendants do not dispute that these specific policies do not contain a dedicated policy against racial profiling, this statement as used in the motion is misleading and taken out of context. Defendants refer the Court to their response to Plaintiffs’ statement no. 129, above, and expressly incorporate the same herein by this reference.
Admit.
Disputed.
Controverting Statement. While the Defendants do not dispute the fact that not all of the early MCSO Operations Plans for saturation patrols contained a specific prohibition reminding MCSO deputies of the prohibition against racial profiling, and that not all the deputies participating in a given saturation patrol received a copy of the Operations Plan, the Defendants dispute the statement that the MCSO’s prohibition and policy against racial profiling was ever confusing to any of its deputies or that the operation plan was not read to the deputies or not understood. As stated by defense police practices expert Bennie Click:
“Every MCSO deputy and supervisor deposed understood, without equivocation, that racial profiling is wrong, a serious crime and could result in the loss of their jobs. This understanding by all personnel is a strong motivator not to racially profile any person.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a
80

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 81 of 174

1 2 3 4 5 6 7 8 9 133 10 134 11 12 13 14 15 16 17 18
135 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

reasonable degree of probability in his field of expertise).
Although every deputy may not have received a copy of the plan, “the operations plans were read to each participant and/or they received a copy.” Id. at 47 (click Report). The “Operations Plans were reasonable and met the standard of care. There is no evidence that there was confusion over the objective of the operations, personnel assignments or the specific duties to be performed.” Id.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 as section (A) set forth above.
Admit.
Disputed.
Controverting Statement: Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p. 235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.
Objections: The document ORT1292 is inadmissible hearsay that does not qualify for an exception.
Disputed.
Controverting Statement: While Defendants do not dispute the accuracy of the statement, the statement is misleading and taken out of context as it is used in the Plaintiffs’ motion.
There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for when determining whether a person may be in the United States unlawfully. One of the ICE-approved indicatorsis that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether someone may be in the United States unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p.
81

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 82 of 174

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18 136
19

20

21

22

23

24

25

26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

137

54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it couldn’t—it is not to be used solely. It is never to be used just as a—as an individual factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p. 151, lns. 49 (“MCSO 287(g) officers can consider race as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”); see also United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) (“Although ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultry-producing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non-Hispanic) white.”).
Although ICE approves of the use of race as one indicator, among several other indicators, as a basis to form reasonable suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
Deputies Palmer and Madrid, who were both at the time, 287(g) certified by ICE correctly stated permissible and ICE approved indicators of possible unlawful presence in the United States.
Disputed.
Controverting Statement: While Defendants do not dispute that an ICE-approved indicator for a 287(g) certified MCSO deputy to determine unlawful presence in the United States is a person’s race, this statement as used in the motion is misleading and taken out of context because: (a) Plaintiffs suggest that racial appearance is the sole indicator used by MCSO 287(g) certified deputies in investigating immigration violations; and (b) Plaintiffs suggest that MCSO non-287(g) certified deputies are using race as an indicator for immigration investigations when they did not perform such investigations. Defendants refer the Court to their response to Plaintiffs’ statement of fact no. 135, immediately above, and expressly incorporate that response herein by reference.
Disputed.
82

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 83 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 138 20 21 22 23 24 25 26 139 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Controverting Statement: While Defendants do not dispute that an ICE-approved indicator for a 287(g) certified MCSO deputy to determine unlawful presence in the United States is a person’s language speaking ability (i.e., the suspect only speaks Spanish and cannot speak English), this statement as used in the motion is misleading and taken out of context because: (a) Plaintiffs suggest that Spanish speaking is the sole indicator used by MCSO 287(g) certified deputies in investigating immigration violations; and (b) Plaintiffs suggest that MCSO non-287(g) certified deputies are using Spanish speaking as an indicator for immigration investigations when they did not perform such investigations.
There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for in determining whether a person may be in the United States unlawfully. Cf. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questing does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”). One such ICE approved indicator is that the person does not speak the English language. See Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as Exhibit 10; see Deposition of Ramon Armendariz at p. 44, lns. 1-4, attached as Exhibit 8; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5, attached as Exhibit 11.
Admit with clarification.
Sgt. Manuel Madrid was a 287(g) certified deputy. The ICE training on racial profiling was not insignificant. Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p. 235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.
Admit with clarification.
Deputy Matthew Ratcliffe was a 287(g) certified deputy. The ICE training on racial profiling was not insignificant. Former ICE Special
83

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 84 of 174

1 2 3 4 5 6 7 140 8 9 10 11 12 13 14 15 141 16 142 17 18 143 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p. 235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.
Admit with clarification.
Deputy Ramon Armendariz was a 287(g) certified deputy. The ICE training on racial profiling was not insignificant. Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p. 235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.
Admit.
Admit.
Objections: Defendants object to the term “sensitivity” as undefined, vague, and ambiguous. Disputed.
Controverting Statement: While Defendants do not dispute that this is the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart, it is disputed by Defendants’ expert Bennie Click. Mr. Click testified: “The MCSO maintains comprehensive and detailed policies and procedures that all personnel are required to have a working knowledge of. A number of MCSO policies prohibit racial profiling. The MCSO policies are reasonable and conform to nationally recognized standards.” See Defendants’ Statement of Facts (Dkt#4131) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of
84

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 85 of 174

1 2
144 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 145 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

expertise).
Disputed.
Controverting Statement: While Defendants do not dispute that the cited statement is the opinion held by Plaintiffs’ police practices/racial profiling expert Robert Stewart, it ignores the evidence.
“The MCSO provides academy training to deputies emphasizing that racial profiling is unacceptable conduct. The deputies that were 287(g) received additional training from ICE personnel. This training is reinforced at each saturation patrol operation briefing as it is contained in the operations plan. The effectiveness of training is not measured by how recently the training was done or how frequently it is presented, but measured by how well the deputies conduct and performance reflect the performance objectives of the training. Mr. Kidd [of ICE] stated that during ICE training for 287(g) certification, there is a block of instruction that discusses racial profiling and that it is prohibited.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
“Mr. Pena, the Special Agent in Charge of the Phoenix ICE Office, and Mr. Jim Pendergraph, the ICE Executive Director of State and Local Coordination, indicated, from their observations, the MCSO did nothing but good police work.”
Id. at p. 45.
Admit in part and disputed in part.
Controverting Statement: While Defendants do not dispute this statement, the statement is misleading as used in Plaintiffs’ motion because as soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.
The Defendants dispute that the referenced email resulted in any MCSO 85

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 86 of 174

1 2 3 4
146 5 6 7 8 9 10 11 12 13 14 15 147 16 17 18 19 20 21 22 23 24 25
148 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.
Admit with clarification and disputed in part.
Controverting Statement: While Defendants do not dispute the statement that two (2) HSU deputies circulated the emails, the statement is misleading as used in Plaintiffs’ motion because as soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.
The Defendants dispute that the referenced email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.
Admit in part and disputed in part.
Controverting Statement: While Defendants do not dispute this statement, they do dispute the phrase “regularly.” The cited evidence does not support the use of the phrase. This statement also is misleading as used in Plaintiffs’ motion because as soon as the person with day-today responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.
The Defendants further dispute that his email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.
Admit in part and disputed in part.
Controverting Statement: While Defendants do not dispute this statement, they do dispute the phrase “regularly.” The cited evidence does not support the use of the phrase. This statement also is misleading
86

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 87 of 174

1 2 3 4 5 6 7 8 9 149 10 11 12 13 14 15 16 17 18 19 20
150 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

as used in Plaintiffs’ motion because as soon as the person with day-today responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.
The Defendants further dispute that his email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.
Disputed.
Controverting Statement: While defendants do not dispute that MCSO Deputy Carlos Rangel received an offensive email, this statement is unsupported by the authority cited by the Plaintiffs, or any at all. While Deputy Rangel is the 287(g) certified deputy that interacted with named Plaintiff Melendres, the following deputies involved with the traffic stops of the named Plaintiffs in this case did not send or receive offensive or allegedly offense emails or communications: Deputy Louis DiPietro; Deputy Matthew Ratcliffe; Deputy Douglas Beeks; and Michael Kikes.
The Defendants further dispute this statement to the extent it suggests, as used in Plaintiffs’ motion, that the referenced emails resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.
Disputed.
Controverting Statement: The authority cited by the Plaintiffs does not stand for the proposition stated. Moreover, Sgt. Brett Palmer forwarded only a document attributed to the Los Angeles Times that apparently had exaggerated statistics about crime committed by illegal immigrants.
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 49 set forth above.
The Defendants further dispute that any email resulted in any MCSO
87

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 88 of 174

1 2 3 4 151 5 6 7 8 9 10 11 12 13 14 15 152 16 17 18 19
153 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.
Disputed.
Controverting Statement: While the Defendants do not dispute the fact that one (1) volunteer posse member sent an email praising the 1950’s federal program known as “Operation Wetback,” there is no evidence that this single volunteer was involved in any saturation patrol in any capacity, or that he was involved in any manner with any of the traffic stops of the named Plaintiffs, or that this email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general.
In addition, Lt. Joseph Sousa testified that the single volunteer posse member’s email was unacceptable and inappropriate in the MCSO. See Deposition of Joseph Sousa dated 10/22/10 at p. 87, ln. 19 to p. 88, ln. 17, attached as Exhibit 19. The email from the posse member was an “isolated incident” to Lt. Sousa’s knowledge. Id.
Admit in part and disputed in part.
Controverting Statement: While Defendants do not dispute that Arpaio could not state whether the circulation of the Mexifornia license email violated a policy of his department, he testified that it was in poor taste. See Deposition of Joseph Arpaio dated 11/16/10 at p. 217, lns. 313, attached as Exhibit 15.
Disputed.
Controverting Statement: While the Defendants do not dispute the statement that the described emails are racially derogatory, unacceptable, and should be dealt with as soon as they are discovered, this statement is misleading as used in Plaintiffs’ motion because as soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of the same he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.
The Defendants further dispute that his email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general.
88

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 89 of 174

1 2 154 3 4 5 6 7 8 9 10 11 12 13 14 15 155 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement. While Defendants do not dispute that the cited statement is the opinion expressed by Plaintiffs’ police practices and racial profiling expert Robert Stewart, they dispute the following as used in the motion: (a) that MCSO supervisors, when they learned of the offensive and inappropriate email communication, allegedly did not immediately put an end to their circulation; and (b) that anyone other than Mr. Stewart was left with the impression that the MCSO accepted racial stereotyping as policy, practice, or custom.
As soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned about an inappropriate email he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.
Arpaio testified that a fake “Mexifornia license” was in poor taste. See Deposition of Joseph Arpaio dated 11/16/10 at p. 217, lns. 3-13, attached as Exhibit 15.
Disputed.
Defendants submit this statement is misleading as cited and as used in the motion. The standard of care does not require the collection of race data on law enforcement traffic stops or encounters.
Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in not collecting data about the ethnicity of persons stopped or contacted by the MCSO. Mr. Click testified:
“The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling effect on law enforcement activity, putting the communities’ safety at great risk. Not collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best. These include such as community demographics, officer experience level, officer training,
89

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 90 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 156 18 19 20 21 22 23 157 24 158 25 159 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

officer performance history, officer work ethic, location assigned, traffic/pedestrian volume, different duties, call volume and the nature of investigations officer can be involved in.
Mandated data collection is suspect when used to determine the race or ethnicity of persons officer stopped. In many instances, a person’s race or ethnicity is not obvious. Race may be easier to determine because of kin color, however, ethnicity is less apparent. Many people have surnames that are not indicative of their ethnicity. A number of ethnic groups have similar physical characteristics. Most countries have citizens of various races and ethnicities and country of origin may be misleading. Even self-identification is problematic because of the increasing number of persons with mixed racial and ethnic backgrounds. Officers misidentifying a person’s race or ethnicity can be controversial in itself and could create a perception of a racially or ethnically insensitive department.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 45-46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Admit in part and disputed in part.
Controverting Statement: Defendants do not dispute that MCSO deputies do not record all encounters with citizens. The cited authority does not stand for the proposition that “MCSO deputies,” to the extent they do record their encounters with citizens, that they do so on pads of paper and then destroy the same at the end of their tour of duty. The cited testimony is from a single deputy, Ramon Armendariz, about his personal practice of discarding notes at the end of shift.
Admit.
Admit.
Disputed.
Controverting Statement. While the Defendants do not dispute the fact that the MCSO Operations Plans do not detail the specific roles for supervisors working during the saturation patrol, the defendants dispute that the suggestion as made in Plaintiffs’ motion and supported by this
90

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 91 of 174

1 2 3 4 5 6 7 8 9 10 11
160 12
161 13 14 15 16 17 18 19 20 21 22 23 24 162 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

statement that supervision was inappropriate or that there was confusion. The “Operations Plans were reasonable and met the standard of care. There is no evidence that there was confusion over the objective of the operations, personnel assignments or the specific duties to be performed.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise). In addition, the “level of supervision required generally depends on a deputies’ training, experience and past performance. There is no evidence that any deputy lacked supervision.” Id. at p. 44.
Admit.
Disputed.
Controverting Statement: This statement is misleading as used in the motion because it does not disclose the volume of arrests during the Fountain Hills saturation patrol, or the fact that one of the arrestees had a felony arrest warrant out on him with an ICE detainer.
Chief Brian Sands testified that there were only ten (10) arrests in Fountain Hills during a saturation patrol, and that nine (9) of those ten arrestees appeared to have Latino surnames. See Deposition of Brian Sands dated 12/14/09 at p. 132, lns. 5-7, attached as Exhibit 14.
Plaintiffs also did not disclose that one of the persons with a Latino appearing surname was arrested due to a felony warrant with an ICE detainer on him. See Melendres MCSO 14434, Ex. 8 to Sand Depo. I (Hickey Dec. Ex. 77). The MCSO could not have had racially discriminatory intent or motive in arresting this person given the outstanding arrest warrant.
Admitted in part and disputed in part.
Controverting Statement. Defendants do not dispute that, during saturation patrols, individual deputies provide from their individual stat sheets only quantitative data to their supervisors and that such data is compiled into master data sheets. The remaining statement is argument, and Defendants incorporate herein their Responses contained in DKT# 235 and 283.
91

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 92 of 174

1 2 163 3 4 5 6 7 8 9 10 11 12 13 14
164 15 16 17 18 19 20 21 22 23 24 25 26 165 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement: The MCSO conducts after-action debriefing after saturation patrols. See Deposition of Joseph Sousa dated 12/10/09 at p. 24, lns. 9-20, attached as Exhibit 5 (“Q. After these sweeps occur, do you have debriefing meetings with others? A. Yes, we do….”).
“The MCSO conducts a debriefing after each operation to identify any issues that need to be addressed in future operations. The nature of the debriefing and what is included in an after-action report is ultimately a decision made by the Sheriff or his designee.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement: The Plaintiffs’ citation to pages 56-59 do not support their statement.
While Defendants do not dispute this statement as an accurate citation to one of the points addressed by Lt. Sousa, this statement as used by Plaintiffs is misleading and incomplete.
Lt. Sousa concluded that racial profiling was not a concern based on the following factors: (a) the training and education of the deputies; (b) the supervision of the deputies by himself and his sergeants during saturation patrols; and (c) his knowledge and familiarity with the deputies under his command and the resulting trust that he had in those deputies. See Deposition of Joseph Sousa dated 12/10/09 at p. 136, ln. 22 to p. 137, lm. 3 (training); p. 29, lns. 11-23 (supervision); and p. 135, lns. 13-17 (knowledge and familiarity with his staff), attached as Exhibit 5.
Disputed.
Controverting Statement. While Defendants do not dispute that Arpaio testified that there is not a need for specific “regular” training on the subject matter of racial profiling, the statement is misleading as used
92

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 93 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 166 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

in the Plaintiffs’ motion and is taken out of context. The section cited by Plaintiffs shows that Arpaio explained the reasons why he believed there was little risk of racial profiling occurring at the time of his deposition (he was not addressing the previous question about the need for racial profiling training that already was asked and answered at p. 41, lns. 12-19). Arpaio testified: “I have confidence in my staff and they know how to supervise our deputies and our detention officers, so I rely on their expertise and management abilities.” See Deposition of Joseph Arpaio dated 12/16/09 at p. 41, lns. 20-25, attached as Exhibit 16.
The evidence also shows that MCSO deputies receive training on racial profiling:
“The MCSO provides academy training to deputies emphasizing that racial profiling is unacceptable conduct. The deputies that were 287(g) received additional training from ICE personnel. This training is reinforced at each saturation patrol operation briefing as it is contained in the operations plan. The effectiveness of training is not measured by how recently the training was done or how frequently it is presented, but measured by how well the deputies conduct and performance reflect the performance objectives of the training. Mr. Kidd [of ICE] stated that during ICE training for 287(g) certification, there is a block of instruction that discusses racial profiling and that it is prohibited.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Admit in part and disputed in part.
Controverting Statement: Defendants do not dispute the cited section regarding former Chief Deputy David Hendershott, Chief Brian Sands, and Lt. Joseph Sousa testifying to their memory that they are unaware of the MCSO needing to discipline a deputy for racial profiling. Defendants, however, dispute the description of Arpaio’s testimony because it is taken out of context and misleading as used in the motion.
The question and answer exchange on the pertinent subject related to whether Arpaio would personally view himself as being harmed by
93

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 94 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

racial profiling in a traffic stop:
“Q. If you’re stopped on the road because you’ve been racially profiled, but you actually haven’t committed a crime, would you think that you’ve been harmed?
A. Me, personally?
Q. Yes.
A. It would not bother me.”
See Deposition of Joseph Arpaio dated 11/16/10 at p. 284, ln. 25 to p. 285, ln. 7, attached as Exhibit 15 (emphasis added).
The Defendants further dispute that Arpaio’s personal view as to whether he would be “harmed” by being racially profiled does not mean that either he or any of his employees believe it is acceptable to racial profile. Arpaio testified that racial profiling is morally wrong. See Deposition of Joseph Arpaio dated 12/16/09 at p. 113, lns. 10-11; 115, lns. 2-17, attached as Exhibit 16; see also Arpaio Deposition dated 11/16/10 at p. 77, lns. 22-23, attached as Exhibit 15. Arpaio further testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I can say, we don’t do that. We don’t stop people by their appearance.”).
Chief Sands testified that racial profiling is morally wrong. See Deposition of Brian Sands dated 12/14/09 at p. 147, ln. 20 to p. 148, ln. 5, attached as Exhibit 14. Chief Sands further understands that racial profiling is illegal. See Deposition of Brian Sands dated 11/15/10 at p. 92, ln. 24 to p. 93, ln. 1, attached as Exhibit 14.
MCSO Lieutenant Joseph Sousa, the head of MCSO’s Human Smuggling Unit (“HSU”), and one of the top planners for executing and supervising saturation patrols, testified that racial profiling is prohibited by MCSO policy, is illegal, and HSU members do not racially profile. See Deposition of Joseph Sousa dated 12/10/09 at p.135, ln. 24 to p. 136, ln. 17, attached as Exhibit 5; see also Sousa Deposition dated 10/22/10 at p. 30, lns. 14-17, attached as Exhibit 19.
HSU Sergeant Manuel Madrid, one of two supervising sergeants for the unit, and a Latino himself, testified that racial profiling is illegal, that race or ethnicity can never be used in making a traffic stop, and that the HSU members he supervises do not racially profile. See Deposition of
94

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 95 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Manuel Madrid dated 10/27/09 at p. 20, lns. 14-23; p. 195, lns. 15-17l, and p. 202, 18-22, attached as Exhibit 10.
HSU Sergeant Brett Palmer, the remaining supervisory sergeant for the unit, testified that racial profiling is wrong and illegal, and that the HSU members he supervises do not racially profile. See Deposition of Brett Palmer dated 10/23/09 at p. 36, lns 10-25; p. 135, lns. 5-25; p. 139, ln. 21 to p. 140, ln 18; p. 145, lns. 12-25; and p. 153, lns. 13-15, attached as Exhibit 9.
Louis DiPietro, the deputy that made the traffic stop on Plaintiff Melendres, knows and understands that racial profiling is illegal. See Deposition of Louis DiPietro dated 10/21/09 at p. 87, lns. 17-19, attached as Exhibit 13. Race was not a factor in Deputy DiPietro’s finding that he had probable cause to stop the truck in which Plaintiff Melendres was a passenger. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 125-126
Matthew Ratcliffe, the deputy that made the traffic stop on the Rodriguez Plaintiffs knows and understands that racial profiling is illegal and wrong. See Deposition of Matthew Ratcliffe dated 10/15/09 at p. 115, lns.18-25, attached as Exhibit 6. Race was not a factor in Deputy Ratcliffe’s finding that he had probable cause to stop the truck in which the Rodriguez Plaintiffs were driving or occupying. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 132-135.
Michael Kikes, the deputy that made the traffic stop on the Plaintiffs Meraz and Nieto knows and understands that racial profiling is illegal and wrong. See Deposition of Michael Kikes dated 02/15/10 at p. 46, lns. 14-17, p. 108, lns. 9-15, attached as Exhibit 7. Race was not a factor in Deputy Kikes’ finding that he had probable cause to stop the truck in which Plaintiffs Meraz and Nieto were driving or occupying. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 85-86.
Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p. 235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.
The MCSO has a policy prohibiting racial profiling. See Deposition of
95

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 96 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 167 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Brian Sands dated 12/14/09 at p. 194, lns. 14-17, attached as Exhibit 14. The MCSO instructs each of its deputies that are to participate in a saturation patrol during the pre-saturation patrol briefing that they are not to racially profile any person during the up-coming saturation patrol that day. Id. at p. 194, lns. 18-21; see also p. 195, lns. 2-5.
Each MCSO deputy has undergone education and training about the improper and unlawful use of race in law enforcement, i.e., racial profiling, while at the police academy at the start of their law enforcement careers. Id. at p. 194, ln. 22 to p. 195, ln. 1. When the deputy graduates from the police academy and joins the MCSO for active duty, he or she is taught about the MCSO policy and prohibition again racial profiling. Id.
Finally, the Defendants further dispute that Arpaio’s personal view as to whether he would be “harmed” by being racially profiled does not mean that either he or any of his employees believe it is acceptable to racial profile or that he or any MCSO deputy or employee had racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general.
Disputed.
Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in its documentation of saturation patrols. Mr. Click testified:
“The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling effect on law enforcement activity, putting the communities’ safety at great risk. Not collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best. These include such as community demographics, officer experience level, officer training, officer performance history, officer work ethic, location assigned, traffic/pedestrian volume, different duties, call volume and the nature of investigations officer can be involved in.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 45-46 attached thereto as Exhibit
96

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 97 of 174

1 2 3 4 5 168 6 7 8 9 10 11 12 13 14 15 16 17 169 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately to prepare for, conduct, monitor, and supervise its saturation patrols. See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 43-48 attached thereto as Exhibit 16 (containing his bullet points of miscellaneous opinions in response to the opinions of Plaintiffs’ police practices/racial profiling expert Robert Stewart, including but not limited to Mr. Click’s opinion that “there is no evidence that any deputy [during an saturation patrol] lacked appropriate supervision” (bullet point at p. 44)); see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.
Controverting Statement. This statement is misleading.
HSU Sergeant Brett Palmer, a supervisory sergeant for HSU, testified that racial profiling is wrong and illegal, and that the HSU members he supervises do not racially profile. See Deposition of Brett Palmer dated 10/23/09 at p. 36, lns 10-25; p. 135, lns. 5-25; p. 139, ln. 21 to p. 140, ln 18; p. 145, lns. 12-25; and p. 153, lns. 13-15, attached as Exhibit 9.
As stated by defense police practices expert Bennie Click:
“Every MCSO deputy and supervisor deposed understood, without equivocation, that racial profiling is wrong, a serious crime and could result in the loss of their jobs. This understanding by all personnel is a strong motivator not to racially profile any person.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16;
97

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 98 of 174

1 2 3 4 5 6 7 8 170 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 as section (A) set forth above.
Disputed.
Controverting Statement: While Defendants do not dispute the statements that ICE personnel did attend all saturation patrols or personally observe all traffic stops, the statement is misleading as used in the Plaintiffs’ motion and omits the following material contraverting facts:
ICE Special Agent in Charge Alonzo Pena
• While Mr. Alonzo Pena was ICE SAC in Phoenix, he never had an occasion to report an MCSO 287(g) certified deputy for racial profiling. See September 30, 2010 Deposition of Alonzo Rafael Pena at p. 60, lns. 7-10, attached as Exhibit 1.
• While Mr. Pena was ICE SAC in Phoenix, he never had to confront the Maricopa County Sheriff’s Office with an allegation that any of its deputies may have been engaged in racial profiling. Id. at at p. 60, lns. 11-13.
• While Mr. Pena was ICE SAC in Phoenix, he never reported to ICE headquarters in Washington, D.C. that any deputy from the Maricopa County Sheriff’s Office may have been engaged in racial profiling. Id. at p. 60, lns. 14-18.
• While Mr. Pena was ICE SAC in Phoenix, he did not have concern about, or voice a complaint to anyone about, the fact that the MCSO was identifying suspected illegal aliens during traffic stops. Id. at p. 93, ln. 21 to p. 94, ln. 21.
• While Mr. Pena was ICE SAC in Phoenix, he was aware that MCSO non-287(g) certified officers that had made lawful traffic stops and had reasonable suspicion that someone in the vehicle may be in the country unlawfully were calling for assistance of 98

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 99 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

MCSO 287(g) certified officers. Id. at p. 96, ln. 23 to p. 98, ln. 20.
• During the 2008 ICE audit of the 287(g) field program between ICE and the MCSO, the United States Attorney’s Office responsible for immigration issues had no complaint about the MCSO’s 287(g) program or the MCSO’s compliance with the Memorandum of Agreement between ICE and the MCSO. Id. at p. 122, ln. 11 to p. 123, ln. 10.
• Mr. Pena testified that the MCSO did not violate the Memorandum of Agreement in any manner except on one occasion in regards to providing the public with information and/or publicity. Id. at p. 156, ln. 25, to p. 157, ln. 10.
• At no time did Mr. Pena ever write to Sheriff Arpaio or the MCSO any letter or email providing them with a warning or admonition about the MCSO’s use of 287(g) authority. Id. at p. 157, lns. 12-19, attached as Exhibit 1
ICE Assistant Special Agent in Charge Jason Kidd
• Mr. Jason Douglas Kidd is an ICE employee and served in 200609 in Phoenix, Arizona either as an ICE Group Supervisor, or an ICE Assistant Special Agent in Charge, or as an ICE Acting Deputy Special Agent in Charge for the Phoenix ICE office. See October 1, 2010 Deposition of Jason Douglas Kidd at p. 11, lns. 10 to p. 12, ln. 2, attached as Exhibit 2.
• Mr. Kidd worked closely with MCSO personnel in the 287(g) program and the implementation of it under the ICE-MCSO Memorandum of Agreement. Id. at p. 19, lns. 4-9.
• The MCSO advised Mr. Kidd when it was planning on conducting a saturation patrol that might encompass the MCSO’s 287(g) authority. Id. at p. 20, ln. 18 to p. 21, ln. 14. Mr. Kidd also received from the MCSO in advance the MCSO Operations Plans for certain saturation patrols. Id. at p. 34, ln. 18 to p. 35, ln. 11. Mr. Kidd also received from the MCSO post-saturation patrol Shift Summaries. Id. at p. 36, ln. 7 to p. 37, ln. 11.
• Mr. Kidd is familiar with the MCSO’s use of saturation patrols. Id. at p. 25, lns. 6-12. Mr. Kidd attended some MCSO saturation
99

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 100 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 171 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

patrols and stationed himself at the MCSO command center. Id. at p. 26, lns. 3-14. Mr. Kidd attended some of the saturation patrols as an ICE observer. Id. at p. 27, lns. 13-15.
• Mr. Kidd never expressed to the MCSO any criticism of its use of saturation patrols. Id. at p. 31, lns. 2-8.
• Mr. Kidd was knowledgeable or aware of the fact that the MCSO saturation patrols were using violations of the Arizona motor vehicle equipment and moving codes to make traffic stops of persons. Id. at p. 33, lns. 4-8. Mr. Kidd was further knowledgeable or aware of the fact that during MCSO conducted traffic stops MCSO deputies were encountering people in the United States unlawfully. Id. at p. 33, lns. 9-14. Mr. Kidd never expressed in writing, or verbally, to the MCSO any concerns about the MCSO using traffic stops and during those stops identifying people in the country unlawfully. Id. at p. 33, ln. 16 to p. 34, ln. 17.
• ICE was responsible for supervising MCSO 287(g) deputies when they exercised their 287(g) authority. Id. at p. 38, lns. 1619.
• Mr. Kidd never expressed any concern to the MCSO that MCSO 287(g) certified officers were racially profiling Latinos. Id. at p. 42, 15-21.
• Mr. Kidd has no knowledge that any MCSO 287(g) deputy ever used race as a basis for making a traffic stop or in using their 287(g) authority. Id. at p. 43, lns. 6-18.
Admit with clarification.
While Deputy DiPietro considered the operation a saturation patrol, it is not the type of “saturation patrol” complained of by the Plaintiffs’ in their First Amended Complaint. Plaintiffs complain of saturation patrols where MCSO deputies make wide spread traffic stop violations based on any vehicle for any probable cause or reasonable suspicion, not specific isolation of a vehicle leaving a specific location under law enforcement surveillance. At the Good Sheppard of the Hills Church, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that
100

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 101 of 174

1 2 3 172 4 5 6 7 8 9 10 11 12 13 173 14 15 16 17 18 19 20 21 22 174 23 175 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

had left the property. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12.
Disputed.
Controverting Statement: On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. Id.
Disputed.
Controverting Statement: On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. Id.
Admit.
Disputed.
Controverting Statement: On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems. See Defendants’ Statement of
101

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 102 of 174

1 2 3 4 5
176 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. Id.
Disputed.
Deputy DiPietro had no reason to believe that any passengers of the truck had committed any violation of Arizona criminal law. However, he had reason to believe that the truck’s passengers may have been in the United States unlawfully. On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. Id. Mr. Melendres and the other persons were picked up by the driver of the white colored truck at the church that was under HSU surveillance. Id. at ¶ 15.
The fact that Deputy DiPietro suspected the truck’s occupants of being in the country unlawfully based on the HSU surveillance, is immaterial to the probable cause for the traffic stop under Fourth Amendment analysis. Whren v. United States, 517 U.S. 806, 810 (1996) (addressing Fourth Amendment analysis only).
Likewise, Deputy DiPietro’s reasonable suspicion that the truck’s occupants might be in the country unlawfully based on the HSU surveillance does not support the conclusion that he stopped the truck due to racially discriminatory intent or motive under Fourteenth Amendment analysis. Deputy Louis DiPietro testified that, in his experience, most day laborers in Maricopa County are from Mexico or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13. Deputy Carlos Rangel, based on his experience, shares this observation. See Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached
102

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 103 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
177 17
178 18 179 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

as Exhibit 11. It is the law enforcement experience of others in the MCSO that most illegal immigrants in Maricopa County originate from Mexico or Central or South America. See, e.g., Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16.
The law enforcement experience of the MCSO that most of the illegal immigrants in Maricopa County come from Mexico is supported by the objective, race-neutral facts. “It is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” Defendants’ Statement of Facts (Dkt#413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).
Admit.
Admit.
Disputed.
Controverting Statement: Defendants dispute the timing of events as suggested by Plaintiffs. Deputy DiPietro contacted the Melendres truck’s driver, and based on information provided by the driver, formed reasonable suspicion that the truck’s occupants may have been in the country unlawfully. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 18. Deputy DiPietro, therefore, called on his radio for a 287(g) MCSO deputy to assist at the stop to investigate the truck’s occupants. Id. at ¶ 19. MCSO Deputy Carlos Rangel arrived at the traffic stop within one minute of receiving the call for a 287(g) deputy. Id. at ¶ 20.
Deputy Rangel questioned the truck’s passengers while Deputy DiPietro was simultaneously questioning the driver of the truck. Id. at ¶ 23. The total amount of time Deputy Rangel spent questioning the truck’s passengers was fifteen (15) minutes. Id. at ¶ 34;
103

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 104 of 174

1 2 3 4 5 6 7 180 8 9 10 11 181 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 182 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

In addition, Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix, testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.
Admit.
Objections: This statement is irrelevant to any issues relating to whether Plaintiff Melendres’ rights under the Fourteenth Amendment were violation and, therefore, is a fact immaterial to the Court’s resolution of Plaintiffs’ Motion.
Disputed.
Controverting Statement: There was no prolonged detention of Plaintiff Melendres at the scene of the traffic stop.
Deputy Rangel questioned the truck’s passengers while Deputy DiPietro was simultaneously questioning the driver of the truck. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 23. The total amount of time Deputy Rangel spent questioning the truck’s passengers was fifteen (15) minutes. Id. at ¶ 34; see also Muehler v. Mena, 544 U.S. 93, 101 (2005) (“mere police questioning [regarding identification] does not constitute a seizure unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is required to justify questioning that does not prolong the stop.”); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (holding that officers did not need reasonable suspicion to ask questions of an individual or to ask to examine the individual’s identification); United States v. Turvin, 517 F.3d 1097, 1100-1104 (9th Cir. 2008) (reasonable suspicion is not required to ask questions unrelated to purpose of an initially lawful stop); United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007) (Muehler applies equally to traffic stops); United States v. Soriano-Jarquin, 492 F.3d 495, 500-501 (4th Cir. 2007) (“request for identification from passengers falls within purview of a lawful traffic stop….”).
Disputed.
Controverting Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion. The lack of identification documents is merely one ICE-approved indicator that 287(g) certified deputies may
104

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 105 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

use to develop reasonable suspicion in order to investigate whether a particular person is in the United States lawfully.
There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for when developing reasonable suspicion that a person may be in the United States unlawfully. One ICE-approved indicator is that the person is unable to offer the investigating deputy any identification, such as a driver’s license or identification card, issued either by the United States government or by any of the fifty states. See Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as Exhibit 10; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5, attached as Exhibit 11.
Another ICE-approved indicator is that the person does not speak the English language. See Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as Exhibit 10; see Deposition of Ramon Armendariz at p. 44, lns. 1-4, attached as Exhibit 8; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5, attached as Exhibit 11.
Another ICE-approved indicator is that the person does not possess valid documents. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 53, ln. 10 to p. 54, ln. 25, attached as Exhibit 1
Another number of ICE-approved indicators are: (a) an overcrowded vehicle; (b) none of the occupants have luggage or only small items of property easily transported; (c) the people in the vehicle are unrelated or do not know each other; (d) whether the people in the vehicle are dressed in a disheveled manner; (e) pungent body odor of the people in the vehicle; (f) the vehicle is a known human smuggling corridor. See Deposition of Carlos Rangel dated 10/20/09 at p.95, ln. 12 to p. 96, ln. 12 attached as Exhibit 11; see Deposition of Manuel Madrid dated 10/27/09 at p. 38, ln. 9 to p. 39, ln. 4, attached as Exhibit 10; see Deposition of Brett Palmer dated 11/09/10 at p. 38, ln. 21 to p. 39, ln. 14, attached as Exhibit 12.
Finally, another ICE-approved indicator is that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether someone
105

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 106 of 174

1 2 3 4 5 6 7 8 9 10 11 12 183 13 184 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

may be in the United States unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it couldn’t—it is not to be used solely. It is never to be used just as a—as an individual factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p. 151, lns. 4-9 (“MCSO 287(g) officers can consider race as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”
Although ICE approves of the use of race as one indicator, among several other indicators, as a basis to form reasonable suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
Admit.
Disputed.
Controverting Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion.
Plaintiff Melendres told Deputy Carlos Rangel that he had lawfully entered the United States through a legitimate port of entry, had obtained an I-94 Form, but did not have the I-94 Form with him at the moment. See Defendants’ SOF (Dkt#413-1) at ¶ 30. Plaintiff Melendres also told Deputy Rangel that he was working while on his tourist visa, which made him out-of-compliance with the law. Id. at ¶ 27. Based on Mr. Melendres not having his I-94 Form on him at the time and his statement that he was working, Deputy Rangel detained Mr. Melendres with handcuffs and directed that he be delivered to ICE for handling and/or verification of status. Id. at ¶ ¶ 32-33.
ICE eventually released Mr. Melendres from detention. The ICE agent that determined Mr. Melendres’ status told Deputy Rangel that ICE released Mr. Melendres because it concluded that there was insufficient evidence that Mr. Melendres was actually working during his visit to the United States, and because he had an I-94 Form issued to him, even though he was “out-of-status” at the time of the traffic stop (i.e., not having the I-94 Form on him when questioned by Deputy Rangel). Id. at ¶ 37.
106

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 107 of 174

1 185 2 3 4 5 6 7 8 9 10
186 11
187 12
188 13 14 15 16 17 189 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Controverting Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion.
The total amount of time Deputy Carlos Rangel spent questioning the truck’s passengers, including Plaintiff Melendres, was fifteen (15) minutes at the scene. See Defendants’ SOF (Dkt#413-1) at ¶ 34. All of the truck’s passengers were detained. Id. at ¶ 35. The passengers/detainees were taken to an MCSO substation and held for roughly two hours, and then the MCSO transported them to ICE’s Detention and Removal Office near Central Avenue and McDowell Road where Mr. Melendres waited in federal detention for six to seven hours for federal officials. Id. at ¶ 36.
Admit.
Admit.
Admit with clarification in part and disputed in part .
Controverting Statement: Deputy Ratcliffe denies asking Mr. Rodriguez for his Social Security card. See Defendants’ SOF (Dkt#4131) at ¶ 49. Indeed, Deputy Ratcliffe never asks any driver for his Social Security card. Id.
Disputed.
Controverting Statement: While Defendants acknowledge that Plaintiff David Rodriquez testified to this point, this point is disputed by deputy Ratcliff.
After obtaining Mr. Rodriguez’ identification, Deputy Ratcliffe asked him why he was driving his truck on the closed Bartlett Dam Road. See Defendants’ SOF (Dkt#413-1) at ¶ 50. Mr. Rodriguez stated that “he had driven around the [road closed] sign and was taking the kids down to the lake.” Id. (Mr. Rodriguez admits that he saw a “Road Damaged” sign but drove past it. Id. at ¶ 51. He denied ever seeing a “Road Closed” sign. Id. )
In addition, Defendants refer the Court to their Controverting Statement below in response to paragraph 198 wherein they provide the undisputed evidence that Deputy Ratcliffe had probable cause to stop the Rodriguez vehicle and that he had no racially discriminatory intent or motive in do so.
107

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 108 of 174

1 2 3 190 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Objections: Relevance. Whether Mr. Rodriguez saw the sign or not is immaterial as to whether the Plaintiffs’ Fourteenth Amendment Rights were violated. Disputed and Defendants object to this statement of fact purposes of summary judgment motion practice. It is inadmissible. The Court should strike this statement of fact.
Controverting Statement: While Defendants do not dispute that this statement is contained in the AZ Post Model Lesson Plan: Ttaffic Citations 4 2, the evidence shows that during large scale saturation patrols the MCSO instituted a “zero tolerance” policy where every traffic violator observed would be pulled over, to the extent they could be pulled over, and given a citation.
There was a zero tolerance policy for traffic stops during saturation patrols, i.e., a deputy that observed a moving violation or equipment code violation would be required to stop the vehicle. See Deposition of Brett Palmer dated 10/23/09 at p.56, ln. 2 to p. 58, ln. 16, attached as Exhibit 9 (zero tolerance policy on saturation patrols adopted to try to stop every vehicle with a violation and write tickets to all to avoid charges of racial profiling); see also p. 94, ln. 20 to p. 95, ln. 1 (zero tolerance policy for any traffic or vehicle violations); p. 98, ln. 18 to p. 99, ln. 17 (the zero tolerance for arrests made and the zero tolerance policy for traffic violators); see also Deposition of Manuel Madrid dated 10/27/09 at p. 125, ln. 12 to p. 127, ln. 7, attached as Exhibit 10 (on large scale saturation patrols, there was a zero tolerance policy to pull over and cite all infractions); p. 130, lns. 18-23 (same); see also Deposition of Joseph Sousa dated 12/10/09 at p. 144, lns. 22-25 (on zero tolerance operation, any vehicle that is observed to violate the vehicle or traffic code that can be stopped will be stopped).
Defense police practices expert Bennie Click testified:
“In order to reduce the potential of racial profiling during saturation patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be stopped. This is a reasonable practice. Zero tolerance removed the deputies’ discretion to pick and choose who they stopped.”
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg 46, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that
108

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 109 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13
191 14
192 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Objections:
(A) Relevance: This statement of fact is irrelevant to whether the named Plaintiffs have suffered a constitutional injury and whether there is a zero tolerance in effect during a given saturation patrol.
(B) Hearsay: Defendants object to the use of the AZPOST Model Lesson Plan: Traffic Citations 4 2 on the grounds that it is hearsay of a third party and no exception allows it admissibility into evidence.
(C) Foundation. There is no foundation established for the AZPOST Model Lesson Plan: Traffic Citations 4 2. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”).
Admit.
Disputed.
Controverting Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion.
Upon receipt of the citation, Mr. or Mrs. Rodriguez then told Deputy Ratcliff that he/she did not see any other drivers on the closed road receiving citations. See Defendants’ SOF (Dkt#413-1) at ¶ 54. The race of those drivers was not specified. Id. Deputy Ratcliffe responded by telling Mr. and Mrs. Rodriguez that he was only dealing with them and not dealing with other drivers at that time. Id. It was at this time that Mrs. Rodriguez accused Deputy Ratcliffe of “selective enforcement” in issuing the traffic citation to her husband. Id. at ¶ 55. Mrs. Rodriguez became “argumentative” with Deputy Ratcliffe. Id.
Deputy Ratcliffe did not recall the race of the other drivers he referred to the Tonto National Forest Ranger, and he actually observed the Forest Ranger give citations to those other drivers regardless of their race. Id. at ¶ 138.
Another MCSO officer working Lake Patrol with Deputy Ratcliffe, Deputy Maltz, had on the same day allowed other motorists (of unknown
109

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 110 of 174

1 2 3 4 5 6 7 193 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 194 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

races) to drive on the closed Bartlett Dam Road in order to go to the lake to repair either their recreational vehicles or boats that had been damaged in the storm. Id. at ¶ 139. Deputy Maltz was responsible for deciding whether to cite or warn those drivers, not Deputy Ratcliffe. Id. Deputy Ratcliffe has known Deputy Maltz for 2.5 years and does not believe that Deputy Maltz’ decision to allow other people to use Bartlett Dam Road to repair their property without the issuance of a traffic citation was based in any way on racial considerations. Id. at ¶ 140.
Disputed.
Controverting Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion.
Deputy Ratcliffe stopped the truck and asked Mr. Rodriquez for his driver’s license, vehicle registration, and proof of insurance documents. See Defendants’ SOF (Dkt#413-1) at ¶ 47. He also asked Mr. Rodriquez for his Social Security number so he could complete the MCSO citation form which includes a space for recording such information. Id. at ¶ 48. Mr. and Mrs. Rodriguez asked Deputy Ratcliffe why he asked for David’s Social Security number. Id. at ¶ 52. Deputy Ratcliffe explained that it was for identification purposes only and to fill in the blanks on the MCSO citation form. Id. There is no evidence of badgering by Deputy Ratcliffe for the social security number, including in the sections cited by Plaintiff.
After completing the traffic stop, Deputy Ratcliffe drove behind the Rodriguez’ truck as it left the area. He was behind the Rodriquez truck for roughly two miles, not to escort them out, or to harass or intimidate them, but in order for Deputy Ratcliffe to reach the location where he could take a picture of the “Road Closed” sign. Id. at ¶ 59. “Due to the argumentative nature of the passenger in the vehicle [Mrs. Rodriguez], [Deputy Ratcliffe] wanted to take photographs of the ‘Road Closed’ sign and the ‘Road Closed Ahead’ signs for later defense in court.” Id. Mr. Rodriguez later pled responsible to the citation. Id.
Disputed.
Controverting Statement: This statement is misleading because it suggests, as used in Plaintiffs’ Motion, that Deputy Ratcliffe asked Plaintiff David Rodriguez for his identification after issuing the actual traffic citation to Mr. Rodriguez. That is not accurate. Deputy Ratcliffe asked Plaintiff David Rodriguez for his identification before filling out
110

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 111 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
195 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

the citation and before giving the citation to him.
Deputy Ratcliffe stopped the truck and asked Mr. Rodriquez for his driver’s license, vehicle registration, and proof of insurance documents. See Defendants’ SOF (Dkt#413-1) at ¶ 47. He also asked Mr. Rodriquez for his Social Security number so he could complete the MCSO citation form, which includes a space for recording such information. Id. at ¶ 48.
After obtaining Mr. Rodriguez’ identification, Deputy Ratcliffe asked him why he was driving his truck on the closed Bartlett Dam Road. Id. at ¶ 50. Mr. Rodriguez stated that “he had driven around the [road closed] sign and was taking the kids down to the lake.” Id. Mr. and Mrs. Rodriguez asked Deputy Ratcliffe why he asked for David’s Social Security number. Id. at ¶ 52. Deputy Ratcliffe explained that it was for identification purposes only and to fill in the blanks on the MCSO citation form. Id. Deputy Ratcliffe performed via radio a records check on the Rodriguez’ truck and then issued a citation to Mr. Rodriguez for failure to obey a traffic control device (i.e., the “Road Closed” sign). Id. at ¶ 53. He determined that a citation was appropriate in his discretion because of the safety risk inherent in driving on the closed road. Id.
Upon receipt of the citation, Mr. Rodriguez asked Deputy Ratcliffe what possible affect such a citation would have on his commercial driver’s license, and either Mr. or Mrs. Rodriguez then told Deputy Ratcliff that he/she did not see any other drivers on the closed road receiving citations. Id. at ¶ 54. Deputy Ratcliffe responded by telling Mr. and Mrs. Rodriguez that he was only dealing with them and not dealing with other drivers at that time. Id. It was at this time that Mrs. Rodriguez accused Deputy Ratcliffe of “selective enforcement” in issuing the traffic citation to her husband. Id. at ¶ 55. Mrs. Rodriguez became “argumentative” with Deputy Ratcliffe. Id. According to Deputy Ratcliffe, neither Mr. nor Mrs. Rodriguez ever told him that they had not seen the “Road Closed” sign, or that they were off-road driving and must have missed seeing the sign. Id. at ¶ 56.
Disputed.
Controverting Statement: The Plaintiffs’ cited portion of the record does not support the statement that “Officers regularly leave this block blank.”
The remaining part of the statement is misleading because it suggests that an MCSO deputy cannot ask for other forms of identification. The
111

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 112 of 174

1 2 3 4 5 6 7 8 9 10 11 12 196 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

cited policy Melendres MCSO 14926-28 (MCSO Policy & Procedure Contacts and Citation Issuance at p. 14927) does not limit what a deputy in the field can ask for in terms of identification.
An MCSO deputy can ask a driver or person for another other form of identification to try to determine who the person is in terms of identity. See Deposition of Joe Sousa dated 12/10/99 at p. 230, lns. 18-22, attached as Exhibit 5; Deposition of Ramon Armedariz dated 11/08/10 at p. 30, lns. 8-19, attached as Exhibit 8.
If an MCSO deputy asks a person for their social security number and the driver or person refuses it, the deputy must accept that refusal. See Deposition of Joe Sousa dated 12/10/99 at p. 228, ln. 22 to p. 229, ln. 6; p. 257, ln. 24 to p. 258, ln. 12, attached as Exhibit 5; Deposition of Matthew Ratcliffe dated 10/15/09 at p. 98, lns. 1-5, attached as Exhibit 6; Deposition of Michael Kikes dated 02/15/10 at p. 125, ln. 14 to p. 126, ln. 10, attached as Exhibit 7 Disputed.
Controverting Statement: While the statement that the traffic citation form has a block called “Military Status” is not disputed, the cited portion of the record does not contain testimony that supports the statement that “Deputy Ratcliffe did not insist on this information.”
Objections:
(A) Relevance. The cited MCSO form is immaterial to Plaintiffs’ Fourteenth Amendment Claim. The fact that some MCSO deputies may record “Military Status” on a traffic citation does not mean that a deputy that did not do so (i.e., Deputy Matthew Ratcliffe in the traffic stop involving the Rodriguez Plaintiffs) acted unreasonably or was deficient in his law enforcement practice or acted with racial animus or intent.
(B) Hearsay and Foundation. Defendants further object to the documents on the grounds of hearsay, and lack of foundation. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (explaining that a plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on the plaintiff’s subjective belief that the challenged action was [wrong].”); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992) (“Mere allegations or conjecture supported in the record, are insufficient
112

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 113 of 174

1 2 3
197 4 5 6 7 8 9 10 11 12 13 14 15 16 17 198 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

to raise a genuine issue of material fact.”); cf. Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969) (“mere suspicion, innuendo, insinuation, and speculation are not substitutes for evidence.”)
Disputed
Controverting Statement: Deputy Ratcliffe did not recall the race of the other drivers he referred to the Tonto National Forest Ranger. See Defendants’ SOF (Dkt#413-1) at ¶ 138. Deputy Ratcliffe actually observed the Forest Ranger give citations to those other drivers regardless of their race. Id.
Another MCSO officer working Lake Patrol with Deputy Ratcliffe, Deputy Maltz, had on the same day allowed other motorists (of unknown races) to drive on the closed Bartlett Dam Road in order to go to the lake to repair either their recreational vehicles or boats that had been damaged in the storm. Id. at ¶ 139. Deputy Maltz was responsible for deciding whether to cite or warn those drivers, not Deputy Ratcliffe. Id. Deputy Ratcliffe has known Deputy Maltz for 2.5 years and does not believe that Deputy Maltz’ decision to allow other people to use Bartlett Dam Road to repair their property without the issuance of a traffic citation was based in any way on racial considerations. Id. at ¶ 140. Again, however, that was a decision of Deputy Maltz, not Deputy Ratcliffe and cannot, therefore, serve as a basis for Mr. Stewart’s opinion as to Deputy Ratcliffe’s alleged racially discriminatory motive.
Disputed and Defendants object to this statement of fact for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this statement of fact. The support for the dispute and objections are as follows:
Controverting Statement: Deputy Ratcliffe had probable cause to stop the Rodriguez truck because it was driving on a closed road. See Defendants’ SOF (Dkt#413-1) at ¶¶ 44-45, and 51-52. Knowingly or unknowingly disobeying a traffic control sign is a violation of Arizona law. A.R.S. § 28-644. Mrs. Rodriguez admits there was probable cause to stop her vehicle. See Defendants’ SOF (Dkt#413-1) at ¶ 112. Mrs. Rodriguez is not even critical of the actual traffic stop. Id. at ¶ 113. Defense expert Mr. Bennie Click testified that Deputy Ratcliffe had probable cause to stop the Rodriguez truck. Id. at ¶ 114. The opinion of Plaintiffs’ own police practices/racial profiling expert, Mr. Robert Stewart, is in accord:
113

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 114 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Q. Based on all the evidence you’ve reviewed, did Deputy Ratcliffe have probable cause to stop the Rodriguez vehicle on the road?
A. Yes.
Id. at ¶ 115 (emphasis added). Moreover, the factual testimony from Mr. and Mrs. Rodriquez as to whether they ever saw the “Road Closed” sign is immaterial. Their own liability expert, Mr. Stewart, testified that Deputy Ratcliffe had probable cause to stop the Rodriguez truck even if Mr. Rodriguez did not see the “Road Closed” sign. Id. at ¶ 116.
Mrs. Rodriguez admits that Deputy Ratcliffe was not acting with racially discriminatory intent or motive:
Q. Do you believe that Deputy Ratcliffe was intentionally trying to deprive you of your constitutional rights?
A. No. Id. at ¶ 133 (emphasis added).
Defense expert Mr. Click testified that there is no direct or circumstantial evidence that Deputy Ratcliffe racially profiled or otherwise acted with racially discriminatory intent or motive toward Mr. and Mrs. Rodriguez. Id. at ¶ 134. Plaintiffs’ expert, Mr. Stewart, has no opinion as to whether Deputy Ratcliffe had racially discriminatory intent or motive in stopping the Rodriguez vehicle:
Q. Is it your opinion that Deputy Ratcliffe had discriminatory intent or motive in stopping the Rodriguez vehicle?
A. Don’t know.
Id. at ¶ 135 (emphasis added).
Objections: (A) Relevance: This statement of fact is irrelevant to whether the named Plaintiffs have suffered a constitutional injury.
(B) Hearsay: Defendants object to the Plaintiffs’ recitation of what unknown persons allegedly told them on the grounds that such statements are hearsay without any exception allowing their admissibility into evidence. There are no names, addresses, or contact
114

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 115 of 174

1 2 3 4 5 6 7 8 199 9 10 11 12 13 14 15
200 16 17 18 19 20 21 22 201 23 202 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

information for the persons that the Plaintiffs supposedly talked to and the Defendants have no ability to cross examine these third parties as to what, if anything, they told the Plaintiffs. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay).
(C) Foundation. There is no foundation that any of the persons that Plaintiffs allegedly spoke to were stopped by MCSO Deputy Matthew Ratcliffe, the deputy who actually stopped the Rodriquez Plaintiffs.
Admit with clarification.
The MCSO’s investigation into the Rodriguez Plaintiffs’ traffic stop/citation concluded that Deputy Matthew Ratcliffe acted in accordance with MCSO policy and that there was “no basis for the accusation of racial profiling.” Document Melendres MCSO 000001-03 at p. 02 (Hickey Dec. Ex. 118) (handwritten conclusion of MCSO lieutenant). In addition, during the investigation Plaintiff Jessica Rodriguez “apologized [to the MCSO] for throwing out the ‘Race Card”, but felt they did not deserve a citation. Id. (text of type written document) (emphasis added).
Disputed
Controverting Statement: This statement of fact is misleading as written. While it is true that the MCSO was conducting a saturation patrol on the referenced date, the Meraz and Nieto Plaintiffs were not pulled over in a traffic stop as part of that saturation patrol. The traffic stop of Ms. Meraz and Mr. Nieto, while occurring when a saturation patrol was simultaneously on-going in the area, was unrelated to that saturation patrol. See Defendants’ SOF (Dkt#413-1) at ¶¶ 64-88.
Admit.
Disputed
Controverting Statement: This statement is misleading as written. As Deputy Ramon Armendariz was handling two arrestees, momentarily a dark colored vehicle (driven by Plaintiff Nieto and occupied by his sister, Plaintiff Meraz) pulled into the convenience mart/gas station and parked directly behind Deputy Armendariz’ patrol car. See Defendants’ SOF (Dkt#413-1) at ¶ 68. Deputy Armendariz was standing in front of his patrol car handling the detained passenger of the car he stopped. Id. The dark colored vehicle was playing load music, the passenger side
115

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 116 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

windows were down, and Deputy Armendariz could see a female passenger (later known to be Ms. Meraz) and a male driver (later known to be Mr. Nieto). Id. at ¶ 69. The female passenger started yelling repeatedly in Spanish out her window at Deputy Armendariz’ detainee sitting on the bumper of the patrol car, “no diga nada,’ ‘no diga nada,’ … which means don’t – ‘don’t say anything,’ ‘don’t say anything’; ‘pida un abogado,’ ‘pida un abogado,’ which means ….‘ask for a lawyer,’ ‘ask for a lawyer.’” Id. at ¶ 70.
At first, Deputy Armendariz tried to ignore the yelling, but the female passenger in the dark colored vehicle kept yelling and he began to fear for his safety. Id. at ¶ 71. Deputy Armendariz, therefore, ordered the driver of the vehicle to leave his vicinity and to stay out of the way. Id. In response to Deputy Armendariz’ command, the female passenger yelled several times that ‘we’re not going anywhere!” Id. at ¶ 72. Deputy Armendariz again ordered that they leave. Id. at ¶ 73. The dark vehicle, however, would not leave. Then the female passenger started yelling at Deputy Armendariz, “fucking Sheriff Joe, fucking Nazi,” and “you guys don't have a right to do this.” Id. at ¶ 74.
Deputy Armendariz was worried about his safety and the safety of the two men he had in custody. Id. at ¶ 75. Because the vehicle with the yelling passenger would not leave, Deputy Armendariz called on his radio for back-up. Id. at ¶ 76.
Despite Deputy Armendariz’ repeated commands for them to leave, the male in the dark colored vehicle then opened his door and started to get out. Id. at ¶ 78. Deputy Armendariz believed that the male was going to get out of the car to “try to kick my ass.” Id. The vehicle occupants appeared very “angry” and were acting “very threatening.” Id. at 79. “[T]heir actions towards [Deputy Armendariz] were as if it was personal towards [him].” Id.
Deputy Armendariz testified as to his state of mind when he saw the male in the vehicle open his door and start to get out:
I had other responsibilities that I was taking care of. I had two people that I was in -- that I had in custody that I was responsible for. I didn’t know if he [Mr. Nieto] was going to come out with a gun. I didn’t know if he was going to come out with a knife. Am I going to have to -- am I going to have to defend myself while protecting my suspect that I have in custody? You know, is this going to turn into -- is he going to get out with a knife? Am I going to have to shoot him? Is he going to come out with a gun?
116

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 117 of 174

1 2 3 4 5 6 7 8 9 10
203 11 12 13 14
204 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Am I going to have to spray -- you know, pepper spray to get him away from me? I mean, just the array of, you know, “what-ifs.” That situation could have gone bad, really bad, really quick.
Id. at 80.
Seeing this, Deputy Armendariz grew more worried, in fact he was afraid, and ordered the man to stay in his car or he would be arrested for disorderly conduct. Id. at ¶ 82. In short, the occupants of the vehicle (Ms. Meraz and Mr. Nieto) made “a big scene” at the convenience mart/gas station. Id. at ¶ 83.
Finally, the vehicle’s occupants complied with Deputy Armendariz’ command and left the scene while yelling profanities at him.
Admit with clarification
Plaintiffs’ statement of fact is misleading because it ignores the actions, conduct, and time delay of the Plaintiffs in leaving the property. Defendants refer the Court to the Controverting Statement of Facts contained in response to paragraph no. 202 above.
Disputed
Controverting Statement: Deputy Ramon Armendariz identified the vehicle to MCSO motorcycle Deputy Michael Kikes and then pointed Deputy Kikes in the general direction of the departed vehicle. Deputy Beeks, in a patrol car, followed Deputy Kikes. (Plaintiffs’ Statement of Fact at Kikes deposition at 71, ln. 15 to p. 73, ln. 14). Due to the MerazNieto vehicle’s window tinting, Deputy Kikes could not see the race, sex, or other characteristics of the vehicle’s occupants. See Defendants’ SOF (Dkt#413-1) at ¶ 86.
Additionally, Plaintiffs’ police practices/racial profiling expert, Mr. Robert Stewart, admittedly has no evidence of racially discriminatory intent or motive by Deputy Ramon Armendariz. See Defendants’ SOF (Dkt#413-1) at ¶ 141. According to Mr. Stewart, there is no evidence that Deputy Michael Kikes had racially discriminatory intent or motive in making the traffic stop of the Meraz-Nieto vehicle. Id. at ¶ 143. Finally, Mr. Stewart testified that there is no evidence that Ms. Meraz and Mr. Nieto were racially profiled in either the traffic stop or during their subsequent treatment by the MCSO deputies. Id. at ¶ 144.
117

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 118 of 174

1 205 2 3 4 5 6 7 8 9 10 11 12 206 13 14 15 16 17 18 19 20 207 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed
Controverting Statement: This statement of fact is misleading as written by the Plaintiffs.
MCSO Deputy Douglas Beeks heard Deputy Ramon Armendariz’ radio call for back-up and described Deputy Armendariz’ voice as sounding “excited” and “agitated”. See Defendants’ SOF (Dkt#413-1) at ¶ 77. Deputy Beeks also recalls hearing words used by Deputy Armendariz that led Deputy Beeks to believe in good faith that “a vehicle had tried to run over or hit Deputy Armendariz as it left the area” and that a crime may have been committed. Id. Accordingly, Deputy Beeks was concerned for the safety of Deputy Armendariz. Id.
In addition, the cited section of Deputy Beeks deposition does not state that “he could see that deputy Armendariz was unharmed.” On the other hand, Deputy Beeks testified that Deputy Armendariz told him that “he was okay” p. 120, lns. 9-10. Disputed
Controverting Statement: This statement of fact is misleading as written by the Plaintiffs.
Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came back clear. See Defendants’ SOF (Dkt#413-1) at ¶ 95. Deputy Beeks then contacted Deputy Armendariz to determine what had actually occurred between him and the vehicle’s occupants. Id. at ¶ 96. Following that communication, Mr. Nieto was released without being charged with either a traffic violation (i.e., failure to stop when directed) or for obstructing Deputy Armendariz. Id. at ¶ 97
Disputed
Controverting Statement: Deputy Michael Kikes heard Deputy Ramon Armendariz’ radio call for assistance and believed, based on the pitch of Deputy Armendariz’ voice, that something was wrong at the time of Deputy Armendariz’ call. See Defendants’ SOF (Dkt#413-1) at ¶ 77. Deputy Kikes, therefore,believed in good-faith that he had probable cause to stop the dark colored vehicle (driven by Plaintiff Nieto and occupied by his sister, Plaintiff Meraz) because he believed there was an emergency situation of some type involving Deputy Armendariz. Id. at ¶ 85. Due to the vehicle’s window tinting, Deputy Kikes could not see the race, sex, or other characteristics of the vehicle’s occupants. Id. at ¶ 86.
118

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 119 of 174

1 2 3 4 5 6 7 8 9 10 11 12 208 13 14 15 16 17 18 209 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

While Defendants acknowledge that Plaintiff Nieto testified that he pulled into his family’s auto shop because it was “just south of their location,” Nieto’s refusal to obey Deputy Kikes’ traffic command was a law enforcement concern. Deputy Kikes testified that the driver of the vehicle (i.e., Mr. Nieto) would not stop in response to Deputy Kikes’ signals (in itself a violation of the traffic law), and that Nieto drove another 300 feet until he turned left into an auto shop instead of pulling over on the right side of the public roadway as required by law. Id. at ¶ 87. Deputy Kikes was concerned about the driver’s (Nieto’s) behavior, where he parked, and what that behavior meant. Id. at ¶ 88.
Additionally, defense expert Mr. Bennie Click testified that Deputy Kikes had reasonable suspicion to stop the Meraz-Nieto vehicle. See Defendants’ SOF (Dkt#413-1) at ¶ 118. Plaintiffs’ expert Mr. Stewart agrees that Deputy Kikes had reasonable suspicion under the circumstances that allowed him to properly stop the Meraz-Nieto vehicle. Id. at ¶ 119.
Disputed
Controverting Statement: This statement of fact is misleading as written by the Plaintiffs. Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. See Defendants’ SOF (Dkt#413-1) at ¶ Id. at ¶ 89. He also refused to roll down his window to speak with Deputy Michael Kikes. Id. at ¶ 90. He claims that he was calling 911 to report harassment by the MCSO.
Disputed
Controverting Statement: This statement of fact is misleading as written by the Plaintiffs.
Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. See Defendants’ SOF (Dkt#4131) at ¶ Id. at ¶ 89. He also refused to roll down his window to speak with Deputy Michael Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Douglas Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene, saw the driver acting very “belligerent”, “non-compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks thought that the driver might drive his vehicle forward or backward; therefore, Deputy Beeks pulled his handgun to his side for safety purposes. Id. at ¶ 92. There is no testimony other than from the Plaintiffs Nieto and Meraz that other deputies had their guns drawn and there is no testimony that any MCSO
119

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 120 of 174

1 2 3
210 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

deputy ever “pointed [their gun] at [Plaintiffs].” The Plaintiffs’ cited authority from MCSO deputy Beeks does not support this statement of fact as written.
Disputed
Controverting Statement: This statement of fact is misleading as written by the Plaintiffs.
The driver of the vehicle (i.e., Mr. Nieto) would not stop in response to Deputy Michael Kikes’ signals (in itself a violation of the traffic law), and he drove another 300 feet until he turned left into an auto shop instead of pulling over on the right side of the public roadway as required by law. See Defendants’ SOF (Dkt#413-1) at ¶ 87. Deputy Kikes was concerned about the driver’s behavior, where he parked, and what that behavior meant. Id. at ¶ 88.
Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. Id. at ¶ 89. He also refused to roll down his window to speak with Deputy Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene, saw the driver acting very “belligerent”, “non-compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks thought that the driver might drive his vehicle forward or backward; therefore, Deputy Beeks pulled his handgun to his side for safety purposes. Id. at ¶ 92.
Finally, Deputy Kikes opened the vehicle’s door, grabbed the driver, and removed him from the vehicle where he then handcuffed him. Id. at ¶ 93. Deputy Kikes moved the driver to the rear of the vehicle away from the angry mechanics and obtained his driver’s license information. Id. at ¶ 94.
Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came back clear. Id. at ¶ 95. Deputy Beeks then contacted Deputy Armendariz to determine what had actually occurred between him and the vehicle’s occupants. Id. at ¶ 96. Following that communication, Mr. Nieto was released without being charged with either a traffic violation (i.e., failure to stop when directed) or for obstructing Deputy Armendariz. Id. at ¶ 97.
Additionally, Deputy Kikes’ post-traffic stop treatment of Mr. Nieto (i.e., removing him from the vehicle and handcuffing him) was not
120

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 121 of 174

1 2 3 4
211 5 6 7 8 9 10 11 12 212 13 14 15 16 17 213 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

unreasonable. Plaintiffs’ police practice/racial profiling expert Mr. Robert Stewart testified that Deputy Kikes acted “reasonably” in his post-stop conduct and treatment of Mr. Nieto. See Defendants’ SOF (Dkt#413-1) at ¶ 120.
Disputed
Controverting Statement: Plaintiff Nieto pulled his vehicle into an auto repair shop. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Michael Kikes. See Defendants’ SOF (Dkt#413-1) at ¶ 91. While Plaintiff Nieto and Meraz testified that these unknown men were family members and supposedly identified Nieto and Meraz to the MCSO deputies as United State citizens, the Plaintiff citation to Kikes deposition at p. 79, lns. 11-15 does not support this statement of fact.
Admit with clarification.
Deputy Kikes’ post-traffic stop treatment of Mr. Nieto (i.e., removing him from the vehicle and handcuffing him) was not unreasonable. Plaintiffs’ police practice/racial profiling expert Mr. Robert Stewart testified that Deputy Kikes acted “reasonably” in his post-stop conduct and treatment of Mr. Nieto. See Defendants’ SOF (Dkt#413-1) at ¶ 120.
Disputed
Controverting Statement: This statement of fact is misleading as written by the Plaintiffs.
The driver of the vehicle (i.e., Mr. Nieto) would not stop in response to Deputy Michael Kikes’ signals (in itself a violation of the traffic law), and he drove another 300 feet until he turned left into an auto shop instead of pulling over on the right side of the public roadway as required by law. See Defendants’ SOF (Dkt#413-1) at ¶ ¶ 87. Deputy Kikes was concerned about the driver’s behavior, where he parked, and what that behavior meant. Id. at ¶ 88.
Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. Id. at ¶ 89. He also refused to roll down his window to speak with Deputy Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene, saw the
121

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 122 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 214 14 15 16 17 18 19 20 21 22 215 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

driver acting very “belligerent”, “non-compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks thought that the driver might drive his vehicle forward or backward; therefore, Deputy Beeks pulled his handgun to his side for safety purposes. Id. at ¶ 92.
Finally, Deputy Kikes opened the vehicle’s door, grabbed the driver, and removed him from the vehicle where he then handcuffed him. Id. at ¶ 93. Deputy Kikes moved the driver to the rear of the vehicle away from the angry mechanics and obtained his driver’s license information. Id. at ¶ 94.
Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came back clear. Id. at ¶ 95. Deputy Beeks then contacted Deputy Armendariz to determine what had actually occurred between him and the vehicle’s occupants. Id. at ¶ 96. Following that communication, Mr. Nieto was released without being charged with either a traffic violation (i.e., failure to stop when directed) or for obstructing Deputy Armendariz. Id. at ¶ 97
Disputed
Controverting Statement: While Defendants acknowledge that Plaintiff Nieto testified that he supposedly called the MCSO to lodge a complaint, Nieto’s truthfulness is in question. Plaintiff Nieto is a threetime convicted felon who spent 3.5 years in prison for domestic violence and was released from prison only one month earlier in February 2008. Defendants’ SOF (Dkt#413-1) at ¶ 81. In addition, Nieto never wrote a written complaint about the MCSO’s alleged conduct and send it to anyone. See Deposition of Manuel Nieto, Jr. at p. 31, lns. 9-14, attached as Exhibit 4. After everything he alleges he experienced, Nieto still did not write a complaint to the MCSO, the City of Phoenix Police Department, or the FBI. Id. at p. 32, lns. 9-20.
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is, in whole or in part, inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed
122

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 123 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course be limited to the inadequacy that produced the injury in fact that the [named] plaintiff has established. This is no less true with respect to class actions than with respect to other suits.”; see also at p. 357 “That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”’); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995) (“The nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation” to the named plaintiffs; not by reference to what other non parties claim) (citation and internal quotation marks omitted); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007) (alleged injury by unnamed class members irrelevant to determination of named plaintiffs’ claims.
In addition, the Urteaga declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle or at the specifically mentioned saturation patrol.
It is undisputed that the traffic stop of Plaintiffs Jessica and David Rodriguez did not occur during a saturation patrol. DSOF (Dkt# 413-1) at ¶¶ 42-43. The traffic stop of Plaintiffs Meraz and Nieto, while occurring when a saturation patrol was on-going nearby, did not occur as a result of a saturation patrol. DSOF (Dkt# 413-1) at ¶¶ 64-88. Finally, the traffic stop of Plaintiff Melendres technically could be considered as part of an MCSO saturation patrol, and was considered as such by Deputy DiPietro, but the operation was actually a small HSU detail targeting only specific vehicles that had picked up persons from a suspected human smuggling drop house/day laborer location, and did not involve the MCSO making general traffic stops of any vehicles other than those that had visited the church property and picked-up passengers and where probable cause was found to stop those particular vehicles. DSOF (Dkt# 413-1) at ¶ 12. Even if Melendres stop occurred during a saturation patrol, that stop was not during the declarant’s saturation patrol.
123

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 124 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The declarant represents that his stop occurred on January 2, 2009. The traffic stop of Plaintiff Melendres occurred on September 26, 2007. DSOF (Dkt# 413-1) at ¶ 12. The traffic stop of the Rodriguez Plaintiffs occurred on December 2, 2007. Id. at ¶ 40. The traffic stop of Plaintiff Meraz and Nieto occurred on March 28, 2009. Id. at ¶ 63.
The declaration is irrelevant, and Court should not consider this declaration for this reason.
(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by name or serial number any of the deputies he supposedly encountered, there is no meaningful way that Defendants could identify the deputies and obtain their knowledge about what occurred with the declarant, if anything.
The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The unknown and unidentified deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
(C) Lack of Foundation and Speculation. Declarant’s first statement at ¶ 10 (“I believe that the first MCSO deputy was trying to intimidate me by asking me for proof of my citizenship.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (explaining that a plaintiff may not defeat a defendant’s
124

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 125 of 174

1 2 3 4 5 6 7 8 9 10
216 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

motion for summary judgment “by relying solely on the plaintiff’s subjective belief that the challenged action was [wrong].”); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992) (“Mere allegations or conjecture supported in the record, are insufficient to raise a genuine issue of material fact.”); cf. Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969) (“mere suspicion, innuendo, insinuation, and speculation are not substitutes for evidence.”)
Declarant’s final statement at ¶ 10 (“I believe that I was pulled over solely because I am Latino.”) lacks the foundation to support this conclusion and is inadmissible speculation and conjecture. Cox, 2005 U.S. Dist. LEXIS 26344; Cornwel,, 439 F.3d at1028-29 n.6; August, 981 F.2d at 580; Shaneman, 461 P.2d at 98”).
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is, in whole or in part, inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).
In addition, the Magos declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the 14th Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.
(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its
125

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 126 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 217 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

admission into evidence. Defendants also lack the ability to effectively cross-examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay).
The declaration also contains another layer of hearsay in that it purports to relate the statement of an MCSO deputy (“Don’t go thinking this is racial profiling”) and it does not constitute an admission in this case, and what “my daughter’s boyfriend” did or did not do and the MCSO’s response. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
(C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 17 (“I believe that we were stopped and harassed because of the color of our skin.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (explaining that a plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on the plaintiff’s subjective belief that the challenged action was [wrong].”); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992) (“Mere allegations or conjecture supported in the record, are insufficient to raise a genuine issue of material fact.”); cf. Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969) (“mere suspicion, innuendo, insinuation, and speculation are not substitutes for evidence.”)
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed
126

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 127 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).
In addition, the Garcia declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle on the occasions identified in the declaration.
(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by specific date or time, or location, or the name or serial number any of the deputies he supposedly encountered, there is no meaningful way that Defendants could identify the deputies and obtain their knowledge about what occurred with the declarant, if anything.
The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The unknown and unidentified deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
(C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 10 (“We believe that we were stopped each time because we are
127

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 128 of 174

1 2 3 4 5
218 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Hispanic, and not because of anything we had done wrong.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969).
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).
In addition, the Villaman declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.
(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay).
128

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 129 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 219 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The declaration also contains another layer of hearsay in that it purports to relate the statement sof three MCSO deputies and those statements do not constitute admissions in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputies are not defendants to this action and the fact that they are employees of the MCSO does not equate to their purported statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
(C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 19 (“I believe that I was stopped not because I had done anything wrong, but because of the color of my skin.”) is inadmissible speculation and conjecture, and lacks foundation. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969)
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).
In addition, the Cosio declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.
129

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 130 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 220 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

(B) Hearsay. The declaration contains hearsay in that it purports to relate the statements of an MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
(C) Lack of Foundation and Speculation. Declarant’s first statement at ¶ 14 (“I believe that I was targeted for investigation based on the color of my skin.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969) (“mere suspicion, innuendo, insinuation, and speculation are not substitutes for evidence.”).
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007)..
In addition, the Escamilla declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the 14th Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.
130

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 131 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14
221 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay).
The declaration also contains another layer of hearsay in that it purports to relate the statements of an MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995; Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).
In addition, the Smith declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s
131

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 132 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 222 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

vehicle.
(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by name or serial number the deputy supposedly encountered, there is no meaningful way that Defendants could identify the deputies and obtain their knowledge about what occurred with the declarant, if any thing.
The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The unknown and unidentified deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
(C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 9 (“I believe that we were pulled over not because I was speeding, but because of [his family member’s] Hispanic appearance.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) ;August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969) .
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
132

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 133 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Objections:
(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007)
In addition, the Solis declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.
(B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by name or serial number any of the deputies she supposedly encountered, there is no meaningful way that Defendants could identify the deputies and obtain their knowledge about what occurred with the declarant, if any thing.
The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The unknown and unidentified deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.
133

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 134 of 174

1 2 3 4 5 6 7 223 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

(C) Lack of Foundation and Speculation. Declarant’s first statement at ¶ 10 (“I believe that the deputy treated us rudely and asked Jaime about his legal status because of his Hispanic ethnicity and that of our sons.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992) Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969).
Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:
Objections:
(A) Relevance: This traffic stop occurred during the execution of an MCSO search warrant at a business called Handyman Maintenance, Inc. and is the subject of a separate lawsuit by the Moras for money damages. See Mora v. Arpaio, United States District Court for the District of Arizona, No. CV 09-01719-PHX-DGC
This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007)
In addition, the Mora declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.
(B) Lack of Foundation and Speculation. Declarant’s final statement at ¶ 10 (“I believe that we were pulled over solely because we are Latino) lacks foundation for this statement and is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union,
134

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 135 of 174

1 2 3 4 224 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimted, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969).
Admit in part and disputed in part.
Controverting Statement: While Defendants admit that SOMOS America is a membership organization that includes individual and organization members, and that it has used resources to oppose Arpaio’s law enforcement policies, they deny there is any admissible evidence that some members of the organization have been stopped by the MCSO. The evidence supplied in Defendants’ Statement of Facts (“DSOF”) (Dkt# 413-1) at ¶¶ 150-152 demonstrates that there is no evidence supporting this statement. In addition, the testimony cited by Plaintiffs from the deposition of Lydia Guzman, a Rule 30(b)(6) representative of SOMOS America does not contain admissible evidence (for lack of personal knowledge and foundation) upon which the Court can rely upon to support this statement made by Plaintiffs.
Objections:
(A) Relevance: The statement that “[s]ome members of Somos America have been stopped by MCSO” is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course be limited to the inadequacy that produced the injury in fact that the [named] plaintiff has established. This is no less true with respect to class actions than with respect to other suits.”; see also at p. 357 “That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”’); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995) (“The nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation” to the named plaintiffs; not by reference to what other non parties claim) (citation and internal quotation marks omitted); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007) (alleged injury by unnamed class members irrelevant to determination of named plaintiffs’ claims.
135

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 136 of 174

1
2
3 225
4 226
5 227
6 228
7 229
8 230
9 231
10 232 11 233 12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

In addition, the statement that the Somos America “organization has also had to divert resources in responses to MCSO’s actions” is irrelevant to whether the named Plaintiffs have suffered a constitutional injury.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admit.
Admitted in part and disputed in part.
Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that he conducted an analysis of the MCSO’s CAD database for possible racial and ethnic patterns and differences, with a focus on the alleged impact of the MCSO’s saturation patrol operations on Hispanic individuals.
Objections and Controverting Statement:
(A) Relevance. Dr. Taylor’s opinion regarding the impact of the MCSO’s saturation patrol operations on Hispanic individuals is irrelevant under Rule 401, Federal Rules of Evidence. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.”
Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).
Dr. Taylor’s data, and opinion, do not make it more or less probable that the named individual Plaintiffs in this case were the subject of racially discriminatory intent or motive by any MCSO deputy that made the traffic stop on them, or that interacted with them, nor do they show that these Plaintiffs were discriminatorily impacted by the MCSO saturation patrols.
136

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 137 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

It is undisputed that the traffic stop of Plaintiffs Jessica and David Rodriguez did not occur during a saturation patrol. DSOF (Dkt# 413-1) at ¶¶ 42-43. Dr. Taylor’s saturation patrol opinions, therefore, are irrelevant to the determination of whether the Rodriguez Plaintiffs’ Fourteenth Amendment rights were violated.
The traffic stop of Plaintiffs Meraz and Nieto, while occurring when a saturation patrol was on-going nearby, did not occur as a result of a saturation patrol. DSOF (Dkt# 413-1) at ¶¶ 64-88. Dr. Taylor’s saturation patrol opinions, therefore, are irrelevant to the determination of whether the Plaintiffs Meraz and Nieto’s Fourteenth Amendment rights were violated.
The traffic stop of Plaintiff Melendres technically could be considered as part of an MCSO saturation patrol, and was considered as such by Deputy DiPietro, but the operation was actually a small HSU detail targeting only specific vehicles that had picked up persons from a suspected human smuggling drop house/day laborer location, and did not involve the MCSO making general traffic stops of any vehicles other than those that had visited the church property and picked up passengers and where probable cause was found to stop those particular vehicles. DSOF (Dkt# 413-1) at ¶ 12
Plaintiff Somos America’s Rule 30(b)(6) representative, Ms. Lydia Guzman, has never experienced a traffic stop by the MCSO. DSOF (Dkt# 413-1) at ¶ 150. Somos America is a non-profit advocacy organization, with no paid staff, no membership dues, and any person or entity that attends its monthly meetings may consider itself a member of Somos America. Id. at ¶ 151. It has only 35 members such as Latino American Citizens, No More Deaths, MECHHA, and various labor unions, and there is no admissible evidence that any Somos America member -- or employee of a member organization -- has been subject to an MCSO traffic stop. Id. at ¶ 152.
The evidence further shows each of the Plaintiffs was stopped for, and based on, probable cause or reasonable suspicion. DSOF (Dkt# 413-1) at ¶¶ 17, 108, and 109 (Melendres); Id. at ¶¶ 44-45, and 112-116 (Rodriguez); Id at ¶¶ 85 and 117-119 (Meraz and Nieto).
The evidence further shows that the factor of race or ethnicity had no role, and was not a factor or consideration, in any of MCSO’s decisions to make the traffic stops of the Plaintiffs. DSOF (Dkt# 413-1) at ¶¶ 125, 126, 128, 129, and 131 (Melendres); Id at ¶¶ 132-136 (Rodriguez); and at ¶¶ 86, and 141-145 (Meraz and Nieto).
137

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 138 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

In other words, the MCSO stopped each of the Plaintiffs’ vehicles because of the characteristics of the vehicle, not the racial or ethnic characteristics of the occupants of the vehicle.
Finally, because the Plaintiffs were not involved in saturation patrol traffic stops, the opinion of Dr. Taylor’s that arguably would be relevant to any issue related to these named Plaintiffs is Dr. Taylor’s opinions about the MCSO overall traffic stops and the Hispanic percentage of the same. Dr. Taylor conducted a statistical analysis of all the MCSO traffic stops conducted from January 1, 2007 to October 31, 2009 and concluded that Latinos in Maricopa County are stopped by MCSO personnel in roughly the same proportion to their share of Maricopa County’s population. DSOF (Dkt# 413-1) at ¶ 122.
Defense expert statistician Steve Camarota, Ph.D., opines:
[My] findings show that the Hispanic share of those stopped by the MCSO deputies is roughly equal to their proportion of the county and the state’s overall population. About one-third of stops are of individuals with a Hispanic last name, which closely matches their share of the county and state populations. Analysis at the sub-county level also tends to show stops in proportion to local population shares…. Equally important, despite a significant increase in concern over illegal immigration in recent years in the county and state, there was no increase in the Hispanic share of those stopped by MCSO between 2005 and 2009. Overall, the surname analysis shows Hispanics are being stopped at a rate that reflects their share of the population.
DSOF (Dkt# 413-1) at ¶ 123.
(B) Foundation. Dr. Taylor’s opinion regarding the impact of the MCSO’s saturation patrol operations on Hispanic individuals lacks foundation and reliability to be properly admissible and/or considered for purposes of summary judgment motion practice. Under Rule 702, Federal Rules of Evidence, in order for expert testimony to be admissible, it must assist the trier of fact to understand the evidence or determine a fact in issue. Dr. Taylor’s saturation patrol opinions lack foundation and reliability, and are not relevant to the issues regarding the traffic stops of the named Plaintiffs. Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (applying the general principals in Daubert to all expert opinion testimony).
138

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 139 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Dr. Taylor’s saturation patrol opinions lack sufficient foundation and are unreliable because the process in which he reached them, according to him, was “quasi-experimental” in nature. DSOF (Dkt# 413-1) at ¶ 124. His “quasi-experimental” study does not result in definitive findings or conclusions, only “inferences.” Id. California ex rel. Brown v. Safeway, Inc., 615 F.3d 1171, 1181 n.4 (9th Cir. 2010) (“An expert’s opinions that are without factual basis and are based on speculation or conjecture are inadmissible at trial and are inappropriate material for consideration on a motion for summary judgment.”)
Dr. Taylor’s saturation patrol “quasi-experimental” opinions lack sufficient foundation and are unreliable because: (1) he failed to exclude in his underlying analysis those patrols that included a human smuggling interdiction component, or otherwise exclude human smuggling load vehicles found containing multiple illegal immigrants as occupants, which skews his saturation patrol results; (2) he failed to exclude in his underlying analysis duplicate records in the MCSO Computer Aided Dispatch database, which skews his saturation patrol results; (3) he improperly excluded from his analysis thousands of other cases that should have been included in the analysis, which artificially inflates his saturation patrol results (he admits that he excluded 18% of all MCSO traffic stops per year because they did not “align” with Plaintiffs’ case theory or Plaintiffs’ “concerns”); and (4) he failed to account for any socio-economic variables that affected his saturation patrol model. DSOF (Dkt# 413-1) at ¶ 124.
Defense expert Steven Camarota, Ph.D. opines that “CAD data is very complex and difficult to use. Moreover it was not designed for analysis of this kind [referring to Dr. Taylor’s saturation patrol “quasiexperimental” analysis]. DSOF (Dkt# 413-1) at Ex. 19 at p. 22 (Dr. Camarota Report); DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).
Dr. Camarota further testified at length regarding his professional dispute with, and concerns about, Dr. Taylor’s failure to include socio economic variables in his analysis. See Deposition of Steven Camarota, Ph.D. at p. 221, ln. 21 to p. 223, ln. 23, attached as Exhibit 3.
Dr. Camarota explained in great detail the specific problems with Dr. Taylor’s “quasi-experimental” saturation patrol analysis that his opinions are based on and show that Dr. Taylor’s opinions on the subject are inherently unreliable in the field of quantitative analysis. These specific problems center on Dr. Taylor’s data preparation, misunderstanding of the data, misuse of the data, and failure to factor that saturation patrols
139

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 140 of 174

1 2 3
234 4
235 5 6 7 8 9 10 11
236 12 13 14 15 16 17 237 18 19 20 21 22 23 238 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

often focus on human smuggling. DSOF (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pgs. 20-32; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).
Admit.
Admitted in part and disputed in part.
Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that he tried to ensure the robustness of his “quasiexperimental” analysis.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.
Admitted in part and disputed in part.
Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that this was part of his “quasi-experimental” analysis.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Admitted in part and disputed in part.
Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that this was part of his “quasi-experimental” analysis.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Admitted in part and disputed in part.
Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that this was part of his “quasi-experimental” analysis.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.
140

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 141 of 174

1 239 2
3
4 240
5
6
7
8 241 9
10
11 242
12
13
14 15 243
16
17
18 244
19
20
21 22 245
23
24
25 246 26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.
141

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 142 of 174

1 247 2

3

4 248
5

6

7

8 249

9

10

11 250
12

13

14 15 251

16

17

18

19

20

21

22

23

24 252
25

26

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

253

Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Controverting Statement: The Center for Immigration Studies is a 501(c)(3) think tank organization that does not lobby and, therefore, does not “advocate” on immigration as asserted by the Plaintiffs. See Deposition of Steven Camarota, Ph.D. at p. 87, ln. 5 to p. 88, ln. 23; p. 92, lns. 15-20, attached as Exhibit 3. The Center for Immigration Studies has “a lot of diversity [in its] view within our organization.” Id. at p. 87, lns. 13-14. Its overall view regarding immigration is as follows: “I would say that it is a fair characterization to say that we believe in the more moderate pace of immigration, you know, would make sense for the country.” Id. at p. 88, lns. 2-5 That means “lower numbers of people entering the country” and “some changes maybe in selection criteria [of people to enter the country] to more skills-based.” Id. at p. 88, lns. 6-9. Dr. Camarota does not favor immigration quotas based on country of origin. Id. at p. 89, ln. 24 to p. 90, ln. 1. Disputed.
Controverting Statement; While it is not disputed that Dr. Camarota used the MCSO CAD data and U.S. Census data to prepare his opinions, the citations listed by Plaintiffs do support this statement of fact. Disputed.
142

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 143 of 174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 254 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Controverting Statement and Objection: Plaintiffs mischaracterize Dr. Camarota’s opinion by omitting the context in which it was offered. In proper context Dr. Camarota opines then, when trying to use the type of “quasi-experimental” analysis used by Dr. Taylor and given the fact that Dr. Taylor does not factor into his analysis those saturation patrols wherein the HSU written Operations Plan has listed a specific component to also identify human smuggling via load vehicles, there is a difference in stop rates of Hispanics between saturation patrol days and non-saturation patrols days. DSOF (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 31; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report). But, Dr. Camarota opines that the difference is 4.8% (and only on those saturation patrols with a human smuggling component), and therefore the increase is due to MCSO HSU looking for human smuggling via load vehicles. Id.
Dr. Camarota further testified at length regarding his professional dispute with, and concerns about, Dr. Taylor’s determination that Hispanics were being stopped on saturation patrol day in higher percentages than on non-saturation patrol days. See Deposition of Steven Camarota, Ph.D. at p. 122, ln. 14 to p. 125, ln. 5, attached as Exhibit 3.
Defendants also incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.
Controverting Statement and Objection: Plaintiffs mischaracterizes Dr. Camarota’s opinion. Dr. Camarota testified that it only “would be a possibility” that Hispanics were being targeted if they were being stopped at rates higher than their share of the population. See Deposition of Steven Camarota, Ph.D. at p. 116, lns. 1-6, attached as Exhibit 3. He explained: “Again, there are lots of other intervening variables. And if you don’t have them, then you better be very cautious about any kind of conclusion that you might draw….” Id. at p. 116 at lns. 6-9.
If Hispanics are being stopped at a rate higher than their share of the population, that fact alone would not be statistically definitive evidence that Hispanics were being targeted. See Deposition of Steven Camarota, Ph.D. at p. 114, lns. 19-25, attached as Exhibit 3.
Defendants also incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above,
143

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 144 of 174

1 2
255 3 4 5 6 7 8 9 10

and this reference is offered in support of it dispute to this statement of fact. Disputed.
Controverting Statement and Objection: Plaintiffs’ cited testimony does not support the statement. On the other hand, Dr. Camarota testified that excluding the problems with Dr. Taylor’s methodology, the traffic stop time length differences between Hispanics and non-Hispanic “doesn’t seem meaningful to me. The omitted or the lack in variables [by Dr. Taylor, such as English language speaking ability, education level, and understanding of the traffic and motor vehicle code regarding maintaining vehicles and driving practices] explain what are relatively modest differences [in length of traffic stops under Dr. Taylor’s analysis.]” See Deposition of Steven Camarota, Ph.D. at p. 139, ln. 6 to p. 141, ln. 7, attached as Exhibit 3.

11 12 13 256 14

Defendants also incorporate herein by this reference their Controverting Statement and Objections set forth in response too PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Admit.

15 II. 16 17 18 19

DEFENDANTS’ LOCAL RULE 56.1(b)(2) SEPARATE STATEMENT OF ADDITIONAL FACTS THAT EITHER ESTABLISH A GENUINE ISSUE OF MATERIAL FACT OR OTHEWISE PRECLUDE JUDGMENTIN FAVOR OF PLAINTIFFS AND THAT ARE CITED WITHIN THEIR RESPONSIVE MEMORANDUM SUBMITTED IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (“SSOF”).

20

1. Plaintiffs’ Fourteenth Amendment claim asserts that each of the named

21 Plaintiffs during the operation of a motor vehicle on a public roadway in Maricopa County

22 was stopped, detained, questioned, and/or searched by MCSO deputies allegedly in violation

23 of their Fourteenth Amendment rights to equal protection. See Defendants’ Statement of

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Facts (Dkt#413-1) at ¶¶ 1-2. 2. MCSO Deputy Louis DiPietro stopped the truck in which Plaintiff Melendres
was a passenger. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 16-17. 3. Before Deputy Louis DiPietro found probable cause to stop the truck in which
Mr. Melendres was a passenger, he did not know or see the race of the truck’s driver or the 144

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 145 of 174

1 race of the passengers in the truck. See Defendants’ Statement of Facts (Dkt#413-1) at ¶

2 125.

3

4. Race was not a factor in Deputy Louis DiPietro’s finding that he had probable

4 cause to stop the truck. Deputy DiPietro testified:

5

Q. Did race of either the driver or the passengers of the truck play any role in your

decision to find probable cause to stop this truck?

6

7

A. No.

Q. Do you ever use race to stop vehicles? 8

A. No, I don't. 9
Q. Do you ever use race to find probable cause for traffic stops? 10
A. No.

11 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 126.

12

5. Plaintiff Manuel Melendres does not have an opinion on whether he was

13 racially profiled:

14

Q. You also claim in your lawsuit that you have suffered unlawful discrimination.

15

Do you believe that the deputies that you encountered on September 26, 2007,

were intentionally trying to deprive you of your constitutional rights?

16

17

A. I cannot say that. I can't be -- tell you for sure.

18 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 128.

19

6. Defense police practices expert Bennie Click opines that “[t]here is no

20 evidence that Deputy DiPietro knew the race or ethnicity of the vehicle’s occupants prior to

21 the truck stopping or that race or ethnicity played any role in Deputy DiPietro’s actions.”

22 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 129.

23

7. Plaintiffs’ police practices/racial profiling expert Robert Stewart testified that

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

he lacks any factual basis to support a conclusion that Deputy DiPietro acted with racially discriminatory intent or motive in stopping the Melendres truck:
Q. Do you believe that Louis DiPietro had discriminatory intent or motivation as to race in stopping the truck in which Mr. Melendres was a passenger?
A. I don’t know.
145

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 146 of 174

1

Q. Is it your opinion that Deputy DiPietro had a racially discriminatory intent or

2

motivation in stopping the truck in which Mr. Melendres was a passenger?

3

A. I don’t know.

4

Q. Is there any evidence that Deputy DiPietro knew the race of the driver of the

5

truck before stopping it?

6

A. I don’t know whether that information was given to him by the observer.

7

Q. Is there any evidence that Deputy DiPietro knew the race of any occupants in

8

the truck before stopping it?

9

A. I don’t recall whether that information was given by the observer either.

10 Q. Is there any evidence that Deputy DiPietro used race as a factor in any form to

11

decide to stop the truck?

12

A. No, sir.

13

Q. Is there any evidence that Deputy DiPietro knowingly harbored explicit bias

14

towards specific groups of people?

15 A. Not that I know of.

16

17

Q. Is there any evidence that Deputy DiPietro had unconscious bias toward certain group of people?

18
A. We don’t know. 19

20 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 131).

21

8. Deputy DiPietro made the traffic stop involving Mr. Melendres based on race-

22 neutral probable cause. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 17, 107-109).

23

9. MCSO Deputy Matthew Ratcliffe made the traffic stop of the Rodriguez

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 44-45. 10. Before making the decision to conduct the traffic stop of the Rodriguez’ truck,
and to issue a citation to the truck’s driver, Deputy Ratcliffe did not see the race of the truck’s driver or of any occupants of the truck. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 132.
146

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 147 of 174

1

11. Plaintiff Jessica Rodriguez testified that Deputy Ratcliffe was not acting with

2 racially discriminatory intent or motive:

3

Q. Do you believe that Deputy Ratcliffe was intentionally trying to deprive you of

your constitutional rights? 4

5

A. No.

6 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 133.

7

12. Defense police practices expert Mr. Bennie Click testified that there is no

evidence that Deputy Matthew Ratcliffe racially profiled or otherwise acted with racially 8
discriminatory intent or motive toward Mr. and Mrs. Rodriguez. See Defendants’ Statement 9
of Facts (Dkt#413-1) at ¶ 134. 10
13. Plaintiffs’ police practices/racial profiling expert, Mr. Robert Stewart, has no
11 opinion as to whether Deputy Matthew Ratcliffe had racially discriminatory intent or motive

12 in stopping the Rodriguez vehicle:

13

Q. Is it your opinion that Deputy Ratcliffe had discriminatory intent or motive in

14

stopping the Rodriguez vehicle?

15

A. Don’t know.

16 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 135.

17

14. Deputy Matthew Ratcliffe made the traffic stop involving the Rodriguez

18 Plaintiffs based on race-neutral probable cause. See Defendants’ Statement of Facts

19 (Dkt#413-1) at ¶¶ 44-45, 51-52, and 112-116

20

15. MCSO Deputy Michael Kikes made the traffic stop of siblings, Plaintiffs Mr.

21 Nieto and Ms. Meraz. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 84-85.

22

16. Due to the Plaintiffs Meraz-Nieto vehicle’s window tinting, Deputy Michael

23 Kikes could not see the race, sex, or other characteristics of the vehicle’s occupants. See

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Defendants’ Statement of Facts (Dkt#413-1) at ¶ 86. 17. Plaintiffs’ police practice/racial profiling expert, Mr. Robert Stewart, testified
that he had no evidence of racially discriminatory intent or motive by Deputy Michael Kikes in making the traffic stop of the Meraz-Nieto vehicle. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 143.
147

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 148 of 174

1

18. There is no evidence that MCSO Deputy Ramon Armendariz, who had the

2 initial interaction with the Plaintiffs Meraz and Nieto and called for back-up that led to the

3 traffic stop of the Plaintiffs made by Deputy Michael Kikes, had any racially discriminatory

4 intent or motive in any manner dealing with the Plaintiffs. See Defendants’ Statement of

5 Facts (Dkt#413-1) at ¶ 141.

6

19. There is no evidence of racially discriminatory intent or motive by Deputy

7 Douglas Beeks in drawing his weapon when he joined Deputy Michael Kikes after the traffic

stop of Plaintiff Meraz and Nieto was made. See Defendants’ Statement of Facts (Dkt#4138
1) at ¶ 142. 9
20. Plaintiffs’ police practices/racial profiling expert Robert Stewart testified that 10
there is no evidence that Plaintiffs Ms. Meraz and Mr. Nieto were racially profiled in either
11 the traffic stop or during their subsequent treatment by the MCSO deputies. See Defendants’

12 Statement of Facts (Dkt#413-1) at ¶ 144.

13

21. MCSO Deputy Michael Kikes made the traffic stop involving Plaintiffs Meraz

14 and Nieto either on race-neutral probable cause or reasonable suspicion. See Defendants’

15 Statement of Facts (Dkt#413-1) at ¶¶ 117-119.

16

22. Sheriff Joseph Arpaio determined that public safety in Maricopa County would

17 benefit if the MCSO would enforce federal immigration law under the federal government’s

18 287(g) program (allowing local enforcement officer to enforce federal immigration law)

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

while concurrently enforcing Arizona law related to human smuggling. See Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 3 and Defendants’ Response, Rule 56(c )(2) Objections, and Controverting Statement of Fact at ¶ 3 admitting to the same.
23. Plaintiffs’ police practices/racial profiling expert, Robert L. Stewart, testified that: (a) crime related to illegal immigration is a problem in Maricopa County; and (b) that human smuggling is a crime in Arizona and is a problem in Maricopa County. See Deposition of Robert L. Stewart at p. 31, ln. 23 to p. 32, ln. 4 (for point “a) and p. 34, lns. 1217 (for point “b” above), attached as Exhibit 17.
24. Robert Stewart testified that a local law enforcement agency has broad discretion in setting its enforcement policies. See Deposition of Robert L. Stewart at p. 26,
148

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 149 of 174

1 lns. 19-23, attached as Exhibit 17.

2

25. Robert Stewart testified that a local law enforcement agency has discretion in

3 determining what crimes it should prioritize for enforcement. See Deposition of Robert L.

4 Stewart at p. 26, ln. 25 to p. 27, ln. 4; see also p. 27, ln. 23 to p. 28, ln. 1, attached as Exhibit

5 17.

6

26. Sheriff Joseph Arpaio properly designated illegal immigration as an

7 enforcement priority for the MCSO. See Defendants’ Statement of Facts (Dkt#413-1) at the

Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 8
16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 9
342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the 10
foundation for his opinions and that his opinions in the report were the same he would
11 provide at trial to a reasonable degree of probability in his field of expertise).

12

27. Mr. Bennie Click, testified that the MCSO’s use of law enforcement saturation

13 patrols is a long-standing, common, and reasonable tool of law enforcement, and that it is an

14 agency policy decision as to what particular problems are to be addressed by or with a

15 saturation patrol. More specifically, Mr. Click testified:

16

Saturation patrol operations have long been an accepted strategy used by law

17

enforcement agencies to address specific crime problems in a particular location…. It is an agency policy decision to use saturation patrols to address a particular problem.

18

Saturation patrols/crime suppression/task force operations usually involve officers

19

making increased number of lawful traffic stops and street contacts. The goal of these

20

lawful stops and contacts is [to] discover other crime. This can also have a deterrent

effect. Lawful stops and contacts is also used to gather intelligence about criminal

21

activity.

22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The specific criminal activity that is identified as the focus of a saturation patrol operations is any agency policy decision. This is a common law enforcement practice. The Sheriff has the authority to designate illegal immigration an enforcement priority.
Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and reasonable law enforcement policies in Maricopa County than in other parts of the country. Arizona has specific immigration-related statutes that many other states do
149

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 150 of 174

1

not have. These statutes make certain immigration related activities a crime and

2

therefore can impact agency policies.”

3 See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January

4 21, 2011, at pgs. 46-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition

5 of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to

6 Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his
7 opinions in the report were the same he would provide at trial to a reasonable degree of
probability in his field of expertise). 8
28. It is the experience of many MCSO deputies that most illegal immigrants 9
discovered in Maricopa County are from Mexico or Central or South American. See 10
Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; 11
Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit
12 11; Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit
13 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; and

14 Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14.

15

29. Joseph Arpaio’s professional experience in his law enforcement career as

16 Sheriff is that most of the illegal immigrants he has observed in Maricopa County are

17 originally from Mexico, or Central or South America. See Deposition of Joseph Arpaio

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

dated 11/16/10 at p. 81, lns. 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16.
30. “It is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” See Defendants’ Statement of Facts (Dkt#413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).
31. Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that the
150

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 151 of 174

1 MCSO had the authority under the ICE-MCO Memorandum of Agreement to perform pure

2 immigration enforcement. See Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p.

3 159, lns. 13-20, attached as Exhibit 2.

4

32. The ICE-MCSO Memorandum of Agreement expressly allowed MCSO 287(g)

5 certified deputies to enforce federal immigration law. See Deposition of Jason Kidd (ICE
6 Assistant SAC Phoenix) at p. 55, ln. 14 to p. 56, ln. 11; see also p. 52, lns. 8-25, attached as
7 Exhibit 2. 33. Mr. Jason Kidd of ICE testified that the MCSO “has the authority to enforce
8 the state laws, and some of those [Arizona] law do include immigration related matters.” .
9 See Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 56, lns. 14-19; see also p.
10 53, lns. 3-7, attached as Exhibit 2.
11 34. Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix, testified that it
12 was completely proper for MCSO deputies to make traffic stops of motorists under Arizona
13 law during saturation patrols and call for a 287(g) certified deputy to determine if someone
14 in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo
15 Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.

16

35. Arizona is a border state close to the US-Mexico border and

17 Maricopa County is a major human smuggling corridor. See Defendants’ Statement of Facts

18 (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49,

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
36. Most of the day-laborers in Maricopa County, in the experience of many MCSO deputies, are illegal immigrants. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; and Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14.
151

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 152 of 174

1

37. Under the ICE-MCSO Memorandum of Agreement, the MCSO had deputies

2 trained and certified to conduct immigration enforcement under the 287(g) program. See

3 Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 3 and Defendants’ Response, Rule 56(c )(2)

4 Objections, and Controverting Statement of Fact at ¶ 3 admitting to the same.

5

38. Under that program, there are a number of ICE-approved articulable

6 “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to
7 look for in determining whether a person may be in the United States unlawfully. One of the
ICE approved indicators is that person’s race or ethnicity, including Mexican ancestry. See 8
Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 6, attached as Exhibit 9. 9
39. ICE approves of the use of race as one indicator among several in the exercise 10
of 287(g) authority in the determination of whether someone may be in the United States 11
unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo 12 Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it
13 couldn’t—it is not to be used solely. It is never to be used just as a—as an individual

14 factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as

15 Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p.

16 151, lns. 4-9 (“MCSO 287(g) officers can consider race as one relevant factor with others to

17 have reasonable suspicion that human smuggling may be occurring.”).

18

40. Although ICE approves of the use of race as one indicator, among several other

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

indicators, as a basis to form reasonable suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 6; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.
41. Another ICE approved indicator is that the person does not speak the English language. See Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as Exhibit 10; see Deposition of Ramon Armendariz at p. 44, lns. 1-4, attached as Exhibit 8; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5, attached as Exhibit 11.
42. Additional ICE approved indicators of unlawful presence are: (a) an
152

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 153 of 174

1 overcrowded vehicle; (b) none of the occupants have luggage or only small items of property

2 easily transported; (c) the people in the vehicle are unrelated or do not know each other; (d)

3 whether the people in the vehicle are dressed in a disheveled manner; (e) pungent body odor

4 of the people in the vehicle; (f) the vehicle is a known human smuggling corridor. See

5 Deposition of Carlos Rangel dated 10/20/09 at p. 95, ln. 12 to p. 96, ln. 12 attached as

6 Exhibit 11; see Deposition of Manuel Madrid dated 10/27/09 at p. 38, ln. 9 to p. 39, ln. 4,

7 attached as Exhibit 10; see Deposition of Brett Palmer dated 11/09/10 at p. 38, ln. 21 to p.

39, ln. 14, attached as Exhibit 12. 8

43. Joseph Arpaio gave an interview with GQ magazine online in late 2008 or 9
early 2009. In that story, there is statement attributed to him that illegal immigrants coming 10
over the Mexican border as being “dirty.” That statement was likely taken out of context by

11 the reporter. According to Arpaio,

12

It reflects my views only those that come across the border and do not go through the

13

proper checks, through the regular ports to come in her with no checks at all. And

there is no way to determine whether they have a disease or not. I can talk about

14

swine flu, tuberculosis and I believe I was referring to those instances when people

15

come across with doing the proper checks.

16 See Deposition of Joseph Arpaio dated 12/16/09 at p. 19, ln. 17 to p. 20, ln. 12, attached as

17 Exhibit 16.

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

44. Joseph Arpaio testified that he did not agree with the comments made by an author about federal judge Mary Murguia. See Deposition of Joseph Arpaio dated 11/16/10 at p. 26, ln. 5 to p. 28, ln. 25, attached as Exhibit 15. In fact, Arpaio thought the comments were “rather nasty. And this is their opinion. It doesn’t mean it is my opinion. I’ve been a federal official, law enforcement official, for 26 years. I have respect to the courts, and I don’t agree with that.”). Id.
45. When Joseph Arpaio was asked whether he agreed with the referenced language in document Melendres MCSO 76123, Ex. 24 to Arpaio Depo. II, Arpaio testified that “I don’t agree with that.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 160, ln. 19 to p. 161, ln. 10, attached as Exhibit 15.
46. When Richard H. wrote to him and Joseph Arpaio was questioned about the
153

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 154 of 174

1 contents of Melendres MCSO 075284, Arpaio testified that he had “no knowledge of

2 percentage or whatever he’s talking about. Once again, that’s his comment not mine.” See

3 Deposition of Joseph Arpaio dated 11/16/10 at p. 88, ln. 22 to p. 89, ln. 23, attached as

4 Exhibit 15.

5

47. When questioned about whether he agreed with Richard H.’s statement, Joseph

6 Arpaio responded: “Once again, that’s his statement, and I don’t know what context he’s
7 talking about, about ducks or whatever he’s mentioning…. I can’t read his mind. This is his
opinion, not mine.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 85, ln. 18 to p. 86, 8
ln. 24, attached as Exhibit 15. 9
48. When a Carol B. indicated racial profiling was a desirable law enforcement 10
tool because her own Italian mother experienced many years ago, Joseph Arpaio testified 11
that “This is just her comments, her opinions. I have no comment on her comment. I wasn’t 12 there. I wasn’t involved with her family.” See Deposition of Joseph Arpaio dated 11/16/10
13 at p. 277, ln. 23 to p. 278, ln. 11, attached as Exhibit 15.

14

49. Joseph Arpaio testified that racial profiling is morally wrong. See Deposition

15 of Joseph Arpaio dated 12/16/09 at p. 113, lns. 10-11; 115, lns. 2-17, attached as Exhibit 16;

16 see also Arpaio Deposition dated 11/16/10 at p. 77, lns. 22-23, attached as Exhibit 15.

17 Arpaio further testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p.

18 114, ln. 10 (“Well, all I can say, we don’t do that. We don’t stop people by their

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

appearance.”). 50. MCSO Deputy Chief Brian Sands makes the decision of where, when, and how
to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. Chief Sands testified that racial profiling is morally wrong. Id. at p. 147, ln. 20 to p. 148, ln. 5, attached as Exhibit 14. Chief Sands further understands that racial profiling is illegal. See Deposition of Brian Sands dated 11/15/10 at p. 92, ln. 24 to p. 93, ln. 1, attached as Exhibit 18.
51. MCSO Lieutenant Joseph Sousa, the head of MCSO’s Human Smuggling Unit (“HSU”), and one of the top planners for executing and supervising saturation patrols, testified that racial profiling is prohibited by MCSO policy, is illegal, and HSU members do
154

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 155 of 174

1 not racially profile. See Deposition of Joseph Sousa dated 12/10/09 at p.135, ln. 24 to p.

2 136, ln. 17, attached as Exhibit 5; see also Sousa Deposition dated 10/22/10 at p. 30, lns. 14-

3 17, attached as Exhibit 19.

4

52. HSU Sergeant Manuel Madrid, one of two supervising sergeants for the unit,

5 and a Latino himself, testified that racial profiling is illegal, that race or ethnicity can never

6 be used in making a traffic stop, and that the HSU members he supervises do not racially

7 profile. See Deposition of Manuel Madrid dated 10/27/09 at p. 20, lns. 14-23; p. 195, lns.

15-17, and p. 202, 18-22, attached as Exhibit 10. 8
53. HSU Sergeant Brett Palmer, the remaining supervisory sergeant for the unit, 9
testified that racial profiling is wrong and illegal, and that the HSU members he supervises 10
do not racially profiling. See Deposition of Brett Palmer dated 10/23/09 at p. 36, lns 10-25;
11 p. 135, lns. 5-25; p. 139, ln. 21 to p. 140, ln 18; p. 145, lns. 12-25; and p. 153, lns. 13-15,

12 attached as Exhibit 9.

13

54. Louis DiPietro, the deputy that made the traffic stop on Plaintiff Melendres,

14 knows and understands that racial profiling is illegal. See Deposition of Louis DiPietro

15 dated 10/21/09 at p. 87, lns. 17-19, attached as Exhibit 13. Race was not a factor in Deputy

16 DiPietro’s finding that he had probable cause to stop the truck in which Plaintiff Melendres

17 was a passenger. Id. at Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 125-126

18

55. Matthew Ratcliffe, the deputy that made the traffic stop on the Rodriguez

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs knows and understands that racial profiling is illegal and wrong. See Deposition of Matthew Ratcliffe dated 10/15/09 at p. 115, lns.18-25, attached as Exhibit 6. Race was not a factor in Deputy Ratcliffe’s finding that he had probable cause to stop the truck in which the Rodriguez Plaintiffs were driving or occupying. Id. at Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 132-135.
56. Michael Kikes, the deputy that made the traffic stop on the Plaintiffs Meraz and Nieto knows and understands that racial profiling is illegal and wrong. See Deposition of Michael Kikes dated 02/15/10 at p. 46, lns. 14-17, attached as Exhibit 7. Race was not a factor in Deputy Kikes’s finding that he had probable cause to stop the truck in which Plaintiffs Meraz and Nieto were driving or occupying. Id. at Defendants Statement of Facts
155

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 156 of 174

1 (Dkt# 413-1) at ¶¶ 85-86.

2

57. Arpaio, via his secretary, normally writes “thank-you” notes or letters to all

3 people that write to him regardless of their contents. Id. at ¶ 57. See Deposition of Joseph

4 Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15.

5

58. Arpaio forward the letters predominately to only Chief Brian Sands, when he

6 believes the letter may be of interest to them. See Deposition of Joseph Arpaio dated

7 11/16/10 at p. 21, ln. 9 to p. 22, ln. 4, attached as Exhibit 15.

59. When Arpaio was questioned about whether he agreed with the racially 8
charged comments contained within a letter co-written by a Sarah M. and an a Erika S 9
Arpaio made it abundantly clear that he did not adopt or agree or endorse their comments. 10
See Deposition of Joseph Arpaio dated 11/16/10 at p. 107, ln. 20 to p. 109, ln. 14, attached as
11 Exhibit 15.

12

60. When Arpaio was asked whether he agreed with the racially charged language

13 in another letter, document Melendres MCSO 7540304, Ex. 23 to Arpaio Depo. II, Arpaio

14 testified that he did not even understand what the author was thinking and “I can’t believe

15 what he’s thinking when he wrote this.” See Deposition of Joseph Arpaio dated 11/16/10 at

16 p. 157, lns. 18-25, attached as Exhibit 15.

17

61. Defense expert Mr. Bennie Click opined:

18

The 3 incident that are the basis of this suit do not support that deputies engage in

improper tactics such as racial profiling and improper stops to carry out their

19

responsibilities.

20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Every MCSO deputy and supervisor deposed understood, without equivocation, that racial profiling is wrong, a serious crime and could result in the loss of their jobs. This understanding by all personnel is a strong motivator not to racially profile any person.
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 43 and 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of
156

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 157 of 174

1 probability in his field of expertise).

2

62. Joseph Arpaio forwards citizen letters to staff in his office when he believes

3 the letter may be of interest to them. See Deposition of Joseph Arpaio dated 11/16/10 at p.

4 21, ln. 9 to p. 22, ln. 4, attached as Exhibit 15.

5

63. MCSO Chief Brian Sands makes the decision of where, when, and how to do a

6 saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79,

7 lns. 23-25, attached as Exhibit 14. There are a multitude of different law enforcement

reasons a saturation patrol is conducted, and conducted in a particular area. Id. Id. at p. 71, 8
lns. 9-16. 9
64. The race or ethnicity of people play no role in Chief Brian Sands’ selection of 10
saturation patrol locations. See Deposition of Brian Sands dated 12/14/09 at p. 182, ln. 24 to
11 p. 183, ln. 5, attached as Exhibit 14.

12

65. The ethnic constituency in a neighborhood plays no role in Chief Brian Sands

13 selecting locations for saturation patrols. See Deposition of Brian Sands dated 12/14/09 at p.

14 183, lns. 6-15, attached as Exhibit 14.

15

66. Even with an MCSO emphasis on enforcing laws related to illegal

16 immigration, the MCSO does not focus or target areas believed to contain a high percentage

17 of illegal immigrants. See Deposition of Brian Sands dated 12/14/09 at p. 94, ln. 22 to p. 95,

18 ln. 10, attached as Exhibit 14. Chief Sands testified that “the [illegal] immigration problems

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

that we have are so widespread throughout Maricopa County there [are] very few places you can go [on a saturation patrol] where you are not going to encounter an illegal alien. Whether to focus on a group of people standing on a corner because they look a certain way is not good practice and would certainly be easier to just go up and start grabbing people off the street corner because they are day laborers, but it is not a practice or anything that we condone in the sheriff’s office.” Id.;
67. MCSO Lt. Joe Sousa testified that the areas for saturation patrols are not selected because they may have a high concentration of suspected illegal aliens. See Deposition of Joseph Sousa dated 12/10/09 at p. 96, ln. 25 to p. 97, ln. 3, attached as Exhibit 5.
157

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 158 of 174

1

68. The sites for saturation patrols are determined based on a combination of the

2 following types of information or factors:

3

A. The area’s crime history and statistics. See Deposition of Brian Sands dated

4

12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, p. 139, ln. 5 to p.140, ln. 6; p.

5

142; lns. 5-25; and p. 143, lns. 7-16, attached as Exhibit 14; see also

6

Deposition of Joseph Sousa dated 12/10/09 at p. 89, lns. 20 to p. 91, ln. 23,

7

attached as Exhibit 5.

8
B. Intelligence and data regarding possible criminal activity at the possible site. 9
See Deposition of Brian Sands dated 12/14/09 at p. 71, lns 9-16; p. 124, ln. 19 10
to p. 125, ln. 13; p. 133, lns. 7-19; p. 138, ln. 5 to p. 139, ln. 4; p. 139, ln. 5 to
11 p.140, ln. 15; p. 142, lns. 5-25; p. 143, lns. 7-16; p. 143, ln. 24 to p.144, ln 15;

12

and p.146, ln. 9 to p.147, ln. 15, attached as Exhibit 14.

13

14

C. Requests for assistance in a particular area from Arizona Legislators and

15

information offered in the request. See Deposition of Brian Sands dated

16

12/14/09 at p. 133, ln. 23 to p. 134, ln. 9, attached as Exhibit 14.

17

18

D. Requests for assistance from city officials for a particular area. See Deposition

19

of Brian Sands dated 12/14/09 at p. 71, lns. 9-16, attached as Exhibit 14.

20

21

E. Information provided by local police officers from other law enforcement

22

agencies. See Deposition of Brian Sands dated 12/14/09 at p. 80, ln. 18 to p.

81, ln. 2, attached as Exhibit 14. 23

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

F. Requests for assistance from private citizens in the community providing information about possible criminal activity; but such information provided by private citizens is independently evaluated and confirmed by the MCSO. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 9-16; p. 79, lns.17-22,
158

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 159 of 174

1

attached as Exhibit 14.

2

69. In evaluating private citizen complaints, there is an independent investigation

3 of the complaint made to determine its legitimacy and whether there is any basis to do

4 anything. See Deposition of Brian Sands dated 12/14/09 at p. 82, lns. 5-23), attached as

5 Exhibit 14. “Generally speaking, I [Chief Sands] likes to know what is going on in the

6 community as a whole relative to crime before we do a saturation patrol.” See also

7 Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit
5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling 8
and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to 9
independently evaluate whether criminal activity is taking place); Deposition of Brian Sands 10
dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 16, attached as Exhibit 14 (providing a detailed 11
discussion of the MCSO rejecting racially motivated tips that provide no evidence of
12 criminal activity).

13

70. More specifically as to how the MCSO handles citizen complaints that may be

14 made by persons with racial prejudice, or express racial prejudice as those letters Plaintiffs

15 complain of in their Motion, Chief Sands testified:

16

Q. How do you satisfy yourself that a complaint that you are about to act on was

17

not motivated by race or ethnicity?

18

A. I ignore it, unless there is some type of crime relative to it that would still lead to

the discovery of that crime, not excluding the person or the information source’s

19

information for giving us that information. To ignore all information would be

20

contrary to good law enforcement.

21

Q. So even if you have reason to believe that a complaint may be motivated by

racism, you would not discount the complaint solely on that basis? 22

23

A. If the complaint is racial only in itself, there is no follow-up done on it. There is

no need to follow up on a complaint about someone that is Irish or Jewish or

24

ethnically Mexican that lives in a house with a whole group of other people. I

25

mean, there is no need to follow up. That would be – there is no crime involved.

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Q. If you believe a crime may be involved, you might pursue that tip even though you have reason to believe that the tip was also made on some improper consideration of race or ethnicity?
159

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 160 of 174

1

A. Keep in mind I am not supporting racial or prejudicial attitudes in the

2

community at all when I say this, but sometimes the information sources that we end up using in law enforcement are people that are in involved in – in criminal

3

elements in their community or neighborhood they live in and oftentimes these

people give us information. It can be corroborated to solve a murder or human

4

smuggling case, that person may be, in fact, motivated for ulterior motives of his

5

own, and I am just being honest with you in saying that he may be racially

prejudiced at the same time and its- it would be hard to disqualify that

6

information and say that the information source doesn’t like certain groups of

7

people so we are not going to- we are not going to investigate the crime that he very well be a witness to.”

8 See Deposition of Brian Sands dated 12/14/09 at p. 82, ln. 24 to p. 84, ln. 12, attached as
9 Exhibit 14.
10 71. It is standard practice for a top law enforcement officer to forward to support
11 staff letters received from the public, even letters containing racially offensive comments,
12 and this is what defense expert Bennie Click did when he was Chief of Police for Dallas,

13 Texas and received such letters:

14

Q. But would you expect and want the head—in terms of best practices the head

15

of a law enforcement agency, like the MCSO, to indicate, well, we can’t help

this kind of stuff. Some racist folks out there, but, of course, we don’t want to

16

have anything to do with them. You would want that to take place in some

17

way, shape, or form, don’t you?

18

A I certainly don’t think you align yourself with people that have views that you

should do something that that’s unlawful or unconstitutional.

19

20

Q. And if you had seen this particular letter as head of the Dallas Department,

what would you have done upon receiving it?

21

A. I would have given it to probably my administrative assistant and may have

22

shared it with one of my chiefs. I would have interpreted it as, you know, here

23

we’ve got a person out there that appears—and we don’t know his intent was,

but appears to suggest that we need to just assume that people coming—and I

24

think he uses Mexico here, but he talks about Latinos—that we should just

25

assume that just because they’re Latino that that’s probable cause or reasonable

suspicion. But I don’t think they’re going to put much weight on something

26

like this.”

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

See Deposition of Bennie Click at p. 167, ln. 1 to p. 168, ln 1, attached as Exhibit 20. 160

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 161 of 174

1 (emphasis added).

2

72. The MCSO rejects race-based information that it receives from its telephone

3 hot-line. Chief Sands testified:

4

Q. Are you aware of your office having received tips relating to illegal

immigration that have come from persons or members of groups that have

5

expressed hatred for illegal immigrants?

6 A. I don’t typically receive all these tips or the communication so it is hard for me

7

to analyze what motivates people that are giving us information. I will say,

though, that I have sat in on meetings over tips that have come in and when

8

there is no need to follow up on something based on the caller’s information

9

and it only attributed—the information is only attributed to somebody’s

ethnicity or appearance, we don’t follow up on it. Whether those are racially

10

motivated complaints, I wouldn’t know. But when the information is only

11

such directed towards a group of people or a business or—and just solely on

their race or ethnicity, we don’t follow-up on it.

12

See Deposition of Brian Sands dated 12/14/09 at p. 84, ln. 24 to p. 85, ln. 16, attached as 13
Exhibit 14. 14
73. The MCSO consistently rejected racially charged citizen complaints when 15
there was no mention of any facts indicating criminal activity, and when there was criminal

16 activity identified, the MCSO independently evaluated the same. See Deposition of Joseph

17 Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the

18 investigation of citizen complaints; that if the citizen is racially profiling and not describing

19 any criminal activity, the complaint is rejected; the efforts MCSO takes to independently

20 evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09

21 at p. 81, ln. 3 to p. 85, ln. 16, attached as Exhibit 14 (providing a detailed discussion of the

22 MCSO rejecting racially motivated tips by citizens that provide no evidence of criminal

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

activity). 74. Defendants’ police practices expert Mr. Click testified the “[t]he method by
which the MCSO chooses target areas for saturation patrols in reasonable and consistent with standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln.
161

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 162 of 174

1 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his

2 opinions and that his opinions in the report were the same he would provide at trial to a

3 reasonable degree of probability in his field of expertise).

4

75. As for citizen complaints that contained actual or perceived racially prejudice

5 comments, Mr. Click concluded that the “MCSO took steps not to respond to requests to that

6 [which] would have amounted to racial profiling.” See Defendants’ Statement of Facts

7 (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as
Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 8
24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the 9
foundation for his opinions and that his opinions in the report were the same he would 10
provide at trial to a reasonable degree of probability in his field of expertise). 11
76. Plaintiffs’ own police practices-racial profiling expert, Mr. Robert Stewart,
12 testified that he did not draw the conclusion, based on his analysis, that any MCSO

13 saturation patrol was unjustified or unwarranted:

14

Q. Have you formed the opinion that any particular MCSO saturation patrol was

15

unjustified or unwarranted?

16

A. Based on crime data?

17

Q. For any reason.

18 A. I did not draw that conclusion.
19

20 See Deposition of Robert Stewart at p. 23, lns. 14-18, attached as Exhibit 17. (emphasis

21 added).

22

77. When Chief Sands was asked whether he agreed with a particular author’s

23 statement in a document that Arpaio had forwarded to him that stated that “we have too

24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

many dysfunctional Hispanics already here,” Chief Sands expressly rejected the statement. See Deposition of Brian Sands dated 11/15/10 at p. 34, ln. 21 to p. 35, ln. 4, attached as Exhibit 18. Chief Sands never drew the conclusion that because Arpaio sent him a letter that he was to take law enforcement action on it. Id.
78. As for Arpaio not checking a particular document’s statistics for accuracy
162

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 163 of 174

1 before he forwarded it to management level staff, Arpaio testified that in that particular

2 situation he sent the document to Chiefs Sands and Freeman so they could check on it

3 “[b]ecause this is another piece of intelligence. It could be true, or it could not. That’s why I

4 sent it to them.” See Deposition of Joseph M. Arpaio dated 11/16/10 at p. 72, lns. 8-14,

5 attached as Exhibit 15. The document is “[j]ust another intelligence-type report, whether its

6 true or not, I think that they [Chiefs Sands and Freeman] should look at it.” Id. at p. 72, lns.

7 4-6.

79. Expert Mr. Click summarized Chief Sands handling of racially charged letters 8

succinctly:

9

I don’t think that—certainly Chief Sands is by just the nature of his position has been

10

around a long time, and I don’t think he’s going to be influenced by an email like this.

11

It would be just more informative or more just educational as to what a citizen is

saying out there.”

12

See Deposition of Bennie Click at p. 163, ln.16 to p. 164, ln. 22, attached as Exhibit 20 13
(emphasis added); see also p. 164, ln. 20 to p. 165, ln. 16 (unlikely that someone with Chief 14
Sands’ law enforcement experience would take any action based just on this email). 15
80. Defense expert Mr. Bennie Click testified that the MCSO saturation patrols

16 were reasonably and appropriately planned, executed, supervised and de-briefed. See

17 Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21,

18 2011, at pgs. 43-48, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of

19 Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to

20 Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

21 opinions in the report were the same he would provide at trial to a reasonable degree of

22 probability in his field of expertise).

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

81. The MCSO makes only lawful traffic stops based on probable cause or reasonable suspicion that a violation of the traffic code or vehicle code exists. See, e.g., Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 17, and 107-109 (Deputy DiPietro had probable cause to stop the truck in which Plaintiff Melendres was a passenger); at ¶¶ 44-45, 51-52, and 113-116 (Deputy Ratcliffe had probable cause to stop the Plaintiff Rodriguez truck because it was driving on a closed road); and at ¶¶ 117-119 (Deputy Kikes had either
163

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 164 of 174

1 probable cause or reasonable suspicion to stop the Plaintifs Meraz and Nieto).

2

82. The MCSO does not use race as an indicator or factor to make vehicle stops.

3 See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-

4 25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.

5

83. Plaintiffs’ police practices-racial profiling expert, Mr. Robert Stewart, admits

6 that a traffic stop can be made for probable cause even if the stopping police officer has

7 some other motivation to stop the motorist. See Deposition of Robert L. Stewart at p. 36, lns.

13-16; p. 115, lns. 4-8; p. 118, lns. 10-14, attached as Exhibit 17. 8

84. The Defendants’ police practices expert, Mr. Click, testified

9

Saturation patrols/crime suppression/task force operations usually involve officers

10

making increased number of lawful traffic stops and street contacts. The goal of these

11

lawful stops and contacts is [to] discover other crime. This can also have a deterrent

effect. Lawful stops and contacts is also used to gather intelligence about criminal

12

activity.

13 See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 14 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 15 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 16 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

17 opinions in the report were the same he would provide at trial to a reasonable degree of

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

probability in his field of expertise). 85. The MCSO acted reasonably and appropriately in instituting a policy of asking
all passengers in a vehicle stopped during a saturation patrol for their identification in an effort to reduce the potential for racial profiling by deputies during saturation patrols. Mr. Click testified:
Sergeant [Manuel] Madrid reasonably instituted a policy in the HSU [Human Smuggling Unit] that all passengers in vehicles that had been stopped would be contacted. He stated that this was done to avoid the appearance that deputies could pick and chose whom they contacted.
See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to
164

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 165 of 174

1 Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

2 opinions in the report were the same he would provide at trial to a reasonable degree of

3 probability in his field of expertise).

4

86. The MCSO’s use of a “zero-tolerance” policy requiring deputies to stop all

5 vehicles they observed that had either a moving or equipment violation was “a reasonable

6 practice… that removed the deputies’ discretion to pick and chose who they stopped” and

7 was intended to reduce the potential of racial profiling during saturation patrols. Defense

expert Mr. Click testified: 8

In order to reduce the potential of racial profiling during saturation patrol operations,

9

supervisors reasonably and appropriately instituted a zero tolerance policy requiring

10

all violators be stopped. This is a reasonable practice. Zero tolerance removed the

deputies’ discretion to pick and chose who they stopped.

11

.

12 See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January

21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of 13
Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to 14
Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his 15
opinions in the report were the same he would provide at trial to a reasonable degree of

16 probability in his field of expertise).

17

87. There was a zero tolerance policy for traffic stops during saturation patrols.

18 See Deposition of Brett Palmer dated 10/23/09 at p.56, ln. 2 to p. 58, ln. 16, attached as

19 Exhibit 9 (zero tolerance policy on saturation patrols adopted to try to stop every vehicle

20 with a violation and write tickets to all to avoid charges of racial profiling); see also p. 94, ln.

21 20 to p. 95, ln. 1 (zero tolerance policy for any traffic or vehicle violations); p. 98, ln. 18 to

22 p. 99, ln. 17 (the zero tolerance for arrests made and the zero tolerance policy for traffic

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

violators); see also Deposition of Manuel Madrid dated 10/27/09 at p. 125, ln. 12 to p. 127, ln. 7, attached as Exhibit 10 (on large scale saturation patrols, there was a zero tolerance policy to pull over and cite all infractions); p. 130, lns. 18-23 (same); see also Deposition of Joseph Sousa dated 12/10/09 at p. 144, lns. 22-25, attached as Exhibit 5 (on zero tolerance operation, any vehicle that is observed to violate the vehicle or traffic code that can be stopped will be stopped).
165

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 166 of 174

1

88. Plaintiffs’ citations to the testimony of Chief Brian Sands, Lt. Joe Sousa and

2 Deputy Ramon Armendariz for the principal that deputies still had broad discretion on which

3 vehicles to actually stop during a large scale saturation patrol is mistaken. Chief Sands did

4 not testify that the zero tolerance policy was not in effect or used during traffic stops, he was

5 merely testifying to the realities in Maricopa County that it was difficult to apply the policy

6 given the traffic volume in Maricopa County and the volume of violations experienced by

7 deputies. In proper context, Chief Sands testified that because there is so much traffic, “[t]he

zero tolerance [as to traffic stops] is not a hard and fast rule that you will make every traffic 8
violator that you see. You may only have the opportunity to stop one of three at the same 9
given time. So in itself, it is difficult to have a so-called zero tolerance policy on traffic 10
stops.” See Deposition of Brian Sands dated 12/14/09 at p. 123, lns. 9-17, attached as 14; see
11 also p. 123, ln. 18 to p. 124, ln. 18 (questions that immediately follow address that the goal is

12 to stop as many vehicles as possible).

13

Plaintiffs’ citation to the testimony of MCSO Deputy Ramon Armendariz also is

14 taken wholly out of context. Plaintiffs never questioned Deputy Armendariz about the zero

15 tolerance policy during saturation patrols. In fact, when Plaintiffs questioned Deputy

16 Armendariz about his discretion used during traffic stops, the line of questioning was not

17 related to saturation patrols or his later membership in the Human Smuggling Unit, but to his

18 every-day traffic patrol operations during his prior assignment to the MCSO Special

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Assistance Unit (“SAU”) for Maricopa County District. See deposition of Ramon Armendariz dated 11/24/09 at p. 26, ln. 13 to p. 30, ln. 10, attached as Exhibit 21; see also Deposition of Joseph Sousa dated 12/10/09 at p. 144, lns. 22-25, attached as Exhibit 5 (on zero tolerance operation, any vehicle that is observed to violate the vehicle or traffic code that can be stopped will be stopped).
89. The MCSO has a policy prohibiting racial profiling. See Deposition of Brian Sands dated 12/14/09 at p. 194, lns. 14-17, attached as Exhibit 14.
90. Defendants’ expert Mr. Bennie Click testified to the following: The MCSO maintains comprehensive and detailed policies and procedures that all personnel are required to have a working knowledge of. A number of MCSO policies prohibit racial profiling. The MCSO policies are reasonable and conform to
166

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 167 of 174

1

nationally recognized standards.

2

3 See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January

21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of 4
Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to 5
Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his
6 opinions in the report were the same he would provide at trial to a reasonable degree of

7 probability in his field of expertise).

8

91. The MCSO instructed the deputies that were to participate in a saturation patrol

9 during the pre-saturation patrol briefing that they were not to racially profile any person

10 during the up-coming saturation patrol that day. See Deposition of Brian Sands dated

11 12/14/09 at p. 194, lns. 18-21; p. 195, lns. 2-5, attached as Exhibit 14.

12

92. The MCSO deputies were appropriately trained about racial profiling first at

13 the police academy, again when they actually started their work at the MCSO, and, if the

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

deputy underwent 287(g) certification with ICE, again at the five-week ICE training
academy. Each MCSO deputy has undergone education and training about the improper and
unlawful use of race in law enforcement, i.e., racial profiling, while at the police academy at
the start of their law enforcement careers. See Deposition of Brian Sands dated 12/14/09 at
at p. 194, ln. 22 to p. 195, ln. 1, attached as Exhibit 14. When the deputy graduates from the
police academy and joins the MCSO for active duty, he or she is taught about the MCSO
policy and prohibition again racial profiling. Id. Each MCSO deputy that underwent ICE
education and training to become 287(g) certified to enforce federal immigration law learned
about the law enforcement prohibition against racial profiling. Id. at p. 195, lns. 6-10.
Defense expert Bennie Click testified:
The MCSO provides academy training to deputies emphasizing that racial profiling is unacceptable conduct. The deputies that were 287(g) received additional training from ICE personnel. This training is reinforced at each saturation patrol operation briefing as it is contained in the operations plan. The effectiveness of training is not measured by how recently the training was done or how frequently it is presented, but measured by how well the deputies conduct and performance reflect the performance objectives of the training. Mr. Kidd [of ICE] stated that during ICE training for 287(g) certification, there is a block of instruction that discusses racial profiling and
167

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 168 of 174

1

that it is prohibited.

2 See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 3 21, 2011, at pgs. 43-44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition 4 of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to
5 Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

6 opinions in the report were the same he would provide at trial to a reasonable degree of

7 probability in his field of expertise).

8

93. As to the issue of whether there was proper supervision during saturation

9 patrols, expert Mr. Bennie Click testified that the “Operations Plans were reasonable and met

10 the standard of care. There is no evidence that there was confusion over the objective of the

11 operations, personnel assignments or the specific duties to be performed.” See Defendants’
12 Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben
13 Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr.
14 Click testified to the foundation for his opinions and that his opinions in the report were the
15 same he would provide at trial to a reasonable degree of probability in his field of expertise).
16 Mr. Click further testified that the “level of supervision required generally depends on a
17 deputies’ training, experience and past performance. There is no evidence that any deputy
18 lacked supervision.” Id. at p. 44.

19

94. Defendants’ expert Mr. Bennie Click testified that the MCSO acted reasonably

20 and appropriately in not collecting data about the race ethnicity of persons stopped or

21 contacted by the MCSO and provided detail explanation for such data collection is not

22 standard in law enforcement. Mr. Click testified:

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling effect on law enforcement activity, putting the communities’ safety at great risk. Not collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best. These include such as community demographics, officer experience level, officer training, officer performance history, officer work ethic, location assigned,
168

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 169 of 174

1

traffic/pedestrian volume, different duties, call volume and the nature of

2

investigations officer can be involved in.

3

Mandated data collection is suspect when used to determine the race or ethnicity of

persons officer stopped. In many instances, a person’s race or ethnicity is not

4

obvious. Race may be easier to determine because of kin color, however, ethnicity is

5

less apparent. Many people have surnames that are not indicative of their ethnicity.

A number of ethnic groups have similar physical characteristics. Most countries have

6

citizens of various races and ethnicities and country of origin may be misleading.

7

Even self-identification is problematic because of the increasing number of persons with mixed racial and ethnic backgrounds. Officers misidentifying a person’s race or

8

ethnicity can be controversial in itself and could create a perception of a racially or

ethnically insensitive department.” 9

10 See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January
11 21, 2011, at pgs. 45-46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of
12 Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his
13 opinions in the report were the same he would provide at trial to a reasonable degree of
14 probability in his field of expertise).
15 95. As soon as the person with day-to-day responsibilities for the Human
16 Smuggling Unit, Lt. Joseph Sousa, learned that MCSO deputies and personnel were using
17 MCSO email accounts to circulate inappropriate and offensive emails h became “livid” and
18 immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p.

19 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.

20

96. The traffic stop of Mr. and Rodriguez was unrelated to a saturation patrol. See

21 Defendants’ Statement of Facts (Dkt#413-1) at ¶ 43.

22

97. The traffic stop of Ms. Meraz and Mr. Nieto, while occurring when a saturation

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

patrol was simultaneously on-going in the area, was unrelated to that saturation patrol. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 64-88.
98. While Mr. Melendres’ traffic stop technically could be considered as part of a small MCSO saturation patrol, and was considered as such by Deputy DiPietro, the operation was actually a small HSU detail targeting only specific vehicles that had picked up persons from a suspected human smuggling drop house/day laborer location, and did not involve the
169

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 170 of 174

1 MCSO making general traffic stops of any vehicles other than those that had visited the

2 church property and picked-up passengers and where probable cause was found to stop those

3 particular vehicles. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12.

4

99. Plaintiffs’ statistical expert, Dr. Ralph Taylor conducted a statistical analysis of

5 all the MCSO traffic stops conducted from January 1, 2007 to October 31, 2009 and

6 concluded that Latinos in Maricopa County are stopped by MCSO personnel in roughly the

7 same proportion to their share of Maricopa County’s population. See Defendants’ Statement

of Facts (Dkt#413-1) at ¶ 122. 8

100. Defense expert statistician Steve Camarota, Ph.D., testified to his statistical 9

analysis:

10 [My] findings show that the Hispanic share of those stopped by the MCSO deputies is

11

roughly equal to their proportion of the county and the state’s overall population.

12

About one-third of stops are of individuals with a Hispanic last name, which closely matches their share of the county and state populations. Analysis at the sub-county

13

level also tends to show stops in proportion to local population shares…. Equally

important, despite a significant increase in concern over illegal immigration in recent

14

years in the county and state, there was no increase in the Hispanic share of those

15

stopped by MCSO between 2005 and 2009. Overall, the surname analysis shows

Hispanics are being stopped at a rate that reflects their share of the population.

16

17 See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 123.

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

101. Dr. Ralph Taylor’s saturation patrol opinions are unreliable because his study is admittedly “quasi-experimental” in nature. See Defendants’ Statement of Facts (Dkt#4131) at ¶ 124.
102. Dr. Ralph Taylor’s “quasi-experimental” study does not result in definitive findings or conclusions, only “inferences.” See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 124.
103. Dr. Ralph Taylor’s saturation patrol analysis also: (1) fails to exclude those patrols that included a human smuggling interdiction component, or otherwise exclude human smuggling load vehicles found containing multiple illegal immigrants as occupants, which skews his saturation patrol results; (2) fails to exclude duplicate records in the MCSO Computer Aided Dispatch database, which skews his saturation patrol results; (3) excludes
170

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 171 of 174

1 thousands of other cases that should have been included in the analysis, which artificially

2 inflates his saturation patrol results (he admits that he excluded 18% of all MCSO traffic

3 stops per year because they did not “align” with Plaintiffs’ case theory or Plaintiffs’

4 “concerns”); and (4) fails to account for any socio-economic variables that affected his

5 saturation patrol model. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 124.

6

104. Saturation patrols are infrequent events and do not occur on a daily, weekly, or

7 even monthly basis. See Defendants’ Response in Opposition to Plaintiffs’ Motion for

Sanctions (Dkt#235) at Siemens Affidavit, Exhibit 8 at ¶ 4 (Dkt235-2) (patrols do not occur 8
on a daily or weekly basis); see Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 60 9
(indentifying 13 large scale saturation patrols over a 34 month time period). 10
105. Saturation patrols are, by the nature, special operations intended to address
11 concerns about criminal activity or possible problems in the community. See Defendants’

12 Response in Opposition to Plaintiffs’ Motion for Sanctions (Dkt#235) at Siemens Affidavit,

13 Exhibit 8 at ¶ 4(Dkt235-2).

14

106. For the 34 month time period covered by Plaintiffs’ Motion addressing January

15 1, 2007 to October 31, 2009, there were only thirteen (13) large scale saturation patrols

16 conducted by the MCSO. See Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 60 (indentifying

17 13 large scale saturation patrols over a 34 month time period).

18

107. Chief Brian Sands does not select locations for saturation patrols because of

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

the sole factor that there are day-laborers, or so-called day-laborers, at a particular location. See Deposition of Brian Sands dated 12/14/09 at p. 183, lns. 16-20, attached as Exhibit 14.
108. While some saturation patrols involved sites were day laborers were located, every saturation patrol in an area with day laborers was conducted because there were other race neutral factors related to criminal activity which controlled Chief Bran Sands’ decision to conduct a particular saturation patrol at a particular location. See Deposition of Brian Sands dated 12/14/09 at p. 183, lns. 21-25, attached as Exhibit 14; see also Deposition of Manuel Madrid dated 10/27/09 at p. 86, ln. 17 to p. 87, ln. 4, attached as Exhibit 10 (day laborers at site of saturation patrol had been harassing children going to school); Deposition of Joseph Sousa dated 12/10/09 at p. 111, ln. 11 to p. 112, ln. 1, attached as Exhibit 5 (day
171

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 172 of 174

1 laborers at site of saturation patrol were being aggressive toward other citizens; day laborers

2 congregating in area were “making catcalls at little girls;” ICE advised MCSO “that day

3 laborers were also being forced to work human smuggling charges off.”); Deposition of

4 Joseph Sousa dated 12/10/09 at p. 94, lns. 20-24, attached as Exhibit 5 (sites are not selected

5 because they have a high concentration of day laborers); Id. at p. 96, ln. 25 to p. 97, ln. 3

6 (site for saturation patrols also are not selected because they may have a high concentration

7 of suspected illegal immigrants); see also Defendants’ Statement of Facts (Dkt#413-1) at ¶

12 (On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave 8
Creek, Arizona investigating a particular church building/parking lot in response to citizen 9
complaints that the church or its grounds may be serving as a possible “drop house” for 10
human smuggling and because “day laborers” congregating or loitering near the church were
11 stepping into the traffic lanes of Cave Creek Road and causing traffic problems.).

12

109. While the MCSO saturation patrols were designed to address crime in a given

13 geographic area, another focus of the patrols was the enforcement of the laws related to

14 illegal immigrations. See Plaintiffs’ Statement of Facts (Dkt#422) at ¶¶ 22 and 110, and

15 Defendants’ Response, Rule 56(c )(2) Objections, and Controverting Statement of Fact at

16 ¶110 above.

17

110. Regardless of whether an illegal immigrant’s unlawful presence in Maricopa

18 County is a civil or criminal violation of the law, the fact remains that MCSO deputies that

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

were 287(g) certified were authorized to enforce federal immigration law, criminal or civil.
See Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 3 and Defendants’ Response, Rule 56(c )(2)
Objections, and Controverting Statement of Fact at ¶ 3 admitting to the same.
111. Plaintiffs’ expert Mr. Robert Stewart testified that Deputy Kikes acted
“reasonably” in his post-stop conduct and treatment of Mr. Nieto. See Plaintiffs’ Statement
of Facts (Dkt#422) at ¶ 120. DATED this 3rd day of June, 2011. SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
s/Timothy J. Casey______ Timothy J. Casey Schmitt, Schneck, Smyth & Herrod, P.C.
172

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 173 of 174

1

1221 E. Osborn Rd., Suite 105

Phoenix, Arizona 85014

2

Telephone: (602) 277-7000

Facsimile:(602) 277-8663

3

4

MARICOPA COUNTY ATTORNEY’S OFFICE

Maria Brandon

5

Thomas P. Liddy

Deputy County Attorneys

6

Litigation Practice Group

Civil Services Division

7

Maricopa County Attorney’s Office

222 N. Central, Suite 1100

8

Phoenix, Arizona 85004

602-506-8066

9

Co-counsel for Defendants

10 CERTIFICATE OF SERVICE
11
I hereby certify that on June 3, 2011, I electronically transmitted the attached 12 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
Notice of Electronic Filing to the following CM/ECF registrants: 13
The Honorable G. Murray Snow 14 United States District Court
401 West Washington Street, 15 Phoenix, Arizona 85003-2158

16 Stanley Young, Esq. Andrew Carl Byrnes, Esq.
17 COVINGTON & BURLING, LLP 333 Twin Dolphin Road
18 Redwood Shores, California 94065 Counsel for Plaintiffs
19
Daniel Pochoda, Esq. 20 Annie Lai, Esq.
ACLU FOUNDATION OF ARIZONA 21 3707 N. 7th Street, Suite 235
Phoenix, Arizona 85014 22 Counsel for Plaintiffs

23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Monica M. Ramirez, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Counsel for Plaintiffs
Nancy Ramirez, Esq. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 634 S. Spring Street, 11th Floor
173

Case 2:07-cv-02513-GMS Document 453 Filed 06/03/11 Page 174 of 174

1 Los Angeles, California 90014 Counsel for Plaintiffs
2 Maria Brandon
3 Thomas P. Liddy Deputy County Attorneys
4 Litigation Practice Group Civil Services Division
5 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
6 Phoenix, Arizona 85004 Co-counsel for Defendants Arpaio and MCSO
7 s/Eileen Henry______
8 Eileen Henry, Paralegal SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

174

 </s> Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 1 of 39

COVINGTON & BURLING LLP 1 333 Twin Dolphin Drive
Suite 700 2 Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700 3 Facsimile: (650) 632-4800

4 Stanley Young (Pro Hac Vice)

syoung@cov.com 5 Andrew C. Byrnes (Pro Hac Vice)

6

abyrnes@cov.com Attorneys for Plaintiffs (Additional attorneys

7 for Plaintiffs listed on next page)

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF ARIZONA

10 Manuel de Jesus Ortega Melendres, et al.,
11 Plaintiffs,
12 vs.
13 Joseph M. Arpaio, et al.,
14 Defendants.
15

) No. CV 07-2513-PHX-GMS ) ) ) ) PLAINTIFFS’ OPPOSITION TO ) DEFENDANTS’ MOTION FOR ) SUMMARY JUDGMENT ) ) ORAL ARGUMENT REQUESTED ) ) The Honorable Judge G. Murray Snow

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 2 of 39

Additional Attorneys for Plaintiffs: 1

2

COVINGTON & BURLING LLP 1 Front Street

3

San Francisco, CA 94111-5356 Telephone: (415) 591-6000

4

Facsimile: (415) 591-6091 Tammy Albarran (Pro Hac Vice)

5

talbarran@cov.com Kevin Hickey (Pro Hac Vice)

6

khickey@cov.com Matthew Steilen (Pro Hac Vice)

7

msteilen@cov.com Lesli Gallagher (Pro Hac Vice)

8 lgallagher@cov.com

9

ACLU FOUNDATION OF ARIZONA 3707 N. 7th St., Ste. 235

10

Phoenix, AZ 85014 Telephone: (602) 650-1854

11

Facsimile: (602) 650-1376 Daniel Pochoda (021979)

12

dpochoda@acluaz.org Anne Lai (330036*)

13

alai@acluaz.org *Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

15

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

16

San Francisco, California 94111 Telephone: (415) 343-0775

17

Facsimile: (415) 395-0950 Cecillia Wang (Pro Hac Vice)

18 cwang@aclu.org

19

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

20

634 South Spring Street, 11th Floor Los Angeles, California 90014

21

Telephone: (213) 629-2512 Facsimile: (213) 629-0266

22

Nancy Ramirez (Pro Hac Vice) nramirez@maldef.org

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 3 of 39

1

TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................................1

2

II. ARGUMENT ...........................................................................................................4 3

A. Plaintiffs Have Standing to Seek Equitable Relief Because Plaintiffs Are

4

Subject to a Pattern and Practice of Racial Discrimination That Realistically

Threatens Recurrent Injury ...................................................................................5

5

1. A Pattern and Practice of Racial Discrimination Establishes a

6

Sufficient Likelihood of Future Injury ..............................................................5

7

2. Because Plaintiffs Have Shown a Pattern and Practice of Racial

Discrimination, They Have Standing to Seek Equitable Relief ........................7

8

3. Somos America Has Organizational Standing ......................................10

9

B. Defendants Fail to Meet Their Burden for Summary Judgment on

10

Plaintiffs’ Claims under the Fourth Amendment to the U.S. Constitution and

Article II, Section 8 of the Arizona Constitution................................................11 11

1. Plaintiff Ortega Melendres was Detained and Arrested in Violation of

12

his Fourth Amendment Rights ........................................................................12

13

2. Plaintiffs David and Jessika Rodriguez were Detained and Questioned

in Violation of Their Fourth Amendment Rights ............................................17 14

3. Plaintiffs Manuel Nieto and Velia Meraz Were Stopped and Detained in

15

Violation of Their Fourth Amendment Rights ................................................19

16

C. The Undisputed Record Shows that Sheriff Arpaio and MCSO Officers

Acted with Discriminatory Intent and that Their Actions Had a

17

Discriminatory Effect, Resulting in an Equal Protection Violation .................22

18

1. The MCSO’s Saturation Patrols and Immigration Enforcement

Operations Disproportionately Impact Hispanics in Maricopa County........23 19

a. Comparisons of Agency-wide Stop Rates to Hispanics’ Share of the

20

General Population are Invalid and Uninformative...............................24

21

b. Dr. Taylor’s Results are Reflected in and Directly Relevant to the

Stops of the Named Plaintiffs ................................................................26 22

2. Abundant Evidence Demonstrates that MCSO Personnel Had Racially

23

Discriminatory Intent in Stopping, Questioning, or Detaining the Plaintiffs 28

24

a. Because the Deputies Acted Pursuant to a Discriminatory Policy

and Practice, the Stops of the Plaintiffs Violated the Fourteenth

25

Amendment............................................................................................ 28

26

b. The MCSO Deputies who Stopped the Named Plaintiffs Acted with

Discriminatory Intent.............................................................................30 27

III. CONCLUSION ......................................................................................................34 28

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 4 of 39

1 I. INTRODUCTION

2

Defendants Sheriff Joseph M. Arpaio and the Maricopa County Sheriff’s Office

3 (“the MCSO”) have moved this Court for summary judgment. See Defs.’ Mot. for

4 Summ. J, Dkt. No. 413 (hereinafter “Defs.’ MSJ”). In their motion, Defendants contend

5 that Plaintiffs Manuel de Jesus Ortega Melendres, Jessika Quitugua Rodriguez, David

6 Rodriguez, Velia Meraz, Manuel Nieto, Jr. and Somos America/We Are America

7 (“Plaintiffs”) lack standing to pursue their claims for equitable relief. Defendants also

8 assert that Plaintiffs’ claims of unlawful racial profiling and unreasonable search and

9 seizure fail as a matter of law. At its core, Defendants’ motion is simply a re-hashing of

10 arguments previously rejected by this Court. Defendants’ motion must fail when the

11 evidence is considered in the light most favorable to Plaintiffs.

12

Defendants’ motion should be denied for the following reasons:

13

1) Plaintiffs have Article III standing to seek equitable relief from the

14 MCSO’s racially discriminatory traffic stops. As this Court has previously held, “the

15 essential question” with respect to “standing to seek equitable remedies” is whether

16 Plaintiffs can establish “a sufficient likelihood of future injury.” Order dated Aug. 24,

17 2009 (“Order”), Dkt. 155, at 5. Thus, contrary to Defendants’ contention, the question

18 is not whether Plaintiffs have been stopped more than once by the MCSO during the

19 pendency of this lawsuit, but whether Plaintiffs can show “a widespread, ongoing, and

20 officially-sanctioned policy, practice, or pattern” of Defendants targeting Hispanic

21 drivers and passengers that realistically threatens future injury. Id. at 7-8; see also

22 Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (“[H]arm [that] is part of a

23 ‘pattern of officially sanctioned . . . behavior, violative of the plaintiffs’ [federal]

24 rights’” sufficient to satisfy the ‘realistic repetition’ requirement. (internal quotation

25 omitted)). As discussed below, Plaintiffs have amply made this showing in their

26 Renewed Motion for Class Certification (Dkt. No. 420) and Plaintiffs’ Motion for

27 Partial Summary Judgment (Dkt. No. 421) (hereinafter “Pls.’ MSJ”).

28

- 1 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 5 of 39

1

2) Defendants fail to meet their burden for summary judgment on

2 Plaintiffs’ Fourth Amendment and Arizona constitutional claims for unreasonable

3 search and seizure. In seeking summary judgment on Plaintiffs’ claims under the

4 Fourth Amendment of the U.S. Constitution and Article II, Section 8 of the Arizona

5 Constitution, Defendants ask the Court to grant undue deference to MCSO officers’

6 asserted justifications for their actions towards each named Plaintiff, ignoring both

7 controlling law and material factual disputes in the process. In particular:

8

The Detention and Arrest of Manuel de Jesus Ortega Melendres.

9 Defendants lacked reasonable suspicion to detain Mr. Ortega Melendres for purposes of

10 an immigration investigation after Deputy Louis DiPietro released the Caucasian driver

11 of the car in which Mr. Ortega Melendres was riding as a passenger. Once the driver

12 was released, the traffic stop was over, yet the MCSO continued to detain Mr. Ortega

13 Melendres to conduct an immigration investigation for which no reasonable suspicion

14 existed. In addition, Defendants’ justification for the arrest of Mr. Ortega Melendres is

15 disputed: contrary to the testimony of Deputy Carlos Rangel, Mr. Ortega Melendres

16 testified that he provided all necessary immigration documents when asked, and that he

17 did not say to Deputy Rangel that he was working. Thus, Defendants have not

18 established that their detention and subsequent arrest of Mr. Ortega Melendres for 7 to 8

19 hours was reasonable as a matter of law.

20

The Stop of David and Jessika Rodriguez. According to Plaintiffs’

21 testimony, when Deputy Matthew Ratcliffe stopped the Rodriguezes for driving on

22 Bartlett Dam Road, he learned that they had not seen the “Road Closed” sign because

23 they had been off-roading. Many other vehicles driving on the same stretch of the road

24 were also apparently not aware of the road closure. Instead of releasing them—as the

25 MCSO did with the other motorists—Deputy Ratcliffe detained the Rodriguezes to issue

26 a citation. He asked Mr. Rodriguez for a Social Security card, and then for his Social

27 Security number, not releasing Mr. Rodriguez and his family until he provided it.

28 Deputy Ratcliffe insisted on the Social Security information even after Mr. Rodriguez

- 2 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 6 of 39

1 had provided a valid driver’s license, registration, and proof of insurance and even

2 though none of the other motorists had been asked for this information. Deputy

3 Ratcliffe thus unreasonably prolonged the stop to issue the Rodriguezes a citation and to

4 investigate their immigration status without any reasonable suspicion or probable cause

5 to believe that they had violated the law.

6

The Stop of Manuel Nieto and Velia Meraz. Manuel Nieto and Velia

7 Meraz testified that they did not interfere with Deputy Charley Armendariz’s traffic stop

8 or threaten him, and that they complied with Deputy Armendariz’s orders to leave the

9 scene. Defendants’ own testimony establishes that Deputy Armendariz was unharmed

10 and in control of the situation when back-up officers arrived at the gas station. Thus,

11 there was no reason to pursue Mr. Nieto and Ms. Meraz after they had left, or to

12 investigate them for disorderly conduct, obstruction, or any crime. In addition,

13 Defendants have failed to establish that their conduct after Mr. Nieto and Ms. Meraz

14 were stopped (drawing their guns and forcibly removing Mr. Nieto from his car and

15 handcuffing him) was reasonable as a matter of law.

16

3) Summary judgment on Plaintiffs’ Fourteenth Amendment claims of racial

17 discrimination should be granted in favor of Plaintiffs. For all the reasons stated in

18 Plaintiffs’ Motion for Partial Summary Judgment, Plaintiffs are entitled to summary

19 judgment on their Fourteenth Amendment claims. The undisputed record shows that the

20 MCSO, led by Sheriff Arpaio, and acting with discriminatory intent against Hispanics,

21 launched a “crackdown” on illegal immigration that targeted Hispanic individuals. The

22 result was a greater number of stops and investigations of Hispanic drivers and

23 passengers in Maricopa County. Defendants’ motion should accordingly be denied.

24

First, Defendants contend that there is “insufficient evidence” that the MCSO’s

25 immigration enforcement actions have a discriminatory effect on Latinos. See Defs.

26 MSJ at 24-27. In doing so, they disregard undisputed statistical evidence that Hispanics

27 in Maricopa County are stopped at significantly higher rates during the MCSO’s

28 saturation patrols than at other times. Defendants’ attempt to distinguish this evidence

- 3 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 7 of 39

1 because it relates to saturation patrols fails, as: (i) most of the named Plaintiffs were

2 stopped during saturation patrols, which are a central concern of Plaintiffs’ lawsuit; (ii)

3 the MCSO’s pattern of racially disparate actions on saturation patrols is probative of its

4 behavior during other immigration enforcement activities; and (iii) Plaintiffs have also

5 presented uncontested evidence that stops involving Hispanics are about 25% longer on

6 average, a finding that applies to all of the MCSO’s stops, not just those occurring on

7 saturation patrols. Finally, Defendants’ assertion that there is no disparate impact when

8 aggregating several years of stops on an agency-wide basis ignores that such an

9 approach is methodologically unreliable and can easily mask discriminatory conduct.

10

Second, Defendants are incorrect that Plaintiffs have not shown that “any MCSO

11 personnel” acted with discriminatory intent. See Defs. MSJ at 27-33. As detailed in

12 Plaintiffs’ Motion for Partial Summary Judgment, the undisputed documentary evidence

13 shows that Sheriff Arpaio and MCSO command staff instituted a policy of targeting

14 Hispanics during MCSO immigration enforcement operations that was motivated by

15 discriminatory intent. Sheriff Arpaio and the command staff were the “decisionmakers”

16 instituting this policy, and thus it is their intent that matters. See Wayte v. United States,

17 470 U.S. 598, 610 (1985) (discriminatory intent of “decisionmaker” is the key Equal

18 Protection inquiry). Defendants ignore the actions of MCSO leadership and focus solely

19 on the self-serving denials of MCSO deputies to make their case for summary judgment.

20 That is clearly insufficient. But even under such a limited view of the evidence,

21 Defendants’ motion fails; there is considerable evidence in the record showing that the

22 individual MCSO deputies involved in the stops of the named Plaintiffs acted with

23 discriminatory intent when they treated the Hispanic Plaintiffs differently than similarly-

24 situated non-Hispanics.

25 II. ARGUMENT

26

A “genuine issue” of material fact precluding summary judgment arises if “the

27 evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

28

- 4 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 8 of 39

1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must view the

2 evidence and all reasonable inferences in the light most favorable to the non-movant. Id

3 at 255; Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987).

4

Concurrently with this motion, Plaintiffs are submitting a detailed response to

5 each fact in Defendants’ Separate Statement of Fact in support of their motion (“Pls.’

6 Resp. to Defs.’ SOF”). Plaintiffs also incorporate here their Statement of Facts

7 submitted in support of their motion for partial summary judgment, see Separate

8 Statement of Facts in Supp. of Pls.’ Partial Mot. for Summ. J., Dkt. No. 422 (hereinafter

9 “Pls.’ SOF”), and have submitted concurrently with this motion additional statements of

10 fact precluding summary judgment, see Plaintiffs’ Supplemental Statements of Facts

11 Precluding Summary Judgment in Favor of Defendants (hereinafter “Pls.’ SSOF”).

12

A. Plaintiffs Have Standing to Seek Equitable Relief Because Plaintiffs

Are Subject to a Pattern and Practice of Racial Discrimination That

13

Realistically Threatens Recurrent Injury

14

Defendants first contend that Plaintiffs’ case should be dismissed because

15 Plaintiffs lack standing to seek equitable relief if they have not suffered the

16 constitutional injury they complain of more than once. Defs.’ MSJ at 14-17. In essence,

17 Defendants would require that Plaintiffs wait until they are stopped again by the MCSO

18 before they ask the Court to entertain their request for declaratory or injunctive relief.

19 As shown below, this is an incorrect statement of the law.

20

1. A Pattern and Practice of Racial Discrimination Establishes a

21

Sufficient Likelihood of Future Injury

22

“[T]he essential question” with respect to Plaintiffs “standing to seek equitable

23 remedies” is whether they can establish “a sufficient likelihood of future injury.” Order,

24 Dkt. 155, at 5; see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (emphasis

25 added). While the fact that a single individual may have been harmed more than once in

26 the past may be one way that a plaintiff can show the likelihood of being harmed in the

27 future, it is not the only way.

28

As this Court has previously recognized, Plaintiffs can establish that they “are

- 5 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 9 of 39

1 personally subject to the likelihood of future harm” by showing that there is an

2 “officially-sanctioned policy, practice, or pattern of conduct” of racial profiling. See

3 Order, Dkt. No. 155, at 7-8, 12 (collecting cases); see also, e.g., Armstrong, 275 F.3d at

4 861 (“There are at least two ways in which to demonstrate that such injury is likely to

5 recur. . . . [T]he plaintiff may demonstrate that the harm is part of a ‘pattern of officially

6 sanctioned . . . behavior, violative of the plaintiffs’ federal rights.’” (internal quotation

7 omitted)); Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1142 (N.D. Cal.

8 2000) (distinguishing Lyons on the basis that plaintiffs claimed “a pattern and practice

9 of illegal law enforcement activity”). The ultimate inquiry is whether Defendants’

10 pattern and practice of behavior creates a realistic threat that Plaintiffs will be subjected

11 to the same harm, not how many times Plaintiffs happen to have been harmed by

12 Defendants in the past. Armstrong, 275 F.3d at 860-861; see also LaDuke v. Nelson,

13 762 F.2d 1318, 1323 (9th Cir. 1985) (“[W]hen injunctive relief is sought, litigants must

14 adduce a ‘credible threat’ of recurrent injury.”).

15

Because Plaintiffs have demonstrated a pattern and practice of discriminatory

16 conduct, the cases relied on by Defendants are distinguishable. Lyons, for example,

17 involved a “string of contingencies necessary to produce an injury,” including a “stop by

18 police, followed by post-stop behavior culminating in a chokehold.” Hodgers-Durgin v.

19 de la Vina, 199 F.3d 1037, 1041-42 (9th Cir. 1999). The Lyons plaintiffs lacked

20 standing because they had the “ability to avoid engaging in illegal conduct.” Id. at

21 1041. In contrast, Plaintiffs here need do “nothing illegal to warrant the actions of

22 MCSO officers . . . . Just another stop, search, or interrogation would [] itself

23 constitute[] further injury . . . .” Order, Dkt. 155, at 6 (discussing Hodgers-Durgin and 24 finding that Plaintiffs’ case is likewise distinguishable from Lyons).1

25

1 Contrary to Defendants’ contention, Defs.’ MSJ at 17 n.10, Plaintiffs cannot

26

avoid being stopped simply by complying with the traffic code. Plaintiffs have previously explained, and MCSO deputies have confirmed, that the Arizona traffic code

27

contains so many provisions that MCSO officers effectively have the ability to stop any car at any time. See Pls.’ Opp’n to Defs.’ Mot. for J. on the Pleadings, Dkt. 98, at 10-11;

28

Pls.’ SOF 116. Indeed, Plaintiffs’ past stops demonstrate that they can be subject to MCSO’s pattern and practice of racial profiling and unreasonable stops without violating

- 6 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 10 of 39

1

In addition, unlike here, the Lyons plaintiff “did not assert that there was a pattern

2 and practice of applying chokeholds without provocation or, if [he] did state such a

3 claim, the Court found it was not supported by the record.” Maryland State Conference,

4 72 F. Supp. 2d at 564-65. The Supreme Court specifically noted that in Lyons that there

5 was no “evidence showing a pattern of police behavior that . . . would permit the

6 application of the control holds on a suspect that was not offering, or threatening to

7 offer, physical resistance.” 461 U.S. at 110 n.9.

8

Hodgers-Durgin is distinguishable for the same reasons. Even after discovery,

9 the evidentiary record in Hodgers-Durgin was devoid of evidence of an officially-

10 sanctioned policy, pattern or practice of unconstitutional stops. See Durgin v. de la

11 Vina, 174 F.R.D. 469 (D. Ariz. 1997). Indeed, Ms. Hodgers-Durgin testified that she

12 was unaware of any incidents in which Border Patrol had stopped her family or friends

13 along the highways in Southern Arizona. Id. at 474 & n.18. The Ninth Circuit has held,

14 before and after Hodgers-Durgin, that the existence of a pattern of officially-sanctioned

15 behavior is sufficient to show the likelihood of repetition in the future. See LaDuke, 762

16 F.2d at 1324; Armstrong, 275 F.3d at 861.

17

2. Because Plaintiffs Have Shown a Pattern and Practice of Racial

Discrimination, They Have Standing to Seek Equitable Relief

18

19

In this case, Plaintiffs, with the benefit of a full evidentiary record, have proven a

20 pattern and practice of racial discrimination by Defendants. See Pls.’ MSJ at 14-31;

21 Pls.’ Renewed Mot. for Class Cert., Dkt. No. 420, at 2-10. The evidence detailed in

22
the law. Plaintiff Ortega Melendres was riding as a passenger in a vehicle where the 23 driver was stopped for speeding. Pls.’ SOF 171, 177. Plaintiffs David and Jessika
Rodriguez were not aware of the “Road Closed” sign that they were stopped for 24 allegedly disobeying. Pls.’ SOF 189; Defs.’ SOF 51, 57; Pls.’ Resp. to Defs.’ SOF 50,
56. Finally, Plaintiffs Nieto and Meraz were stopped without any justification at all, and 25 were released without citation or charge. See infra Section II.B.3. Thus, wholly unlike
Lyons, Plaintiffs in the instant case can do nothing to avoid Defendants’ unconstitutional 26 practices, short of ceasing the entirely lawful activity of driving or riding in vehicles in
Maricopa County. See Md. State Conference of NAACP Branches v. Md. Dept. of State 27 Police, 72 F. Supp. 2d 560, 565 (D. Md. 1999) (standing exists where “[a]ny ‘illegal’
action on [plaintiffs’] part need be no more than a minor, perhaps unintentional, traffic 28 infraction” and plaintiffs “expect they will continue to travel on [the highway]”).

- 7 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 11 of 39

1 Plaintiffs’ Motion for Partial Summary Judgment shows that Sheriff Arpaio and the

2 MCSO’s have instituted a pattern and practice of targeting Hispanics in order to

3 investigate immigration status. Sheriff Arpaio acknowledges planning saturation patrols

4 based on material that is racially charged, contains no evidence of any crime, and

5 explicitly advocates racial profiling. Pls.’ MSJ at 15-24. The MCSO has failed to

6 institute effective safeguards against racial profiling, and has adopted policies that

7 encourage racial profiling. Id. at 24-31. The result has been disproportionately many

8 stops of Hispanics during saturation patrols and unreasonably extended stops of

9 Hispanics generally. Id. at 31-34. The existence of this ongoing, officially-sanctioned

10 pattern and practice “lends special weight to the likelihood of future harm.” Order, Dkt. 11 155, at 7. The Hispanic Plaintiffs in this case travel on the roads in Maricopa County,2

12 are therefore exposed to the MCSO’s policies, and have more than a “conjectural” or

13 “hypothetical” probability of being harmed again. Multi-Ethnic Immigrant Workers

14 Org. Network v. City of Los Angeles, 246 F.R.D. 621, 628 (C.D. Cal. 2007).

15

This conclusion is reinforced by the analyses of the MCSO’s stop data performed

16 by Plaintiffs’ statistical expert, Dr. Ralph B. Taylor. Contrary to Defendants’

17 contention, Defs.’ MSJ at 16-17, Dr. Taylor opined that Mr. Ortega Melendres would

18 have “a higher chance[] of being stopped all else equal compared to [a similarly-

19 situated] non-Hispanic driver.” Pls.’ Resp. to Defs.’ SOF 146. Regarding the

20 probability of Mr. Rodriguez getting pulled over in a saturation patrol, Dr. Taylor

21 testified that “it’s my opinion, that his chances of being stopped during a major

22 saturation patrol are higher than would be the chances of a person driving with a non-

23 Hispanic name driving in exactly the same way, exactly the same type of vehicle.” Pls.’

24

25

2 Plaintiffs David Rodriguez, Jessika Rodriguez, Manuel Nieto and Velia Meraz

all live and drive in Maricopa County. Pls.’ SSOF 268. While Defendants contend that

26 Mr. Ortega Melendres is not likely to be stopped again because he lives in Mexico,

Defs.’ MSJ at 16, Mr. Ortega Melendres had returned to Maricopa County “once or

27 twice” in the two years between 2007 and 2009, and it is fair to presume Mr. Ortega

Melendres will continue to visit and travel in Maricopa County in the future. Pls.’ Resp.

28 to Defs.’ SOF 101.

- 8 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 12 of 39

1 Resp. to Defs.’ SOF 147. Dr. Taylor had the same answer with respect to the

2 probability that Mr. Nieto or Ms. Meraz would be stopped in the future. Pls.’ Resp. to

3 Defs.’ SOF 148. Although Dr. Taylor declined to estimate a “specific probability” for

4 any particular individual, he stated unequivocally that each of the Plaintiffs has a higher

5 likelihood of being stopped in the future due to Defendants’ pattern of targeting

6 Hispanics. Plaintiffs are thus realistically threatened by future discriminatory traffic

7 stops.

8

Discovery in this case has also confirmed that Defendants’ unlawful pattern and

9 practice is not only officially-sanctioned, but “widespread and ongoing.” Order, Dkt.

10 155, at 7. The MCSO appears to conduct large-scale saturation patrols six to seven

11 times per year. Pls.’ SOF 61-73. Between 2008 and 2009, at least 1,312 Hispanics were

12 stopped by the MCSO just on those large-scale patrols. Pls.’ SSOF 262. And Sheriff

13 Arpaio has emphatically stated that nothing will change about his immigration

14 enforcement activities, even though the MCSO lost its certification to enforce federal

15 immigration laws in the field in October 2009. Pls.’ SOF 10. The MCSO’s saturation

16 patrols and immigration enforcement activities are continuing, and so Plaintiffs continue

17 to be threatened with improper racial targeting.

18

The MCSO’s conduct toward the named Plaintiffs is consistent with its larger

19 pattern of conduct on routine traffic stops. For example, Deputy DiPietro’s treatment of

20 Mr. Ortega Melendres was nearly identical to another traffic stop Deputy DiPietro

21 conducted later in the day during the Cave Creek operation, see Pls.’ SOF 180, and

22 matches the practice of prolonged pretextual traffic stops and questioning of passengers

23 on other MCSO operations targeted at day laborers and illegal immigrants. See Pls.’

24 SOF 115, 117, 127; Pls.’ Renewed Mot. for Class Cert. at 4-6. Deputy Ratcliffe’s

25 pointed requests for a Social Security card and number (a potential indicator of

26 citizenship or immigration status) from the Rodriguezes are consistent with other

27 putative class members’ reports of being asked for such information. See Pls.’ SOF 215,

28 217; Pls.’ Renewed Mot. for Class Cert. at 4. And Mr. Nieto and Ms. Meraz’s stop at

- 9 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 13 of 39

1 gunpoint echoes other incidents of baseless and overly aggressive stops. See, e.g., Pls.’

2 SOF 215 (Jorge Urteaga stopped at gunpoint and asked to prove his citizenship); Pls.’

3 SOF 220 (Lorena Escamilla slammed into vehicle while pregnant); Pls.’ Renewed Mot.

4 for Class Cert. at 5-6. All of this evidence is highly probative of the named Plaintiffs’

5 likelihood of future harm.

6

Indeed, members of Plaintiff Somos America has been stopped more than once

7 by the MCSO. See Pls.’ Resp. to Defs.’ SOF 152; Pls.’ SSOF 269. For example, Mr.

8 Adolfo Maldonado was stopped during two different MCSO saturation patrols in 2008. 9 Pls.’ SSOF 269.3 The experiences of other putative class members who have been

10 stopped multiple times offer further proof that the threat Plaintiffs face is both real and 11 cannot be avoided.4 Lino Garcia was stopped four times for minor equipment

12 violations, and once for no reason other than that he “looked suspicious.” Pls.’ SOF

13 217. Anabel Avitia was stopped twice by the MCSO, once during a saturation patrol.

14 Pls.’ SSOF 257. On both occasions, she asserts that neither she nor her husband had

15 violated the law. Id.

16

3. Somos America Has Organizational Standing

17

Organizational Plaintiff Somos America also has standing. If at least one

18 plaintiff has standing, the court need not address the standing of the other parties. See

19 Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1039-40 (D. Ariz. 2009) (citing

20

21

3 Defendants contend that the evidence that members of Plaintiff Somos America have been stopped is inadmissible, and therefore, that Somos America lacks

22

representational standing to sue on behalf of its members. However, at least two members of Somos America have provided declarations regarding their traffic stops.

23

Pls.’ SSOF 258, 269; see also Pls.’ SOF 224. Furthermore, as Ms. Guzman has explained, many members of Somos who have been stopped are afraid to come forward

24

in person. Pls.’ SSOF 259. Given that Somos has many Hispanic members who live and work in this jurisdiction, the likelihood that any one of its members will be stopped

25

in the future is much greater than that of a single individual, even an individual who has been stopped twice before. See Pls.’ Resp. to Defs.’ SOF 152 (listing stops of Somos

26 America members).

4 “When a named plaintiff asserts injuries that have been inflicted upon a class of

27 plaintiffs, [a court] may consider those injuries in the context of the harm asserted by the

class as a whole, to determine whether a credible threat that the named plaintiff’s injury

28 will recur has been established.” Armstrong, 275 F.3d at 861.

- 10 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 14 of 39

1 Preminger v. Peake, 536 F.3d 1000, 1006 (9th Cir. 2008)). Somos America has

2 standing to represent its members who are at risk of being stopped. Pls.’ Renewed Mot.

3 for Class Cert., Dkt. No. 420, at 8-9. In addition, Somos America has organizational

4 standing based on the frustration of its mission and diversion of its resources. See Pls.’

5 Resp. in Opp’n to Defs.’ Mot. to Dismiss, Dkt. 48 at 4-6; Pls.’ SOF 224, Pls.’ SSOF

6 260.

7

An organization “may satisfy the Article III requirement of injury in fact if it can

8 demonstrate: (1) frustration of its organizational mission; and (2) diversion of its

9 resources to combat the particular [] discrimination in question.” Smith v. Pac. Props. &

10 Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004); Havens Realty Corp. v. Coleman, 455

11 U.S. 363, 379 (1982) (finding that the organization HOME had standing if its efforts to

12 provide equal access to housing had been frustrated by defendants’ practices and HOME

13 had devoted significant resources to identify and counteract defendants’ practices).

14

Here, Somos America’s mission in advocating for comprehensive immigration

15 reform and educating the community has been frustrated by Defendants’ activities. Pls.’

16 SSOF 260. Rather than focusing their time on trying to organize the community, or

17 conduct citizen and voter drives and educational forums, Somos America’s volunteers

18 have had to monitor and observe Defendants’ saturation patrols and assist persons who

19 report mistreatment by Defendants. Id. As a result, Somos America’s limited resources

20 have been diverted. Id. In sum, Somos America has standing based on injury to itself.

21

For all these reasons, Plaintiffs have standing to seek equitable relief, and so

22 summary judgment on this issue must be denied.

23

B. Defendants Fail to Meet Their Burden for Summary Judgment on

Plaintiffs’ Claims under the Fourth Amendment to the U.S.

24

Constitution and Article II, Section 8 of the Arizona Constitution

25

Defendants argue that the existence of reasonable suspicion or probable cause to

26 conduct a traffic stop automatically rendered their conduct toward Plaintiffs lawful.

27 Defs.’ MSJ at 18. This argument fails for two reasons. First, this Court has already

28

- 11 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 15 of 39

1 rejected the argument that probable cause at the outset of a stop justifies any subsequent

2 unreasonable conduct during the course of the stop. See Ortega Melendres, 598 F.

3 Supp. 2d at 1032-36 (denying Defendants’ motion to dismiss Plaintiffs’ Fourth

4 Amendment claims because “[t]he length and scope of detention must be justified by the

5 circumstances authorizing its initiation” (citing Terry v. Ohio, 392 U.S. 1, 16 (1968)).

6 Defendants violated the Fourth Amendment by subjecting each of the Plaintiffs to stops

7 that were unreasonable in length or scope. Second, the evidence shows that the initial

8 stops of at least two Plaintiffs occurred without any reasonable suspicion or probable 9 cause whatsoever.5

10

1. Plaintiff Ortega Melendres was Detained and Arrested in Violation

of his Fourth Amendment Rights

11

12

During one of the MCSO’s early suppression patrols on September 27, 2007, Mr.

13 Ortega Melendres was stopped while riding as a passenger in a vehicle that had just left

14 the parking lot of a church in Cave Creek. Pls.’ SOF 171, 174. Like many other such

15 MCSO operations, units observing vehicles that appeared to pick up day laborers in the

16 parking lot called out descriptions of those vehicles so that other MCSO units could

17 follow them and “develop[]” probable cause of a traffic violation (and hence, a reason to

18 stop the vehicle). Pls.’ SOF 117, 174. Mr. Ortega Melendres was one of the occupants

19 in a vehicle that was stopped by Deputy Louis DiPietro just moments after he and two

20 other Hispanic men entered it. Pls.’ SOF 171; see also Pls.’ Resp. to Defs.’ SOF 15.

21

Speculating that officers had reason to believe Mr. Ortega Melendres was

22 involved in unlawful activity before he was detained, Defendants claim that deputies

23 were in the area to investigate complaints that the church was serving as a possible

24 “drop house” for human smuggling. Defs.’ MSJ at 4. This claim is not only

25 implausible, it is disproved by the MCSO’s own internal correspondence confirming

26

5 Article 2, Section 8 of the Arizona Constitution is the state equivalent to the

Fourth Amendment to the U.S. Constitution, and was “intended to incorporate the

27 federal protections[.]” State v. Bolt, 689 P.2d 519, 523 (Ariz. 1984) (citing Malmin v.

State, 246 P. 548, 549 (1926)). Thus, Plaintiffs’ arguments with respect to the Fourth

28 Amendment apply equally to their Arizona constitutional claims.

- 12 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 16 of 39

1 that a prior undercover effort revealed no information pertaining to human smuggling,

2 drop houses, or even illegal immigration. Pls.’ SOF 173. Next, Defendants claim that

3 they were in Cave Creek because day laborers were reportedly stepping into the traffic

4 lanes while looking for work. Defs.’ MSJ at 4. This claim is belied by the MCSO’s

5 own witness testimony that the “pickup location” being surveilled was a parking lot,

6 away from the road, and that the operation did not target traffic issues but rather used

7 traffic stops as a pretext to investigate potential immigration violations. Pls.’ SOF 172,

8 174. Further, Defendants have not come forward with any citizen complaints alleging

9 that day laborers were blocking traffic in Cave Creek. In fact, the type of citizen

10 complaints regarding day laborers that Plaintiffs have been provided in this case

11 described no criminal activity, requesting instead that law enforcement action be taken

12 against the Hispanic men standing on the corner based on racial stereotypes and

13 prejudice. Pls.’ MSJ at 20-24.

14

Moreover, it is undisputed that the MCSO had no information prior to the stop

15 that Mr. Ortega Melendres had violated any law. The stop of the car in which Mr.

16 Ortega Melendres rode as a passenger was initiated because the driver was speeding. At

17 no point before or during that initial encounter did MCSO deputies develop any lawful

18 justification to seize Mr. Ortega Melendres beyond the time it took to deal with the

19 driver’s traffic violation. Though a traffic stop of a driver necessarily results in the

20 seizure of any passengers, see Brendlin v. California, 551 U.S. 249, 257-58 (2007), it is

21 nevertheless the case that, absent independent suspicion of wrongdoing, passengers are

22 innocent bystanders who simply “have the misfortune to be seated in a car whose driver

23 has committed a minor traffic offense.” Maryland v. Wilson, 519 U.S. 408, 420-21

24 (1997) (Stevens, J., dissenting). A routine traffic stop does not give license for deputies

25 to embark on a fishing expedition that results in a detention of the passengers that is

26 “longer than [] necessary to effectuate the purpose of the stop.” Florida v. Royer, 460

27 U.S. 491, 500 (1983).

28

In this case, Deputy DiPietro spoke to the Caucasian driver and decided not to

- 13 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 17 of 39

1 cite him. Pls.’ SOF 178. Deputy DiPietro candidly admits that while he was dealing

2 with the driver, he called for HSU to come to the scene to “check the status” of the

3 passengers. Pls.’ SOF 179. His sole basis for doing so was because they seemed to be

4 Hispanic day laborers. Pls.’ Resp. to Defs.’ SOF 18; see also Pls.’ SOF 113. Deputy

5 Carlos Rangel arrived and detained the passengers beyond the time it took for Deputy

6 DiPietro to finish with the driver. Pls.’ Resp. to Defs.’ SOF 23 (citing testimony of

7 Deputy DiPietro explaining that officers who “t[ook] over” investigation removed the

8 passengers from the vehicle and permitted the driver to leave the scene). Since being a

9 part of an Hispanic “work crew” and a Spanish speaker does not give rise to reasonable

10 suspicion of an immigration violation, see United States v. Manzo-Jurado, 457 F.3d

11 928, 937-38 (9th Cir. 2006), it was not lawful for the MCSO to continue to detain the

12 passengers. See Royer 460 U.S. at 500; United States v. Mitchell, 2010 WL 2838614, at

13 *3-4 (E.D. Cal. 2010) (“[W]here an officer’s inquiries into matters unrelated to the

14 justification for the traffic stop measurably extend the duration of the stop, the officer

15 must have an independent reasonable suspicion to inquire into those unrelated

16 matters.”). The further detention and interrogation of Mr. Ortega Melendres therefore

17 violated the Fourth Amendment.

18

The cases cited by Defendants do not depart from the basic rule that officers may

19 not extend a traffic stop without justification. See Defs’ MSJ at 6; United States v.

20 Turvin, 517 F.3d 1097, 1101, 1103-04 (9th Cir. 2008) (questions did not “unreasonably

21 prolong” stop); United States v. Mendez, 476 F.3d 1077, 1079-80 (9th Cir. 2007) (eight

22 minute stop not “unnecessarily prolonged”); United States v. Soriano-Jarquin, 492 F.3d

23 495, 501 (4th Cir. 2007) (request for identification “did not extend the stop”).

24

Defendants also rely on several cases that hold that pretextual traffic stops do not

25 generally violate the Fourth Amendment. Defs.’ MSJ at 19. But their reliance on these

26 cases misses the point. Plaintiffs do not argue that Defendants violated the Fourth

27 Amendment because they performed a pretextual stop of the car in which Mr. Ortega

28 Melendres was a passenger. Plaintiffs instead object to the unreasonable extension of

- 14 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 18 of 39

1 that pretextual traffic stop beyond the time necessary to investigate the driver’s traffic

2 violation. See United States v. Molina, 626 F. Supp. 2d 1073, 1078-79 (D. Idaho 2009)

3 (“The only explanation for the length of this stop is that there was more going on than a

4 routine traffic stop”). Indeed, one case on which Defendants’ rely held that Plaintiffs

5 could proceed with a Fourth Amendment claim on the basis that the stops were

6 unreasonably prolonged and led to baseless interrogations. Rodriguez, 89 F. Supp. 2d

7 1131 at 1140.

8

Defendants’ argue that Deputy Rangel spent only 15 minutes with the passengers.

9 Defs.’ MSJ at 7. The computer record of the traffic stop indicates that it was closer to

10 21 minutes. Pls.’ Resp. to Defs.’ SOF 34. In any case, the decisive inquiry with respect

11 to the reasonableness of the length of a traffic stop is not the absolute number of

12 minutes, but whether officers were diligently investigating the traffic violation during

13 that time and ended the stop upon the conclusion of that investigation. See Molina, 626

14 F.Supp.2d at 1078-79 (stop lasting just over 20 minutes was “unreasonably prolonged”);

15 Liberal v. Estrada, 632 F.3d 1064, 1080 (9th Cir. 2011) (rejecting argument that traffic

16 stops of up to 20 minutes are per se reasonable). The record reveals that Deputy

17 DiPietro had already run the driver’s information by the time Deputy Rangel arrived.

18 Pls.’ Resp. to Defs.’ SOF 23. Deputy DiPietro did not need to fill out any paperwork for

19 the traffic violation, Pls.’ SOF 178, and warning the driver is unlikely to have required

20 another 15 to 20 minutes. In short, though the purported justification for the stop was

21 the driver’s speeding violation, Deputy DiPietro did nothing to pursue that violation

22 while the passengers were removed from the vehicle and interrogated.

23

Mr. Ortega Melendres’s stop starkly illustrates the problem with allowing routine

24 traffic stops to turn into fishing expeditions. Based on Deputy Rangel’s questioning of

25 Mr. Ortega Melendres, the MCSO arrested him. Defs.’ SOF 32, 36 (describing how Mr.

26 Ortega Melendres was handcuffed and transported to an MCSO substation, then to ICE

27 station); see United States v. Bravo, 295 F.3d 1002, 1009-10 (9th Cir. 2002). This

28 warrantless arrest was not supported by probable cause to believe that any crime was

- 15 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 19 of 39

1 committed. Defendants’ contend the arrest was lawful because Deputy Rangel was

2 authorized to “arrest [any alien] without warrant . . . if the officer has reason to believe

3 the alien . . . is in the United States in violation of law and is likely to escape before a 4 warrant can be obtained.6 Defs.’ MSJ at 6 (quoting Memorandum of Agreement with

5 ICE). Defendants claim that Deputy Rangel had reason to believe Mr. Ortega

6 Melendres was out of status because he did not have his I-94 form on him and he stated

7 that he was “working.” Id. at 7. However, this still would not have made the arrest

8 lawful, because Defendants have failed to establish Mr. Ortega Melendres was a flight

9 risk. See Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir. 1995)

10 (federal law forecloses permissible civil arrest where “INS did not allege nor do

11 appellants concede . . . that they were particularly likely to escape”).

12

Furthermore, Mr. Ortega Melendres testified that he did provide his I-94 Form,

13 Pls.’ Resp. to Defs.’ SOF 26, 30-31,7 and that he did not tell Deputy Rangel that he was

14 working, Pls.’ Resp. to Defs.’ SOF 27. Indeed, ICE released Mr. Ortega Melendres

15 after 7 to 8 hours, stating that “the detention was not justified” because “he was here

16 legally (in status),” his documents were “in order,” and “there was a lack of evidence by

17 MCSO such as pay stubs or sworn statement [of his alleged admission].” Pls.’ SOF

18 184-85; Pls.’ Resp. to Defs.’ SOF 31, 37. Thus, on a view of the evidence most

19

6 “The phrase ‘has reason to believe’ [in the warrantless arrest provision of the

20

Immigration and Nationality Act] has been equated with the constitutional requirement of probable cause.” Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980). At the time

21

of the traffic stop, Deputy Rangel had authority to enforce federal immigration laws pursuant to an agreement MCSO had with U.S. Immigration and Customs Enforcement

22

(ICE) under the Immigration and Nationality Act § 287(g), 8 U.S.C. § 1357(g). Pls.’ Resp. to Defs.’ SOF 25; Pls.’ SOF 3. In October 2009, MCSO lost this authority, and an

23

arrest based on reason to believe Mr. Ortega Melendres was in the country unlawfully today would clearly violate the Fourth Amendment. See, e.g. United States v. Arizona,

24 __ F.3d __, 2011 WL 1346945, at *17 (9th Cir. Apr. 11, 2011). 7 Defendants improperly attempt to discredit Mr. Ortega Melendres’ testimony

25 that he provided his I-94 Form by noting that the form has not been produced in this

litigation. See Defs.’ MSJ at 7 n.2. However, as Mr. Melendres explained in his

26 deposition, he no longer has a copy of the document because he was required to

surrender it to border officials upon returning to Mexico. Pls.’ Resp. to Defs.’ SOF 31.

27 ICE officials have confirmed that Mr. Ortega Melendres had a valid I-94 at the time of

his stop. Id. Further, federal immigration law does not provide that failing to carry the

28 I-94 Form makes a person “out of status.” See Pls.’ Resp. to Defs.’ SOF 8-9, 32.

- 16 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 20 of 39

1 favorable to Plaintiffs, Mr. Ortega Melendres’ arrest was unreasonable because it was

2 not based on probable cause in accordance with the Fourth Amendment.

3

2. Plaintiffs David and Jessika Rodriguez were Detained and

Questioned in Violation of Their Fourth Amendment Rights

4

5

On December 7, 2007, David and Jessika Rodriguez were taking their children to

6 Bartlett Lake when they observed two Maricopa County Sheriff’s vehicles on the other

7 side of a long wash in the road. Pls.’ SOF 186. After making some effort to drive

8 through the wash, they and a motorcycle that had been driving behind them decided to

9 make a U-turn and started heading back up Bartlett Dam Road. Pls.’ SOF 186. They

10 were then stopped by 287(g) Deputy Matthew Ratcliffe, who has participated in at least

11 four saturation patrols. Pls.’ SOF 139, 187; Pls.’ Resp. to Defs.’ SOF 42-43. At the

12 time he stopped them, Deputy Ratcliffe believed the Rodriguezes to be on a stretch of

13 the road that was closed, but did not know whether the Rodriguezes had actually driven

14 past the “Road Closed” sign. Pls.’ Resp. to Defs.’ SOF 45.

15

When Deputy Ratcliffe approached Mr. Rodriguez, Mr. Rodriguez told him that

16 the family had been off-roading and did not see the “Road Closed” sign (they had only

17 seen a “Road Damaged” sign). Pls.’ SOF 189; Defs.’ SOF 51, 57; Pls.’ Resp. to Defs.’

18 50, 56. The Rodriguezes saw many other people driving this stretch of road, and indeed,

19 even as they were speaking to Deputy Ratcliffe, several other vehicles came up behind

20 them on Bartlett Dam Road. Pls.’ SOF 192; Pls.’ Resp. to Defs.’ SOF 54-55. Deputy

21 Matthew Multz was with Deputy Ratcliffe, and contacted the motorcycle driver and the

22 other vehicles, each driven by non-Hispanic motorists. Pls.’ SOF 192; Pls.’ Resp. to

23 Defs.’ SOF 54-55. The record shows that Deputy Multz dealt with at least three of the

24 other vehicles in less than 13 minutes, citing none of them. Pls.’ Resp. to Defs.’ SOF

25 58; see also Pls.’ SOF 198. In contrast, the stop of the Rodriguezes lasted

26 approximately 20 minutes, after which Deputy Ratcliffe followed them closely back out

27 to the main road. Defs.’ Resp. to Defs.’ SOF 58.

28

Thus, Defendants’ motion should be denied because there is evidence that the

- 17 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 21 of 39

1 Rodriguezes’ traffic stop was unreasonably extended after any initial suspicion of a

2 traffic violation was dispelled. After the Rodriguezes informed Deputy Ratcliffe that

3 they did not have the opportunity to disobey the sign (because they had not seen it) and

4 that many other motorists who had also apparently not seen the sign were being

5 released, he no longer had probable cause to believe they had committed a traffic

6 violation worthy of citation. Cf. Liberal, 632 F.3d at 1080 (reasonableness of the length 7 of a stop depends on time necessary to dispel officers’ suspicions).8 The MCSO’s own

8 policy and training discourage officers from issuing citations in such circumstances.

9 Pls.’ SOF 190-91. The Rodriguezes’ extended detention and two to three mile “escort”

10 back to the main road was therefore unwarranted and violated the Fourth Amendment.

11 See Royer 460 U.S. at 500; Molina, 626 F. Supp. 2d at 1078-79.

12

In addition, the Court in this case has previously held that Plaintiffs’ complaint

13 sufficiently alleged that “the scope and duration of [the Rodriguezes’] stop was

14 exceeded when deputies requested Mr. Rodriguez’s social security card.” Melendres, 15 598 F. Supp. 2d at 1035.9 The Court’s earlier analysis of Deputy Ratcliffe’s request

16 relied on Plaintiffs’ allegations that “such a request was not ‘standard procedure’ for all

17 routine traffic stops” and that “none of the other drivers on the same road closure were

18 asked to produce a Social Security card.” Melendres, 598 F. Supp. 2d at 1035.

19 Discovery in this case has confirmed that requests for Social Security numbers (or

20

8 Defendants suggest that there can be no dispute that Plaintiffs disobeyed the

21

“Road Closed” sign because Mr. Rodriguez later pled responsible for the citation. Defs.’ MSJ at 10. However, there are many reasons why a motorist might simply pay a fine

22

and not try to fight a traffic charge; doing so does not preclude a challenge to the constitutionality of a police action. See Miranda v. City of Cornelius, 429 F.3d 858 (9th

23

Cir. 2005) (permitting plaintiff’s claim of unreasonable seizure of vehicle to proceed even though he pled guilty to traffic violations and did not contest impoundment during

24

traffic hearing). Mr. Rodriguez himself explained that he did not contest the charge because he felt doing so in traffic court would have been futile. Defs.’ SOF 59.

25

9 Defendants claim that Deputy Ratcliffe asked Mr. Rodriguez for only a Social

Security number (rather than a card), but concede that this is the subject of a factual

26 dispute. Defs.’ MSJ at 9 n.4; see also Pls.’ SOF 188; Pls.’ Resp. to Defs.’ SOF 48-48.

Like with other factual disputes, they insist that this conflict in testimony does not 27 matter. On the contrary, the request for a Social Security card is even more unusual and

intrusive than a request for a Social Security number and would certainly have 28 implications for any Fourth Amendment inquiry.

- 18 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 22 of 39

1 cards) in fact are not standard procedure for the MCSO, Pls.’ SOF 195; that the other

2 motorists on the road that day were not asked for Social Security numbers or cards, Pls.’

3 Resp. to Defs.’ SOF 52 140; Pls.’ SOF 195, 198; and that Deputy Ratcliffe’s repeated

4 insistence on a Social Security number for the traffic citation extended the length of the

5 Rodriguezes’ traffic stop. Pls.’ Resp. to Defs.’ SOF 52 (citing to testimony of Mr.

6 Rodriguez that Deputy Ratcliffe’s requests for his Social Security number “dragged []

7 out” the traffic stop); see also United States v. Garcia-Rosales, No. CR-05-402-MO,

8 2006 WL 468320, at *9 (D. Or. Feb. 27, 2006) (traffic stop “unduly prolonged to gain

9 more information” violated Fourth Amendment).

10

Defendants have therefore failed to meet their burden for summary judgment on

11 the Rodriguezes’ claims under the Fourth Amendment.

12

3. Plaintiffs Manuel Nieto and Velia Meraz Were Stopped and

Detained in Violation of Their Fourth Amendment Rights

13

14

On March 28, 2008, during one of the MCSO’s large-scale saturation patrols,

15 Manuel Nieto and his sister Velia Meraz were dropping by a gas station near the auto

16 body shop where they work when they encountered Deputy Charley Armendariz. Pls.’

17 SOF 200. Deputy Armendariz was in the course of conducting a traffic stop on two

18 other individuals and had them detained near the gas pumps (away from where Mr.

19 Nieto parked, which was closer to the market area). Pls.’ Resp. to Defs.’ SOF 68. Mr.

20 Nieto and Ms. Meraz were playing Spanish music with their windows rolled down when

21 they pulled in. Pls.’ SOF 202; Defs.’ SOF 69. They testified that Deputy Armendariz

22 immediately told them to leave, or he would arrest them for disorderly conduct. Pls.’

23 Resp. to Defs.’ SOF 71. Deputy Armendariz then called for backup. Pls.’ SOF 203;

24 Defs.’ SOF 76. By the time the backup officers arrived, Mr. Nieto and Ms. Meraz had

25 complied with Deputy Armendariz’s order and left the gas station (having never exited

26 their vehicle). Pls.’ SOF 203.

27

Despite Mr. Nieto and Ms. Meraz’s compliance with his order, Deputy

28 Armendariz sent Deputy Michael Kikes and Douglas Beeks after them. Pls.’ SOF 204-

- 19 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 23 of 39

1 05. Defendants claim he did this because Plaintiffs had heckled him at the gas station,

2 not wanting to leave but instead instructing his detainees in Spanish to remain silent and

3 ask for a lawyer, and referring to Sheriff Arpaio as a “fucking Nazi.” Defs.’ MSJ at 11.

4 Plaintiffs directly dispute those allegations. Pls.’ Resp. to Defs.’ SOF 70-74. But even

5 if those allegations were true, this conduct would not constitute a criminal offense or

6 justify the officers’ subsequent actions. “Inarticulate and crude as [the] conduct may

7 have been . . . expression of disapproval toward a police officer . . . fell squarely within

8 the protective umbrella of the First Amendment and any action to punish or deter such

9 speech—such as stopping or hassling the speaker—is categorically prohibited by the

10 Constitution.” Duran v. City of Douglas, 904 F.2d 1372, 1377-78 & n.4 (9th Cir. 1990)

11 (invalidating traffic stop of individual for disorderly conduct under Arizona law who

12 was “making obscene gestures toward [officer] and yelling profanities”); see also Pls.’ 13 Resp. to Defs.’ SOF 83.10 There was simply no reason that Deputy Armendariz needed

14 to send the backup officers to pursue Mr. Nieto and Ms. Meraz, especially after

15 Plaintiffs had left the gas station and could no longer pose any safety concern.

16

From the perspective of the backup officers, there was likewise no reasonable

17 suspicion or probable cause to detain Plaintiffs. Defendants refer to the testimony of

18 Deputy Beeks that he heard words over the radio to the effect that the “vehicle had tried

19 to run over or hit Deputy Armendariz as it left the area.” Defs.’ MSJ at 11 n.7. This

20 testimony is refuted by the other evidence in the record. A recording of the actual radio

21

22

10 Notably, Defendants’ motion is not clear on what specific crime they believe

warranted the stop of Mr. Nieto and Ms. Meraz, stating only that Deputy Kikes believed

23 that “some type of crime” had occurred. Defs.’ MSJ at 22. Defendants argue, based on

some speculative testimony by their expert, Bennie Click, that Plaintiffs could have been

24 arrested for “obstruction.” Defs.’ MSJ at 22. However, this is a conclusion of law that

Mr. Click may not make for the court. Elsayed Mukhtar v. Cal. State Univ., Hayward,

25 299 F.3d 1053, 1063 & 1065 n.10 (9th Cir. 2002). Nor is there any indication here that

Deputy Armendariz’s investigation or arrest was actually obstructed. Pls.’ Resp. to

26 Defs.’ SOF 117. The Arizona statute governing obstruction of criminal investigations is

not designed to protect communications between a suspect and a police officer, but

27 instead “the transmission of the words of a prospective informant or witness.” Walker v.

Superior Court In and For County of Navajo, 956 P.2d 1246, 1248-49 (Ariz. App. Ct.

28 1998); see also Ariz. Rev. Stat. § 13-2409.

- 20 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 24 of 39

1 transmission reveals that Deputy Armendariz said nothing further after he made the

2 simple request for back up. Pls.’ Resp. to Defs.’ SOF 77. In any event, both Deputy

3 Beeks and Kikes’ suspicions were dispelled when they drove by and saw that Deputy

4 Armendariz was unharmed. But they continued in their pursuit of Plaintiffs despite

5 having no reason to do so at that point. Pls.’ SOF 204-05. Plaintiffs’ traffic stop was

6 therefore made without articulable reasonable suspicion or probable cause, in violation

7 of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 661 (1979); Duran,

8 904 F.2d at 1378 (stops made on basis of officer speculation, “hunch[es]” or “suspicion

9 in the air” are plainly unlawful).

10

Defendants’ conduct after Plaintiffs were stopped constitutes a separate violation

11 of the Fourth Amendment. Defendants do not dispute that Plaintiffs were pulled over by

12 multiple units, at gunpoint, and that Mr. Nieto was forcefully removed from the vehicle

13 and handcuffed. Pls.’ SOF 209-210. These types of tactics are not part of a routine

14 traffic stop and constitute a use of force that must have an independent justification

15 under the Fourth Amendment. See United States v. Del Viso, 918 F.2d 821, 824-25 (9th

16 Cir. 1990) (tactics requiring additional articulation of risk of physical harm include “an

17 order to alight from [] vehicle and subsequent handcuffing, all done by officers

18 brandishing weapons”). The entirety of Defendants’ justification consists of speculation

19 such as what officers heard over the radio, the fact that Mr. Nieto did not pull over for

20 300 feet, and the testimony of Deputy Beeks that Mr. Nieto had his hands on the

21 steering wheel. Defs.’ MSJ at 13. These factual allegations are all disputed. Pls.’ Resp. 22 to Defs.’ SOF 87-92.11

23

After deputies removed Mr. Nieto’s identification and ran a records check, they

24

25

11 Defendants inexplicably attack the credibility of Ms. Meraz, for whom

Defendants do not even attempt to try to explain the need to approach at gunpoint, by

26 alluding to her criminal history. Defs.’ MSJ at 13-14 n.9. However, they concede that

credibility arguments have no place in a motion for summary judgment. Id. Similarly,

27 Defendants’ reference to Mr. Nieto’s criminal history is also totally irrelevant, as Deputy

Armendariz could not have known about it when he sent the backup officers after

28 Plaintiffs. Pls.’ Rep. to Defs.’ SOF 81.

- 21 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 25 of 39

1 released Plaintiffs without any citation or charge. Pls.’ SOF 213. A quick phone call to

2 Deputy Armendariz confirmed that there was, in fact, “no crime” committed. Pls.’ SOF

3 206.

4

In light of the evidence of unreasonable stops, questioning, and detentions, the

5 Court should deny Defendants’ motion for summary judgment on Plaintiffs’ claims

6 under the Fourth Amendment and Article II, Section 8 of the Arizona Constitution.

7

C. The Undisputed Record Shows that Sheriff Arpaio and MCSO

Officers Acted with Discriminatory Intent and that Their Actions Had

8

a Discriminatory Effect, Resulting in an Equal Protection Violation

9

Defendants also contend that Plaintiffs’ claims under the Fourteenth Amendment

10 of the U.S. Constitution and Title VI of the Civil Rights Act fail as a matter of law

11 because there is no evidence that Defendants acted with discriminatory purpose or that

12 any MCSO policy or practice had a discriminatory effect on Hispanics. Defs.’ MSJ at

13 23-33. For all the reasons stated in Plaintiffs’ Motion for Partial Summary Judgment, as

14 well as those stated herein, Defendants’ motion should be denied and summary

15 judgment on Plaintiffs’ Fourteenth Amendment racial discrimination claims should be

16 granted in favor of Plaintiffs.12

17

First, the undisputed evidence—both statistical and otherwise—demonstrates that

18 the immigration enforcement policies and practices of Sheriff Arpaio and the MCSO

19 have had a marked and disproportionate effect on Hispanics in Maricopa County.

20 Defendants’ attempts to downplay or distinguish the statistical evidence in this case are

21 not persuasive and are, in many cases, contrary to the opinions expressed by their own

22 statistical expert. Second, the record contains abundant direct and circumstantial

23 evidence that Sheriff Arpaio and MCSO officers have acted with discriminatory intent

24 12 For these same reasons, Defendants’ motion for summary judgment on
25 Plaintiffs’ Title VI claims should be denied. Because the standard for Title VI claims is
substantially similar to the requirements for Equal Protection violations of the 26 Fourteenth Amendment, see Alexander v. Sandoval, 523 U.S. 275, 285-293 (2001)
(private Title VI action for intentional discrimination only), Plaintiffs will, like 27 Defendants, consider these two causes of action jointly in this opposition. Plaintiffs’
own motion for summary judgment, however, was based on their Fourteenth 28 Amendment claims only.

- 22 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 26 of 39

1 in targeting Hispanics in Maricopa County. Defendants can only claim to the contrary

2 by improperly ignoring the overwhelming evidence of racial and ethnic bias within the

3 MCSO, as well as significant evidence of intentionally discriminatory treatment by the

4 MCSO deputies engaged in the stops of the named Plaintiffs.

5

1. The MCSO’s Saturation Patrols and Immigration Enforcement

Operations Disproportionately Impact Hispanics in Maricopa

6

County

7

Plaintiffs’ statistical expert, Dr. Ralph B. Taylor, has undertaken a thorough

8 study of the MCSO’s Computer Aided Dispatch (CAD) database, which records

9 information concerning the MCSO’s traffic stops. The methodology of Dr. Taylor’s

10 study has been explained in detail in Plaintiffs’ Motion for Partial Summary Judgment,

11 and his expert reports have been entered in the record in support of the same. See Pls.’

12 MSJ at 10-12, 31-34; Pls.’ SOF 227-50; Dec. of Dr. Ralph Taylor in Support of Pls.’

13 Mot. for Partial Summ. J., Dkt. No. 424, Ex. B (“Taylor Initial Report”) & Ex. C

14 (“Taylor Rebuttal Report”).

15

In short, Dr. Taylor determined the ethnic composition of individuals stopped by

16 the MCSO based on the surnames in the CAD database, and compared the stop rates of

17 Hispanics on saturation patrol days, and by MCSO officers involved in saturation

18 patrols, to comparable activity by MCSO officers on non-saturation patrol days. Pls.’

19 SOF 234-50. His results showed disproportionate stops of Hispanics: (1) on saturation

20 patrol days as compared to non-saturation patrol control days; (2) by officers actively

21 working a saturation patrol (called “saturation patrol active officers”) as compared to

22 officers working that same day and on other days; and (3) by MCSO officers who had

23 ever worked a saturation patrol (“saturation patrol involved officers”) as compared to

24 those MCSO officers who had never participated in any saturation patrol. See Pls.’ SOF

25 239-47; Pls.’ SSOF 264.

26

Defendants do not contradict Dr. Taylor’s findings. Defendants’ statistical

27 expert, Dr. Steven Camarota, did not perform his own study showing that Hispanics

28

- 23 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 27 of 39

1 were in fact not stopped at higher rates on saturation patrol days and by officers

2 participating in saturation patrols. Indeed, Dr. Camarota conceded that Hispanics are

3 stopped more frequently on saturation patrols, and in fact he testified that such a

4 disparity should be expected because deputies are looking for illegal immigrants. Pls.’

5 SOF 253; Pls.’ SSOF 265. Instead of contradicting Dr. Taylor’ findings, Defendants

6 rely on indirect criticisms of them, pointing to overall agency-wide stop rates and

7 denying a connection between Dr. Taylor’s findings and the stops of the named

8 Plaintiffs. Defendants’ efforts to cast doubt upon Plaintiffs’ statistical evidence are 9 unfounded and unpersuasive.13

10

a. Comparisons of Agency-wide Stop Rates to Hispanics’

Share of the General Population are Invalid and

11

Uninformative

12

Defendants’ first assert that Dr. Taylor’s results should be ignored because he

13 focused on saturation patrols and not all traffic stops. Defendants argue that “if Latinos

14 were being racially targeted by MCSO personnel during traffic stops, then the

15 percentage of traffic stops of Latinos would be expected to occur at a much greater

16 percentage than their percentage of the general population.” See Defs.’ MSJ at 25.

17

Defendants’ argument is both scientifically invalid and factually uninformative in

18 the context of this case. First, comparing minority traffic stop rates to population

19 demographics is generally regarded as methodologically unsound. See Taylor Rebuttal

20 Report at 38-40; G. Ridgeway, Cincinnati Police Department Traffic Stops: Applying

21 RAND’s Framework to Analyze Racial Disparities 10-11 (2009) (available at

22 http://www.rand.org/pubs/monographs/MG914.html); see also Chavez v. Ill. State

23 Police, 251 F.3d 612, 644-45 (7th Cir. 2001) (discrediting population benchmarking as a

24 reliable way of determining racial makeup of motorists). This is because similarities or

25 differences between traffic-stop rates of a particular group and overall population

26 13 Further, Defendants ignore evidence that named Plaintiffs were treated
27 differently than non-Hispanic motorists, as detailed below in Section II.C.2. Such
evidence is directly relevant to discriminatory effect. See, e.g., Melendres, 598 F. Supp. 28 2d at 1037.

- 24 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 28 of 39

1 demographics may be explained by a number of factors, including the offense and

2 exposure rates of the minority group under study. See Taylor Rebuttal Report at 38-40.

3 For example, even if a higher rate of minority stops relative to their share of the

4 population is found, the difference could be due not to profiling but to the fact that the

5 minority group under study offends at a different rate. Similarly, even if the group

6 under study is stopped at the same or lower rates, such a result could be fully consistent

7 with racial profiling if the minority group is exposed to police less often (e.g., because

8 its members drive less).

9

For this reason, Dr. Taylor’s study relies on internal benchmarking, and

10 compares MCSO activity on saturation patrols and saturation patrol officers to

11 comparable MCSO activity at other times and by other officers. This eliminates the

12 possible distorting effect of differences in minority offense or exposure rates. See

13 United States v. Duque-Nava, 315 F. Supp. 2d 1144, 1163 (2004) (evidence of

14 discriminatory intent includes “a comparison of an officer’s stops with similarly situated

15 officers in his own police department”); see generally Melissa Whitney, The Statistical

16 Evidence of Racial Profiling in Traffic Stops and Searches, 49 B.C. L. Rev. 263, 277-78

17 (2008) (describing methodological advantages of internal benchmarking in racial

18 profiling studies).

19

Second, examining agency-wide stop rates misses the point with respect to

20 Plaintiffs’ claims in this case. Plaintiffs’ lawsuit is centrally concerned with Sheriff

21 Arpaio’s highly-publicized immigration enforcement efforts, of which saturation patrols

22 are the most prominent example. The MCSO is a very large police agency with over

23 three thousand deputies. In such a context, racial profiling by certain officers, or even

24 entire units of the MCSO, can escape detection if only overall traffic stop activity across

25 the agency as a whole is examined. More specifically, the CAD database studied by Dr.

26 Taylor contained records of 123,831 individuals stopped by the MCSO between January

27 1, 2007 and October 31, 2009, Pls.’ SSOF 261; on a typical saturation patrol day, in

28 contrast, an average of 424 people are stopped by the MCSO; approximately 150 of

- 25 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 29 of 39

1 which are stops by officers known to be working the saturation patrol. Pls.’ SSOF 262-

2 63. Even if every single person stopped on a particular saturation patrol was Hispanic—

3 which would be striking evidence of racial profiling—the MCSO’s agency-wide stop

4 rate of Hispanics would only be increased by approximately one tenth of one percent.

5 The agency-wide rate would still “roughly” reflect “the same proportion” of Hispanics

6 in Maricopa County’s population, and blatant racial profiling during saturation patrols

7 would go undetected under Defendants’ suggested methodology. Defendants’ reliance

8 on agency-wide stop rates is therefore misplaced.

9

b. Dr. Taylor’s Results are Reflected in and Directly Relevant

to the Stops of the Named Plaintiffs

10

11

Defendants also seek to attack the connection between the statistical disparities

12 found by Dr. Taylor and the stops of the named Plaintiffs. Specifically, Defendants

13 assert that “four of the five Plaintiffs were not stopped as part of an MCSO saturation

14 patrol,” and therefore the disparities found by Dr. Taylor have no relevance as to

15 whether the named Plaintiffs were victims of discrimination. See Defs.’ MSJ at 25-26.

16

Contrary to Defendants’ argument, the majority of named Plaintiffs were stopped

17 during a saturation patrol. Defendants appear to acknowledge that Mr. Ortega

18 Melendres was stopped during a saturation patrol, a fact that is difficult to deny when it

19 was expressly labeled as an MCSO officer who oversaw the operation. Defs.’ MSJ at

20 25; Defs.’ SOF 12 (citing Madrid Dep. at 47:19-48:3). As to the stop of Ms. Meraz and

21 Mr. Nieto, Defendants acknowledge that it occurred during a saturation patrol, but

22 contend that is was “unrelated to that saturation patrol.” Defs.’ MSJ at 25. This

23 assertion is baseless. Ms. Meraz and Mr. Nieto were stopped on a day in which a

24 saturation patrol occurred, Pls.’ SOF 200, in the area where the saturation patrol took

25 place, and by officers working that saturation patrol. Pls.’ SSOF 267. The disparities

26 found by Dr. Taylor relate directly to their stop. Finally, although the stop of the

27 Rodriguezes did not occur during a saturation patrol, the stop was made by Deputy

28 Ratcliffe, who had worked on a number of saturation patrol operations. Pls.’ Resp. to

- 26 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 30 of 39

1 Defs.’ SOF 43. One of Dr. Taylor’s findings was that officers who had ever been

2 involved in a saturation patrol were more likely to stop Hispanics even on non-

3 saturation patrol days, as compared to officers who had worked a saturation patrol.

4 Pls.’ SSOF 264. Thus Dr. Taylor’s study has direct relevance to the stop of the

5 Rodriguezes as well.

6

In addition, Dr. Taylor found that MCSO traffic stops that involved an Hispanic

7 individual lasted 21% to 25% longer than stops of non-Hispanics. Pls.’ SOF 248-49.

8 This finding includes all MCSO stops—those occurring on a saturation patrol as well as

9 those that did not. It is also consistent with the experiences of the Plaintiffs, whose

10 stops were extended by the MCSO to conduct immigration and identity checks.

11

Moreover, Dr. Taylor’s study of the impact of MCSO saturation patrol operations

12 has implications that extend to the MCSO’s immigration enforcement generally. The

13 MCSO’s large-scale saturation patrols, because they involve a large number of

14 identifiable officers on a specific day, are a useful way to examine the patterns and

15 practices of the MCSO in its immigration enforcement operation, but are not the whole

16 story. For example, the stop of Mr. Ortega Melendres, because it occurred during a

17 small-scale saturation patrol, was not among the specific large-scale saturation patrol

18 days that Dr. Taylor studied. Nonetheless, certainly the disparities found in large-scale

19 saturation patrol operations are highly relevant and probative of the MCSO’s activities

20 on smaller scale operations. More generally, the disparities found in saturation patrol

21 operations—which have an overt focus on apprehending illegal immigrants—have great

22 relevance to the MCSO’s other immigration enforcement operations, including routine

23 traffic stops that appear to be motivated by a desire to investigate Hispanic motorists’

24 immigration status (like that of the Rodriguezes). Defendants’ attempt to dissociate the 25 disparities found by Dr. Taylor from the stops of the named Plaintiffs’ fails.14

26

14 Defendants’ remaining criticisms of Dr. Taylor’s study can be quickly

27

dismissed. Defendants first attempt to diminish Dr. Taylor’s study by using technical statistical language out of context, noting that Dr. Taylor’s analysis is “quasi-

28

experimental” in design and relies on “inferences.” See Defs.’ MSJ at 26. Dr. Taylor’s report indeed relies on “inference”—specifically the method of statistical inference

- 27 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 31 of 39

2. Abundant Evidence Demonstrates that MCSO Personnel Had

1

Racially Discriminatory Intent in Stopping, Questioning, or

Detaining the Plaintiffs

2

3

Defendants’ final argument asserts that Plaintiffs have not shown that “any

4 MCSO personnel” acted with discriminatory intent. See Defs. MSJ at 27-33.

5 Defendants’ argument incorrectly focuses on the self-professed motives of the

6 individual deputies in performing the traffic stops of the named Plaintiffs. The actions

7 of the individual officers speak more loudly as to their intent. An additional reason to

8 deny Defendants’ motion is the significant, and largely undisputed, evidence of

9 discriminatory intent behind the MCSO’s practice of enforcing the immigration laws

10 through saturation patrols and pretextual stops, which the individual officers were

11 implementing.

12

a. Because the Deputies Acted Pursuant to a Discriminatory Policy and Practice, the Stops of the Plaintiffs Violated the

13

Fourteenth Amendment

14

The individual Plaintiffs were each stopped pursuant to a policy, instituted and

15 ordered by Sheriff Arpaio and his command staff, of racially profiling Hispanics in the

16 MCSO’s immigration enforcement operations. The stops of the named Plaintiffs

17 occurred as a direct result of this policy and practice, which was motivated by

18 discriminatory intent. Pls.’ MSJ at 14-34. Because Sheriff Arpaio and the command

19 staff were the decisionmakers who put in place the MCSO’s policy and practice of

20 targeting Hispanic individuals—e.g., by designing the saturation patrols and choosing

21

22

based on analysis of data patterns. Pls.’ Resp. to Defs.’ SOF 124. The “quasiexperimental” design of Dr. Taylor’s study simply refers to the fact that his study

23

compares MCSO officers working on saturation patrols to other MCSO officers, as opposed to a random assignment to saturation patrols by the researcher. Dr. Taylor

24

testified that this design was superior to a study with randomly assigned control groups and of the best scientific quality given the purposes of the study and the existing

25 circumstances. See Pls.’ Resp. to Defs.’ SOF 124.

Defendants also cite several data-processing and inclusion issues regarding Dr.

26 Taylor’s study. See Defs.’ MSJ at 26. These issues were specifically addressed in great

detail in Dr. Taylor’s rebuttal report and found to have no impact on the results and

27 conclusions. See Pls.’ Resp. to Defs.’ SOF 124. In any event, these considerations

would at most go to the weight to be given Dr. Taylor’s report at trial. They are not

28 reasons to grant Defendants summary judgment.

- 28 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 32 of 39

1 the locations for them based on racially charged citizen complaints—it is their intent

2 that is operative with respect to that policy and practice. See Wayte, 470 U.S. at 610

3 (discriminatory intent of “decisionmaker” is the key inquiry); Doe v. Vill. of

4 Mamaroneck, 462 F. Supp. 2d 520, 554-55 (S.D.N.Y. 2006) (examining intent of Mayor

5 who instituted policing activities targeting day laborers in discriminatory intent inquiry).

6 While the evidence suggests that individual officers who performed the stops of the

7 Plaintiffs also were motivated by race in either making or prolonging those stops,

8 Plaintiffs need not separately establish such motivation for each individual officer in

9 order to prevail. See White v. Williams, 179 F. Supp. 2d 405, 419 (D.N.J. 2002)

10 (allegation that police superintendent “advocated the use of racial profiling” stated

11 Fourteenth Amendment violation). Defendants’ exclusive focus on the self-serving

12 denials of racial motivation by the individual officers therefore misses the point.

13

Indeed, as laid out in great detail in Plaintiffs’ Motion for Partial Summary

14 Judgment, the record is replete with evidence of discriminatory intent, both at the level

15 of MCSO command staff and at the level of individual MCSO officers. Pls.’ MSJ at 14-

16 34. The result of these racially-motivated decisions was a pervasive pattern of targeting

17 Hispanic individuals during saturation patrols and other traffic stops. The record reveals

18 a number of instances where Sheriff Arpaio personally circulated within the MCSO,

19 “for our operation[s]” or with written instructions for follow-up, materials expressing

20 explicit anti-Hispanic or anti-Mexican sentiments, advocating racial profiling, and/or

21 requesting action against individuals based on the color of their skin, the language they

22 speak, or other characteristics associated with Hispanic ethnicity. See Pls.’ SOF 26-46,

23 76-83, 85, 87, 93, 96-97; see also 47-49. Immigration enforcement efforts, including

24 saturation patrols, were planned and executed on the basis of these materials. See Pls.’

25 MSJ at 14-24. In short, Plaintiffs have demonstrated that the leadership of the MCSO,

26 and the organization as a whole, had a pervasive policy or practice of targeting Hispanic

27 individuals during traffic stops.

28

Plaintiffs’ evidence of discriminatory intent at the department-wide level is also

- 29 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 33 of 39

1 highly probative of the specific discriminatory intent of individual MCSO officers. See,

2 e.g., Polanco v. City of Austin, 78 F.3d 968, 980 (5th Cir. 1996) (“Evidence of the

3 [Austin Police Department’s] hostile treatment of and attitude toward Hispanics is

4 probative . . . of whether the same discriminatory motive affected decisions concerning

5 [employee’s termination.]”). Evidence of discriminatory intent by Arpaio, MCSO

6 command staff, and individuals throughout the organization thus has significant bearing

7 on the issue of whether the same discriminatory motive was shared by the individual

8 deputies implementing their policies on the traffic stops of each individual Plaintiff. See

9 id. After all, the MCSO is a hierarchical organization: deputies, including those

10 involved in the individual stops, took their directives from the MCSO leadership,

11 including Sheriff Arpaio. Pls.’ SSOF 266. Plaintiffs have shown that many of these

12 directives were motivated by discriminatory intent and encouraged targeting of Hispanic

13 individuals.

14

The record also contains evidence of the discriminatory intent of a number of

15 MCSO officers, including officers involved in Plaintiffs’ stops, who distributed racially-

16 charged materials—emails containing offensive images of “Mexicans” or making

17 exaggerated claims about undocumented immigrants or Mexicans—using their county

18 email accounts. Pls.’ SOF 145-151. The circulation of these emails is evidence that

19 their individual actions are motivated by the same discriminatory attitudes as those in

20 the leadership. See Mamaroneck, 462 F. Supp. 2d at 549; Polanco, 78 F.3d at 980.

21

b. The MCSO Deputies who Stopped the Named Plaintiffs

Acted with Discriminatory Intent

22

23

Finally, the circumstances surrounding each individual stop also show that

24 Deputies DiPietro, Ratcliffe, Armendariz, Kikes and Beeks each had racially

25 discriminatory intent or motive during the stops of the Plaintiffs:

26

Deputy DiPietro treated Mr. Ortega Melendres and other Hispanic

27 passengers differently from the white driver based on ethnicity. The record contains

28 evidence that MCSO officers who were involved in the stop of Mr. Ortega Melendres

- 30 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 34 of 39

1 had a discriminatory intent. Deputies in the undercover unit had no specific information

2 about the vehicle that picked up Mr. Ortega Melendres; while the stop was made for an

3 alleged speeding violation, it was clearly motivated by the observation that several

4 Hispanic men got into a truck at a supposed day laborer site. Deputy DiPietro released

5 the white driver with a warning, yet detained the Hispanic passengers and called for

6 Deputy Rangel to “come check the[ir] status,” even through there was no reason to

7 believe that the passengers had committed any violation of the law. Pls.’ SOF 177-179;

8 Manzo-Jurado, 457 F.3d at 937-38; see also Grier v. Galinac, 740 F. Supp. 338, 342

9 (M.D. Pa. 1990) (lack of probable cause for questioning raised an inference of racial

10 animus). The differential treatment of Hispanics, without cause, is evidence of Deputies

11 DiPietro and Rangel’s discriminatory intent.

12

Defendants point to the self-serving testimony of Deputies DiPietro and Rangel

13 and to the testimony of their expert Mr. Click to show a lack of discriminatory intent,

14 but none of those accounts is particularly illuminating on the question. Courts

15 acknowledge that it is the rare case where a defendant will admit to having acted with

16 racial animus. See, e.g., Zeigler v. Town of Kent, 258 F. Supp. 2d 49, 56 (D. Conn.

17 2003) (giving little weight to affidavits denying racial motivation). Further, the Court

18 should not consider the testimony of Mr. Click here. Mr. Click’s opinion provides no

19 special insight as to the question of the officers’ state of mind at the time of the traffic

20 stop. Mr. Click simply hypothesized about a factual matter which this Court is fully

21 capable of understanding and evaluating without an expert’s help. His testimony on this

22 issue is therefore inappropriate under Federal Rule of Evidence 702. See In re Rezulin

23 Prods. Liab. Litig., 309 F. Supp. 2d 531, 545-47 (S.D.N.Y. 2004) (questions of

24 knowledge, motive, intent, and state of mind describe factual matters which a jury is 25 capable of understanding and deciding without the expert’s help).15 Even if the court

26

15 Similarly, Defendants’ attempt to rely on statements by Plaintiffs’ expert, Mr.

27

Stewart, to show that Defendants did not have discriminatory intent fails. First, Defendants fail to take into account the full record, including instances where Mr.

28

Stewart testified that he did believe there was evidence of discriminatory intent with respect to the actions of the individual officers, as well as instances where Mr. Stewart

- 31 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 35 of 39

1 were to consider Defendants’ self-serving testimony, summary judgment that the

2 officers lacked discriminatory intent would be improper.

3

While Deputy DiPietro testified that he did not know the race of the individuals

4 in the vehicle before commencing the stop, it is undisputed that the purpose of that day’s

5 saturation patrol was to target suspected day laborers, that being a day laborer is not a

6 crime (and does not create suspicion of a crime), and that the MCSO equated day

7 laborers with Hispanics. Pls.’ SOF 88-89, 113, 172. Whether or not Deputy DiPietro

8 had specifically seen the passengers in the Ortega Melendres vehicle prior to making the

9 stop, Deputy DiPietro would have suspected that the occupants were Hispanic because

10 he believed most day laborers are Hispanic. See Pls.’ SOF 112-118, 171-180; Pls.’

11 Resp. to Defs.’ SOF 15, 18. He further demonstrated discriminatory intent during the

12 stop by treating the Hispanic passengers differently from the Caucasian driver. Pls.’

13 SOF 178-79. As Plaintiffs’ expert Mr. Stewart explained, the conduct directed toward

14 Mr. Ortega Melendres seemed to be racially motivated in light of the differing treatment

15 of the white driver and fact that the deputies believed that “if you are Mexican and

16 you’re a day laborer, then you must be here illegally,” and because the MCSO designs

17 and carries out its operations based upon that assumption. Resp. to Defs.’ SOF 130.

18

Deputy Ratcliffe did not cite or demand Social Security information from

19 non-Hispanic motorists similarly-situated to the Rodriguezes. During the stop of the

20 Rodriguezes, Deputy Ratcliffe asked Mr. Rodriguez for his Social Security card, and

21 insisted that Mr. Rodriguez provide his Social Security number even though Mr.

22 Rodriguez provided a valid drivers’ license and was clearly uncomfortable providing the

23

24 explained his reasoning and evidence. Second, even if Mr. Stewart had testified that he
did not believe the officers were engaged in racial profiling (which is not his testimony), 25 that testimony would not preclude finding a genuine issue of material fact because
significant other evidence presented by Plaintiffs demonstrates that the MCSO’s 26 deputies actions were motivated by race. Beaulah v. Muscogee County Sheriff’s
Deputies, 447 F. Supp. 2d 1342, 1369 n.32 (M.D. Ga. 2006) (opinion by Plaintiffs’ 27 expert that racial profiling was not occurring would not preclude summary judgment
when other evidence shows racial profiling) (vacated on other grounds by Walker v. 28 Johnson, 2008 WL 442328, No. 4:04-CV-161 (M.D. Ga. Feb 14, 2008)).

- 32 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 36 of 39

1 Social Security information. Pls.’ SOF 188; Pls.’ Resp. to Defs.’ SOF 52. MCSO

2 policy calls for an officer to request an additional form of identification only “if the

3 violator does not have a driver’s license.” Pls.’ SOF 195.

4

Even if Deputy Ratcliffe did not know the race of the Rodriguezes when he

5 stopped the vehicle, he did know it when he requested, and insisted upon, Mr.

6 Rodriguez’s Social Security information. Deputy Ratcliffe was also aware of the

7 Rodriguezes’ race when he wrote Mr. Rodriguez a citation, followed the Rodriguezes

8 back to the main road, and cited them (unlike the similarly-situated non-Hispanic

9 drivers). Pls.’ SOF 193, 197-198; see United States v. Ortiz-Hernandez, 276 F. Supp.

10 2d 1113, 1117 (D. Or. 2003) (finding “stop, arrest and search . . . were based at least in

11 part on [] race,” despite absence of discriminatory remarks, because “police showed no

12 interest in Lewis, a non-Hispanic, who failed to signal a turn”). The Rodriguezes

13 testified that they spoke to several other, Caucasian drivers that day who had not

14 received citations, and those Caucasian drivers were not asked for their Social Security

15 numbers, even though they were driving the same stretch of closed road as the

16 Rodriguezes. Pls.’ SOF 197-198; Pls.’ Resp. to Defs.’ SOF 139-140. The difference in

17 treatment between the Rodriguezes and non-Hispanic drivers supports an inference of

18 racial motivation. Further, contrary to Defendants’ contention, Mr. Stewart testified that

19 the interactions between Deputy Ratcliffe and the Rodriguezes after the stop was 20 initiated were racially motivated. See Pls.’ Resp. to Defs.’ SOF 136. 16

21

The actions of Deputies Armendariz, Kikes, and Beeks during the stop of

22 Mr. Nieto and Ms. Meraz indicate discriminatory intent to target Hispanics during

23 an ongoing saturation patrol. Finally, the actions of the officers involved in the stop

24 of Mr. Nieto and Ms. Meraz also indicate discriminatory intent. Mr. Nieto and Ms.

25 Meraz were pulled over during a saturation patrol and Mr. Nieto was forcefully removed

26

27

16 Whether or not Mrs. Rodriguez can be sure that Deputy Ratcliffe was

“intentionally trying to deprive [her] of [her] constitutional rights” is irrelevant to the

28 question of Deputy Ratcliffe’s discriminatory intent. See Pls.’ Resp. to Defs.’ SOF 133.

- 33 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 37 of 39

1 from the vehicle at gunpoint after Deputy Armendariz heard them listening to Spanish

2 music and could observe their race. Pls.’ SOF 202, 205-210 see also Grier, 740 F.

3 Supp. at 342 (detention of suspect at gunpoint where Plaintiff did not fit the description

4 along with the fact that others nearby were not questioned raised an inference of racial

5 animus). Deputy Kikes then handcuffed Mr. Nieto for no apparent reason. Pls.’ SOF

6 212. Mr. Nieto and Ms. Meraz were released only after the deputies were able to run a

7 check Mr. Nieto’s identification and were told that they were United States citizens.

8 Pls.’ SOF at 211-213. Plaintiffs were then released without charge. Pls.’ SOF 213.

9 This sequence of events is additional circumstantial evidence of discriminatory intent.

10 See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977). And as

11 Defendants acknowledge, Mr. Stewart testified that he believed that the stop of Mr.

12 Nieto and Ms. Meraz was racially motivated. Pls.’ Resp. to Defs.’ SOF 141, 143.

13 III. CONCLUSION

14

For the foregoing reasons, Defendants’ motion for summary judgment should be

15 denied.

16

RESPECTFULLY SUBMITTED this 3rd day of June, 2011.

17

By /s/ Stanley Young

18

Stanley Young (Pro Hac Vice) Andrew C. Byrnes (Pro Hac Vice)

19

COVINGTON & BURLING LLP 333 Twin Dolphin Drive

20

Suite 700 Redwood Shores, CA 94065-1418

21

Tammy Albarran (Pro Hac Vice)

22

Lesli Gallagher (Pro Hac Vice) Kevin J. Hickey (Pro Hac Vice)

23

Matthew Steilen (Pro Hac Vice) 1 Front Street

24

San Francisco, CA 94111-5356

25

ACLU FOUNDATION OF ARIZONA Daniel Pochoda

26

Annie Lai 3707 N. 7th St., Ste. 235

27

Phoenix, Arizona 85014 Telephone: (602) 650-1854

28

Facsimile: (602) 650-1376

- 34 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 38 of 39

1

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

2

Cecillia Wang

39 Drumm Street

3

San Francisco, California 94111

Telephone: (415) 343-0775

4

Facsimile: (415) 395-0950

5

MEXICAN AMERICAN LEGAL

DEFENSE & EDUCATIONAL FUND

6

Nancy Ramirez

634 South Spring Street, 11th Floor

7

Los Angeles, California 90014

Telephone: (213) 629-2512 x136

8

Facsimile: (213) 629-0266

Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 35 -

Case 2:07-cv-02513-GMS Document 455 Filed 06/03/11 Page 39 of 39

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 3rd day of June, 2011 I caused the attached document

3 to be electronically transmitted to the Clerk’s Office using the CM/ECF System for

4 filing and transmittal of a Notice of Electronic Filing to the following CM/ECF

5 Registrants: 6

Thomas P. Liddy liddyt@mcao.maricopa.gov

7

Maria R. Brandon

brandon@mcao.maricopa.gov 8

Timothy P. Casey

9

timcasey@azbarristers.com’

10

Attorneys for Defendant Sheriff Joseph Arpaio and the

Maricopa County Sherriff’s Office

11

12

/s/ Stanley Young

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 36 -

 </s> Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 1 of 78

1 COVINGTON & BURLING LLP
2 333 Twin Dolphin Drive Suite 700
3 Redwood Shores, CA 94065-1418 Telephone: (650) 632-4700
4 Facsimile: (650) 632-4800

5 Stanley Young (Pro Hac Vice) syoung@cov.com
6 Andrew C. Byrnes (Pro Hac Vice) abyrnes@cov.com
7

8

Attorneys for Plaintiffs (Additional attorneys for Plaintiffs listed on next page)

9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12

Manuel de Jesus Ortega Melendres,

) No. CV 07-2513-PHX-GMS

13 et al.,

)

) PLAINTIFFS’ RESPONSES AND

14

Plaintiffs,

) OBJECTIONS TO DEFENDANTS’

) STATEMENTS OF FACT AND

15

vs.

) SUPPLEMENTAL FACTS IN

) OPPOSITION TO DEFENDANTS’

16 Joseph M. Arpaio, et al.,

) MOTION FOR SUMMARY

) JUDGMENT

17

Defendants.

)

) (The Honorable Judge G. Murray Snow)

18

)

)

19

20

21

22

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 2 of 78

1 Additional Attorneys for Plaintiffs:

2 COVINGTON & BURLING LLP 1 Front Street
3 San Francisco, CA 94111-5356 Telephone: (415) 591-6000
4 Facsimile: (415) 591-6091 Kevin Hickey (Pro Hac Vice)
5 khickey@cov.com Matthew Steilen (Pro Hac Vice)
6 msteilen@cov.com Lesli Gallagher (Pro Hac Vice)
7 lgallagher@cov.com

8 ACLU FOUNDATION OF ARIZONA 3707 N. 7th St., Ste. 235
9 Phoenix, AZ 85014 Telephone: (602) 650-1854
10 Facsimile: (602) 650-1376 Daniel Pochoda (021979)
11 dpochoda@acluaz.org Anne Lai (330036*)
12 alai@acluaz.org *Admitted pursuant to Ariz. Sup. Ct. R. 38(f)
13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
14 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
15 San Francisco, California 94111 Telephone: (415) 343-0775
16 Facsimile: (415) 395-0950 Cecillia Wang (Pro Hac Vice)
17 cwang@aclu.org

18 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
19 634 South Spring Street, 11th Floor Los Angeles, California 90014
20 Telephone: (213) 629-2512 Facsimile: (213) 629-0266
21 Nancy Ramirez (Pro Hac Vice) nramirez@maldef.org
22

23

24

25

26

27

28

- 2 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 3 of 78

1 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATEMENTS OF FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
2

3

Pursuant to Federal Rule of C ivil Procedure 56 a nd Local R ule of Civil

4 Procedure 56.1(b), Plaintiffs submit their Response to Defendants Joseph M. Arpaio and

5 the Maricopa County Sheriff’s Office’s (“MCSO’s”) (collectively, “Defendants’”)

6 Statement of Facts in Support of thei r Motion for Partial Summary Judgment

7 (“Defendants’ SOF”) and t heir Supplemental Statement of Facts Re: Testim ony of ICE

8 Witnesses in Support of t heir Motion for Summary Judgment (“ Defendants’

9 Supplemental ICE SOF”). By not disputing a statement of fact, Plaintiffs do not wai ve

10 any objections to the admissi bility or authenticity of that statement of fact or any

11 document cited therein, and Pl aintiffs expressly reserve the r ight to make such

12 objections at trial. Plaintiffs‘ responses here are m ade only f or the pur poses of the

13 Court’s consideration of Defendants‘ Motion for Summary Judgment.

14

As further evidence precluding Defenda nts’ Motion, Plaintiffs also incorporate

15 by reference here their Separate Statement of Facts submitted in support of Plaintiffs‘

16 Motion for Partial Summary Judgment (“Pls .’ SOF”), Dkt. No. 422. Following their

17 responses to Defenda nts’ SOF, Plaintiffs al so submit supplemental statements of facts

18 that preclude summary judgment in favor of Defendants.

19

Plaintiffs’ Responses to Defendants’ SOF

20 No. Defendants’ Statement of Fact

Plaintiffs’ Response

21 1. Plaintiffs have sued Sheriff Joseph M. This statement simply provides

Arpaio (“Arpaio”) and the Maricopa “background about the action or the

22

County Sheriff’ Office (“MCSO”) for parties” and therefore does not properly

their alleged violations of the

belong in Defendants’ separate

23

Plaintiffs’ rights under the Fourth and statement of facts. L.R. Civ. 56.1(a).

Fourteenth Amendments to the United Plaintiffs’ First Amended Complaint

24

States Constitution, alleged violations speaks for itself.

of the Plaintiffs’ right under the

25

Arizona Constitution’s Article II,

Section 8, which prohibits

26

unreasonable searches and seizures,

and alleged violations of Plaintiffs’

27

right to be free of racial discrimination

pursuant to Title VI of the Civil Rights

28

- 3 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 4 of 78

1

Act of 1964 which prohibits racial

discriminatory practices by local

2

governmental entities. See Dkt. #26.

3 2. Each of the individual Plaintiffs

This statement simply provides

(Manuel de Jesus Ortega Melendres, “background about the action or the

4

Jessika Quitugua Rodriguez, David parties” and therefore does not properly

Rodriguez, Velia Meraz, and Manual belong in Defendants’ separate

5

Nieto, Jr.) has been, during motor

statement of facts. L.R. Civ. 56.1(a).

vehicle traffic stops on public

Plaintiffs’ First Amended Complaint

6

roadways, stopped, detained,

speaks for itself.

questioned, and/or searched by MCSO

7

officers, allegedly in violation of their

constitutional and statutory rights. See

8

Dkt. #26.

9 3. The Plaintiffs’ First Amended

This statement simply provides

Complaint asserts that each of the

“background about the action or the

10

individual Plaintiffs were stopped,

parties” and therefore does not properly

detained, questioned, and/or searched belong in Defendants’ separate

11

by MCSO officers allegedly pursuant statement of facts. L.R. Civ. 56.1(a).

to an officially-sanctioned policy,

Plaintiffs’ First Amended Complaint

12

pattern, and practice of racially

speaks for itself.

profiling, targeting, or otherwise

13

discriminating against Latinos during

motor vehicle traffic stops. See Dkt.

14

#26 at p. 3, lns. 15-25, ¶ 3; p. 3, ln. 26

to p. 4, ln. 1, ¶ 4 (alleging that

15

“Plaintiffs bring this action as

representative of a class of Latino

16

persons who as a result of racial

profiling, have been or will be stopped,

17

detained, interrogated, or searched by

Arpaio and his agents in moving or

18

parked vehicles in Maricopa County.”)

(emphasis added).

19

20

4. Plaintiffs allege in their First Amended This statement simply provides

Complaint that the Defendants’

“background about the action or the

21

purported policy, practice, pattern, and parties” and therefore does not properly practice is manifested not only on an belong in Defendants’ separate

22

“day-to-day” basis during routine traffic stops conducted by MCSO

statement of facts. L.R. Civ. 56.1(a). Plaintiffs’ First Amended Complaint

23

deputies, but also during traffic stops speaks for itself. made during “crime suppression

sweeps” or law enforcement saturation

24

patrols. See Dkt. #26 at p. 3, p. 3, lns.

15-25, ¶ 3.

25

26

5. The gravamen of Plaintiffs’ lawsuit is This statement simply provides

the charge that MCSO deputies are

“background about the action or the

27

racially profiling Latinos to make “pretextual and unfounded [traffic]

parties” and therefore does not properly belong in Defendants’ separate

28

stops,” and following those stops,

statement of facts. L.R. Civ. 56.1(a).

- 4 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 5 of 78

1

engaged in “racially motivated

Plaintiffs’ First Amended Complaint

questioning, searches and other

speaks for itself.

2

treatment, and often baseless arrests.”

See Dkt. #26 at p. 3, p. 3, lns. 15-25, ¶

3

3. The Plaintiffs, therefore, seek

declaratory and injunctive relief

4

against the Defendants. See Dkt.#26 at

pgs 29-30, ¶¶A-F. 5

6. Plaintiff Manuel de Jesus Ortega

Undisputed.

6

Melendres is a resident of the Republic

of Mexico. See Deposition of Plaintiff

7

Manuel Melendres at p. 7, lns. 7-15.

8 7. Mr. Melendres legally entered the

Undisputed to the extent that Mr. Ortega

United States and visited Maricopa Melendres entered the United States as a

9

County as a tourist between September tourist on September 6, 2007.

6, 2007 and September 26, 2007. See

10

Deposition of Plaintiff Manuel

Disputed to the extent that the cited

Melendres at p. 11, lns. 6-18.

portion of the record does not establish

11

when Mr. Ortega Melendres left the

United States. Mr. Ortega Melendres

12

was still visiting the United States as a

tourist on September 27, 2007, the date

13

of his traffic stop by MCSO.

14 8. Under federal law, during Mr.

Undisputed, except that the cited portion

15

Melendres’ visit to Maricopa County of the record does not mention anything he was required to keep with him (i.e., about the documentation required to

16

on his person) his B-1/B-2 tourist visa travel more than 25 miles from the and an I-94 Form (that allowed him to border.

travel more than 25 miles north of the

17

border with Mexico). See Deposition

of MCSO Deputy Carlos Rangel at p.

18

119, ln. 19 to p. 120, ln. 1.

19 9. If a visiting foreign national, such as Disputed. While federal law requires

20

Mr. Melendres, does not have his

certain non-citizens (such as Mr. Ortega

tourist visa or I-94 Form on his person, Melendres) to carry a registration

21

that person is legally “out of status” and a local law enforcement officer

document (such as the I-94 Form), the immigration law does not provide that

22

certified under the federal government’s 287(g) program may

the failure to carry the document makes the person “out of status” and subject to

23

lawfully detain such a person to

deportation. Cf. 8 C.F.R. § 214.1

determine his status and/or in order to (Requirements for admission, extension,

24

deliver him to federal immigration

and maintenance of status). Defendants

authorities for a determination of his do not identify any federal law or

25

lawful presence in the United States (i.e., the United States Immigration

regulation to the contrary.

26

and Customs Enforcement, or “ICE”). Defs.’ Supplemental ICE SOF 26 does

See Deposition of MCSO Deputy

not mention anything about an I-94

27

Carlos Rangel at p. 119, ln. 19 to p. Form. In fact, when ICE Agent Jason 120, ln. 1 (“Q: If I come to you and tell Kidd testified about the ways in which a

28

you I have an I-94 but I don't have it person can fall “out of status,” he - 5 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 6 of 78

1

on me, am I in status? A. You're out of mentioned nothing about an I-94 Form.

2

status.”) (Q. And why am I out of status? A. Because you need to carry

KDeidcd.1

Dep. 123:7-13 Ex. 219]

[Hickey

Opp’n

the B-1/B-2 and the I-94 together.”);

3

see also p. 120, lns. 6-9 (“Q. Does the Thus, Defendants’ only support for this

fact that Mr. Melendres did not have proposition is the self-serving testimony

4

his I-94 form on his person at the time of Deputy Rangel. Cf., United States v.

you spoke with him allow you under Weitzenhoff, 35 F.3d 1275, 1287 (9th

5

287(g) to take him into detention? A. Cir. 1993) (matters of law are for the

Yes.”); see also Defendants’

Court’s determination, not that of a party

6

Supplemental ICE SOF at ¶ 26.

witness).

7

Further, even if Mr. Ortega Melendres

was not carrying his I-94 Form (he

8

testified he was), there was no need for

him to be detained for seven to eight

9

hours to determine his status. He was

also carrying a valid visa, was not a

10

flight risk, and if there was any doubt

about his status, Deputy Rangel could

11

have made a phone call to ICE. See

Ortega Melendres Dep. 9:22-10:4, 22:2-

12

6, 26:4-27:6 (describing how ICE found

his visa and I-94 in his property bag)

13

[Hickey Opp’n Dec. Ex. 240].

14 10. A person visiting the United States

Undisputed, but irrelevant to the

with the type of visa issued to Mr.

resolution of Defendants’ motion.

15

Melendres, is not lawfully permitted to Anderson v. Liberty Lobby, 477 U.S.

work for compensation or otherwise 242, 248 (1986). Mr. Ortega Melendres

16

have employment. See Deposition of had not and was not working when he

MCSO Deputy Carlos Rangel at p.

was stopped by MCSO. Ortega

17

119, lns. 16-18 (“Q. Are you

Melendres Dep. 12:3-8; 24:4-7 [Hickey

permitted on a B-1/B-2 Visa, based on Opp’n Dec. Ex. 240].

18

your ICE training, to work for

compensation? A. No.”); see also

See also Pls.’ Resp. to Defs.’

19

Defendants’ Supplemental ICE SOF at Supplemental ICE SOF 26.

¶ 26. 20

11. If a foreign national visiting the United Undisputed that such a person would be

21

States on a tourist visa admits to a

“out of status”, but irrelevant to the

287(g) certified law enforcement

resolution of Defendants’ motion.

22

officer that he/she is working while as Liberty Lobby, 477 U.S. at 248. Mr.

a tourist, that foreign national is “out Ortega Melendres had not and was not

23

of status” and may be detained for

working when he was stopped by

delivery to ICE. See Deposition of

MCSO. Ortega Melendres Dep. 12:3-8;

24

MCSO Deputy Carlos Rangel at p.

24:4-7 [Hickey Opp’n Dec. Ex. 240].

119, lns. 2-18; see also Defendants’

25

Supplemental ICE SOF at ¶ 26.

Disputed that such a person could be

detained based solely on an oral 26

27

1 Declaration of Kevin Hickey In Support of Plaintiffs’ Opposition to Defendants

Motion for Summary Judgment, filed concurrently herewith.

28

- 6 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 7 of 78

1

statement that he is working, without

more. Regarding the allegation that Mr.

2

Ortega Melendres stated he was

working, a federal ICE official wrote

3

that, “Unfortunately, his detention was

not justified due to the lack of evidence

4

by MCSO such as pay stubs or sworn

statement where he admitted to working

5

without a permit.” ICE BS 34758-60,

attached as Ex. 57 to Kidd Dep.

6

(introduced at Kidd Dep. 184:10-188:8)2

[Hickey Opp’n Dec. Ex 220]; Kidd Dep.

7

82:21-83:1 (identifying Jon Gurule)

[Hickey Opp’n Dec. Ex 219] 8

See also Pls.’ Resp. to Defs.’

9

Supplemental ICE SOF 26.

10 12. On September 26, 2007, the MCSO’s Disputed. MCSO’s own internal

Human Smuggling Unit (“HSU”) was correspondence confirms that an

11

in Cave Creek, Arizona investigating a undercover investigation of the church

particular church in response to citizen conducted prior to the operation

12

complaints about the church serving as revealed “no information pertaining to

a possible “drop house” for human

forced labor, human smuggling[,]

13

smuggling, and because “day laborers” possible ‘drop houses,’” nor did it

near the church were stepping out into uncover any evidence that the day

14

the traffic on Cave Creek Road near laborers congregating at the church were

the church and causing traffic

illegal immigrants. Melendres MCSO

15

problems. See Deposition of MCSO 014686 [Hickey Dec.3 Ex. 139].

Deputy Carlos Rangel at p.27, ln. 9 to

16

p. 28, ln. 12, (see also p.28, lns. 3-6) This statement is further disputed to the

(“Q. Was there some sort of particular extent that neither Deputy Rangel,

17

investigation that was going on there? Sergeant Madrid nor Deputy DiPietro

A. I believe we were there because of had personal knowledge of the

18

complaints from citizens of a possible complaints received from citizens about

drop house in the area. Q. So was the the “possible drop house” or individuals

19

Human Smuggling Unit on patrol in “stepping out in traffic, creating traffic

connection with investigating a

hazards” and their testimony cannot be

20

possible drop house? A. Yes.”); see relied on for the proposition that MCSO

also Deposition of MCSO Deputy

in fact received such complaints.

21

Manuel Madrid dated 10/27/09 at p.47, Indeed, the testimony of these witnesses

ln. 19 to p. 48, ln. 14, (“Q. And do you is not even consistent—two contend that

22

23

2 Plaintiffs file Exhibit 57 to the October 1, 2010 De position of Jason Kidd publicly pursuant to paragraph 7 of the Pr otective Order Supplanting the Court’s Order

24

of 3/1/10, Dkt, No. 319 (July 9, 2010), a nd having redacted all necessary personal information, including redaction of the names of certain ICE a gents pursuant to consent

25

of the parties. See Notice to Court Concerning Prot ective Order Regarding Depositions of Jason K idd and Alonz o Pena, Dkt. No. 380 (Oct. 29, 2010). C ounsel for ICE has

26

indicated to counsel for Plaintif fs that ICE has no obj ection to the public filing of this document with these redactions.

27

3 Declaration of Ke vin Hickey in Supp ort of Plaintiffs Motion for Summary

Judgment, filed April 29, 2011 (Dkt. No. 426).

28

- 7 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 8 of 78

1

recall what you were doing in Cave the citizen complaints were about a drop

Creek that day? A. We were doing a house and the other contends they were

2

suppression patrol. Q. And what was about a possible traffic hazard.

the purpose of the suppression patrol?

3

A. We were there based on complaints This statement is further disputed to the

from citizens to city hall that they had extent that Deputy DiPietro waffles

4

several individuals up there stepping between (1) claiming that officers were

out in traffic, creating traffic hazards, there to investigate the church as a

5

stopping vehicles on roadways. We suspected drop house and (2) claiming

were up there in response to that.”); that they were instead there to

6

see also Deposition of MCSO Deputy investigate Hispanic day laborers who

Louis DiPietro at p. 111, lns. 13-16 were using the church to find work who

7

and p. 113, lns. 12-16, (“Q. And based MCSO suspected of being “illegal

on your conversations with other

aliens”. Plaintiffs have submitted

8

officers, you knew that other officers evidence confirming that MCSO was

of the MCSO were monitoring activity there to investigate the Hispanic day

9

at or near a church suspected of being laborers because they thought they were

a drop house for human smuggling? * illegal immigrants, Pls.’ SOF 172. They

10

* * A. Yes, Yes.”); see also Deposition did so even though they had no

of MCSO Deputy Louis DiPietro at p. information prior to the operation that

11

46, ln. 21 to p. 47, ln. 9, (“Q. What

these day laborers were undocumented,

were you doing in Cave Creek that

see Melendres MCSO 014686 [Hickey

12

morning? A. I was assisting other

Dec. Ex. 139], and appearance as part of

deputies that were watching, I believe a Hispanic work crew does not give rise

13

it was -- they were watching, I believe to reasonable suspicion that a person is

it was a church parking lot that had an undocumented immigrant. See United

14

day laborers working from it or being States v. Manzo-Jurado, 457 F.3d 928,

picked up by people. Q. Were you

937-38 (9th Cir. 2006).

15

assisting them as a K-9 officer or as,

more as a patrol officer? A. More of a Finally, this statement is disputed to the

16

patrol because I had a marked vehicle. extent that the operation that MCSO

Q. And do you know why they were conducted in Cave Creek was on

17

watching this church? A. I believe they September 27, 2007, not September 26,

had information that they were, there 2007. Melendres MCSO 14861, Ex. 2 to

18

were illegal aliens being, on the

Rangel Dep. I (introduced at Rangel

property, and that they were using that Dep. 56:4-21) [Hickey Dec. Ex. 68].

19

property as a point where they could

be picked up as day laborers.”). As

20

such the HSU was conducting

surveillance on the church and its

21

property and conducted a narrow

traffic patrol that related exclusively to

22

stopping for probable cause only those

vehicles that were observed to have

23

picked up people congregating at the

church property and that had left the

24

property. Id.

25 13. On September 26, 2007, Mr.

Undisputed, except to the extent that this

Melendres testified that he wanted to occurred on September, 27, 2007, not

26

go to some location in Scottsdale to September 26, 2007. Melendres MCSO

take photographs and that he needed a 14861, Ex. 2 to Rangel Dep. I

27

ride to that location, and a friend

(introduced at Rangel Dep. 56:4-21)

named Jorge Morales from Mexico [Hickey Dec. Ex. 68].

28

- 8 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 9 of 78

1

offered to arrange to have an unknown

person in a white colored pickup truck

2

give him the ride. See Deposition of

Plaintiff Manuel Melendres at p. 14,

3

ln. 17 to p. 17, ln. 6.

4 14. Mr. Melendres sat in the right front Undisputed, except to the extent that the

seat of the truck, the unknown

cited portion of the record does not

5

Caucasian drove the truck, and Mr. establish that the vehicle Mr. Ortega

Morales and another unknown person Melendres was riding in “ended up

6

sat in the second row in the extended driving on Cave Creek Road.”

cab pick-up truck and they ended up

7

driving on Cave Creek Road. See

Deposition of Plaintiff Manuel

8

Melendres at p. 17, lns. 16-22.

9 15. Mr. Melendres and three other men Undisputed that all Deputy DiPietro

were picked up at the church by the knew about the Hispanic passengers in

10

unknown driver of the white colored the vehicle was that they had been

11

pickup truck, and the church was under picked up from the parking lot of the HSU surveillance. See Deposition of church. Disputed to the extent that this

MCSO Deputy Louis DiPietro at p. 48, and the driver’s statement that he had

12

lns. 2-20 (“Q. Was there some sort of “picked them up to work” gave rise to

plan that you were briefed on as to

reasonable suspicion that Mr. Ortega

13

how to participate in this operation? A. Melendres was in the country

There was going to be two marked

unlawfully. Appearance as part of a

14

units, two K-9 units; one east and one Hispanic work crew does not give rise to

west of the location. And -- I don't

reasonable suspicion that a person is an

15

remember who all was involved with undocumented immigrant. See Manzo-

Sergeant Madrid, who was all under Jurado, 457 F.3d at 937-38.

16

him, but I know Sergeant Madrid was

there. And they had somebody that had This statement is further disputed to the

17

eyes on or some type of surveillance extent that the vehicle picked up Mr.

and would call out if they had a

Ortega Melendres and two other men,

18

vehicle that picked up, you know, a not three others. Ortega Melendres Dep.

19

group of suspected illegals and drove 15:20-16:4 [Hickey Opp’n Dec. Ex.

off the property. Kind of gave a

240].

description of the vehicle. And we were

20

advised prior to going out that if you

can find PC, stop it; if not, let it go. Q.

21

And "if you can find PC," what did

you understand that to mean? A.

22

Probable cause. Q. Probable cause to

make a traffic stop of that vehicle? A.

23

Correct.”); see also p. 49, ln. 4 to p.

50, ln. 5 (“Q. If you were able to

24

develop probable cause to stop the

vehicle, were you then advised to

25

investigate whether there were illegal

26

aliens in the vehicle? A. I don't remember being briefed on that. Once

the vehicle was stopped, I asked the

27

driver, you know, for his driver's

license, registration and insurance.

28

- 9 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 10 of 78

1

And I asked: Who are these guys,

who's in our vehicle? And he said he

2

had picked them up. And he was a

construction worker of some sort and -

3

- or appeared to be. And I called for

the, Sergeant Madrid, and they came

4

and took over there. Q. Why did you

call Sergeant Madrid? A. The driver

5

told me that he had picked them up to

work. And I had reasonable suspicion

6

from that that they were day laborers

and here illegally. Q. Did you have any

7

reason to believe that they were

committing any sort of state crime?

8

Violating any state criminal law? A.

Well, I'm not sure what the employer

9

sanction laws and when they came into

effect or not. But I had reason to

10

believe that they were here illegally.

Q. And so it was based on your belief

11

that they were here illegally that you

called Sergeant Madrid? A. Yes.”)

12

(emphasis added); see also p. 51, ln.

24 to p. 52, ln. 3 (“Q. And so is it your

13

understanding that that surveillance

vehicle observed this particular truck

14

pick up persons from the parking lot

and start driving away from the

15

church? A. Yes.”) (emphasis added).

16 16. MCSO Deputy Louis DiPietro was

Undisputed, except to the extent that the

assigned by an HSU surveillance

cited portion of the record does not

17

member to follow the truck in which establish that the surveillance unit was

Mr. Melendres was a passenger and to an HSU unit, or that it was the

18

look for probable cause to conduct a surveillance member (as opposed to

traffic stop of the truck. See Deposition Sergeant Madrid) that instructed Deputy

19

of MCSO Deputy Louis DiPietro at p. DiPietro to follow target vehicles and

52, ln. 4 to p. 54, ln. 10. 20

lDoioPkieftorropDroebpa. b4l8e:4c-a2u0se[Dtoefssto.’pStOheFm4 .Ex.

4]. 21

17. Deputy DiPietro paced the truck for

22

1.5 miles and determined it was

Undisputed that Deputy DiPietro followed the truck for approximately a

speeding and that he had probable

mile and a half looking for any

23

cause to make a traffic stop of the

equipment or traffic violations. He was

truck. See Deposition of MCSO

unsuccessful in finding any equipment

24

Deputy Louis DiPietro at p. 53, lns. 9- violations. He then dropped back and

18 (miles paced); p. 52, ln. 4 to p. 54, started to pace the vehicle, and,

25

ln. 10 (probable cause); see also p.

according to his memory, found that the

115, lns. 2-17 (“Q. Your testimony 26

27

4 Defendants’ Stateme nt of Facts in Support of Their Motion for Summary

Judgment, filed April 29, 2011 (Dkt. No. 413).

28

- 10 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 11 of 78

1

earlier in this deposition was that you vehicle was going over the speed limit.

estimated that perhaps you had

2

traveled one and a half miles or so

Disputed to the extent that the cited

from the point you first began looking portion of the record does not support

3

for probable cause on the truck to the that he paced the truck for a mile and a

point you actually made the decision half.

4

that you had probable cause? A. Yes.

Q. Okay. You determined that this

This statement is further disputed to the

5

driver, based on your pacing

extent that whether Deputy DiPietro had

technique, had exceeded the posted “probable cause” is a legal question and

6

speed limit? A. Yes. Q. You told the matters of law are for a Court’s

plaintiffs' lawyer earlier that the posted determination, not that of a party or its

7

speed limit was 25 miles per hour? A. witness. See, e.g., Weitzenhoff, 35 F.3d

Yes. Q. That based on your pacing

at 1287.

8

technique, you determined the driver

was going 34 miles per hour? A.

9

Yes.”).

10 18. Deputy DiPietro interacted with the Disputed. All Deputy DiPietro knew

truck’s driver, and based on

about the passengers in the vehicle was

11

information provided by the driver and that they were Hispanic and that they

other indications, formed reasonable had been picked up from the parking lot

12

suspicion that the truck’s occupants of the church. Deputy DiPietro believes

may have been in the country

that most day laborers are Hispanic or

13

unlawfully. See Deposition of MCSO Latino. DiPietro Dep. 51:2-6 [Defs.’

Deputy Louis DiPietro p. 49, ln. 4 to p. SOF Ex. 4]. But even this and the

14

50, ln. 5; p. 54, ln. 19 to p. 55, ln. 11; driver’s statement that he had “picked

see also Deposition of MCSO Deputy them up to work” did not give rise to

15

Carlos Rangel at p. 32, lns. 5-10,

reasonable suspicion that Mr. Ortega

(another indication to Deputy DiPietro Melendres was in the country

16

was the observation that the truck’s unlawfully. Appearance as part of a

passengers were unable to speak the Hispanic work crew does not give rise to

17

English language).

reasonable suspicion that a person is an

undocumented immigrant. See Manzo-

18

Jurado, 457 F.3d at 937-38.

Furthermore, not speaking English and

19

appearance as part of a Hispanic work

crew is also not enough to give rise to

20

reasonable suspicion that a person is an

undocumented immigrant. Id. at 937. 21

This statement is further disputed to the

22

extent that whether Deputy DiPietro had

“reasonable suspicion” is a legal

23

question and matters of law are for a

Court’s determination, not that of a party

24

or its witness. See, e.g., Weitzenhoff, 35

F.3d at 1287.

25

19. Deputy DiPietro called on his radio for Undisputed, except the extent that

26

a 287(g) MCSO deputy to assist at the Deputy DiPietro also appears to have

stop to investigate the occupants in the called Sergeant Madrid to the scene.

27

white truck. See Deposition of MCSO DiPietro Dep. 55:9-11 [Defs.’ SOF Ex.

Deputy Carlos Rangel at p. 28, lns. 13-

28

- 11 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 12 of 78

1

24.

4].

2 20. MCSO Deputy Carlos Rangel arrived Undisputed.

at the traffic stop involving Mr.

3

Melendres within a minute of

receiving the call for a 287(g) deputy.

4

See Deposition of MCSO Deputy

Carlos Rangel at p. 29, lns. 2-6.

5

Deputy Rangel was 287(g) certified at

the time. Id. at p. 14, ln. 15 to p. 15, ln.

6

8.

7 21. Deputy DiPietro told Deputy Rangel Disputed to the extent that Defendants

that the passengers in the truck did not are contending that the reason Deputy

8

speak English and asked him if he

DiPietro called Deputy Rangel to the

would talk to the passengers. See

scene was due to a language barrier.

9

Deposition of MCSO Deputy Carlos Because he stopped the vehicle for a

Rangel at p. 32, lns. 5-10. 10

traffic violation committed by the driver (speeding), Pls.’ SOF 177, there would

have been no need for anyone at MCSO

11

to contact the passengers. Furthermore,

Deputy DiPietro clearly explained that

12

the purpose of calling the other officers

to the scene was so that they could check

13

the immigration status of the Hispanic

passengers. Pls.’ SOF 179; see also

14

DiPietro Dep. 65:15-66:6 [Hickey Dec.

Ex 44].

15

16

22. Deputy Rangel, a Latino himself, and Undisputed. fluent Spanish speaking deputy, asked

the passengers for identification. See

17

Deposition of MCSO Deputy Carlos

Rangel at p. 34, lns. 1-13; p. 113, ln. 3

18

to p. 114, ln. 7.

19 23. Deputy Rangel conducted his

Disputed. While Deputy DiPietro may

20

questioning of the truck’s passengers have still been speaking with the driver

while Deputy DiPietro was

when Deputy Rangel arrived, Deputy

21

simultaneously questioning the driver DiPietro clearly testified that the officers of the truck. See Deposition of MCSO who came to the scene to investigate the

22

Deputy Carlos Rangel at p. 33, lns. 20- immigration status of the passengers 25 (“Q: I take it that Deputy DiPietro “took over” the stop and that the driver

23

dealt with the driver and you were

“was free to leave the traffic stop at that

speaking with the passengers? A. Yes. time.” DiPietro Dep. 59:14-25, 65:6-18,

24

Q. When you were speaking with the 66:22-67:10 [Hickey Dec. Ex 44]. passengers, was he [Deputy DiPietro]

25

at the same time talking to the driver? A. Yes.”).

26 24. The February 2007 Memorandum of Undisputed that these words appear in

27

Agreement between the MCSO and ICE, a 287(g) deputy states:

the Memorandum of Agreement between MCSO and ICE that was

28

effective on the date of the stop. - 12 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 13 of 78

1

The power and authority to interrogate

any alien or person believed to be an

2

alien as to his right to be or remain in

the United States (INA § 287(a)(1) and

3

8 C.F.R. §287.5(a)(1))… [and] [t]he

power to arrest without warrant any

4

alien entering or attempting to

unlawfully enter the United States, or

5

any alien in the United States, if the

officer has reason to believe the alien

6

to be arrested is in the United States in

violation of law and is likely to escape

7

before a warrant can be obtained. INA

§287(a)(2) and 8 C.F.R. § 287.5(c)(1). 8

See Memorandum of Agreement at p.

9

3, bullet point one and two.

10 25. Deputy Rangel, as a 287(g) certified Undisputed that Deputy Rangel was a

officer, looks for indicators of

287(g) certified officer at the time of the

11

unlawful presence in the United States stop.

such as the person providing him with

12

a foreign identification card, not

Disputed that he relied on these factors

having any identification from

to initiate questioning of Mr. Ortega

13

anywhere in the United States, and the Melendres. The cited portion of the

inability to speak the English

record does not establish that.

14

language. See Deposition of MCSO

Deputy Carlos Rangel at p. 21, ln. 3 to Further disputed to the extent that

15

p. 22, ln 3. Based on those indicators, Defendants are asserting that any one of

Deputy Rangel is permitted to question these indicators (or a combination of

16

persons about their origin and whether them) categorically gives rise to

they are lawfully present in the United reasonable suspicion to believe that a

17

States. Id at p. 21, ln. 13 to p. 22, ln. 3 person is an undocumented immigrant.

(“Q. What sort of questions did you That is a legal question and matters of

18

believe that you were able to ask to law are for a Court’s determination, not

determine a person's origin? A. Where that of a party or its witness. See, e.g.,

19

were you born? Where are your

Weitzenhoff, 35 F.3d at 1287.

parents from? And how did you enter

20

the United States? Q. And how would

you – how would you decide whom to

21

ask these questions of? A. There are a

number of indicators that would lead

22

me to believe a person is in the United

States illegally. Based on those

23

indicators, I would proceed on

enforcing the immigration law. Q. And

24

what were the indicators that you

would consider? A. They would -- the

25

subject would provide a foreign

identification card. Subject doesn't

26

speak English. And subject not

producing a United States’

27

identification.”)

28

- 13 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 14 of 78

1 26. Mr. Melendres provided Deputy

Disputed. Mr. Ortega Melendres

Rangel with his tourist visa but did not provided the I-94 Form to the MCSO

2

provide an I-94 form. See Deposition officer who questioned him. Ortega

of MCSO Deputy Carlos Rangel at p. Melendres Dep. 9:22-10:4, 22:2-6, 26:4-

3

34, ln 20 to p. 35, ln. 10.

27:6 (describing how ICE found his visa

and I-94 in his property bag) [Hickey

4

Opp’n Dec. Ex. 240].

5 27. Deputy Rangel asked the passengers in Disputed. Mr. Ortega Melendres never

the truck whether they were going to told the MCSO officer that he was

6

work, and two of them responded “yes, working. Ortega Melendres Dep. 24:4-7

with one of the responders being Mr. [Hickey Opp’n Dec. Ex. 240]. There

7

Melendres. See Deposition of MCSO were two other passengers in the vehicle

Deputy Carlos Rangel at p. 34, lns. 14- with him that the driver had come to

8

16.

pick up at the church. Mr. Ortega

Melendres was simply catching a ride to

9

Scottsdale. Ortega Melendres Dep.

14:22-17:9 [Hickey Opp’n Dec. Ex.

10

240].

11 28. Deputy Rangel instructed those

Disputed. The cited portion of the

persons/passengers in the truck that testimony does not establish that Deputy

12

said they were going to work to exit or Rangel asked only the passengers who

get out of the truck. See Deposition of said they were going to work to get out

13

MCSO Deputy Carlos Rangel at p. 34, of the vehicle. All of the Hispanic

lns. 14-16; see also p. 35, lns.11-13. passengers, including Mr. Ortega

14

Melendres, were told to get out of the

vehicle. Ortega Melendres Dep. 24:8-19

15

[Hickey Opp’n Dec. Ex. 240].

16 29. Based on the identification provided Disputed. Based on the identification

by Mr. Melendres and the others,

provided, no additional investigation of

17

Deputy Rangel began to try to

Mr. Ortega Melendres was warranted.

determine whether these

The identification documents that Mr.

18

persons/passengers were in the United Ortega Melendres provided to Deputy

19

States illegally. See Deposition of

Rangel (including his visa and I-94

MCSO Deputy Carlos Rangel at p. 35, Form) should have established that he

20

lns. 14-23.

was in the United States legally and no further investigation was necessary.

21

Ortega Melendres Dep. 22:2-6 [Hickey Opp’n Dec. Ex. 240].

22 30. Mr. Melendres told Deputy Rangel

Disputed. Mr. Ortega Melendres

23

that he had legally entered the United provided the I-94 Form to the MCSO States through a port of entry, had an I- officer who questioned him. Ortega

24

94 form, but did not have the I-94 form Melendres Dep. 9:22-10:4, 22:2-6, 26:4-

with him at the moment. See

27:6 (describing how ICE found his visa

25

Deposition of MCSO Deputy Carlos and I-94 in his property bag) [Hickey Rangel at p. 35, ln. 6 to p. 36, ln. 20. Opp’n Dec. Ex. 240].

26 31. Mr. Melendres testified that he gave Undisputed that Mr. Ortega Melendres

27

his I-94 Form to the deputy (i.e.,

testified that he provided the I-94 Form

Deputy Rangel) that questioned him at to the MCSO officer who questioned

28

the time of the stop. See Deposition of - 14 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 15 of 78

1

Plaintiff Manuel Melendres at p. 9, ln. him.

23 to p. 10, ln. 5; see also p. 22, ln. 6-

2

13. Mr. Melendres, however, has never Mr. Ortega Melendres has explained that

produced in this litigation a copy of the he no longer has a copy of his I-94 Form

3

I-94 Form that he supposedly had on from the period of time covering his

his person on September 27, 2007, and traffic stop by MCSO because he was

4

the one I-94 Form that he did produce required to surrender it to border

during this litigation does not cover the officials upon returning to Mexico. See

5

date of his September 26, 2007 stop Ortega Melendres’ Verified Resp. to

and detention. . See Deposition of

Def. Arpaio’s First Set of Interrogs. No.

6

Plaintiff Manuel Melendres at p. 10, 1 [Hickey Opp’n Dec. Ex 238]; ORT 12-

ln. 8 to p. 11, ln.5. 7

13 [Hickey Opp’n Dec. Ex 236].

Further, an ICE official confirmed that

8

Mr. Ortega Melendres had a valid I-94

Form that covers the date of his traffic

9

stop by MCSO, stating that “he was here

legally (in status)” and that “[h]e had his

10

documents in order.” ICE BS 34758-60,

Ex. 57 to Kidd Dep. (introduced at Kidd

11

Dep. 184:10-188:8) [Hickey Opp’n Dec.

Ex 220]; Kidd Dep. 82:21-83:1

12

(identifying Jon Gurule) [Hickey Opp’n

Dec. Ex 219]. 13

Finally, the operation that MCSO

14

conducted in Cave Creek was on

September 27, 2007, not September 26,

15

2007. Melendres MCSO 14861, Ex. 2 to

Rangel Dep. I (introduced at Rangel

16

Dep. 56:4-21) [Hickey Dec. Ex. 68].

17 32. Based on Mr. Melendres not having Undisputed that Mr. Ortega Melendres

his I-94 Form on him at the time of the was placed in handcuffs, searched, and

18

traffic stop, and that he stated that he taken away in a van. Rangel Dep.

was working while on his visa, Deputy 36:21-37:10, 41:5-19 [Defs.’ SOF Ex.

19

Rangel detained Mr. Melendres with 2].

handcuffs and intended to have him

20

delivered to ICE for verification of

Disputed that Deputy Rangel took Mr.

status. See Deposition of MCSO

Ortega Melendres into custody in order

21

Deputy Carlos Rangel at p. 36, ln. 10 to verify his status, or that “verification

to p. 37, ln. 2; see also p. 47, lns. 5-13 of status” can serve as lawful

22

(“Q. Do you have any reason to

justification for an arrest and seven to

believe that ICE's conclusion that there eight hour detention.

23

was no reason to detain him was

mistaken? A. Yes. Q. And what are Disputed that Mr. Ortega Melendres did

24

those -- what -- please explain. A.

not have his I-94 Form on him. He

During the traffic stop when I made provided the I-94 Form to the MCSO

25

contact, Mr. Melendres did not have officer who questioned him. Ortega

his I-94 in his possession. Therefore, Melendres Dep. 9:22-10:4, 22:2-6, 26:4-

26

he was out of status. That's the reason 27:6 (describing how ICE found his visa

why he was detained and transported and I-94 in his property bag) [Hickey

27

to DRO.”); see also Deposition of

Opp’n Dec. Ex. 240]. Further, while

MCSO Deputy Carlos Rangel at p.

federal law requires certain non-citizens

28

- 15 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 16 of 78

1

119, ln. 2 to p. 120, ln. 9 (explaining (such as Mr. Ortega Melendres) to carry

out-of-status character of a person on a a registration document (such as the I-94

2

B-1/B-2 visa and working for

Form), the immigration law does not

compensation and such information provide that the failure to carry the

3

serving as grounds for detention).

document makes the person “out of

status” and subject to deportation. Cf. 8

4

C.F.R. § 214.1 (Requirements for

admission, extension, and maintenance

5

of status). Defendants do not identify

any federal law or regulation to the

6

contrary.

7

Disputed that Mr. Ortega Melendres

stated that he was working. He did not

8

so state. Ortega Melendres Dep. 24:4-7

[Hickey Opp’n Dec. Ex. 240]. Further

9

disputed that Mr. Ortega Melendres’s

detention could have been justified

10

based solely on an oral statement that he

was working. Regarding the allegation

11

that Mr. Ortega Melendres stated he was

working, a federal ICE official wrote

12

that “Unfortunately, [Plaintiff’s]

detention was not justified due to the

13

lack of evidence by MCSO such as pay

stubs or sworn statement where he

14

admitted to working without a permit.”

ICE BS 34758-60, Ex. 57 to Kidd Dep.

15

(introduced at Kidd Dep. 184:10-188:8)

[Hickey Opp’n Dec. Ex. 220]; Kidd

16

Dep. 82:21-83:1 (identifying Jon

Gurule) [Hickey Opp’n Dec. Ex. 219]. 17

33. Deputy Rangel told Mr. Melendres

Disputed that Deputy Rangel made this

18

that he was being detained because he statement to Mr. Ortega Melendres, as

did not have his I-94 Form with him. he in fact provided the I-94 Form to the

19

See Deposition of MCSO Deputy

MCSO officer who questioned him,

Carlos Rangel at p. 38, lns. 19-25 (“Q. Ortega Melendres Dep. 9:22-10:4, 22:2-

20

Do you remember anything that was 6, 26:4-27:6 (describing how ICE found

said to Mr. Ortega during the time

his visa and I-94 in his property bag).

21

when he was handcuffed and

searched? A. That he needed his I-94 Disputed to the extent that the cited

22

with his B-1/B-2 Visa and that's why portion of the record does not address

he was being detained. Q. Is that what whether Deputy Rangel was “acting

23

you said to him? A. Yes, I did.”). Mr. politely at all times.” Furthermore, this

Melendres described Deputy Rangel as statement is not material to the

24

acting politely to him at all times. See resolution of Defendants’ motion and

Deposition of Plaintiff Manuel

therefore be disregarded. Liberty Lobby,

25

Melendres at p. 27, ln. 25 to p. 28, ln.2 477 U.S. at 248 (facts “that are

(“Q. Did the Spanish -- were you

irrelevant or unnecessary will not be

26

treated rudely by the Spanish speaking counted”); L.R. Civ. 56.1(a).

officer who asked you for

27

documentation? A. No.”).

28

- 16 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 17 of 78

1 34. The total length of time of Deputy

Disputed. While Deputy Rangel

Rangel’s questioning of the truck’s estimated the time he spent with the

2

passengers was fifteen (15) minutes. passengers to be 15 minutes, he later

See Deposition of MCSO Deputy

stated, after reviewing the CAD report

3

Carlos Rangel at p.40, lns. 10-13; p 40, for the stop, that 21 minutes lapsed

ln. 24 to p. 41, ln. 4. 4

between the time he arrived and when the passengers were transported from the

scene. Rangel Dep. 121:17-122:6

5

[Hickey Opp’n Dec. Ex. 26]; Melendres

MCSO 1785-87, Ex. 1 to Rangel Dep.

6

(introduced at Rangel Dep. 47:18-48:15)

(MCSO CAD Incident History for

7

MA07181873) [Hickey Opp’n Dec. Ex.

227]. 8

35. All the passengers from the truck were Undisputed, but the fact that other

9

detained. See Deposition of MCSO passengers were also detained does not

Deputy Carlos Rangel at p. 42, lns. 7- weigh in favor Defendants’ motion.

10

23.

Liberty Lobby, 477 U.S. at 248 (facts

“that are irrelevant or unnecessary will

11

not be counted”); L.R. Civ. 56.1(a).

12

Deputy Rangel’s testimony is disputed

to the extent that there were only three

13

passengers in the vehicle, and thus only

three that could have been arrested, not

14

four. Ortega Melendres Dep. 15:20-16:4

[Hickey Opp’n Dec. Ex. 240]. 15

36. The passengers/detainees were taken Undisputed.

16

to an MCSO substation and then

delivered to ICE’s Detention and

17

Removal Office near Central Avenue

and McDowell Road. See Deposition

18

of MCSO Deputy Carlos Rangel at p.

44, ln. 22 to p. 45, ln. 7. Mr.

19

Melendres was in an MCSO holding

cell before removal to ICE for

20

“probably about two hours.” See

Deposition of Plaintiff Manuel

21

Melendres at p. 25, lns. 10-15. Mr.

Melendres was held another six to

22

seven hours at ICE. See Deposition of

Plaintiff Manuel Melendres at p. 25,

23

ln. 16 to p. 26, ln. 4.

24 37. ICE released Mr. Melendres from

Undisputed that ICE released Mr. Ortega

detention because ICE concluded that Melendres because there was no

25

there was insufficient evidence that evidence that he had been working.

26

Mr. Melendres was working and that he did have an I-94 Form issued to him Disputed that Mr. Ortega Melendres was

27

despite him being “out-of-status” (i.e., “out-of-status” because he did not have

not having the form on him when

his I-94 Form. Mr. Ortega Melendres

28

questioned by Deputy Rangel). See had his I-94 Form and provided it to the - 17 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 18 of 78

1

Deposition of MCSO Deputy Carlos MCSO officer who questioned him.

Rangel at p. 45, ln.9 to p. 46, ln. 20. Ortega Melendres Dep. 9:22-10:4, 22:2-

2

6, 26:4-27:6 (describing how ICE found

his visa and I-94 in his property bag)

3

[Hickey Opp’n Dec. Ex. 240]. Further,

while federal law requires certain non-

4

citizens to carry a registration document

(such as the I-94 Form), the immigration

5

law does not provide that the failure to

carry the document makes the person

6

“out of status” and subject to

deportation. Cf. 8 C.F.R. § 214.1

7

(Requirements for admission, extension,

and maintenance of status). Defendants

8

do not identify any federal law or

regulation to the contrary. 9

38. Plaintiffs’ First Amended Complaint To the extent that this statement simply

10

asserts that an unknown MCSO deputy provides “background about the action

made allegedly crude and derogatory or the parties” and therefore does not

11

remarks to Mr. Melendres about lotion properly belong in Defendants’ separate

found in his pocket. See Dkt#26 at p. statement of facts. L.R. Civ. 56.1(a).

12

18, ¶¶ 61-62. Mr. Melendres, however, Plaintiffs’ First Amended Complaint

does not speak or understand English speaks for itself.

13

well and did not personally hear such

alleged comments. See Deposition of Disputed to the extent that Defendants

14

Plaintiff Manuel Melendres at p. 6, lns. assert that Mr. Ortega Melendres’

5-11 and p. 7, lns. 2-6 (not

complaint about one officer’s remarks

15

understanding much English and

about the lotion in his pocket should be

having to be deposed through an

discounted simply because some of the

16

interpreter); see also p. 31, ln. 1 to p. conversation was translated for him by

33, ln. 1 (discussing Mr. Melendres’ Jorge Morales. Mr. Ortega Melendres

17

knowledge of the alleged crude and testified that the officer removed the

derogatory remarks). Such report of lotion from his pocket, “was laughing,”

18

the crude remark is hearsay and was and “made signs” suggesting that the

reported to him via his friend Jorge location was for masturbating. Ortega

19

Morales. see p. 33, ln. 8-11 (“Q. You Melendres Dep. 28:24-29:7, 30:17-25

heard from George that they were

[Hickey Opp’n Dec. Ex. 240]. Mr.

20

talking about whether your lotion was Ortega Melendres did not need to

used for masturbation; is that true? A. understand English to observe this.

21

Yes, later on.”). MCSO Deputies

DiPietro, Rangel, and Madrid deny

22

making or hearing such comments. See

Deposition of MCSO Deputy Carlos

23

Rangel at p. 120, ln. 12 to 121, ln. 1;

Deposition of MCSO Sgt. Manuel

24

Madrid at p. 220, lns. 4-25; Deposition

of MCSO Deputy Louis DiPietro at p.

25

120, ln. 23 to p. 121, ln. 22.

26 39. The MCSO Lake Patrol Division is Undisputed.

responsible for policing the

27

recreational areas within Maricopa

County and the Tonto National Forest.

28

- 18 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 19 of 78

1

See Deposition of MCSO Deputy

Matthew Ratcliffe at p. 9, lns. 12-15,

2

and lns. 20-22. Lake Patrol deputies

conduct traffic related patrol duties

3

near the recreational areas, perform

searches and dive missions in the lakes

4

and rivers, and ATV patrols. Id.

5 40. On Sunday, December 2, 2007, the

Undisputed.

Maricopa County Department of

6

Transportation, in order to try to

protect the public’s safety, closed the

7

road to Bartlett Lake, Bartlett Dam

Road, because of storm damage that

8

caused heavy flooding on it and had

washed away parts of the road. See

9

Deposition of MCSO Deputy Matthew

Ratcliffe at p. 91, ln. 25 to p. 93, ln.

10

10; see also p. 18, lns. 19-21, p. 23,

lns. 17-18; p. 92, ln, 23 to p. 93, ln. 4

11

(“Q. What are, based on your

experiences, the concerns or the

12

dangers of motorists driving on a

damaged road? A. Well, on this

13

particular road, anything from flash

flood in that area, as well as damage to

14

their vehicle or injuries they sustain

due to a crash caused by the debris on

15

the roadway.”).

16 41. There was a “Road Closed” sign

Disputed to the extent that the cited

posted by the MCDOT across Bartlett portions of the record do not establish

17

Dam Road indicating to approaching where the sign was posted.

drivers that the road was closed. See

18

Deposition of MCSO Deputy Matthew

Ratcliffe at p. 92, lns. 9-22; See also

19

Photographs of Road Closed sign

taken by Deputy Matthew Ratcliffe

20

(See Deposition of MCSO Deputy

Matthew Ratcliffe at p. 107, ln. 8 to p.

21

108, ln. 10. (“A. Due to the

argumentative nature of the passenger

22

in the vehicle [Mrs. Rodriguez],

[Deputy Ratcliffe] wanted to take

23

photographs of the ‘Road Closed’ sign

and the ‘Road Closed Ahead’ signs for

24

later defense in court.”); See also

Deposition of MCSO Deputy Matthew

25

Ratcliffe at p. 42, lns 1-17 (laying the

foundation for the photographs). 26

27

42. Deputy Ratcliffe was on patrol on Bartlett Dam Road on December 2,

Disputed to the extent that the cited portion of the record does not establish

28

2007. See Deposition of MCSO

where Deputy Ratcliffe was on lake

- 19 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 20 of 78

1

Deputy Matthew Ratcliffe at p. 88, ln. patrol that date.

24 to p. 89, ln. 7.

2

43. No saturation patrol was conducted by Disputed to the extent that the cited

3

the MCSO on December 2, 2007 and portion of the record establishes only

neither Deputy Ratcliffe nor anyone that MCSO was not conducting a

4

from the MCSO was conducting a

saturation patrol on that date “in that

saturation patrol on that date. See

location” and that Deputy Ratcliffe was

5

Deposition of MCSO Deputy Matthew not a part of a saturation patrol at the

Ratcliffe at p. 89, lns. 12-25. 6

time he made the stop.

While Deputy Ratcliffe was not a part of

7

a saturation patrol that day, he has

participated on at least four MCSO

8

saturation patrols. Ratcliffe Dep. 59:15-

63:15 [Hickey Opp’n Dec. Ex. 228].

9

44. In the early afternoon of December 2, Undisputed.

10

2007, Deputy Ratcliffe observed a

dark colored truck driving toward his

11

parked position on the closed Bartlett

Dam Road and then observed that it

12

made a “u-turn” as it approached him

and another officer. See Deposition of

13

MCSO Deputy Matthew Ratcliffe at p.

20, lns. 14-25 (type and color of

14

vehicle and time of day); p. 22, lns. 13-

20 (discussing the truck’s u-turn as it

15

approached the officers).

16 45. Deputy Ratcliffe determined that the Undisputed that Deputy Ratcliffe

driver was present on Bartlett Dam

determined that the driver was present

17

Road unlawfully and decided to make on a road that had been closed but

a traffic stop of the vehicle and to issue disputed as to “unlawfully,” since

18

a citation to the driver. See Deposition Deputy Ratcliffe specifically testified

19

of MCSO Deputy Matthew Ratcliffe at that at the time he made the stop, he p. 23, lns. 14-18; see also p.93, lns. 16- “didn’t know for a fact that they had

20

21.

driven by [the “Road Closed”] sign.” Ratcliffe Dep. 23:19-21 [Defs.’ SOF Ex.

21

6].

22

46. Before deciding to conduct the traffic stop and to issue a citation to the

Undisputed. However, Deputy Ratcliffe specifically testified that at the time he

23

truck’s driver, Deputy Ratcliffe did not made the stop, he “didn’t know for a fact see the race of the truck’s driver or of that they had driven by [the “Road

24

any occupants of the truck. See

Closed”] sign,” Ratcliffe Dep. 23:19-21

Deposition of MCSO Deputy Matthew [Defs.’ SOF Ex. 6], and whether or not a

25

Ratcliffe at p. 93, ln. 11 to p. 94, ln. 9. citation would be justified was not yet known to Deputy Ratcliffe.

26

Further, Plaintiffs’ Fourteenth

27

Amendment claim does not depend on Deputy Ratcliffe having observed the

28

race of the driver or occupants before he - 20 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 21 of 78

1

stopped them. Deputy Ratcliffe did see

the race of the Rodriguezes before he

2

made the decision to treat them

differently from the other non-Hispanic

3

motorists and prolong the stop to obtain

Mr. Rodriguez’s Social Security

4

number. This statement is therefore not

material to the resolution of Defendants’

5

motion. Liberty Lobby, 477 U.S. at 248.

6 47. When the truck was stopped, Deputy Undisputed, except that Deputy Ratcliffe

Ratcliffe asked Mr. Rodriquez for his also asked Mr. Rodriguez for his Social

7

driver’s license, vehicle registration, Security card. Pls.’ SOF 188.

and proof of insurance documents. See

8

Deposition of MCSO Deputy Matthew

Ratcliffe at p. 24, ln. 25 to p. 25, ln. 2. 9

48. Deputy Ratcliffe asked Mr. Rodriquez Undisputed, except that the Rodriguezes

10

for his Social Security number. See testified that Deputy Ratcliffe first asked

Deposition of MCSO Deputy Matthew Mr. Rodriguez for his Social Security

11

Ratcliffe at p. 25, lns. 3-6, ln. 2.

card. Pls.’ SOF 188. Later, after he

returned with a citation form, he asked

12

Mr. Rodriguez for his Social Security

number. David Rodriguez Dep. 27:17-

13

28:8 [Hickey Opp’n Dec. Ex. 229]

14 49. Deputy Ratcliffe did not ask for Mr. Disputed. Deputy Ratcliffe did ask Mr.

15

Rodriguez’ Social Security card. See Rodriguez for his Social Security card. Deposition of MCSO Deputy Matthew Pls.’ SOF 188.

16

Ratcliffe at p. 24, ln. 25 to p. 25, ln. 2. Deputy Ratcliffe never asks any driver

for his Social Security card. Id. at p.

17

25, lns. 15-17.

18 50. After obtaining identification from Mr. Disputed to the extent that Defendants

19

Rodriguez, Deputy Ratcliffe asked him are asserting that the Rodriguezes told why he was driving his truck on the Deputy Ratcliffe that they had seen the

20

closed Bartlett Dam Road. See

“Road Closed” sign and deliberately

Deposition of MCSO Deputy Matthew ignored it. Mr. Rodriguez informed

21

Ratcliffe at p. 26, lns. 7-25. Mr.

Deputy Ratcliffe that they had been off-

Rodriguez stated to Deputy Ratcliffe roading and did not see the “Road

22

that “he had driven around the [road Closed” sign, Pls.’ SOF 189, in other closed] sign and was taking the kids words, that they must have left the road

23

down to the lake.” Id. at p. 26, lns. 13- before the sign and gone around it. 25 (“Q. What was that conversation? David Rodriguez did not “drive around

24

A. I asked them why they were driving any barricades on the road.” David down the roadway. Q. And what do Rodriguez Dep. 17:15-17 [Hickey

25

you recall them saying? A. Mr.

Opp’n Dec. Ex. 229].

Rodriguez advised that he had driven

26

around the sign and was taking the kids down to the lake. Q. When you

27

say ‘the sign,’ what sign are you referring to? A. The ‘Road Closed’

28

sign. Q. You don't recall him saying - 21 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 22 of 78

1

‘Road Damaged Sign’? A. No, sir. Q.

Or ‘Road Closed Ahead sign? A. No,

2

sir. He stated the ‘Road Closed.’”); see

also p. 101, lns. 3 to p. 102, ln. 12. 3

51. Mr. Rodriguez admits that he saw a Undisputed that Mr. Rodriguez reported

4

“Road Damaged” sign but drove past seeing a “Road Damaged” sign but no

it. See Deposition of David Rodriguez “Road Closed” sign.

5

at p. 11, lns. 2-11 (“A: And once we

were going down, I came upon --

6

before we hit the wash, there was a

‘Road Damaged’ sign that we came

7

across, and we just kept going. And

once we hit that, maybe about a

8

quarter-mile to a half-mile there was a

-- a turn, and then there was a long

9

wash. And we started, you know,

going through the wash a bit, but there

10

was, you know, some – some debris

and stuff that -- because it had rained

11

recently, and over the wash, and I had

noticed that there was a sheriff

12

Expedition and another Expedition

next to it.”) (emphasis added); See also

13

Photographs of Road Closed sign

taken by Deputy Matthew Ratcliffe

14

(See Deposition of MCSO Deputy

Matthew Ratcliffe at p. 107, ln. 8 to p.

15

108, ln. 10 (“A. “Due to the

argumentative nature of the passenger

16

in the vehicle [Mrs. Rodriguez],

[Deputy Ratcliffe] wanted to take

17

photographs of the ‘Road Closed’ sign

and the ‘Road Closed Ahead’ signs for

18

later defense in court.”); See also

Deposition of MCSO Deputy Matthew

19

Ratcliffe at p. 42, lns 1-17 (laying the

foundation for the photographs). Mr.

20

Rodriguez denied ever seeing a “Road

Closed” sign. See Deposition of David

21

Rodriguez at p. 17.

22 52. Mr. and Mrs. Rodriguez asked Deputy Undisputed, except that the Rodriguezes

Ratcliffe why he asked for David’s

testified that Deputy Ratcliffe also asked

23

Social Security number. See

Mr. Rodriguez for his Social Security

Deposition of MCSO Deputy Matthew card. Pls.’ SOF 188.

24

Ratcliffe at p. 25, lns. 18-23. Deputy

Ratcliffe explained that it was for

Deputy Ratcliffe later insisted that Mr.

25

identification purposes and to fill in Rodriguez provide a Social Security

the blanks on the MCSO citation form. number. Although Mr. Rodriguez did

26

Id.; see also p. 96, lns. 10-24; see also not feel comfortable doing so, and

the MCSO Standard Traffic Citation pointed out that he drivers’ license

27

form.

should have been enough, he finally

provided Deputy Ratcliffe with the

28

- 22 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 23 of 78

1

number so that his family could leave.

David Rodriguez Dep. 13:13-14:20

2

[Hickey Opp’n Dec. Ex. 229]. Mr.

Rodriguez testified that Deputy

3

Ratcliffe’s requests for his Social

Security Card and number prolonged the

4

traffic stop. David Rodriguez Dep.

27:9-28:23 (requests “dragged [the stop]

5

out” “more than a regular traffic stop”)

[Hickey Opp’n Dec. Ex. 229]. 6

Disputed to the extent that MCSO’s

7

Traffic Citation Policy does not provide

that additional forms of identification be

8

requested unless “the violator does not

have a driver’s license”; officer

9

regularly leave the SSN block blank on

the citation form. Pls.’ SOF 195. When

10

Deputy Ratcliffe asked Mr. Rodriguez

for his Social Security number, he

11

already had Mr. Rodriguez’s drivers’

license. Pls.’ SOF 194. 12

53. Deputy Ratcliffe performed via radio a Undisputed that Deputy Ratcliffe issued

13

records check on the Rodriguez’ truck the Rodriguezes a citation. Disputed

and then issued a citation to Mr.

that issuing the citation at that point was

14

Rodriguez for failure to obey a traffic “appropriate in his discretion.” He had

control device (i.e., the “road closed” learned that the Rodriguezes had not

15

sign). See Deposition of MCSO

seen the “Road Closed” sign and that

Deputy Matthew Ratcliffe at p. 27, lns. several other non-Hispanic motorists

16

6 to p. 28, ln. 8. He determined that a who pulled up on the same stretch of

citation was appropriate in his

road who were not given citations. Pls.’

17

discretion because there was a safety SOF 189, 192. Officers are trained that

risk with driving on the closed road. a citation is not in the public interest

18

Id. at p. 28, lns. 4-8.

when the person was “not aware of the

violation” and educating the person with

19

a warning will have the same effect as a

citation. Pls.’ SOF 190. Further, MCSO

20

policy requires that the enforcement of

the traffic laws be “consistent” and

21

“uniform.” Pls.’ SOF 191.

22 54. Upon receipt of the citation, Mr.

Undisputed.

Rodriguez asked Deputy Ratcliffe the

23

effect such a citation would have on

his commercial driver’s license, and

24

either Mr. or Mrs. Rodriguez told

Deputy Ratcliffe that he/she did not

25

see any other drivers on the closed

road receiving citations. See

26

Deposition of MCSO Deputy Matthew

Ratcliffe at p. 28, lns. 9-12; see also p.

27

106, lns. 10-16. Deputy Ratcliffe

responded by telling Mr. and Mrs.

28

- 23 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 24 of 78

1

Rodriguez that he was only dealing

with them and not dealing with other

2

drivers at that time. Id. at p. 28, lns.

13-15. 3

55. Mrs. Rodriguez accused Deputy

Undisputed that Mrs. Rodriguez pointed

4

Ratcliffe of selective enforcement in out to Deputy Ratcliffe that the other

issuing the traffic citation to her

vehicles driving on the same stretch of

5

husband. See Deposition of MCSO road were not getting cited, Pls.’ SOF

Deputy Matthew Ratcliffe at p. 28, ln. 192, and that she felt that was selective

6

21 to p. 29, ln. 5. Mrs. Rodriguez

enforcement. Mr. Rodriguez was the

became “argumentative” with Deputy only Hispanic driver. Pls.’ SOF 192;

7

Ratcliffe. Id. at p. 100, lns. 1-7; see David Rodriguez Dep. 41:1-8 [Hickey

also Deposition of David Rodriguez at Opp’n Dec. Ex. 229].

8

p. 29, lns. 13-17 (“Q. When was it that

she [Mrs. Rodriguez] told Officer

Disputed to the extent that Deputy

9

Ratcliffe that -- about selective

Ratcliffe’s subjective feelings about

enforcement? A. When I had asked if I Mrs. Rodriguez getting “argumentative”

10

can -- if I can get a warning, because do not justify his actions and should be

the other people were getting warnings disregarded. Liberty Lobby, 477 U.S. at

11

too.”). Mrs. Rodriguez became

248.

“argumentative” with Deputy

12

Ratcliffe. See Deposition of MCSO

Deputy Matthew Ratcliffe at p. 119, ln.

13

23 to p. 120, ln. 10.

14 56. Neither Mr. nor Mrs. Rodriguez ever Disputed. Mr. Rodriguez informed

told Deputy Ratcliffe that they had not Deputy Ratcliffe that they had been off-

15

observed the “Road Closed” sign or roading and did not see the “Road

that they were ever off-road driving Closed” sign. Pls.’ SOF 189

16

and did not see the sign and must have

missed it. See Deposition of MCSO

17

Deputy Matthew Ratcliffe at p. 100,

lns. 8-17.

18

19

57. The Rodriguez’ testified that they were Undisputed. off-road driving and must have missed

20

observing the closed road sign. See Deposition of David Rodriguez at p.

21

10, ln. 7 to p. 12, ln. 4.

22

58. The total time for the Rodriguez traffic Disputed. Mrs. Rodriguez estimates that

stop by Deputy Ratcliffe was

the traffic stop lasted approximately 20

23

approximately ten (10) minutes. See minutes. Jessika Rodriguez Dep. 52:6Deposition of MCSO Deputy Matthew 11 [Hickey Opp’n Dec. Ex. 230]. In

24

Ratcliffe at p. 33, lns. 10-12.

addition, after Deputy Ratcliffe finished issuing the citation, he followed the

25

Rodriguezes at close range for two to three miles. Ratcliffe Dep. 36:5-25

26

[Defs.’ SOF Ex. 6]; David Rodriguez Dep. 14:21-15:1 [Hickey Opp’n Dec.

27

Ex. 229].

28

Further, the absolute length of the traffic - 24 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 25 of 78

1

stop is immaterial to the resolution of

Defendants’ motion where there is

2

evidence that the stop was unnecessarily

prolonged, and should be disregarded.

3

Liberty Lobby, 477 U.S. at 248.

4

A CAD report for Deputy Ratcliffe’s

partner, Deputy Multz, shows Deputy

5

Multz dealing with at least three of the

other motorists who had driven up to the

6

deputies’ location. Deputy Multz dealt

with them in less than 13 minutes and

7

did not issue any citations. CAD

Incident History for MA072222095

8

[Hickey Opp’n Dec. Ex. 235]; Kikes

Dep. 115:7-116:4 (establishing that

9

disposition code 5 on a CAD Incident

History means no citation issued)

10

[Hickey Opp’n Dec. Ex. 221]; see David

Rodriguez’s Verified Supp. Resp. to

11

Def. Arpaio’s First Set of Interrogs. No.

3 (identifying Andrew Yahraus and

12

Blaine Woodruff as two of the drivers)

[Hickey Opp’n Dec. Ex. 237]. 13

59. Deputy Ratcliffe then drove behind the Undisputed that this was the justification

14

Rodriguez’ truck as it left the area for Deputy Ratcliffe offered at his

roughly two miles, not to escort them deposition for following the Rodriguezes

15

out, or to harass or intimidate them, out of the area. However, this is not

but in order for him to take a picture of consistent with the manner in which he

16

the “Road Closed” sign. See

followed them. He got on his

Deposition of MCSO Deputy Matthew loudspeaker and ordered them to move

17

Ratcliffe at p. 107, ln. 8 to p. 108, ln. along, and then followed them closely

10 “Due to the argumentative nature of the entire way back out to the main road.

18

the passenger in the vehicle [Mrs.

David Rodriguez Dep. 14:21-15:1

Rodriguez], [Deputy Ratcliffe] wanted [Hickey Opp’n Dec. Ex. 229]; Jessika

19

to take photographs of the ‘Road

Rodriguez Dep. 15:12-19 [Hickey

Closed’ sign and the ‘Road Closed

Opp’n Dec. Ex. 230]. This was

20

Ahead’ signs for later defense in

unnecessary and humiliating to the

court.”) Id. 21

Rodriguezes. David Rodriguez Dep. 41:14-42:16 [Hickey Opp’n Dec. Ex

229]. 22

60. Mr. Rodriguez pled responsible to the Undisputed.

23

citation issued to him by Deputy

Ratcliffe. See Deposition of David

24

Rodriguez at p. 34, ln. 14 to p. 35, ln.

11 (“Q. The citation, did you plead

25

responsible for that citation? A. Yes.

Q. So you admitted not obeying a 26

27

5 This document was produced as part of the C AD database produced by

Defendants to Plaintiffs on January 7, 2009.

28

- 25 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 26 of 78

1

traffic control device? A. When I got

the -- yes, I had to sign for it and I had

2

to admit to it, yes. Q. In court did you

end up paying a $120 fine? A. Yes. Q.

3

And you understood that that was

admitting that you failed to obey a

4

traffic control device? A. Yes. Q.

Okay. Explain for me, if you thought

5

that this citation was wrongly issued,

why you did not contest it, why you

6

did not challenge it in court? A. It was

pretty much going to be me against the

7

officer, and in situations like that, it's

usually the officer that's going to come

8

out on top, so that's why I just decided

to get it -- to go ahead and just pay it.”)

9

61. Deputy Ramon Armendariz is a

Undisputed that he was so certified

10

member of the MCSO HSU and is

before October 2009. However, Deputy

287(g) certified. See November 24, Armendariz was not a member of the

11

2009 Deposition of MCSO Deputy

Human Smuggling Unit on the date he

Ramon C. Armendariz at p. 16, lns. contacted Plaintiffs (March 28, 2008).

12

17-23 (discussing when he joined the See Pls.’ SOF 200. He did not transfer

MCSO Human Smuggling Unit); p. to that Unit until April or May of 2008.

13

18, ln. 17 to p. 20, ln. 2 (discussing his Armendariz Dep. I at 16:17-23 [Defs.’

decision to become 287(g) certified). SOF Ex. 10].

14

62. Deputy Armendariz’ first language is Undisputed.

15

Spanish and he is therefore fluent in

speaking that language. See Deposition

16

of MCSO Deputy Ramon C.

Armendariz at p. 20, lns. 20-22. 17

63. Deputy Armendariz worked the

Undisputed.

18

saturation patrol in the capacity of a

19

patrol officer where he was to conduct traffic stops and write citations. See

20

Deposition of MCSO Deputy Ramon C. Armendariz at p. 100, lns. 8-17.

21 64. Around 2:00 p.m., Deputy Armendariz Undisputed.

22

made a traffic stop of a vehicle and the vehicle pulled into a convenience

23

mart/gas station located at the southeast corner of North Cave Creek

24

Road and East Nesbit Road. See Deposition of MCSO Deputy Ramon

25

C. Armendariz at p. 116, lns. 4-10 (time of stop); p. 123, lns. 21-23

26

(location of stop); p. 126, ln. 19 to p. 127, ln. 6 (location of stop); p. 131,

27

lns. 5-11 (southeast corner of roads).

28

- 26 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 27 of 78

1 65. Deputy Armendariz parked his vehicle Undisputed.

behind the stopped car. See Deposition

2

of MCSO Deputy Ramon C.

Armendariz at p. 132, lns. 11-23. The

3

vehicle stopped by Deputy Armendariz

contained two men, Benjamin Moreno

4

and Jorge Ramirez, and he conducted a

radio check on both of the men. Id. at

5

p. 123, ln. 24 to p. 124, ln. 6; p. 126,

ln. 19 to p. 127, ln. 6. 6

66. Following his radio check, Deputy

7

Armendariz took both men into

Undisputed, except that Deputy Armendariz only took the driver into

custody. See Deposition of MCSO

custody. Armendariz Dep. 129:15-22

8

Deputy Ramon C. Armendariz at p. [Defs.’ SOF Ex. 10].

129, lns. 15-19. Deputy Armendariz

9

took the driver of the vehicle into

custody for driving with a suspended

10

license and placed him inside his

patrol car. See Deposition of MCSO

11

Deputy Ramon C. Armendariz at p.

135, lns. 5-13. 12

67. Deputy Armendariz placed handcuffs Undisputed.

13

on the car’s passenger and had the

passenger sit down on the front

14

bumper of the MCSO patrol car. See

Deposition of MCSO Deputy Ramon

15

C. Armendariz at p. 136, lns. 12-24.

16 68. At that time, a dark colored vehicle Disputed. The Meraz-Nieto vehicle

pulled into the convenience mart/gas pulled into a parking spot at the gas

17

station and parked directly behind

station that was 10 yards or more from

Deputy Armendariz’ patrol car. See where the deputy and the detainees

18

Deposition of MCSO Deputy Ramon were. Pls.’ SOF 202, Nieto Dep. 18:8-

19

C. Armendariz at p. 136, ln. 25 to p. 137, ln. 3; p. 137, ln. 16-20. Deputy

13 [Hickey Opp’n Dec. Ex. 224].

20

Armendariz was standing in front of his patrol car handling the detained

21

passenger of the car he stopped. Id. at p. 137, ln. 23 to p. 138, ln. 1.

22 69. The dark colored vehicle was playing Undisputed that Plaintiffs were playing

23

loud music, the passenger side windows were down, and Deputy

Spanish music with their windows rolled down, and that the music could be heard

24

Armendariz could see a female

by Deputy Armendariz, and that

passenger (later known to be Plaintiff Plaintiffs could be seen by Deputy

25

Velia Meraz) and a male driver (later Armendariz. known to be Plaintiff Manuel Nieto).

26

See Deposition of MCSO Deputy

Disputed to the extent that Defendants

Ramon C. Armendariz at p. 139, ln. 2 are contending that the music was

27

to p. 140, ln. 6.

“loud.” Ms. Meraz testified that the music “wasn’t loud. It was regular.”

28

Meraz Dep. 13:22-14:6 [Hickey Opp’n - 27 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 28 of 78

1

Dec. Ex. 223]. Mr. Nieto testified that it

was “not too loud, but I would say on a

2

scale of one to ten that volume was

probably five.” Nieto Dep. 18:14-23

3

[Hickey Opp’n Dec. Ex. 224].

4 70. The female passenger (i.e., Ms. Meraz) Disputed. Ms. Meraz did not have time

started yelling repeatedly in Spanish to yell such phrases. As soon as Meraz

5

out her window at Deputy

and Nieto pulled in, Deputy Armendariz

Armendariz’ detainee sitting on the immediately approached their vehicle

6

bumper of the patrol car, “no diga

and told them to leave. Ms. Meraz

nada,’ ‘no diga nada,’ you know,

asked him why, and he said that he

7

which means don’t – ‘don’t say

could arrest them for disorderly conduct

anything,’ ‘don’t say anything’; ‘pida if they did not leave. Pls.’ SOF 202;

8

un abogado,’ ‘pida un abogado,’ which Meraz Dep. 15:20-25 (the only thing

means, you know, ‘ask for a lawyer,’ that happened before they were ordered

9

‘ask for a lawyer.’” See Deposition of to leave was that they pulled into the

MCSO Deputy Ramon C. Armendariz parking lot with the music on), 18:20-

10

at p. 140, ln. 19 to p. 141, ln. 11.

19:1 [Hickey Opp’n Dec. Ex. 223].

11

Further, this statement is not material to

the resolution of Defendants’ motion.

12

Liberty Lobby, 477 U.S. at 248. It is not

unlawful to tell detainees their rights and

13

doing so could not justify Plaintiffs’

traffic stop at gunpoint after they had

14

left the gas station.

15 71. At first, Deputy Armendariz tried to Disputed. Ms. Meraz did not have time

ignore the yelling, but the female

to yell such phrases. As soon as

16

passenger (i.e., Ms. Meraz) kept

Plaintiffs pulled in, Deputy Armendariz

yelling and he started to fear for his immediately approached their vehicle

17

safety. See Deposition of MCSO

and told them to leave. Ms. Meraz

Deputy Ramon C. Armendariz at p. asked him why, and he said that he

18

141, lns. 12-17; p. 142, lns. 5-23.

could arrest them for disorderly conduct

Deputy Armendariz, therefore, ordered if they did not leave. Pls.’ SOF 202;

19

the driver of the vehicle to leave

Meraz Dep. 15:20-25 (the only thing

deputy Armendariz’ vicinity or the

that happened before they were ordered

20

location, or at least stay out of his way. to leave was that they pulled into the

Id. at p. 141, lns. 12-17.

parking lot with the music on), 18:20-

21

19:1 [Hickey Opp’n Dec. Ex. 223].

22

Further, the cited portion of the record

does not establish that Deputy

23

Armendariz started to fear for his safety.

Deputy Armendariz’s testimony simply

24

refers to the Plaintiffs’ mere presence in

his vicinity as somehow creating an

25

“officer safety issue.” Armendariz Dep.

26

I at 141:13-17 [Defs.’ SOF Ex. 10].

Further, this statement is not material to

27

the resolution of Defendants’ motion.

Liberty Lobby, 477 U.S. at 248. It is not

28

- 28 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 29 of 78

1

unlawful for someone to tell detainees

their rights and doing so would not

2

justify Plaintiffs’ traffic stop at gunpoint

after they had left the gas station.

3

72. In response to Deputy Armendariz, the Disputed. Ms. Meraz did not refuse to

4

female passenger (i.e., Ms. Meraz)

leave. In response to Deputy

yelled several times that ‘we’re not Armendariz’s order to leave, Ms. Meraz

5

going anywhere.” See Deposition of only asked him why, Pls.’ SOF 202, and

MCSO Deputy Ramon C. Armendariz asked Deputy Armendariz for his badge

6

at p. 142, lns. 5-23.

number so that they could file a

complaint against him; Plaintiffs then

7

complied with his order to leave. Meraz

Dep. 10:23-11:2, 20:12-21 [Hickey

8

Opp’n Dec. Ex. 223]; Nieto Dep. 12:17-

25 [Hickey Opp’n Dec. Ex. 224].

9

73. Deputy Armendariz again ordered that Undisputed that Deputy Armendariz

10

Meraz and Nieto leave. See Deposition ordered Plaintiffs to leave more than

of MCSO Deputy Ramon C.

once, threatening to arrest them for

11

Armendariz at p. 142, lns. 5-18.

disorderly conduct. Pls.’ SOF 202.

12 74. The female passenger (i.e., Ms. Meraz) Disputed. Ms. Meraz did not have time

13

started yelling at Deputy Armendariz to yell such things. Plaintiffs testified “fucking Sheriff Joe, fucking Nazi,” that after Deputy Armendariz provided

14

and “you guys don't have a right to do his badge number, they immediately left

this.” See Deposition of MCSO

the gas station. Meraz Dep. 10:23-11:2,

15

Deputy Ramon C. Armendariz at p. 143, lns. 3-8.

20:12-21 [Hickey Opp’n Dec. Ex. 223]; Nieto Dep. 12:17-25 [Hickey Opp’n

16

Dec. Ex. 224].

Further, this statement is not material to

17

the resolution of Defendants’ motion.

Liberty Lobby, 477 U.S. at 248. It is not

18

unlawful to heckle a police officer and

19

doing so could not justify Plaintiffs’ traffic stop at gunpoint after they had

20

left the gas station. Duran v. City of Douglas, 904 F.2d 1372, 1377-78 & n.4

21

(9th Cir. 1990).

22

75. Deputy Armendariz was worried about Disputed in that Deputy Armendariz

his safety and the safety of the two

does not identify any objective or

23

men he had in custody. See Deposition individualized basis for his fear. If

of MCSO Deputy Ramon C.

Plaintiffs had been cursing and yelling,

24

Armendariz at p. 143, lns. 9-17; p. 144, lns. 12-18.

as a police officer, it would not have been the first time that Deputy

25

Armendariz had encountered someone cursing at him. Armendariz Dep. I at

26

147:18-25 [Defs.’ SOF Ex. 10]. Deputy Armendariz bases his fear on

27

speculation. He hypothesizes that Plaintiffs could have had a gun because

28

protesters at the command post for the - 29 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 30 of 78

1

saturation patrol were, according to him,

“running around with guns.” Id. at

2

143:9-17.

3 76. Because the vehicle with the yelling Disputed. Mr. Nieto recalls seeing

passengers would not leave, Deputy Deputy Armendariz speaking on his

4

Armendariz called on his radio for

radio as Plaintiffs were pulling out of

back-up. See Deposition of MCSO

the gas station. Nieto Dep. 23:3-16

5

Deputy Ramon C. Armendariz at p. [Hickey Opp’n Dec. Ex. 224].

144, lns. 12-18 (“but when they

6

refused to leave, that's when I called

for help.”); see also p. 214, ln. 25 to p.

7

218, ln. 11 (explaining the reasons he

called for back-up support). 8

77. MCSO Deputy Douglas Beeks heard Disputed. A recording of the radio

9

Deputy Armendariz’ radio call for

traffic for the incident reveals that

backup and described Deputy

Deputy Armendariz said nothing further

10

Armendariz’ voice as sounding

about Plaintiffs’ vehicle after he made

“excited” and “agitated”. See October the simple request for backup, and that

11

22, 2009 Deposition of MCSO Deputy his voice was not “excited” or

Douglas W. Beeks at p. 148, lns. 10- “agitated.” ORT 370.6

12

15. Deputy Beeks also recalls hearing

words used by Deputy Armendariz that In any event, both Deputy Beeks and

13

led Deputy Beeks to believe in good Deputy Kikes could have observed that

faith that “a vehicle had tried to run Plaintiffs had left the gas station by the

14

over or hit Deputy Armendariz as it time they arrived, and that Deputy

left the area” and that a crime may

Armendariz was unharmed. Pls.’ SOF

15

have been committed. Id. at p. 148, 204-05. There was no reason to pursue

lns. 16-23. Accordingly, Deputy Beeks them at that point.

16

was concerned for the safety of Deputy

Armendariz. Id. at p, 148, lns. 16-20;

17

see also Deposition of MCSO Deputy

Michael Kikes at p. 69, ln. 17, to p. 70,

18

ln. 9 (“Q. So you were riding

southbound on Cave Creek Road and

19

you were listening to radio traffic. You

heard Deputy Armendariz say

20

something over the radio? A. Correct.

Q. Do you recall what he said? A. Not

21

exactly what he said -- Q. Okay. A. --

but I could tell by the pitch in his voice

22

it wasn't just a regular call out for a

license plate or something of that

23

nature. Q. What do you mean by the

pitch in his voice? A. We have a

24

tendency as deputies to be able to

when we talk on the radio to give a

25

license plate or give an identification

26

6 ORT 370 is an audio record ing. Plaintiffs intend to file this multimedia record 27 with the Clerk should the Court grant Plaintiffs’ M otion for Leave to File Audio

Recording in Non-Electronic Form.

28

- 30 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 31 of 78

1

of somebody in a very monotone, very

easily recognizable voice that we can

2

transmit every day. We could -- when

something goes awry, you could tell

3

the excitability, you can tell a little bit

about there's more than just a regular

4

traffic stop.”).

5 78. The male in the vehicle (i.e., Mr.

Disputed. Even if Mr. Nieto had made

Nieto) then opened his door and

an initial move to get out of the car,

6

started to get out. See Deposition of Deputy Armendariz clearly states that he

MCSO Deputy Ramon C. Armendariz ordered Mr. Nieto not to get out, and

7

at p. 145, ln. 24 to p. 146, ln. 21.

Mr. Nieto complied with his order.

Deputy Armendariz believed that the Armendariz 145:24-146:25. Any

8

male (i.e., Mr. Nieto) was going to get concern that Deputy Armendariz had

out of the car to “try to kick my ass”. that Mr. Nieto was going to “try to kick

9

Id. at p. 216, lns. 19-24.

his ass” was total speculation rather than

based on objective observations.

10

Armendariz Dep. I at 216:19-24 [Defs.’

SOF Ex. 10]. 11

79. The vehicle occupants (i.e., Ms. Meraz Disputed. The basis for Deputy

12

and Mr. Nieto) appeared very angry Armendariz’s conclusion that Plaintiffs

and were acting “very threatening.” appeared “angry” and were “very

13

See Deposition of MCSO Deputy

threatening” is that they were allegedly

Ramon C. Armendariz at p. 218, lns. yelling to his detainees that they should

14

2-11 (acting angrily); p. 215, lns. 5-9 remain silent and ask for a lawyer and

(acting very threatening). “[T]heir

criticizing the Sheriff’s policies.

15

actions towards [Deputy Armendariz] Armendariz Dep. I at 215:8-13 [Defs.’

were as if it was personal towards [the SOF Ex. 10]. These alleged statements

16

deputy].” Id. at p. 217, lns. 3-4.

contain no threatening language towards

Deputy Armendariz, nor were they

17

unlawful. Duran, 904 F.2d at 1377.

18 80. Deputy Armendariz testified as to his Disputed. Even if Mr. Nieto had made a

19

state of mind when he observed the male in the vehicle (i.e., Mr. Nieto)

move to get out of the car, Deputy Armendariz clearly states that he

20

open his door and start to get out: “I had other responsibilities that I was

ordered Mr. Nieto not to get out, and Mr. Nieto complied with his order.

21

taking care of. I had two people that I Armendariz 145:24-146:25 [Defs.’ SOF was in -- that I had in custody that I Ex. 10].

22

was responsible for. I didn't know if he was going to come out with a gun. I Furthermore, both of Deputy

23

didn't know if he was going to come Armendariz’s detainees were apparently out with a knife. Am I going to have to secured. Defs.’ SOF 66-67.

24

-- am I going to have to defend myself while protecting my suspect that I have Deputy Armendariz’s testified to an

25

in custody? You know, is this going to “array of, you know, what-ifs” that were turn into -- is he going to get out with a not supported by objective observations

26

knife? Am I going to have to shoot him? Is he going to come out with a

about Mr. Nieto. Armendariz Dep. I at 217:12-218:1 [Defs.’ SOF Ex. 10]. The

27

gun? Am I going to have to spray -you know, pepper spray to get him

Fourth Amendment requires officers to base law enforcement actions on

28

away from me? I mean, just the array objective threats, not subjective - 31 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 32 of 78

1

of, you know, what-ifs. That situation speculation. Thus, Deputy

could have gone bad, really bad, really Armendariz’s state of mind is not

2

quick.” See Deposition of MCSO

material to the resolution of Defendants’

Deputy Ramon C. Armendariz at p. motion. Liberty Lobby, 477 U.S. at 248.

3

217, ln. 12 to p. 218, ln. 1.

4 81. Plaintiff Manuel Nieto, Jr. is a three- Disputed to the extent that the

time convicted felon who spent 3.5 Defendants mean to suggest that Mr.

5

years in prison for domestic violence. Nieto served multiple sentences. Mr.

See October 8, 2009 Deposition of

Nieto served one sentence for the three

6

Manuel Nieto, Jr., at p. 7, ln. 22 to p. convictions, and was released in 2008.

8, ln. 21 (fact of three felony

7

convictions for domestic abuse); see This statement is immaterial to the

also p. 10, ln. 25 to p. 11, ln. 1 (length resolution of Defendants’ motion.

8

of time in prison). Mr. Nieto was only Liberty Lobby, 477 U.S. at 248. Deputy

released from his most recent prison Armendariz did not conduct any

9

time one month before the

background checks on Mr. Nieto and

confrontation with Deputy

10

Armendariz. Id.

this information could not have been known to Deputy Armendariz when he

encountered Plaintiff. (Tellingly,

11

Defendants do not contend that it was.)

Thus, it could not served as the basis of

12

any assessment about the threat that Mr.

Nieto posed. Mr. Nieto exhibited no

13

threatening behavior towards Deputy

Armendariz that could have justified his

14

subsequent treatment. See, e.g., Pls.’

SOF 203. 15

82. Seeing the male in the vehicle (i.e., Disputed. Even if Mr. Nieto had made a

16

Mr. Nieto) open his door and start to move to get out of the car, Deputy

get out, Deputy Armendariz grew

Armendariz clearly states that he

17

more worried, in fact he was afraid, ordered Mr. Nieto not to get out, and

and ordered the man to stay in his car Mr. Nieto complied with his order.

18

or he would be arrested for disorderly Armendariz Dep. 145:24-146:25 [Defs.’

conduct. See Deposition of MCSO

SOF Ex. 10].

19

Deputy Ramon C. Armendariz at p.

145, ln. 24 to p. 146, ln. 21, p. 149, lns. Further, Deputy Armendariz’s concerns

20

4-14 (“As I was -- as I was getting

are not based on any objective

more worried that they were actually observations about Plaintiffs behavior,

21

going to get out of their car and

such as that they were brandishing

actually come towards my -- my

weapons, making threats, or advancing

22

direction, I moved the passenger,

towards him. The Fourth Amendment

which is who I was talking to on the requires officers to base law

23

front bumper. I walked around the

enforcement actions on objective threats,

other side of my patrol car and I put not subjective speculation. Thus,

24

him and secured him in the back. And Deputy Armendariz’s state of mind is

at that point, as I secured him -- as I not material to the resolution of

25

was securing him in the back and I

Defendants’ motion. Liberty Lobby, 477

26

kept yelling at these people, "You need U.S. at 248. to leave. You need to get out of here

now," that's when they decided on

27

leaving. And I put him in the back,

they took off, still cussing at me, you

28

- 32 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 33 of 78

1

know.”); see also p. 214, ln. 25 to p.

215, ln. 4 (“Q. What was the reason

2

you called for backup? A. Not to put it

in a bad way, but I was -- I was afraid.

3

I was afraid. I was afraid that the

situation would have escalated further

4

and my safety would have been in

jeopardy.”). 5

83. The occupants of the vehicle (Meraz Disputed. Deputy Armendariz doesn’t

6

and Nieto) made “a big scene” at the even know if other people in the parking

convenience mart/gas station. See

lot were watching. Armendariz Dep. I at

7

Deposition of MCSO Deputy Ramon 148:21-25 [Defs.’ SOF Ex. 10].

C. Armendariz at p. 148, ln. 25.

Plaintiffs testified that they complied

8

with Deputy Armendariz’s order to

leave the gas station. Pls.’ SOF 202.

9

That is inconsistent with them having

made “a big scene.” 10

84. MCSO Deputy Michael Kikes spotted Undisputed.

11

the dark colored vehicle driving on

North Cave Creek Road and activated

12

his motorcycle’s lights and siren. See

Deposition of MCSO Deputy Michael

13

Kikes at p. 129, lns. 19-22 (discussion

in context of already having his lights

14

and sire on).

15 85. Deputy Kikes testified that he believed Undisputed that these words appear in

16

that he had probable cause to stop the Deputy Kikes’ testimony. However,

dark colored vehicle because he

Plaintiffs dispute that Deputy Kikes’

believed there was an emergency

speculation about some emergency

17

situation of some type involving

situation, of which he admittedly knew

Deputy Armendariz and the occupants nothing about, could constitute probable

18

of the vehicle Deputy Kikes was

cause to stop Plaintiffs vehicle.

19

stopping. See Deposition of MCSO Deputy Michael Kikes at p. 129, lns. “Probable cause” is a legal question for

20

4-18.

a Court’s determination, not that of a party or its witness, see, e.g.,

21

Weitzenhoff, 35 F.3d at 1287, and Defendants have not presented any

22

authority (i.e., other then the circular testimony of its witnesses) that the stop

23

of Plaintiffs was justified by probable cause or reasonable suspicion.

24 86. Due to the vehicle’s window tinting, This statement is immaterial to the

25

Deputy Kikes could not see the race, resolution of Defendants’ motion.

sex, or other characteristics of the

Liberty Lobby, 477 U.S. at 248. Deputy

26

vehicle’s occupants. See Deposition of Armendariz states that he provided a MCSO Deputy Michael Kikes at p. description of the vehicle and its

27

129, ln. 23 to p. 130, ln. 18.

occupants to Deputy Kikes. Pls.’ SOF 204. Further, Plaintiffs’ Fourteenth

28

Amendment claim is not contingent on - 33 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 34 of 78

1

Deputy Kikes having observed their race

before he stopped them. He could

2

clearly see their race by the time he

forcefully removed Mr. Nieto from the

3

vehicle.

4 87. The driver of the vehicle (i.e., Mr.

Disputed. Deputy Kikes claims that he

Nieto) would not stop and drove

first saw the Plaintiffs truck on Cave

5

another 300 feet until it turned into an Creek Road when he was 75 feet south

auto shop instead of pulling over on of the intersection with Nisbet Road, and

6

the right side of the public roadway as that after he signaled, the truck did not

required by law. See Deposition of

pull over for another 300 feet. Kikes

7

MCSO Deputy Michael Kikes at p. Dep. 74:9-76:19 [Hickey Opp’n Dec.

130, ln. 19 to p. 132, ln. 2; see also p. Ex. 221]. However, Plaintiffs pulled

8

131, lns. 10-13 (“A. Well, first of all, over into their father’s auto shop where

the driver didn't acknowledge that I they were working, at 14849 North Cave

9

was there and that he didn't use a turn Creek Road. Nieto Dep. 13:7-14:1

signal and he didn't pull to the right as [Hickey Opp’n Dec. Ex. 224]; Meraz

10

what law states you need to pull to the Dep. 12:19-13:19 [Hickey Opp’n Dec.

right for an emergency vehicle.”).

Ex. 223]. The shop is only 50 to 60

11

yards from the gas station. Id. Thus,

there could have been no way that they

12

waited 300 feet to turn.

13

Further, Mr. Nieto testified that he did

signal, and that he pulled over to the left

14

because he was already in the left hand

turn lane and already approaching the

15

auto shop. Nieto Dep. 13:7-14:1

[Hickey Opp’n Dec. Ex. 224].

16

Defendants cite no authority that his

doing so was illegal or unusual. It

17

certainly did not indicate that Mr. Nieto

was dangerous. 18

88. Deputy Kikes was concerned about the Disputed to the extent that Defendants

19

driver’s (i.e., Mr. Nieto) behavior and are suggesting that Mr. Nieto’s pulling

where he parked, and what that

into to his father’s auto shop justified

20

parking location meant. See Deposition being surrounded at gunpoint. Deputy

of MCSO Deputy Michael Kikes at p. Kikes alludes to the fact that Mr. Nieto

21

131, ln. 3 to p. 132, ln. 4 (“Q. Was

pulled into a semi-private/commercial

there anything about that distance of driveway, but mentions nothing unique

22

300 feet from the point you activated to such driveways that would be

your lights and siren until the point it - particularly dangerous. He then claims

23

- the dark vehicle stopped that caused that the surroundings, how Mr. Nieto

you any concern? A. Yes. Q. And

pulled in, and the direction where Mr.

24

would you explain for me, what was Nieto was facing created a concern for

that concern? A. Well, first of all, the officer safety, but again identifies

25

driver didn't acknowledge that I was nothing about those things that was

26

there and that he didn't use a turn

dangerous. Finally, Deputy Kikes states

signal and he didn't pull to the right as that Mr. Nieto could have driven

what law states you need to pull to the backwards and hit the officers, or fled

27

right for an emergency vehicle. He

from the vehicle, but that could be true

kept driving and he kept going and

on any traffic stop. In short, Deputy

28

- 34 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 35 of 78

1

then he finally pulled into a private -- Kikes could not articulate any specific

somewhat private driveway.

facts about where Mr. Nieto pulled over

2

Obviously, it's not a private driveway. or how he pulled over that made it

It's a commercial driveway, but instead dangerous.

3

he remained in the vehicle which, to

us, is a very safety-oriented issue

Further, Mr. Nieto testified that he did

4

alarming to an officer. Q. Explain for signal, and that he pulled over to the left

us of those who do not have law

because he was already in the left hand

5

enforcement training, why is pulling turn lane and already approaching the

into even a commercial property of auto shop. Nieto Dep. 13:7-14:1

6

concern for officer safety? A. The

[Hickey Opp’n Dec. Ex. 224].

surroundings, the nature of where he Defendants cite no authority that his

7

pulled, how he pulled in, the direction doing so was illegal or unusual.

of where he was facing, heading. He

8

could have drove backwards, hit us,

anything. There is an escape route to

9

the right. I look for escape routes. I

look for a place where somebody can

10

flee from the vehicle, get lost in a

commercial area, get lost in the

11

buildings and things like that.”).

12 89. Once the vehicle pulled into the auto Undisputed that Mr. Nieto remained in

repair shop, the driver (Mr. Nieto)

the vehicle talking with the 9-1-1

13

refused to exit his vehicle. See

dispatcher on his phone. Nieto Dep.

Deposition of MCSO Deputy Michael 25:6-22 [Hickey Opp’n Dec. Ex. 224].

14

Kikes at p. 131, lns 17-19 (“instead he Deputy Kikes does not articulate why

[Mr. Nieto] remained in the vehicle remaining in the vehicle in this case

15

which, to us, is a very safety-oriented posed an officer safety issue.

issue alarming to an officer.”)

16

90. Manuel Nieto refused to roll down his Undisputed that Mr. Nieto did not roll

17

window to speak with MCSO Deputy down his window, as he was speaking

Michael Kikes. See Deposition of

on his cell phone (he had called 9-1-1

18

MCSO Deputy Michael Kikes at p. 78, because he was afraid of being harassed

lns. 8-25. 19

by MCSO). Nieto Dep. 25:15-26:3 [Hickey Opp’n Dec. Ex. 224]; Meraz

Dep. 11:15-18 [Hickey Opp’n Dec. Ex.

20

223].

21 91. Two unknown men in mechanic’s

Undisputed that Plaintiffs’ father and

22

clothing immediately came out from brothers came out of the auto shop, and the auto repair shop and were “angry”, upon seeing Mr. Nieto and Ms. Meraz

23

“yelling” and “cursing” at MCSO

being held up at gunpoint by multiple

Deputy Michael Kikes. See Deposition MCSO units and Mr. Nieto being pulled

of MCSO Deputy Michael Kikes at p. from the truck, were asking what was

24

132, lns. 5-23.

going on. Meraz Dep. 11:12-12:6

[Hickey Opp’n Dec. Ex 223].

25

26

Plaintiffs’ father told the deputies that Plaintiffs were his children “and they are

27

U.S. citizens.” Pls.’ SOF 211. Plaintiffs’ family members did not pose any danger

28

to the deputies or threaten the deputies. - 35 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 36 of 78

1

Thus, Defendants’ statement is not

material to the resolution of their

2

motion. Liberty Lobby, 477 U.S. at 248.

3 92. Deputy Beeks, now at the scene, saw Disputed. Mr. Nieto simply informed

the driver (Mr. Nieto) acting very

officers that he was on the phone with 9-

4

“belligerent”, “non-compliant”, and 1-1. Nieto Dep. 25:23-26:3 [Hickey

“almost hostile in nature” with and

Opp’n Dec. Ex. 224]. Deputy Beeks

5

toward Deputy Kikes, and he thought does not articulate any basis for his

that the driver (Mr. Nieto) might drive claim that Mr. Nieto was acting

6

his vehicle forward or backward and, belligerent or hostile. And his only basis

therefore, Deputy Beeks pulled his

for asserting that Mr. Nieto looked like

7

handgun for safety purposes. See

he was attempting to drive off was that

October 22, 2009 Deposition of

Mr. Nieto had “both hands on the

8

MCSO Deputy Douglas W. Beeks at p. steering wheel,” Beeks Dep. 150:3-25

150, lns. 3-23; see also p. 151, lns. 12- [Defs.’ SOF Ex. 11], something that

9

18.

would have been impossible according

to Plaintiffs’ account, because Mr. Nieto

10

was still on the phone. Nieto Dep.

25:23-26:3 [Hickey Opp’n Dec. Ex.

11

224].

12

The Fourth Amendment requires officers

to base law enforcement actions on

13

objective threats, not subjective hunches.

Thus, Deputy Kikes’ characterizations

14

about how Mr. Nieto was acting do not

justify his holding Mr. Nieto at gunpoint

15

and are not material to the resolution of

Defendants’ motion. Liberty Lobby, 477

16

U.S. at 248.

17 93. Deputy Kikes opened the vehicle’s

Undisputed that Deputy Kikes forcefully

door, grabbed the driver (Mr. Nieto), removed Mr. Nieto from the vehicle and

18

and removed Mr. Nieto from the

handcuffed him. By this point, deputies

vehicle where he then handcuffed Mr. already had Ms. Meraz at gunpoint, out

19

Nieto. See Deposition of MCSO

of the vehicle with her hands up. Ms.

Deputy Michael Kikes at p. 80, lns. 2- Meraz testified that officers removed her

20

10; p. 80, ln. 23 to p. 82, ln. 2; see also brother from the vehicle with such force

p. 133, ln. 19 to p. 134, ln. 1 (“Q.

that he hit the ground and the phone he

21

Eventually I understand your

was talking on went “flying to the

testimony is that you ended up taking pavement.” Meraz Dep. 11:9-21

22

the driver from the vehicle to the back [Hickey Opp’n Dec. Ex. 223]. They

of his SUV? A. Correct. Q. And the picked Mr. Nieto up and threw him

23

reason for that was to create some

against the truck before handcuffing

distance or separation from the two him. Id. at 11:24-12:3.

24

men that were yelling curses at you?

A. Correct.”).

25

26

94. Deputy Kikes was able to move the driver (Mr. Nieto) to rear of the

Undisputed.

27

vehicle away from the angry mechanics and obtain the driver’s

28

license. See Deposition of MCSO - 36 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 37 of 78

1

Deputy Michael Kikes at p. 80, lns. 2-

10. 2

95. Deputy Kikes conducted a radio check Undisputed.

3

on the driver’s status (Mr. Nieto’s) and

it came back clear. See Deposition of

4

MCSO Deputy Michael Kikes at p. 85,

ln. 23 to p. 86, ln. 24. 5

96. Deputy Beeks then contacted Deputy Undisputed that Deputy Armendariz

6

Armendariz to determine what had

confirmed that “[n]o crime had been

occurred between Deputy Armendariz committed” by Plaintiffs and that

7

and Ms. Meraz and Mr. Nieto. See

“nothing had been violated.” Kikes

Deposition of MCSO Deputy Michael Dep. 134:11-21 [Defs.’ SOF Ex. 13]; see

8

Kikes at p. 85, ln. 23 to p. 86, ln. 24; also Pls.’ SOF 206.

see also p. 134, ln. 3 to p. 135, ln. 15

9

(“Q. You testified that eventually

Disputed that there were any exigent

Deputy Beeks made some sort of

circumstances, such as a concern about

10

contact with Deputy Armendariz? A. drugs, weapons or other contraband

11

Correct, by telephone, cell phone, he being destroyed, that justified the traffic

called back. Q. And your

stop of Plaintiffs even though they had

12

understanding is that cleared up any confusion of exactly what had

committed no crime. Neither Deputy Armendariz nor anyone else with the

occurred with this dark SUV and its MCSO had any reason to believe that

13

occupants? A. Right. Q. There was a Plaintiffs were carrying drugs, weapons

question as to why there was no

or contraband. There was simply no

14

citation issued. That was because there reason why Plaintiffs should have been

was no moving violation? A. No crime treated as persons of interest, especially

15

had been committed. Q. Okay. And after they had left the gas station.

that was confirmed after the stop had

16

been made and communication with

Mr. -- Deputy Armendariz had been

17

made? A. Right. After Deputy Beeks

advised me that nothing had taken

18

place, that was just a gentleman of

interest from the traffic stop earlier,

19

that nothing had been violated, that we

could go ahead and let him go. Q. Why

20

in law enforcement -- strike that. Was

there a concern that had you stopped to

21

speak with Armendariz first about

what had occurred that the black SUV

22

may not be able to be found? A.

Correct. Q. And I guess that is my next

23

question is, before making that traffic

stop on the black SUV, why -- why

24

couldn't you or another officer

determine precisely why you folks

25

were not going to be following the

26

black SUV and making the traffic stop? A. Well, that all goes into

exigent circumstances. We need to

27

find out and stop right at that point.

We need to make a stop of that vehicle

28

- 37 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 38 of 78

1

to not let it further -- either get away,

either hide whatever weapons may be -

2

- or drugs or whatever the case may be

inside that vehicle. So we need to

3

pursue that vehicle, have a stop and

then go ahead and do our detective

4

work and find out exactly investigative

of what is actually with that vehicle

5

and why it needs to be stopped.”).

6 97. Following the communication between Undisputed; Mr. Nieto was released

Deputies Beeks and Armendariz, Mr. without any citation or charge.

7

Nieto was released without being

charged wither either a traffic violation

8

(i.e., a failure to stop when directed) or

for obstructing Deputy Armendariz.

9

See Deposition of MCSO Deputy

Michael Kikes at p. 85, ln. 23 to p. 86,

10

ln. 24.

11 98. Plaintiff Velia Meraz’ truthfulness is at This statement is not material to the

issue for several reasons, including the resolution of Defendants’ motion and

12

fact she has a prior felony conviction should therefore be disregarded. Liberty

for fraudulent schemes and artifices for Lobby, 477 U.S. at 248 (facts “that are

13

writing money orders to herself while irrelevant or unnecessary will not be

she was employed at Catholic Social counted”); L.R. Civ. 56.1(a). Even

14

Services as an immigration case

Defendants’ concede that a party’s

worker. See Deposition of Plaintiff

credibility has no place in a motion for

15

Velia Meraz at p. 7, ln. 22 to p. 9, ln. summary judgment. Defs. MSJ at 13-14

19.

n.9.

16

99. Plaintiffs allege in the First Amended This statement simply provides

17

Complaint that since year 2007 they “background about the action or the

have been subjected to the MCSO’s parties” and therefore does not properly

18

alleged official policy, pattern, and

belong in Defendants’ separate

19

practice of stopping, questioning, searching, and sometime arresting

statement of facts. L.R. Civ. 56.1(a). Plaintiffs’ First Amended Complaint

20

Latino persons without probable cause speaks for itself. or reasonable suspicion simply on the

21

basis of their race. See Dkt. #26 at p. 3, lns. 15-25, ¶ 3; p. 3, ln. 26 to p. 4, ln.

22

1, ¶ 4. Plaintiffs further allege in their First Amended Complaint that the

23

MCSO’s challenged conduct occurs not only as a general practice of

24

making traffic stops, but also through making traffic stops during saturation

patrols or so call “crime suppression

25

sweeps.” See Dkt. #26 at p. 3, p. 3, lns.

26

15-25, ¶ 3.

27

100. Mr. Melendres is a Mexican national and lives in Ciudad Obregon, Sonora,

Undisputed.

28

Mexico, about a seven (7) hour bus - 38 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 39 of 78

1

trip from the border at Nogales,

Mexico. See Deposition of Plaintiff

2

Manuel Melendres at p. 7, lns. 7-15.

3 101. Mr. Melendres has returned to

Undisputed that as of Mr. Melendres’

Maricopa County “once or twice”

deposition on October 10, 2009, he had

4

since his September 2007 traffic stop. returned to Maricopa County once or

See Deposition of Plaintiff Manuel

twice since his September 2007 traffic

5

Melendres at p. 33, lns. 20-23.

stop by MCSO, not including the trip he

made to attend the deposition itself.

6

102. When Mr. Melendres has visited

Undisputed.

7

Maricopa County on those occasions,

Mr. Melendres stays only for “some

8

days or maybe a week.” See

Deposition of Plaintiff Manuel Madrid

9

at p. 37, lns. 3-8. During his one or two

visits to Maricopa County after the

10

2007 traffic stop, Mr. Melendres has

not again been stopped, questioned,

11

detained, arrested, searched, or

investigated by the MCSO since the

12

traffic stop in September 2007. Id. at p.

34, ln. 8 to p. 35, ln. 5.

13

14

103. As to Mr. and Mrs. Rodriguez, they each testified that since their

Undisputed that this is what Mr. and Mrs. Rodriguez testified to on October

15

December 2007 traffic stop on Bartlett 2, 2009. Dam Road by Deputy DiPietro, and

16

although they live and work in Maricopa County, they each have had

no other traffic stop encounters with

17

the MCSO. See Deposition of Jessika

Rodriquez at p. 58, ln. 16 to p. 59, ln.

18

6; Deposition of David Rodriquez at p.

19

37, lns. 17-22.

20

104. Indeed, Mrs. Rodriquez drives 20

Undisputed that this is what Mrs.

miles roundtrip to work every day and Rodriguez testified to on October 2,

21

estimates that she put roughly 20,000 2009, except that Mrs. Rodriguez miles on her personal car every year in testified she would drive 20 miles a day

22

Maricopa County but has never again to go to work and to drop off her

been stopped by the MCSO. See

children. See Deposition of Jessika

23

Deposition of Jessika Rodriguez at p. Rodriguez at 60:14-61:10 [Defs.’ SOF

60, lns. 14-20; p. 61, lns. 11-21.

Ex. 15].

24 105. Ms. Meraz testified that since her

Undisputed that this is what Ms. Meraz

25

March 2008 traffic stop by the MCSO testified to on October 8, 2009. she has had no other personal

26

experience with the MCSO stopping her in any vehicle at any time for any

27

reason. See Deposition of Velia Meraz at p. 32, lns. 15-20.

28

- 39 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 40 of 78

1 106. Mr. Nieto testified that he also has had Undisputed that this is what Mr. Nieto

no traffic stop encounters with the

testified to on October 8, 2009.

2

MCSO since the March 2008 traffic

stop. See Deposition of Manuel Nieto,

3

Jr., at p. 36, lns. 14-16.

4 107. Although Mr. Melendres speculates Undisputed that Mr. Ortega Melendres

that the truck was not speeding, he has does not think that the truck was

5

no facts that would allow him to

speeding. Ortega Melendres Dep. 18:1-

dispute the probable cause

5 [Defs.’ SOF Ex. 1].

6

determination of Deputy DiPietro. See

Deposition of Plaintiff Manuel

Disputed to the extent that Defendants

7

Melendres at p. 18, lns. 1-5,

contend Plaintiff’s own recollection is

(speculative conclusion that the truck irrelevant to Deputy DiPietro’s claim

8

was not speeding); at p. 18, ln. 9 to that the truck was speeding. Mr. Ortega

p.19, ln. 17 (Q. But do you know what Melendres was a witness to the incident.

9

the speed was of the truck shortly

before it was stopped? A. No. Q. Do

10

you know whether the driver of the

vehicle was driving at a speed in

11

excess of the posted speed limit? A.

No. Q. If it's the sheriff's deputy's

12

position that the driver was going too

fast, do you have any facts to dispute

13

that position? A. Could you repeat the

question? Q. Sure. My clients say they

14

stopped the vehicle because it was

speeding. Do you have any facts that

15

would allow you to dispute that? A.

No. *** Q. Do you contend, sir, that

16

the stop was improper or illegal in

anyway? A. Well, if I showed him my

17

documents -- well, I don't know the

rules here. So actually, I don't know if

18

they have the right to stop the driver. I

can't say, because it's not my -- within

19

my knowledge to say. Q. It is not

within your knowledge to say whether

20

the stop was proper or not proper;

true? A. Well, no, because the officers

21

who pulled the car over, they are the

ones who know about that. I cannot

22

say anything about that.”).

23 108. Defendants’ law enforcement practices Disputed. Mr. Ortega Melendres stated

expert, Bennie R. Click, opines that that the truck “wasn’t going very fast”

24

that “Deputy DiPietro had probable and that he does not believe the truck

cause to stop the vehicle in which Mr. was speeding. Ortega Melendres Dep.

25

Melendres was a passenger. Deputy 17:20-24 [Hickey Opp’n Dec. Ex. 240],

DiPietro’s actions in stopping the

18:1-5 [Defs.’ SOF Ex. 1].

26

vehicle conformed with standard

police training and law enforcement Further, whether or not there was

27

practice, met the requirements set for “probable cause” to stop the truck is a

in [A.R.S. section] 13-3883 and were conclusion of law that is for the Court to

28

- 40 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 41 of 78

1

reasonable.” See Report of Ben Click make, not an expert witness Elsayed

dated January 21, 2011, at p. 13; see Mukhtar v. Cal. State Univ., Hayward,

2

also March 18, 2011 Deposition of

299 F.3d 1053, 1063 (9th Cir. 2002).

Defense Expert Ben Click at p. 341, ln.

3

24 to p. 342, ln. 14 (wherein he

testified to the foundation for his

4

opinions and that his opinions in the

report were the same he would provide

5

at trial to a reasonable degree of

probability in his field of expertise). 6

109. Plaintiffs’ law enforcement

7

practices/racial profiling expert

Disputed. Mr. Stewart has no firsthand knowledge of what occurred because he

witness, Robert L. Stewart, has no

was not there. Mr. Ortega Melendres,

8

factual basis to disagree with Deputy however, stated that the truck “wasn’t

DiPietro’s probable cause

9

determination:

going very fast” and that he does not believe the truck was speeding. Ortega

Melendres Dep. 17:20-24 [Hickey

10

Q. Based on all the evidence that you Opp’n Dec. Ex. 240], 18:1-5 [Defs.’

have reviewed, did Deputy Louis

SOF Ex. 1].

11

DiPietro have probable cause to stop

the truck in which Mr. Melendres was In addition, Mr. Stewart pointed out that

12

a passenger?

“a belief that all of the occupants in the

13

A. According to him.

vehicle were somehow associated with day labor and there was the issue of both

14

Q. Is that a yes or a no?

workers and employers being in violation of the law,” and “that the

driver was never cited, never questioned

15

A. His record reflects that he did.

about his activities in terms of employer

sanction laws.” Stewart Dep. 111:24-

16

Q. Do you have any direct evidence 112:10 [Hickey Opp’n Dec. Ex. 233].

rebutting Deputy DiPietro’s testimony Mr. Stewart also explained that the

17

that he had probable cause to stop the conduct directed toward Mr. Ortega

truck? 18

Melendres seemed to be racially motivated because deputies believed that

A. No, sir. 19

“if you are Mexican and you’re a day laborer, then you must be here illegally,”

Q. Do you have any circumstantial

and the MCSO operates and designs

20

evidence rebutting Deputy DiPietro’s activities and carries out functions on

testimony that he had probable cause that basis. Stewart Dep. 159:25-161:12

21

to stop the truck?

[Hickey Opp’n Dec. Ex. 233].

22

A. No, sir.

23

See February 28, 2011 Deposition of

Plaintiffs’ Expert Robert L. Stewart at

24

p. 60, ln. 12 to p. 61, ln. 2.

25 110. Mr. Melendres was in an MCSO

Undisputed.

holding cell before removal to ICE for

26

“probably about two hours.” See

Deposition of Plaintiff Manuel

27

Melendres at p. 25, lns. 10- 15. Mr.

Melendres was held another six to

28

- 41 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 42 of 78

1

seven hours by ICE at the ICR DRO

facility. Id. at p. 25, ln. 23 to p. 26, ln.

2

4.

3 111. Mr. Melendres was properly detained Disputed. While federal law requires

pursuant to Deputy Rangel’s 287(g) certain non-citizens (such as Mr. Ortega

4

authority. See Report of Ben Click

Melendres) to carry a registration

dated January 21, 2011, at p. 14-15; document (such as the I-94 Form), the

5

see also March 18, 2011 Deposition of immigration law does not provide that

Defense Expert Ben Click at p. 341, ln. the failure to carry the document makes

6

24 to p. 342, ln. 14 (wherein he

the person “out of status” and subject to

testified to the foundation for his

deportation. Cf. 8 C.F.R. § 214.1

7

opinions and that his opinions in the (Requirements for admission, extension,

report were the same he would provide and maintenance of status). Defendants

8

at trial to a reasonable degree of

do not identify any federal law or

probability in his field of expertise); cf. regulation to the contrary.

9

Defendants’ Supplemental ICE SOF at

¶ 26. 10

Even if Mr. Ortega Melendres was not carrying his I-94 Form (he testified he

was), there was no need for him to be

11

detained for seven to eight hours to

determine his status. He was also

12

carrying a valid visa, was not a flight

risk, and if there was any doubt about

13

his status, Deputy Rangel could have

made a phone call to ICE. See Ortega

14

Melendres Dep. 9:22-10:4, 22:2-6, 26:4-

27:6 (describing how ICE found his visa

15

and I-94 in his property bag) [Hickey

Opp’n Dec. Ex. 240]. 16

Also, Mr. Ortega Melendres was not

17

working when he was stopped by

MCSO. Ortega Melendres Dep. 24:4-7

18

[Hickey Opp’n Dec. Ex. 240].

19

Further, this statement is a conclusion of

law for the Court to make and not

20

Defendants’ expert. Elsayed Mukhtar,

299 F.3d at 1063. 21

112. Mrs. Rodriguez admits there was

Undisputed that Mrs. Rodriguez does

22

probable cause to stop her vehicle. See not disagree with Deputy Ratcliffe’s

Deposition of Jessika Rodriguez at p. decision to initially pull them over.

23

30, lns. 7-21 (“Q. Do you believe now,

in hindsight, that [Deputy Ratcliffe]

24

did have a good reason to pull you

over? A. Yes. Q. And what is that

25

based on? A. On the citation issued to

us, which was failure to obey a traffic

26

device. Q. All right. And so in

hindsight, even though you weren't

27

aware of it at the time of the stop, you

did realize that there was a "Road

28

- 42 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 43 of 78

1

Closed" sign, right? A. Yes. Q. And

that it was illegal to travel on that road,

2

wasn't it? A. Yes.”).

3 113. Mrs. Rodriguez is not even critical of Undisputed that Mrs. Rodriguez does

the traffic stop made by MCSO

not disagree with Deputy Ratcliffe’s

4

Deputy Matthew Ratcliffe. See

decision to initially pull them over.

Deposition of Jessika Rodriguez at p.

5

31, 9-20) (“Q. All right. So you're not

critical of the initial stop, are you? A.

6

No. Q. Okay. He was -- the initial stop,

the officer, you understand, was

7

legally -- in your mind's eye, what he

did was proper, wasn't it? A. Yes.”).

8

114. Defense expert Mr. Click testified that Undisputed. However, this statement is

9

Deputy Ratcliffe had PC to stop the a conclusion of law for the Court to

Rodriguez truck. See Report of Ben make and not Defendants’ expert.

10

Click dated January 21, 2011, at p. 23; Elsayed Mukhtar, 299 F.3d at 1063.

see also March 18, 2011 Deposition of

11

Defense Expert Ben Click at p. 341, ln.

24 to p. 342, ln. 14 (wherein he

12

testified to the foundation for his

opinions and that his opinions in the

13

report were the same he would provide

at trial to a reasonable degree of

14

probability in his field of expertise).

15 115. Plaintiffs’ liability expert Mr. Stewart Undisputed as to the initial stop.

16

testified:

However, this statement is a conclusion of law for the Court to make and not

Q. Based on all the evidence you’ve Defendants’ expert. Elsayed Mukhtar,

17

reviewed, did Deputy Ratcliffe have 299 F.3d at 1063.

probable cause to stop the Rodriguez

18

vehicle on the road?

19

A. Yes.

20

See February 28, 2011 Deposition of

21

Plaintiffs’ Expert Robert L. Stewart at p. 79, lns. 14-17; see also p. 77, ln. 18

22

to p. 78, ln. 2.

23

116. Plaintiffs’ liability expert Mr. Stewart opined that Deputy Ratcliffe had

Undisputed that Mr. Stewart so testified. However, this stat a conclusion of law

24

probable cause to stop the Rodriguez for the Court to make and not an expert. truck even if Mr. Rodriguez did not Elsayed Mukhtar, 299 F.3d at 1063.

25

see the “Road Closed” sign. See February 28, 2011 Deposition of

Also, prior to the stop, Deputy Ratcliffe did not know that Mr. Rodriguez had not

26

Plaintiffs’ Expert Robert L. Stewart at seen the “Road Closed” sign. Ratcliffe

p. 77, ln. 18 to p. 78, ln. 2.

Dep. 23:19-21 [Hickey Opp’n Dec. Ex.

27

228]; D. Rodriguez Dep. 13:5-17 [Hickey Opp’n Dec. Ex. 229].

28

- 43 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 44 of 78

1 117. MCSO Deputy Michael Kikes testified Disputed. A recording of the radio

that he had probable cause to stop the traffic for the incident reveals that

2

vehicle driven by Mr. Nieto and

Deputy Armendariz said nothing further

occupied by Ms. Meraz. See

about Plaintiffs’ vehicle after he made

3

Deposition of MCSO Deputy Michael the simple request for backup, and that

Kikes at p. 129, lns. 4-18 (“Q. Now, his voice was not “excited” or

4

let's turn to the incident that the

“agitated.” ORT 370.7

plaintiffs' lawyer asked you questions

5

about, the one involving Ms. Meraz In any event, both Deputy Beeks and

and Mr. Nieto. Tell us what was, in Deputy Kikes could have observed that

6

your judgment, the probable cause that Plaintiffs had left the gas station by the

allowed you to activate your lights and time they arrived, and that Deputy

7

siren to pull over what you described Armendariz was unharmed. Pls.’ SOF

as the black SUV? A. I believed that 204-05. There was no reason to pursue

8

some emergency and some situation them at that point.

had taken part with Ramon

9

Armendariz, Deputy Armendariz.

Further, whether or not Deputy Kikes

There was an emergency and that is had “probable cause” to stop the vehicle

10

why I pulled them over because – not is a matter of law for the Court’s

knowing exactly what had happened, determination, not that of a party or its

11

but there was some sort of emergency witness. See, e.g., Weitzenhoff, 35 F.3d

that took place at that moment. Q. Did at 1287 (“Resolving doubtful questions

12

you believe that that emergency

of law is the distinct and exclusive

situation existed in what you believed province of the trial judge.” (internal

13

to be your good faith? A.

quotation omitted)).

Absolutely.”). 14

118. Defense expert Mr. Click opines that Disputed. Plaintiffs did not obstruct

15

Ms. Meraz and Mr. Nieto obstructed Deputy Armendariz’s investigation and

Deputy Armendariz in his

arrest. The Meraz-Nieto vehicle pulled

16

investigation and arrest of the two

into a parking spot at the gas station that

stopped men and that they could have was 10 yards or more from where the

17

been arrested by law enforcement for deputy and the detainees were. Pls.’

such obstructions. See Report of Ben SOF 202, Nieto Dep. 18:8-13 [Hickey

18

Click dated January 21, 2011, at p. 37; Opp’n Dec. Ex. 224]. As soon as Meraz

see also March 18, 2011 Deposition of and Nieto pulled in, Deputy Armendariz

19

Defense Expert Ben Click at p. 341, ln. immediately approached their vehicle

24 to p. 342, ln. 14 (wherein he

and told them to leave. Ms. Meraz

20

testified to the foundation for his

asked him why, and he said that he

opinions and that his opinions in the could arrest them for disorderly conduct

21

report were the same he would provide if they did not leave. Pls.’ SOF 202;

at trial to a reasonable degree of

Meraz Dep. 15:20-25 (the only thing

22

probability in his field of expertise). that happened before they were ordered

Defense expert Bennie R. Click,

to leave was that they pulled into the

23

therefore, testified that Deputy Kikes parking lot with the music on), 18:20-

had reasonable suspicion to stop the 19:1 [Hickey Opp’n Dec. Ex. 223].

24

Nieto-Meraz vehicle. See Report of

Ben Click dated January 21, 2011, at In response to Deputy Armendariz’s

25

p. 35; see also March 18, 2011

order to leave, Ms. Meraz only asked

Deposition of Defense Expert Ben

him why, Pls.’ SOF 202, and asked

26

7 ORT 370 is an audio record ing. Plaintiffs intend to file this multimedia record 27 with the Clerk should the Court grant Plaintiffs’ M otion for Leave to File Audio

Recording in Non-Electronic Form. 28

- 44 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 45 of 78

1

Click at p. 341, ln. 24 to p. 342, ln. 14 Deputy Armendariz for his badge

(wherein he testified to the foundation number so that they could file a

2

for his opinions and that his opinions complaint against him; Plaintiffs then

in the report were the same he would complied with his order to leave. Meraz

3

provide at trial to a reasonable degree Dep. 10:23-11:2, 20:12-21 [Hickey

of probability in his field of expertise). Opp’n Dec. Ex. 223]; Nieto Dep. 12:17-

4

25 [Hickey Opp’n Dec. Ex. 224].

5

Plaintiffs testified that after Deputy

Armendariz provided his badge number,

6

they immediately left the gas station.

Meraz Dep. 10:23-11:2, 20:12-21

7

[Hickey Opp’n Dec. Ex. 223]; Nieto

Dep. 12:17-25 [Hickey Opp’n Dec. Ex.

8

224].

9

Furthermore, whether or not Deputy

Kikes had “reasonable suspicion” to stop

10

the vehicle for a violation of Arizona

law is a conclusion of law for the Court

11

to make and not Defendants’ expert.

Elsayed Mukhtar, 299 F.3d at 1063. 12

119. Plaintiffs’ liability expert Stewart

Disputed. Defendants misconstrue Mr.

13

agrees with Defense expert Click that Stewart testimony criticizing Deputy

MCSO Deputy Michael Kikes had

Armendariz’s conduct relative to Deputy

14

reasonable suspicion that allowed him Kikes’ conduct to conclude that he

to properly stop the Meraz-Nieto

believes that the stop of Plaintiffs was

15

vehicle. See February 28, 2011

lawful. Mr. Stewart testified that there

Deposition of Plaintiffs’ Expert Robert was no lawful basis for the stop of Mr.

16

L. Stewart at p. 103, lns. 4-17.

Nieto and Ms. Meraz. Stewart Dep.

162:17-22 [Hickey Opp’n Dec. Ex. 233].

17

Mr. Stewart also explained that Deputy

Armendariz characterized Meraz and

18

Nieto as playing loud Spanish music,

that he obviously had an opportunity to

19

see them, and that he sent Officer Kikes

to stop them based on the fact that he

20

suspected that it might lead to an arrest

of illegal aliens. Stewart Dep. 163:1-15

21

[Hickey Opp’n Dec. Ex 233].

22

Furthermore, whether or not Deputy

Kikes had “reasonable suspicion” to stop

23

Plaintiffs is a matter of law for the

Court’s determination, not that of a party

24

or its witness. See, e.g., Weitzenhoff, 35

F.3d at 1287. 25

Plaintiffs have presented evidence that

26

Deputy Kikes did not have reasonable

suspicion to stop Plaintiffs. A recording

27

of the radio traffic for the incident

reveals that Deputy Armendariz said

28

- 45 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 46 of 78

1

nothing further about Plaintiffs’ vehicle

after he made the simple request for

2

backup, and “excited” or

t“haagtithaitsedv.o”icOe RwTas3n7o0t.8

3

In any event, both Deputy Beeks and

4

Deputy Kikes could have observed that

Plaintiffs had left the gas station by the

5

time they arrived, and that Deputy

Armendariz was unharmed. Pls.’ SOF

6

204-05. There was no reason to pursue

them at that point. 7

120. To the extent the Plaintiffs claim that Disputed. Defendants mischaracterize

8

Deputy Kikes’ treatment of Mr. Nieto Mr. Stewart’s testimony pertaining to

during the traffic stop violated his

the moment before Plaintiffs were

9

rights, such claim lacks merit. Even stopped to apply to their post-stop

Plaintiffs’ liability expert Mr. Stewart treatment. Mr. Stewart specifically

10

opines that Deputy Kikes acted

testified that there was no reason for

reasonably in his post-stop conduct officers to draw their weapons and he

11

and treatment of Mr. Nieto. See

did not agree with the handcuffing of

February 28, 2011 Deposition of

Mr. Nieto. Stewart Dep. 90:22-91:5

12

Plaintiffs’ Expert Robert L. Stewart at [Hickey Opp’n Dec. Ex. 233].

p. 105, lns. 3-6 (“Q. Do you have any

13

opinion whether Deputy Kikes acted Furthermore, whether or not Plaintiffs’

reasonable or unreasonable? A. I think claim has merit is for the Court’s

14

for the circumstances that he had, he determination, not that of a party or its

acted reasonable.”). 15

witness. See, e.g., Weitzenhoff, 35 F.3d at 1287.

16 121. The essence of Plaintiffs’ Fourteenth Disputed that this quote Plaintiffs’ First

Amendment and Title VI racial

Amendment Complaint is the “essence”

17

discrimination claims is summarized in of Plaintiffs’ discrimination claims. The

their First Amended Complaint:

First Amended Complaint contains

18

many claims and allegations of

Caucasian drivers and passengers

discrimination and speaks for itself.

19

involved in the same or similar acts or This statement, at most, provides

alleged violations are treated

“background about the action” and

20

differently and their vehicles stopped therefore does not properly belong in

at much lower rates than similarly

Defendants’ separate statement of fact.

21

situated Latino drivers and passengers L.R. Civ. P. 56.1(a).

pursuant to MCSO policy and practice.

22

Further Caucasian drivers and

passengers are treated differently and

23

less intrusively and detained for

shorter periods of time after their

24

vehicles are stopped by MCSO

personnel than Latino drivers and

25

passengers after being stopped. Latino

26

8 ORT 370 is an audio record ing. Plaintiffs intend to file this multimedia record 27 with the Clerk should the Court grant Plaintiffs’ M otion for Leave to File Audio

Recording in Non-Electronic Form.

28

- 46 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 47 of 78

1

occupants are also treated differently

and more intrusively by MCSO than

2

Caucasian occupants of the same

vehicle.

3

See Dkt. #26 at p. 11, lns. 3-10, ¶ 32. 4

122. Plaintiffs’ own statistical expert, Ralph Disputed. Dr. Taylor’s study explicitly

5

Taylor, Ph.D., conducted a statistical focused on a comparing MCSO activity

analysis of all the MCSO traffic stops on saturation patrols days and by

6

conducted from January 1, 2007 to

officers involved in saturation patrol

October 31, 2009 and concluded that operations. He did not set out to make a

7

Latinos in Maricopa County are

comparison between Hispanics’ share of

stopped by MCSO personnel in

the general population to MCSO’s

8

roughly the same proportion to their agency-wide stop rate and made no

share of Maricopa County’s

“conclusions” about the same. Dr.

9

population. See March 21, 2010

Taylor explicitly stated that such an

Deposition of Ralph Taylor, Ph.D. at “unqualified comparison” was “non-

10

129, ln. 19 to p. 130, ln. 14 (“Q. What informative” and not generally accepted

about for non-saturation patrol days? in the field. See Taylor Rebuttal Report,

11

Would it be fair to categorize the

Ex. C to Dec. of Dr. Ralph Taylor in

percentage of traffic stops as what you Support of _Pls.’ Motion for Partial

12

would expect given the population of Summ. J., Dkt. No. 424, at 38-40

Hispanics in Maricopa County? A. I (hereinafter “Taylor Rebuttal Report”);

13

am looking at names checked, not

Taylor Dep. 130:9-14 (comparison with

traffic stops per se. And I—and you’ve Census population data is “non-

14

asked ---there’s something incomplete informative”) [Defs.’ SOF Ex. 21]. Dr.

in your question. Q. [Question re-read Taylor’s study makes the more

15

to the witness]…. A. Oh. If you’re

meaningful comparison between MCSO

asking does the percentage of—for

activity on saturation patrol and non-

16

names checked on nonsaturation

saturation patrol days to find that

patrol days, does the percentage of saturation patrols have the effect of

17

names checked Hispanic appear to

increasing the rate of stops of Hispanic

align with generally the Hispanic

individuals. See Taylor Rebuttal Report

18

proportion of Maricopa County, my at 29-35; 38-40 (Dkt. No. 424).

answer to that would be generally yes,

19

but that is non-informative.”)

(emphasis added); see also February

20

28, 2011 Deposition of Plaintiffs’

Expert Robert L. Stewart at p. 154, lns.

21

20-24 (“Q. Did Mr. Taylor’s overall

traffic stop analysis show that

22

Hispanics in Maricopa County are

stopped in rough proportion to their

23

share of Maricopa County’s

population? A. Yes, sir.”). 24

123. Defense expert statistician Steve

Undisputed that the quoted passage

25

Camarota, Ph.D, wrote a written report appears in Dr. Camarota’s report.

containing his opinions and the

26

“Summary of Findings” in his report Disputed to the extent that Defendants’

provided the following:

attempt to rely on Dr. Camarota’s

27

finding as evidence tending to show the

[My] findings show that the Hispanic MCSO is or is not engaging in racial

28

- 47 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 48 of 78

1

share of those stopped by the MCSO profiling. Dr. Camarota made no

deputies is roughly equal to their

conclusion as to whether the MCSO was

2

proportion of the county’s and the

not was targeting Hispanics or not; his

state’s overall population. About one- only conclusion was that, on an agency-

3

third of stops are of individuals with a wide basis, Hispanic are stopped by the

Hispanic last name, which closely

MCSO roughly in proportion to their

4

matches their share of the county and share of the population. See Camarota

state populations. Analysis at the sub- Dep. 105:2-113:11 [Hickey Opp’n Dec.

5

county level also tends to show stops Ex. 217]. This fact is not informative as

in proportion to local population

to the ultimate issue of whether profiling

6

shares…. Equally important, despite a is in fact occurring. See Resp. to Defs.’

significant increase in concern over SOF 122, supra.

7

illegal immigration in recent years in

the county and state, there was no

Moreover, Plaintiffs object to Dr.

8

increase in the Hispanic share of those Camarota’s expert report in its entirety

stopped by MCSO between 2005and as deficient under the Federal Rules of

9

2009. Overall, the surname analysis Evidence 702 and Federal Rule of Civil

shows Hispanics are being stopped at a Procedure 26. Dr. Camarota’s analysis

10

rate that reflects their share of the

relies on methodology not generally

population.

accepted in the field and uses data

11

“processed” by MCSO employee Mr.

See January 20, 2011 Report of Steven Scott Jefferys without any independent

12

Camarota, Ph.D., entitled “Report 1 verification of the same by Dr.

Hispanic Surname Analysis of

Camarota. Plaintiffs also intend to

13

Maricopa County Sheriff’s Office

object to Scott Jefferys’ testimony and

Patrol Activity 2005 to 2009” at p. 1 opinions, to the extent Defendants

14

(underlining added for key sections of attempt to rely on the same, as

the report for the convenience of the themselves deficient under the Federal

15

Court); see also March 22, 2011

Rules of Evidence 702 and improperly

Deposition of Defense Expert Steve disclosed under Federal Rule of Civil

16

Camarota, Ph.D. at p. 122, lns. 13-16 Procedure 26. For these and other

(foundation for his report). Dr.

reasons, Plaintiffs expressly reserve the

17

Camarota would expect that if Latinos right to seek to strike Dr. Camarota’s

were being racially profiled by MCSO (and Mr. Jefferys’) opinions at a later

18

personnel during traffic stops then the stage.

traffic stops of Latinos would be in a

19

much greater percentages than their

percentage of the general population.

20

See March 22, 2011 Deposition of

Defense Expert Steve Camarota, Ph.D.

21

at p. 106, lns. 3-13 (Q. You don’t

come to a conclusion affirmatively that

22

the MCSO does not discriminate

against Hispanics, correct? A. My

23

conclusion is that Hispanics are not

stopped at rates higher than their

24

overall population share, and that if

they were being targeted for

25

enforcement, we would expect that

they would be stopped at rates higher

26

than their population shares. That’s my

conclusion.”); See also January 20,

27

2011 Report of Steven Camarota,

Ph.D., entitled “Report 1 Hispanic

28

- 48 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 49 of 78

1

Surname Analysis of Maricopa County

Sheriff’s Office Patrol Activity 2005 to

2

2009” at p. 1.

3 124. Dr. Taylor’s saturation patrol opinions Disputed. Dr. Taylor’s study reaches

are based on a study that he

definitive findings and conclusions by

4

characterized as “quasi-experimental” relying on the widely-accepted method

in nature. See March 21, 2010

of statistical inference based on analysis

5

Deposition of Ralph Taylor, Ph.D. at of data patterns (such as significance

46, lns. 6-10 (“Because that was not testing). See Taylor Dep. Tr. at 48:2-21

6

required by the quasi experimental

[Hickey Opp’n Dec. Ex. 234] (“I’d like

design used in my analysis.”); p. 46, to distinguish between the use of

7

lns. 11-18 (“The quasi- experimental statistical inference and conclusions.

design that I used had two types, of, if The conclusions are about the data

8

you will, non-treatment days.”); p. 48, patterns, and those rely on a set of

ln. 12-17 (discussion of what is a

mediating statistical inferences. . . . The

9

quasi-experimental study). Dr.

data patterns are subjected to statistical

Taylor’s “quasi-experimental” study inference testing. The results of the

10

does not result in definitive findings or statistical inference testing support a

conclusion, only “inferences.” See

conclusion about the data pattern.”);

11

March 21, 2010 Deposition of Ralph Taylor Initial Report, Ex. B to Dec. of

Taylor, Ph.D. at 47, ln. 13 to p. 48, ln. Dr. Ralph Taylor in Support of _Pls.’

12

11. Dr. Taylor’s alternative opinions Motion for Partial Summ. J., Dkt. No.

that there are disproportionate

424, at 7-11 (hereinafter “Taylor

13

percentages of Latino’s stopped during Rebuttal Report”) (“My major

MCSO saturation patrols and that their conclusions with regard to MCSO’s

14

traffic stop detentions are supposedly traffic stops of Hispanic persons in

longer than non-Latinos is factually Maricopa County from January 1, 2007

15

suspect. Dr. Taylor’s saturation patrol through October 31, 2009 are . . . .)

analysis mistaken fails: (1) to exclude (emphasis added).

16

those patrols that included a human

smuggling interdiction component or Undisputed that Dr. Taylor’s study is

17

exclude load vehicles found with

“quasi-experimental” in design. This

illegal immigrant; (2) to exclude

simply refers to the fact that his study

18

duplicate records in the Computer

compares MCSO officers working on

Aided Dispatch (“CAD”) database; (3) saturation patrols to other MCSO

19

improperly excluded thousands of

officers, as opposed to a random

other cases that should have been

assignment of officers to saturation

20

included in the analysis; and (4) failed patrols by the researcher. See Taylor

to account for any socioeconomic

Dep. 48:12-21 [Hickey Opp’n Dec. Ex.

21

variables in his statistical model. See 234]. Dr. Taylor testified that this

January 20, 2011 Report of Steven

design was superior to a study with

22

Camarota, Ph.D., entitled “Report 1 randomly assigned control groups and of

Hispanic Surname Analysis of

the best scientific quality given the

23

Maricopa County Sheriff’s Office

purposes of the study and the existing

Patrol Activity 2005 to 2009” at p. 1, circumstances. See Taylor Dep. 49:24-

24

3-4. 20-33 (underlining added for key 50:24 (“Unless those conditions [such a

sections of the report for the

cooperative agency] are satisfied, it's

25

convenience of the Court); see also quite possible that the costs in the

March 22, 2011 Deposition of Defense adverse consequences of random

26

Expert Steve Camarota, Ph.D. at p.

assignment might outweigh the benefits

122, lns. 13-16 (foundation for his

and, thereby, produce a study of inferior

27

report; See March 21, 2010 Deposition quality to the study produced here. . . .

of Ralph Taylor, Ph.D. at 47, ln. 13 to My testimony today is that a randomized

28

- 49 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 50 of 78

1

p. 48, ln. 11 (wherein Dr. Taylor

control trial in this context would have

testified that his study leads only to produced a superior study only if it was

2

“inferences” that might be drawn from the case that several conditions were

the data); p. 56, lns. 5-7 (wherein Dr. true, and those conditions are not true in

3

Taylor testified that he excluded 18% this case. Therefore, my current study is

of all MCSO traffic stops); p. 52, lns. of the best scientific quality in the

4

8-19 (wherein Dr. Taylor testified that available -- given the available

he excluded 18% of all MCSO traffic circumstances.”) [Hickey Opp’n Dec. Ex

5

stops because they did not “align” well 234].

with the Plaintiffs’ case theory or the

6

Plaintiffs’ “concerns” about MCSO Disputed that the issues listed as (1)-(4)

operations). 7

are “failures” or in any way affect the validity of Dr. Taylor’s conclusions.

These issues were specifically addressed

8

in great detail in Dr. Taylor’s rebuttal

report and were found to have no impact

9

on his results and conclusions. See

Taylor Rebuttal Report at 4-15, 36-37

10

[Dkt. No. 424]. More specifically:

Regarding (1), Defendants cite no reason

11

why immigration or human smuggling

stops should be excluded from the

12

analysis, nor do Defendants’ establish

that human smuggling stops were a

13

significant component of large-scale

saturation patrols (see Pls.’ SOF 61-73

14

(most saturation patrols had no human

smuggling arrests). Regarding (2), Dr.

15

Taylor re-ran his analysis excluding

additional duplicate records and

16

confirmed all of his findings using this

re-processed data. See Taylor Rebuttal

17

Report at 4-5. Regarding (3), the

exclusion of these other cases was not

18

“improper” but based on sound

methodology that excluded incidents

19

described as non-discretionary police

action (e.g., “vehicle accident w/

20

injuries” “patrol/vacation watch”) rather

than as “traffic stops” or “traffic

21

violations.” See Taylor Rebuttal Report

at 10-11 [Dkt. No. 424]. Regarding (4),

22

the CAD database does not include

socioeconomic data and Dr. Camarota’s

23

argument for why socioeconomics might

affect Dr. Taylor’s findings is not borne

24

out by the data. See Taylor Rebuttal

Report at 36-37 [Dkt. No. 424]. 25

125. Before MCSO Deputy Louis DiPietro Disputed. Deputy DiPietro suspected

26

had ever found probable cause to stop that the vehicle contained day laborers

the truck in which Mr. Melendres was and that the occupants were thus

27

a passenger, Deputy DiPietro did not Hispanic. See Pls.’ SOF at 112-118,

know or see the race of the truck’s

28

- 50 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 51 of 78

1

driver or the passengers in the truck. 171-180.

See Deposition of MCSO Deputy

2

Louis DiPietro at p. 115, ln. 18 to p. Further, this statement is immaterial to

116, ln. 5.

the resolution of Defendants’ motion.

3

Liberty Lobby, 477 U.S. at 248. The

undercover unit that called out the

4

description of the truck so that Deputy

DiPietro could follow it clearly observed

5

the appearance of the passengers who

got in the truck, DiPietro Dep. 51:9-

6

52:16 [Hickey Dec Ex. 44], and Deputy

DiPietro had observed their race by the

7

time he called for others to come

investigate their immigration status. Id.

8

at 54:24-55:11 [Hickey Dec Ex. 44].

Thus, the traffic stop was still a result of

9

unlawful racial profiling.

10 126. Race was not a factor in Deputy Louis Disputed. Deputy DiPietro suspected

DiPietro’s finding that he had probable that the vehicle contained day laborers

11

cause to stop the truck:

and that the occupants were thus

Hispanic. See DiPietro Dep. 51:9-52:16

12

Q. Did race of either the driver or the [Hickey Dec Ex. 44], Pls.’ SOF at 112-

passengers of the truck play any role in 118, 171-180.

13

your decision to find probable cause to

stop this truck? 14

A. No. 15

Q. Do you ever use race to stop

16

vehicles?

17

A. No, I don't.

18

Q. Do you ever use race to find

probable cause for traffic stops? 19

A. No. 20

See Deposition of MCSO Deputy

21

Louis DiPietro at p. 116, lns. 7-16.

22 127. Deputy Carlos Rangel does not racially Disputed. Deputy Rangel participated in

profile because it is morally wrong and immigration enforcement operations that

23

illegal. See Deposition of MCSO

were planned with racially

Deputy Carlos Rangel at p. 128, lns. discriminatory intent and adopted racial

24

11-18.

profiling as a primary tactic. See Pls.’

SOF at 25-56, 74-104, 110-122, 145-

25

154, 171-184.

26

27

128. Plaintiff Manuel Melendres does not Disputed. The question asked of Mr. have an opinion or position on whether Ortega Melendres was about the

28

he was racially profiled by any MCSO “intentional” deprivation of - 51 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 52 of 78

1

deputy:

“constitutional rights”, not “racial

profiling.” The witness’ uncertainty

2

Q. You also claim in your lawsuit that says nothing about whether he was

you have suffered unlawful

racially profiled. This testimony is thus

3

discrimination. Do you believe that the immaterial to the resolution of

deputies that you encountered on

Defendants’ motion and therefore should

4

September 26, 2007, were

be disregarded. Liberty Lobby, 477 U.S.

intentionally trying to deprive you of at 248.

5

your constitutional rights?

Plaintiffs have presented evidence that

6

A. I cannot say that. I can't be -- tell Mr. Ortega Melendres was discriminated

you for sure. 7

against, including that there was no lawful reason for Deputy DiPietro to call

See Deposition of Plaintiff Manuel

other officers to the scene to investigate

8

Melendres at p, 38. lns. 18-25.

the Hispanic passengers’ immigration

status, and the fact that the Caucasian

9

driver was not cited or questioned. Pls.’

SOF 178, 181, 184.. 10

129. Defense expert Bennie R. Click

11

testified that ‘[t]here is no evidence

Disputed. Plaintiffs have presented evidence that the undercover unit that

that Deputy [DiPietro] knew the race called out the description of the truck to

12

or ethnicity of the vehicle’s occupants Deputy DiPietro observed the

prior to the truck stopping or that race passengers getting in the truck (and thus

13

or ethnicity played any role in Deputy their appearance), DiPietro Dep. II 51:9-

[DiPietro’s] actions. See Report of Ben 52:16 [Hickey Dec. Ex. 44], that Deputy

14

Click dated January 21, 2011, at p. 14; DiPietro suspected that the vehicle

see also March 18, 2011 Deposition of contained day laborers and that the

15

Defense Expert Ben Click at p. 341, ln. occupants were thus Hispanic, see Pls.’

24 to p. 342, ln. 14 (wherein he

SOF at 112-118, 171-180, and that

16

testified to the foundation for his

Deputy DiPietro could observe their race

opinions and that his opinions in the by the time he called for others to come

17

report were the same he would provide investigate their immigration status.

at trial to a reasonable degree of

DiPietro Dep. II 54:24-55:11 [Hickey

18

probability in his field of expertise). Dec. Ex. 44]. Plaintiffs have also

presented evidence that there was no

19

lawful reason for Deputy DiPietro to call

other officers to the scene to investigate

20

the Hispanic passengers’ immigration

status, Pls.’ SOF 181, 184, and the fact

21

that the Caucasian driver was not cited

or questioned. Pls.’ SOF 178. 22

130. Plaintiffs’ liability expert Robert L.

23

Stewart testified that he believes

Disputed. Defendants’ characterization of Mr. Stewart’s testimony is not

Deputy DiPietro must have had

accurate. Mr. Stewart testified that

24

discriminatory intent or motive in

Deputy DiPietro had discriminatory

stopping the truck in which Mr.

intent when he stopped the truck because

25

Melendres was a passenger. Mr.

he was working with undercover units to

Stewart reaches this conclusion based look for illegal immigrants, and that he

26

on his “reasoning” that: (a) Deputy had already drawn the conclusion that

DiPietro testified that, in his law

day laborers picked up from the church

27

enforcement experience in Maricopa (whom Deputy DiPietro believes are

County, most day laborers were illegal usually Latino) were illegal immigrants.

28

- 52 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 53 of 78

1

aliens from Mexico; (b) the MCSO Stewart Dep. 61:10-65:9. Mr. Stewart’s

operation that date was targeting a

testimony contains no discussion of the

2

church suspected of being a drop

church being a drop house.

house for smuggled illegal aliens and a

3

location for such persons to be picked- Mr. Stewart also explained that the

up for day laborer jobs; and (c) Deputy conduct directed toward Mr. Ortega

4

DiPietro was instructed to find

Melendres seemed to be racially

probable cause for vehicles that

motivated because deputies believed that

5

picked-up passengers at the church and “if you are Mexican and you’re a day

before finding such probable cause he laborer, then you must be here illegally,”

6

already drawn the conclusion that

and the MCSO operates and designs

anyone picked up at the church would activities and carries out functions on

7

be an illegal alien; and (d) because

that basis. Stewart Dep. 61:14-17,

people from Mexico are Latinos by 159:25-161:12 [Hickey Opp’n Dec. Ex.

8

definition, Deputy DiPietro must have 233].

been intending to discriminate against

9

Latinos. See February 28, 2011

Finally, Mr. Stewart compared the

Deposition of Plaintiffs’ Expert Robert treatment of Mr. Melendres with that of

10

L. Stewart at p. 61, ln. 10 to p, 65, ln. the Caucasian driver, who was not cited

1.

or questioned. Stewart Dep. 110:24-

11

112:10 [Hickey Opp’n Dec. Ex. 233].

12 131. Plaintiffs’ liability expert Robert L. Undisputed that Mr. Stewart so testified.

Stewart testified at deposition to the However, this statement is not material

13

following:

to the resolution of Defendants’ motion.

Liberty Lobby, 477 U.S. at 248.

14

Q. Do you believe that Louis DiPietro Determining what motivations were

had discriminatory intent or motivation present in Deputy DiPietro’s mind at the

15

as to race in stopping the truck in

time of the stop is not a matter for expert

which Mr. Melendres was a

opinion testimony. F.R.E. 702; In re

16

passenger?

Rezulin Prods. Liab. Litig., 309 F. Supp.

2d 531, 545-47 (S.D.N.Y. 2004)

17

A. I don’t know.

(questions of knowledge, motive, intent,

and state of mind describe matters which

18

Q. Is it your opinion that Deputy

a jury is capable of understanding and

DiPietro had a racially discriminatory deciding without the expert’s help, and

19

intent or motivation in stopping the are inadmissible under Rule 702).

truck in which Mr. Melendres was a

20

passenger?

Plaintiffs have offered evidence that

Deputy DiPietro suspected the vehicle

21

A. I don’t know.

contained day laborers and that the

occupants were thus Hispanic. See Pls.’

22

Q. Is there any evidence that Deputy SOF at 112-118, 171-180.

DiPietro knew the race of the driver of

23

the truck before stopping it?

Mr. Stewart also explained that the

conduct directed toward Mr. Ortega

24

A. I don’t know whether that

Melendres seemed to be racially

information was given to him by the motivated because deputies believed that

25

observer.

“if you are Mexican and you’re a day

laborer, then you must be here illegally,”

26

Q. Is there any evidence that Deputy and the MCSO operates and designs

DiPietro knew the race of any

activities and carries out functions on

27

occupants in the truck before stopping that basis. Stewart Dep. 159:25-161:12

28

- 53 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 54 of 78

1

it?

[Hickey Opp’n Dec. Ex. 233].

2

A. I don’t recall whether that

Mr. Stewart also compared the treatment

information was given by the observer of Mr. Melendres with that of the

3

either.

Caucasian driver, who was not cited or

questioned. Stewart Dep. 110:24-112:10

4

Q. Is there any evidence that Deputy [Hickey Opp’n Dec. Ex. 233].

DiPietro used race as a factor in any

5

form to decide to stop the truck?

6

A. No, sir.

7

Q. Is there any evidence that Deputy

DiPietro knowingly harbored explicit

8

bias towards specific groups of

people? 9

A. Not that I know of. 10

Q. Is there any evidence that Deputy

11

DiPietro had unconscious bias toward

certain group of people? 12

A. We don’t know. 13

See February 28, 2011 Deposition of

14

Plaintiffs’ Expert Robert L. Stewart at

p. 66, ln. 1 to p. 67, ln. 6; see also

15

Defendants’ Supplemental ICE SOF at

¶¶ 6-13, 20-21, and 23-24. 16

132. Before deciding to conduct the traffic Undisputed, but immaterial to the

17

stop of the Rodriguez truck, and to

resolution of Defendants’ motion.

issue a citation to the truck’s driver, Liberty Lobby, 477 U.S. at 248.

18

Deputy Ratcliffe did not see the race of Plaintiffs’ Fourteenth Amendment claim

the truck’s driver or of any occupants does not depend on Deputy Ratcliffe

19

of the truck. See Deposition of MCSO having observed the race of the driver or

Deputy Matthew Ratcliffe at p. 93, ln. occupants before he stopped them.

20

11 to p. 94, ln. 9.

Deputy Ratcliffe did see the race of the

Rodriguezes before he made the

21

decision to treat them differently from

the other non-Hispanic motorists and

22

prolong the stop to obtain Mr.

Rodriguez’s Security number. See Pls.’

23

SOF 186-198.

24 133. Mrs. Rodriguez testified that Deputy Disputed. The question asked of Mrs.

Ratcliffe was not acting with racially Rodriguez was about the “intentional”

25

discriminatory intent or motive.

deprivation of constitutional rights, not

“racial profiling.” Her answer says

26

Q. Do you believe that Deputy

nothing about whether the Rodriguezes

Ratcliffe was intentionally trying to were racially profiled. It is therefore

27

deprive you of your constitutional

immaterial to the resolution of

Defendants’ motion. Liberty Lobby, 477

28

- 54 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 55 of 78

1

rights?

U.S. at 248. Mrs. Rodriguez does

2

A. No.

believe that she and Mr. Rodriguez were treated differently based on their race. J.

Rodriguez Dep. 63:11-16, 66:4-16

3

See Deposition of Jessika Rodriguez at [Hickey Opp’n Dec. Ex.230] .

p. 55, ln. 25 to p. 56, ln. 4. 4

134. Defense expert Mr. Bennie R. Click

5

opines that there is no direct or

Disputed. Plaintiffs have presented evidence that other non-Hispanic

circumstantial evidence that Deputy motorists on the same stretch of road did

6

Ratcliffe racially profiled or otherwise not get cited or asked for their Social

acted toward Mr. and Mrs. Rodriguez Security Numbers. See Pls.’ SOF 190-

7

with racially discriminatory intent or 198; J. Rodriguez Dep. 15:23-16:3

motive. See Report of Ben Click dated [Hickey Opp’n Dec. Ex. 230].

8

January 21, 2011, at pgs. 23-24; see

also March 18, 2011 Deposition of

Further, Deputy Ratcliffe is a 287(g)

9

Defense Expert Ben Click at p. 341, ln. deputy and has participated on at least

24 to p. 342, ln. 14 (wherein he

four saturation patrols. Ratcliffe Dep.

10

testified to the foundation for his

12:18-25, 60:20-62:23 [Hickey Opp’n

opinions and that his opinions in the Dec. Ex. 228]. According to Plaintiffs’

11

report were the same he would provide expert Dr. Taylor, MCSO officers such

at trial to a reasonable degree of

as Deputy Ratcliffe were more likely to

12

probability in his field of expertise). check Hispanic surnames (or to pull over

and question Hispanic individuals) on

13

saturation patrol days than non-

saturation patrol days. Pls.’ SOF 239-

14

41.

15

Finally, Plaintiffs have presented

evidence that the MCSO, of which

16

Deputy Ratcliffe is a part, had a policy

or practice of targeting Hispanic

17

individuals. See Pls.’ SOF 25-51, 74-

104, 110-122, and 145-154. 18

135. Plaintiffs’ liability expert Mr. Robert Undisputed that Mr. Stewart so

19

L. Stewart testified:

testified. However, this statement is not

material to the resolution of Defendants’

20

Q. Is it your opinion that Deputy

motion. Liberty Lobby, 477 U.S. at

Ratcliffe had discriminatory intent or 248. Determining what motivations

21

motive in stopping the Rodriguez

were present in Deputy Ratcliffe’s mind

vehicle?

at the time of the stop is not a matter for

22

expert opinion testimony. F.R.E. 702; In

A. Don’t know. 23

re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d at 545-47 (questions of

See February 28, 2011 Deposition of knowledge, motive, intent, and state of

24

Plaintiffs’ Expert Robert L. Stewart at mind describe matters which a jury is

p. 84, lns. 16-19; see also Defendants’ capable of understanding and deciding

25

Supplemental ICE SOF at ¶¶ 6-13, 20- without the expert’s help, and are

21, and 23-24. 26

inadmissible under Rule 702).

Mr. Stewart did testify that the events

27

that transpired after the stop appeared to

be racially motivated because the

28

- 55 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 56 of 78

1

Rodriguezes were treated differently

than other non-Hispanic motorists that

2

he and the other MCSO officer dealt

with and because it was not reasonable

3

for Deputy Ratcliffe to have demanded

Mr. Rodriguez’s Social Security

4

number. See Stewart Dep. 85:4-86:21,

163:22-165:19 [Hickey Opp’n Dec. Ex.

5

233].

6 136. Plaintiffs’ liability expert Mr. Robert Undisputed that Mr. Stewart so

L. Stewart testified that that MCSO testified. However, this statement is not

7

Deputy Matthew Ratcliffe “maybe” material to the resolution of Defendants’

had racially discriminatory intent or motion. Liberty Lobby, 477 U.S. at

8

motive in issuing a citation to Mr.

248. Determining what motivations

Rodriguez. See February 28, 2011

were present in Deputy Ratcliffe’s mind

9

Deposition of Plaintiffs’ Expert Robert at the time of the stop is not a matter for

L. Stewart at p. 84, lns. 20-23. Mr.

expert opinion testimony. F.R.E. 702; In

10

Stewart, however, testified that he had re Rezulin Prods. Liab. Litig., 309 F.

no direct or circumstantial evidence Supp. 2d at 545-47 (questions of

11

that Deputy Ratcliffe used race as a knowledge, motive, intent, and state of

factor in any form to decide to give a mind describe matters which a jury is

12

citation to Mr. Rodriguez. See

capable of understanding and deciding

February 28, 2011 Deposition of

without the expert’s help, and are

13

Plaintiffs’ Expert Robert L. Stewart at inadmissible under Rule 702).

p. 87, lns. 19-22; see also Defendants’

14

Supplemental ICE SOF at ¶¶ 6-13, 20- Mr. Stewart did testify that the events

21, and 23-24.

that transpired after the stop appeared to

15

be racially motivated because the

Rodriguezes were treated differently

16

than other non-Hispanic motorists that

he and the other MCSO officer dealt

17

with (who were not issued citations by

MCSO) and because it was not

18

reasonable for Deputy Ratcliffe to have

demanded Mr. Rodriguez’s Social

19

Security number. See Stewart Dep.

82:23-84:11, 85:4-86:21, 163:22-165:19

20

[Hickey Opp’n Dec. Ex. 233].

21

See also Pls.’ Resp. to Defs.’

Supplemental ICE SOF at ¶¶ 6-13, 20-

22

21, and 23-24.

23 137. Mr. Stewart basis his “maybe” opinion Undisputed.

on the reasoning that Deputy Ratcliffe

24

stopped several non-Latino motorists Mr. Stewart also testified that the events

on Bartlett Dam Road the same day he that transpired after the stop appeared to

25

stopped Mr. and Mrs. Rodriguez, did be racially motivated because the

not give them citations, referred the Rodriguezes were treated differently

26

non-Latino drivers to the Tonto

than other non-Hispanic motorists who

National Forest Ranger (who issued were on the road at the same time and

27

citations to the non-Latino drivers), not cited at all, and because it was not

and the only citation Deputy Ratcliffe reasonable for Deputy Ratcliffe to have

28

- 56 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 57 of 78

1

actually issued was to Mr. Rodriguez, demanded Mr. Rodriguez’s Social

who is Latino. See February 28, 2011 Security number. See Stewart Dep.

2

Deposition of Plaintiffs’ Expert Robert 85:4-86:21, 163:22-165:19 [Hickey

L. Stewart at p. 85, ln. 4 to p. 87, ln. Opp’n Dec. Ex. 233].

3

18. As such, Mr. Stewart concludes

that Deputy Ratcliffe intentionally

4

treated the Rodriguez differently than

the non-Latinos drivers he pulled over

5

by issuing a citation to the Rodriguez

but referring the non-Latinos to the

6

Tonto National Forest Ranger. Id.

7 138. Deputy Ratcliffe did not recall the race Undisputed. but immaterial to the

of the other drivers he referred to the resolution of Defendants’ motion.

8

Tonto National Forest Ranger, and he Liberty Lobby, 477 U.S. at 248.

observed the ranger issue citations to Plaintiffs have also presented evidence

9

those other drivers. See Deposition of that other non-Hispanic motorists who

MCSO Deputy Matthew Ratcliffe at p. were on the road at the same time were

10

39, ln. 4 to p. 40, ln. 11.

not cited at all and that others were not

asked for their Social Security numbers.

11

Pls.’ SOF 189, 192, 198; J. Rodriguez

Dep. 15:23-16:3 [Hickey Opp’n Dec.

12

Ex. 230].

13

14 139. Another MCSO officer working Lake Undisputed that at least one other

Patrol with Deputy Ratcliffe, Deputy motorist was allowed to drive on the

15

Maltz, had on the same day allowed closed road in order to go to the lake.

other motorists (of unknown races) to Deputy Multz stopped the other

16

drive on the closed Bartlett Dam Road motorists, but did not issue them

in order to go to the lake to repair

citations. Ratcliffe Dep. 113:9-13

17

either their recreational vehicles or

[Defs.’ SOF Ex. 6].

boats that had been damaged in the

18

storm. See Deposition of MCSO

Disputed that the other motorists were of

Deputy Matthew Ratcliffe at p. 28, ln. “unknown race.” Both of the

19

21 to p. 31, ln. 4 (p. 31, lns. 1-4;

Rodriguezes observed the race of most

Deputy Maltz has stopped all the other of the motorists (during the stop and

20

vehicles); see also p. 32, ln. 22 to p. after they returned to the main road) and

33, ln. 9 (“Q. What else did you say to testified that they were not Hispanic.

21

the Rodriguez’ at that time? A. As far Pls.’ SOF 192, 198; David Rodriguez

as what, sir? Q. As far as the

Dep. 41:1-8 [Hickey Opp’n Dec. Ex.

22

discussion that you were having with 229].

them about selective enforcement. A.

23

Just advising them that basically some

people were allowed to try to make

24

repairs to their boats or RVs at that

time. Q. Do you recall the race or

25

ethnicity of those other people? A. No,

sir. Q. Were any of them Hispanic? A.

26

I don't recall, sir.”); see also p. 113, ln

9 to p. 114, ln. 13 (other drivers

27

allowed to use road to repair property

28

- 57 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 58 of 78

1

at the lake).

2 140. Deputy Ratcliffe has known Deputy Disputed. Plaintiffs have also presented

Maltz for 2.5 years and does not

evidence that other non-Hispanic

3

believe that Deputy Maltz’ decision to motorists who were on the road at the

allow other people to use Bartlett Dam same time were not cited and that others

4

Road to repair their property was

were not asked for their Social Security

based in any way on racial

numbers. Pls.’ SOF 189, 192, 198;

5

considerations. See Deposition of

David Rodriguez Dep. 41:1-8 [Hickey

MCSO Deputy Matthew Ratcliffe at p. Opp’n Dec. Ex. 229]; J. Rodriguez Dep.

6

114, lns. 17-24.

15:23-16:3 [Hickey Opp’n Dec. Ex.

230].

7

Furthermore, this statement (which is

8

inadmissible hearsay) is not material to

the resolution of Defendants’ motion

9

and therefore be disregarded. Liberty

Lobby, 477 U.S. at 248. Whether or not

10

Deputy Ratcliffe’s decision to issue a

citation to the Rodriguezes was racially

11

motivated does not depend on Deputy

Multz’s state of mind. 12

141. Plaintiffs’ liability expert, Mr. Robert Disputed. Defendants mischaracterize

13

L. Stewart, has no evidence of racially Mr. Stewart’s testimony. Mr. Stewart

discriminatory intent or motive by

testified that one indication that Deputy

14

Deputy Armendariz. See February 28, Armendariz had discriminatory intent

2011 Deposition of Plaintiffs’ Expert was that he did not have a lawful basis

15

Robert L. Stewart at p. 99, ln. 3-6; see to send the backup officers to stop

also p. 97, ln. 18 to p. 98, ln. 5; see Meraz and Nieto. Stewart Dep. 98:15-

16

also Defendants’ Supplemental ICE 99:15 [Hickey Opp’n Dec. Ex. 233].

SOF at ¶¶ 6-13, 20-21, and 23-24.

17

Mr. Stewart also noted that Deputy

Armendariz could hear that Meraz and

18

Nieto were playing Spanish music, that

he had an opportunity to observe their

19

race, that the officers were on a

saturation patrol, and that it appeared

20

that Deputy Armendariz sent Deputy

Kikes to stop Plaintiffs because he

21

wanted them to be investigated as

possible illegal immigrants. See Stewart

22

Dep. 162:17-163:15 [Hickey Opp’n Dec.

Ex. 233].

23

See also Pls.’ Resp. to Defs.’

24

Supplemental ICE SOF at ¶¶ 6-13, 20-

21, and 23-24. 25

26

142. Plaintiffs’ liability expert, Mr. Robert L. Stewart, testified that there is no

Disputed. Mr. Stewart’s statement about what motivations were present in

27

evidence of racially discriminatory intent or motive by MCSO Deputy

Deputy Beeks’ mind at the time of the stop is not a matter for expert opinion

28

Douglas Beeks in withdrawing his

testimony, F.R.E. 702; In re Rezulin

- 58 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 59 of 78

1

weapon. See February 28, 2011

Prods. Liab. Litig., 309 F. Supp. 2d at

Deposition of Plaintiffs’ Expert Robert 545-47 (questions of knowledge, motive,

2

L. Stewart at p. 101, lns. 5-6, lns. 17- intent, and state of mind describe

19; see also Defendants’ Supplemental matters which a jury is capable of

3

ICE SOF at ¶¶ 6-13, 20-21, and 23-24. understanding and deciding without the

expert’s help, and are inadmissible under

4

Rule 702), and is not material to the

resolution of Defendants’ motion.

5

Liberty Lobby, 477 U.S. at 248.

6

Furthermore, Mr. Stewart testified that

Deputy Beeks did not have a lawful

7

reason to draw his firearm. See Stewart

Dep. 90:22-25, 100:15-23 [Hickey

8

Opp’n Dec. Ex. 233].

9

See also Pls.’ Resp. to Defs.’

Supplemental ICE SOF at ¶¶ 6-13, 20-

10

21, and 23-24.

11 143. Plaintiffs’ liability expert, Mr. Robert Disputed. Mr. Stewart’s statement about

L. Stewart, testified that there is no what motivations were present in

12

evidence that MCSO Deputy Michael Deputy Kikes’ mind at the time of the

Kikes had racially discriminatory

stop is not a matter for expert opinion

13

intent or motive in making the traffic testimony, F.R.E. 702; In re Rezulin

stop of the Meraz-Nieto vehicle. See Prods. Liab. Litig., 309 F. Supp. 2d at

14

February 28, 2011 Deposition of

545-47 (questions of knowledge, motive,

Plaintiffs’ Expert Robert L. Stewart at intent, and state of mind describe

15

p. 103, ln. 18 to p. 104, ln. 1; p. 104, matters which a jury is capable of

lns. 12-4; lns. 19-21; see also

understanding and deciding without the

16

Defendants’ Supplemental ICE SOF at expert’s help, and are inadmissible under

¶¶ 6-13, 20-21, and 23-24. 17

Rule 702), and is not material to the resolution of Defendants’ motion.

Liberty Lobby, 477 U.S. at 248. 18

Furthermore, Mr. Stewart testified that

19

there was no lawful basis to stop Meraz

and Nieto. Stewart Dep. 98:15-99:15.

20

Mr. Stewart also noted that it appeared

that Deputy Armendariz sent Deputy

21

Kikes to stop Plaintiffs because he

wanted them to be investigated as

22

possible illegal immigrants. See Stewart

Dep. 162:17-163:15 [Hickey Opp’n Dec.

23

Ex. 233].

24

See also Pls.’ Resp. to Defs.’

Supplemental ICE SOF at ¶¶ 6-13, 20-

25

21, and 23-24.

26 144. Plaintiffs’ liability expert, Mr. Robert Disputed. Plaintiffs have presented

L. Stewart, testified that there is no evidence (and Mr. Stewart testified that)

27

evidence that Ms. Meraz and Mr.

there was no lawful basis to stop Meraz

Nieto were racially profiled in either and Nieto. See supra Plaintiffs’ Resp. to

28

- 59 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 60 of 78

1

the traffic stop or during their

Defendants’ SOF 68-77; Stewart Dep.

treatment by the MCSO deputies. See 98:15-99:15 [Hickey Opp’n Dec. Ex.

2

February 28, 2011 Deposition of

233].

Plaintiffs’ Expert Robert L. Stewart at

3

p. 108, lns. 10-13; see also

Mr. Stewart also noted that Deputy

Defendants’ Supplemental ICE SOF at Armendariz could hear that Meraz and

4

¶¶ 6-13, 20-21, and 23-24.

Nieto were playing Spanish music, that

he had an opportunity to observe their

5

race, that the officers were on a

saturation patrol, and that it appeared

6

that Deputy Armendariz sent Deputy

Kikes to stop Plaintiffs because he

7

wanted them to be investigated as

possible illegal immigrants. See Stewart

8

Dep. 162:17-163:15 [Hickey Opp’n Dec.

Ex. 233]. Finally, Mr. Stewart testified

9

that Deputy Beeks did not have a lawful

reason to draw his firearm. See Stewart

10

Dep. 90:22-25, 100:15-23 [Hickey

Opp’n Dec. Ex. 233] 11

See also Pls.’ Resp. to Defs.’

12

Supplemental ICE SOF at ¶¶ 6-13, 20-

21, and 23-24. 13

145. Plaintiffs’ liability expert, Mr. Robert Disputed. Mr. Stewart’s statement about

14

L. Stewart, testified that he only has what motivations were present in

his “suspicions” that MCSO Deputy Deputy Kikes’ mind at the time of the

15

Michael Kikes may have been racially stop is not a matter for expert opinion

motivated to stop Meraz and Nieto. testimony, F.R.E. 702; In re Rezulin

16

See February 28, 2011 Deposition of Prods. Liab. Litig., 309 F. Supp. 2d at

Plaintiffs’ Expert Robert L. Stewart at 545-47 (questions of knowledge, motive,

17

p. 107, ln. 25 to p. 108, ln. 2 (Q. What intent, and state of mind describe

evidence do you have that anyone was matters which a jury is capable of

18

racially motivated to stop these people understanding and deciding without the

0Meraz and Nieto]? A. Only my

expert’s help, and are inadmissible under

19

suspicions.”) (emphasis added); see Rule 702), and is not material to the

also p. 106, lns. 8-11 (Q: My question resolution of Defendants’ motion.

20

to you is, is it Robert Stewart’s opinion Liberty Lobby, 477 U.S. at 248..

that Meraz and Nieto were racially

21

profiled during the traffic stop? A.

Plaintiffs have presented evidence (and

There is a strong hint that they may Mr. Stewart testified that) there was no

22

have been.”) (emphasis added).

lawful basis to stop Meraz and Nieto.

See supra Plaintiffs’ Resp. to

23

Defendants’ SOF 68-77; Stewart Dep.

98:15-99:15 [Hickey Opp’n Dec. Ex.

24

233]. Mr. Stewart also noted that

Deputy Armendariz could hear that

25

Meraz and Nieto were playing Spanish

music, that he had an opportunity to

26

observe their race, that the officers were

on a saturation patrol, and that it

27

appeared that Deputy Armendariz sent

Deputy Kikes to stop Plaintiffs because

28

- 60 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 61 of 78

1

he wanted them to be investigated as

possible illegal immigrants. See Stewart

2

Dep. 162:17-163:15 [Hickey Opp’n Dec.

Ex. 233].

3

146. The Plaintiffs’ own statistics expert, Disputed. Dr. Taylor specifically opined

4

Ralph Taylor, Ph.D., has no opinion as that Mr. Ortega Melendres would have

to whether Plaintiff Mr. Melendres is “a higher chances of being stopped all

5

likely to again face a future traffic stop else equal compared to that other

by the MCSO. See March 21, 2010 hypothetical non-Hispanic driver” with

6

Deposition of Ralph Taylor, Ph.D., at the same characteristics. Taylor Dep.

p. 163, ln. 20 to p. 164, ln. 13 (As to 163:20-164:13 [Defs.’ SOF Ex. 21].

7

Mr. Melendres, Dr. Taylor opines that Further, Mr. Ortega Melendres is

he estimates that Mr. Melendres would Hispanic, and Dr. Taylor’s study found

8

have “a higher chances of being

that Hispanics were significantly more

stopped all else equal compared to that likely to be stopped than non-Hispanics

9

other hypothetical non- Hispanic

during saturation patrols and by

driver”): p. 164, lns. 14-20 (As to the saturation patrol-involved officers, and

10

probability that Mr. Melendres will be that stops involving Hispanics lasted

stopped in a future saturation patrol, “I longer on average than stops of non-

11

am not sure, because I – I don’t know Hispanics. Pls.’ SOF 236-49.

his driving patterns or what the future

12

pattern of saturation patrol activities

will be; its frequency, its location and

13

how that would link to where and how

he drives.”); p. 165, lns. 1 to p. 166, ln.

14

24 (Dr. Taylor cannot opine on the

probability that Mr. Melendres will be

15

pulled over because his data deals with

a group and not individuals.).

16

147. The Plaintiffs’ own statistics expert, Disputed. Dr. Taylor testified that “it’s

17

Ralph Taylor, Ph.D., has no opinion as my opinion, that [Mr. Rodriguez’s]

to whether Plaintiffs Mr. and Mrs.

chances of being stopped during a major

18

Rodriguez are likely to again face a saturation patrol are higher than would

future traffic stop by the MCSO. See be the chances of a person driving with a

19

March 21, 2010 Deposition of Ralph non-Hispanic name driving in exactly

Taylor, Ph.D., at p. 166, ln. 25 to p. the same way, exactly the same type of

20

167, ln. 7 (“Q. Do you know the

vehicle.” Taylor Dep. 166:25-167:7

probability of Rodriguez getting pulled [Defs.’ SOF Ex. 21]. Further, Mr. and

21

over again by Maricopa County

Mrs. Rodriguez are Hispanic, and Dr.

sheriff’s deputies in a saturation

Taylor’s study found that Hispanics

22

patrol? A. No, I don’t. But what I do were significantly more likely to be

estimate, and it’s my opinion, that his stopped than non-Hispanics during

23

chances of being stopped during a

saturation patrols and by saturation

major saturation patrol are higher than patrol-involved officers, and that stops

24

would be the chances of a person

involving Hispanics lasted longer on

driving with a non- Hispanic name

average than stops of non-Hispanics.

25

driving in exactly the same way,

Pls.’ SOF 236-49.

exactly the same type of vehicle.”); see

26

also p. 170, lns. 11-19 (discussing

chances of the Rodriguez having an

27

MCSO conducted traffic during a non-

saturation patrol: “no, I cannot give

28

- 61 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 62 of 78

1

you those specific probabilities.”).

2 148. The Plaintiffs’ own statistics expert, Disputed. Dr. Taylor stated that “[Ms.

Ralph Taylor, Ph.D., has no opinion as Meraz’s] chances of being pulled over

3

to whether Plaintiffs Velia Meraz and relative to the chances of a person also

Manuel Nieto, Jr., are likely to again being pulled over who has a non-

4

face a future traffic stop by the MCSO. Hispanic name, is driving the same way,

See March 21, 2010 Deposition of

in the same location . . . chances are

5

Ralph Taylor, Ph.D., at p. 170, ln. 22 going to be higher.” Taylor Dep.

to p. 171, ln. 5.

170:22-171:5 (emphasis added) [Defs.’

6

SOF Ex. 21]. Regarding Mr. Nieto, Dr.

Taylor testified “I do not know the

7

specific probability, but . . . his or his

probability [of being pulled over] is

8

going to be higher compared to a

hypothetical completely equivalent

9

person with a non-Hispanic name.”

Taylor Dep. 172:4-12 [Defs.’ SOF Ex.

10

21]. Further, Ms. Meraz and Mr. Nieto

are Hispanic, and Dr. Taylor’s study

11

found that Hispanics were significantly

more likely to be stopped than non-

12

Hispanics during saturation patrols and

by saturation patrol-involved officers,

13

and that stops involving Hispanics lasted

longer on average than stops of non-

14

Hispanics. Pls.’ SOF 236-49.

15 149. The Plaintiffs’ own statistics expert, Undisputed that Dr. Taylor testified he

Ralph Taylor, Ph.D., testified that if would want to know more information.

16

the Plaintiffs in this case have not

This statement is not material to the

again been subject to MCSO initiated resolution of Defendants’ motion,

17

traffic stops during “major saturation however, and should therefore be

patrols” over a time span over several disregarded. See Liberty Lobby, 477

18

years – which are the undisputed facts U.S. at 248. The conclusions that Dr.

-- he would want to learn more

Taylor came to based upon what he does

19

information about the Plaintiffs’

know show that Defendants’ saturation

driving, if the Plaintiffs were exposed patrols have a disparate impact on

20

to law enforcement, where the

Hispanics. See Pls.’ SOF 236-49.

Plaintiffs were driving on those

21

saturation patrol days, and where the

Plaintiffs were not driving on those

22

saturation patrol days. See March 21,

2010 Deposition of Ralph Taylor,

23

Ph.D., at p. 172, ln. 23 to p. 173, ln.

16.

24

150. Somos America’s representative, Ms. Undisputed that Ms. Guzman testified

25

Lydia Guzman, has never experienced that she had not been stopped by the

26

a traffic stop by the MCSO. See

MCSO while driving her vehicle.

Deposition of Lydia Guzman, at p. 29, However, Ms. Guzman has had

27

lns. 19-21; p. 93, lns.1-9.

encounters with MCSO officers in which she believed she was racially

28

profiled, such as her car being followed - 62 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 63 of 78

1

closely by an MCSO unit during a

saturation patrol because she spoke

2

Spanish, and being intimidated and

harassed by MCSO officers. See

3

Guzman Dep. 54:4-55:7; 89:6-95:25

[Hickey Opp’n Dec. Ex. 218]. 4

151. Somos America is a non-profit

Undisputed that Somos America is a

5

advocacy organization, with no paid non-profit organization. Undisputed that

staff, no membership dues, and any Somos America had no paid staff and no

6

person or entity that attends its

membership dues at the time of Ms.

monthly meetings may consider itself a Guzman’s deposition.

7

member of Somos American. See

Deposition of Lydia Guzman, at p. 8, Disputed that Somos America’s meeting

8

lns. 11-25 (Somos is a 501(c)(3) non are monthly; Ms. Guzman stated that

profit organization); p. 11, ln. 16 to p. Somos America’s meetings were weekly.

9

12, ln. 4 (no paid employees, only

Guzman Dep. 18:8-11 [Hickey Opp’n

volunteers); p. 9, lns. 23-25 (anybody Dec. Ex. 218].

10

that attends a Somos meeting may

consider itself a member). 11

This statement is not material to the resolution of Defendants’ motion, and

should therefore be disregarded. Liberty

12

Lobby, 477 U.S. at 248. The law does

not require an organization to require

13

dues, paid staff, or particular

membership requirements to have

14

standing.

15 152. Somos America has only 35 members Disputed. Ms. Guzman testified that

such as Latino American Citizens, No many Somos America members have

16

More Deaths, MECHHA, and various been subject to MCSO traffic stops.

labor unions, and there is no

Specifically:

17

admissible evidence that any Somos

America member -- or employee of a (1) Alfredo Gutierrez is an individual

18

member organization -- has been

member of Somos America and has been

subject to an MCSO traffic stop. See stopped by the MCSO. See Guzman

19

Deposition of Lydia Guzman, at p. 22, Dep. 27:2-21; 29:22-30:4 [Hickey

lns. 22-25 (35 members); p. 24-26

Opp’n Dec. Ex. 218].

20

(listing of member organizations or

entities); p. 29, lns. 19-21 and p. 93, (2) Several members of Somos America

21

lns. 1-9 (no traffic stops personally

affiliated with the League of United

witnessed by Lydia Guzman).

Latin American Citizens have been

22

stopped by the MCSO. Guzman Dep.

24:6-11; 30:25-31:11 [Hickey Opp’n

23

Dec. Ex. 218]. One member has been

stopped by the MCSO several times.

24

Guzman Dep. 31:20-33:13 [Hickey

Opp’n Dec. Ex. 218]. 25

(3) Adolfo Maldonado, a member who is

26

affiliated with Cop Watch, was stopped

by the MCSO during a saturation patrol

27

in Mesa; both he and the passenger,

Lydia Navarro, in his car were asked for

28

- 63 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 64 of 78

1

their Social Security numbers. See

Guzman Dep. 37:7-38:5 [Hickey Opp’n

2

Dec. Ex. 218]; Pls.’ SSOF 269, infra.

Mr. Maldonado was also stopped by the

3

MCSO during a saturation patrol in

Phoenix, and has submitted a declaration

4

regarding these stops. Pls.’ SSOF 269,

infra (citing to Declaration of Adolfo

5

Maldonado, filed concurrently

herewith). 6

(4) Several day laborer member

7

affiliated with Tonatierra were stopped

during MCSO saturation patrols. See

8

Guzman Dep. 38:12-39:2 [Hickey

Opp’n Dec. Ex. 218].

9

(5) Joseph Larios, a member who is

10

affiliated with of the AFL-CIO, was the

subject of an MCSO traffic stop. See

11

Guzman Dep. 40:1-24 [Hickey Opp’n

Dec. Ex. 218]. 12

(6) A staff member of an immigration

13

attorney affiliated the Association of

Immigration Lawyers, a member of

14

Somos America, was stopped by the

MCSO. See Guzman Dep. 40:25-42:25

15

[Hickey Opp’n Dec. Ex. 218].

16

(7) Andrew Sanchez is a member

affiliated with Citizens Camera Crew,

17

and was stopped by the MCSO during

the Guadalupe sweep on April 3, 2008.

18

See Declaration of Andrew Sanchez at

¶¶ 1-13 (describing the stops); Guzman

19

Dep. 47:1-48:5 (Mr. Sanchez is a

member) [Hickey Opp’n Dec. Ex. 218].

20

Mr. Sanchez has submitted a declaration

describing his stop. Maria Osuna is

21

another member affiliated with Citizens

Camera Crew who was stopped by the

22

MCSO during the Guadalupe sweep.

Guzman Dep. 48:22-49:2 [Hickey

23

Opp’n Dec. Ex. 218].

24

The cited portion of the record does not

establish that that “no traffic stops

25

[were] personally witnessed by Lydia

Guzman.” Ms. Guzman personally

26

attended and observed MCSO activity

during many saturation patrols, and has

27

personally witnessed racial profiling.

See Guzman Dep. 59:6-10; 64:3-20

28

- 64 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 65 of 78

1

[Hickey Opp’n Dec. Ex. 218].

2

Disputed that Somos America has “only

35 members.” Many of the members of

3

Somos are organizations, which are in

turn composed of a number of individual

4

members. See Pl. Somos America’

Resp. and Objections to Def. Arpaio’s

5

First Set of Reqs. for Admis., Interrogs.,

and Reqs. for Produc. at 21-22 [Hickey

6

Opp’n Dec. Ex. 239].

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 65 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 66 of 78

1 Plaintiffs’ Responses to Defendants’ Supplemental ICE Statements of Fact9
2

3 No. Defendants’ Statement of Fact

Plaintiffs’ Response

4

1. Mr. Alonzo Rafael Pena is an employee of the United States

Undisputed that Mr. Pena was employed by ICE at the time of his deposition

5

Department of Homeland Security Immigration and Customs

(September 30, 2010).

6

Enforcement ("ICE"). See September 30, 2010 Deposition of Alonzo Rafael

7

Pena at p. 9, Ins. 16-22.

8

2. Mr. Pena served at the Special Agent Undisputed. in Charge ("SAC") of ICE in Phoenix,

9

Arizona from October 2006 to the end of March 2008. See September 30,

10

2010 Deposition of Alonzo Rafael Pena at p. 12, ln. 15 top. 13, ln. 6.

11 3. Mr. Pena testified that the 287(g)

Undisputed that the 287(g) program

12

program allows local law enforcement allows certified local law enforcement officers certified by ICE to enforce officers to assist in certain specified

13

federal immigration law. See September 30, 2010 Deposition of

enforcement of federal immigration law.

14

Alonzo Rafael Pena at p. 15, Ins. 8-23. Disputed in that local law enforcement authority under 287(g) is subject to

15

limitations and specified conditions, including but not limited to those set

16

forth in the applicable Memorandum of

Agreement (MOA). See, e.g., Ex. A to

17

Pls.’ First Am. Compl., Dkt. No. 26

(MOA in effect before 2009).

18

4. Mr. Pena testified that ICE trained the Disputed. Mr. Pena testified that the

19

MCSO deputies that became certified 287(g) certification training was

under the 287(g) program. See

conducted at an “independent training

20

September 30, 2010 Deposition of

center” and that he did not know which

Alonzo Rafael Pena at p. 18, ln. 20 to agency the trainers worked for. Pena

21

p. 20, ln. 13.

Dep. 19:25-21:15 [Hickey Opp’n Dec.

Ex. 225].

22 5. While Mr. Pena was ICE SAC in

Disputed. The cited portion of the record

23

Phoenix, he never had an occasion to indicates only that Mr. Pena never

24

9 Plaintiffs file these resp onses to Defendants’ Supplemental ICE Statements of

Fact publicly because counse l for ICE has indicated that the deposition transcripts of

25 Mr. Kidd and Mr. Pena are not confidential save certain redactions that have be en made

to the transcripts by consent of the parties. See Notice to Court concerning Protective

26 Order Regarding Depositions of Jason Kidd and Al onzo Pena, Oct. 29, 2010, Dkt. No.

27

380. C ounsel for D efendants have indic ated that Defenda nts have no objection t o Plaintiffs public filing of these responses, a nd that Defendants intend to re-file publicly

their Supplemental ICE Statements of Fact.

28

- 66 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 67 of 78

1

report an MCSO 287(g) certified

reported an MCSO deputy, not that that

deputy for racial profiling. See

he “never had an occasion to.” Mr. Pena

2

September 30, 2010 Deposition of

would have had no reason to report an

Alonzo Rafael Pena at p. 60, Ins. 7-10. MCSO officer because he testified that it

3

was “not [his] job” to determine whether

race motivated MCSO stops. Pena Dep.

4

206:18-207:3 [Hickey Opp’n Dec. Ex.

225]. Mr. Pena testified that he “did not

5

know one way or the other” the

motivation of any MCSO officers during

6

traffic stops. Pena Dep. 186:11-14

[Hickey Opp’n Dec. Ex. 225]. Indeed,

7

Mr. Pena “never went into the field” to

observe MCSO officers’ actions. Pena

8

Dep. 137:9-20 [Hickey Opp’n Dec. Ex.

225]. This statement is therefore

9

irrelevant to the resolution of

Defendants’ motions and should be

10

disregarded. Liberty Lobby, 477 U.S. at

248; L.R. Civ. 56.1(a). 11

6. While Mr. Pena was ICE SAC in

Disputed. Mr. Pena testified only that he

12

Phoenix, he never had to confront the did not confront MCSO regarding racial

Maricopa County Sheriff's Office with profiling, not that “never had to.”

13

an allegation that any of its deputies Furthermore, Mr. Pena testified that it

may have been engaged in racial

was “not [his] job” to determine whether

14

profiling. See September 30, 2010

race motivated MCSO stops. Pena Dep.

Deposition of Alonzo Rafael Pena at p. 206:18-207:3 [Hickey Opp’n Dec. Ex.

15

60, Ins. 11-13.

225]. Mr. Pena testified that he “did not

know one way or the other” the

16

motivation of any MCSO officers during

traffic stops. Pena Dep. 186:11-14

17

[Hickey Opp’n Dec. Ex. 225]. Indeed,

Mr. Pena “never went into the field” to

18

observe MCSO officers’ actions. Pena

Dep. 137:9-20 [Hickey Opp’n Dec. Ex.

19

225]. This statement is therefore

irrelevant to the resolution of

20

Defendants’ motions and should be

disregarded. Liberty Lobby, 477 U.S. at

21

248; L.R. Civ. 56.1(a).

22 7. While Mr. Pena was ICE SAC in

Undisputed that Mr. Pena never reported

Phoenix, he never reported to ICE

racial profiling by the MCSO to

23

headquarters in Washington, D.C. that Washington.

any deputy from the Maricopa County

24

Sheriff's Office may have been

Disputed that this fact has any relevance

engaged in racial profiling. See

to whether racial profiling by MCSO

25

September 30, 2010 Deposition of

occurred. Mr. Pena testified that it was

Alonzo Rafael Pena at p. 60, Ins. 14- “not [his] job” to determine whether race

26

18.

motivated MCSO stops. Pena Dep.

206:18-207:3 [Hickey Opp’n Dec. Ex.

27

225]. Mr. Pena testified that he “did not

know one way or the other” the

28

- 67 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 68 of 78

1

motivation of any MCSO officers during

traffic stops. Pena Dep. 186:11-14

2

[Hickey Opp’n Dec. Ex. 225]. Indeed,

Mr. Pena “never went into the field” to

3

observe MCSO officers’ actions. Pena

Dep. 137:9-20 [Hickey Opp’n Dec. Ex.

4

225]. This statement is therefore

irrelevant to the resolution of

5

Defendants’ motions and should be

disregarded. Liberty Lobby, 477 U.S. at

6

248; L.R. Civ. 56.1(a).

7 8. While Mr. Pena was ICE SAC in

Disputed. Mr. Pena testified only that he

Phoenix, he did not have concern

“probably” would have reported

8

about, or voice a complaint to anyone MCSO’s non-compliance with the MOA

about, the fact that the MCSO was

in writing if he had a concern, but that

9

identifying suspected illegal aliens

his action would “depend[] on that

during traffic stops. See September 30, noncompliance and th[e]

10

2010 Deposition of Alonzo Rafael

circumstances.” Pena Dep. 93:21-94:21

Pena at p. 93, ln. 21 top. 94, ln. 21.

[Hickey Opp’n Dec. Ex. 225]. The cited

11

portion of the record thus does not

establish that Mr. Pena did not have such

12

a concern or, if so, whether there would

be a written record of that concern. This

13

statement is therefore irrelevant to the

resolution of Defendants’ motions and

14

should be disregarded. Liberty Lobby,

477 U.S. at 248; L.R. Civ. 56.1(a).

15

9. While Mr. Pena was ICE SAC in

Undisputed, though Mr. Pena further

16

Phoenix, he was aware that MCSO

testified that he was aware of such

non-287(g) certified officers that had actions only when the MCSO officer “is

17

made lawful traffic stops and had

not exceeding the amount of . . . time

reasonable suspicion that someone in that he could have that person detained.”

18

the vehicle may be in the country

Pena Dep. 97:6-16 [Hickey Opp’n Dec.

unlawfully were calling for assistance Ex. 225], and when the MCSO officer

19

of MCSO 287(g) certified officers. See has “the legal basis to detain that person

September 30, 2010 Deposition of

on his own state charges.” Pena Dep.

20

Alonzo Rafael Pena at p. 96, ln. 23 to 98:7-11 [Hickey Opp’n Dec. Ex. 225].

p. 98, ln. 20.

In any event, this statement has no

21

relevance as to whether racial profiling

by MCSO occurred; it is therefore

22

immaterial to the resolution of

Defendants’ motion and should be

23

disregarded. Liberty Lobby, 477 U.S. at

248; L.R. Civ. 56.1(a).

24

10. During the 2008 ICE audit of the

Disputed. The view of the USAO was

25

287(g) field program between ICE and contradicted by other supervisors at ICE,

26

the MCSO, the United States Attorney's Office responsible for

such as ICE Executive Associate Director John Morton who stated that

27

immigration issues had no complaint “the sweeps [Sheriff Arpaio] conducts in about the MCSO's 287(g) program or Maricopa County aren’t consistent with

28

the MCSO's compliance with the

[ICE’s] priorities as an agency” and are

- 68 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 69 of 78

1

Memorandum of Agreement between “overbroad.” Kidd Dep. 155:24-157:3

ICE and the MCSO. See September 30, [Hickey Opp’n Dec. Ex. 219].

2

2010 Deposition of Alonzo Rafael

Moreover, Mr. Pena confirmed that ICE

Pena at p. 122, ln. 11 top. 123, ln. 10; did not believe it was “[ICE’s] job” to

3

see also Exhibit 11 to the Deposition determine whether race motivated

of Alonzo Rafael Pena. 4

MCSO stops. Pena Dep. 206:18-207:3 [Hickey Opp’n Dec. Ex. 225]. ICE

viewed saturation patrols as based upon

5

state, and not federal, law. Kidd Dep.

34:18-24 [Hickey Opp’n Dec. Ex. 219].

6

This statement is therefore immaterial to

the resolution of Defendants’ motion and

7

should be disregarded. Liberty Lobby,

477 U.S. at 248; L.R. Civ. 56.1(a). 8

11. ICE terminated the MCSO's 287(g)

9

field authority in 2009 because of a

Undisputed.

change in ICE priorities directed by the

10

new executive administration. See

September 30, 2010 Deposition of

11

Alonzo Rafael Pena at p. 153, ln. 5 top.

155 ln. 4; see also p. 155 ln. 12 top.

12

156, ln. 3.

13 12. Mr. Pena testified that the MCSO did Undisputed that Mr. Pena testified that,

not violate the Memorandum of

“to [his] knowledge,” the only violations

14

Agreement in any manner except on of the MOA by the MCSO related to the

one occasion in regards to providing press and/or publicity.

15

the public with information and/or

publicity. See September 30, 2010

Disputed that Mr. Pena testified of only

16

Deposition of Alonzo Rafael Pena at p. “one occasion” that MCSO violated the

156, ln. 25, top. 157, ln. 10.

MOA. Mr. Pena testified that he had

17

personal knowledge of “one or two” or

“a couple” violations of the MOA by

18

MCSO. Pena Dep. 136:4-13 [Hickey

Opp’n Dec. Ex. 225].

19

Furthermore, Mr. Pena testified that ICE

20

did not believe it was “[ICE’s] job” to

determine whether race motivated

21

MCSO stops. Pena Dep. 206:18-207:3

[Hickey Opp’n Dec. Ex. 225]. This

22

statement is therefore immaterial to the

resolution of Defendants’ motion and

23

should be disregarded. Liberty Lobby,

477 U.S. at 248; L.R. Civ. 56.1(a). 24

13. At no time did Mr. Pena ever write to Undisputed that Mr. Pena testified that

25

Sheriff Arpaio or the MCSO any letter he did not write any such letter or email;

26

or email providing them with a warning or admonition about the

Mr. Pena also testified that “most of my . . . discussion and correspondence with

27

MCSO's use of287(g) authority. See the [MCSO] were verbal.” Pena Dep.

September 30, 2010 Deposition of

157:12-19 [Hickey Opp’n Dec. Ex. 225].

28

Alonzo Rafael Pena at p. 157, lns. 12- 69 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 70 of 78

1

19.

2

3

4

5

Furthermore, Mr. Pena testified that ICE did not believe it was “[ICE’s] job” to determine whether race motivated MCSO stops. Pena Dep. 206:18-207:3 [Hickey Opp’n Dec. Ex. 225]. This statement is therefore immaterial to the resolution of Defendants’ motion and should be disregarded. Liberty Lobby, 477 U.S. at 248; L.R. Civ. 56.1(a).

6 14. Mr. Jason Douglas Kidd is an ICE

Undisputed that Mr. Kidd was so

employee and served in 2006-09 in employed from July 2006-2009, and hat

7

Phoenix, Arizona either as an ICE

Mr. Kidd was employed by ICE at the

Group Supervisor, or an ICE Assistant time of his deposition (October 1, 2010).

8

Special Agent in Charge, or as an ICE

Acting Deputy Special Agent in

9

Charge for the Phoenix ICE office. See

October 1, 2010 Deposition of Jason

10

Douglas Kidd at p. 11, Ins. 10 top. 12,

ln. 2. 11

15. Mr. Kidd worked closely with MCSO Undisputed that Mr. Kidd worked with

12

personnel in the 287(g) program and MCSO personnel on the implementation

the implementation of it under the

of the 287(g) program.

13

ICE-MCSO Memorandum of

Agreement. See October 1, 2010

Disputed to the extent Defendants imply

14

Deposition of Jason Douglas Kidd at p. that Mr. Kidd supervised the MCSO

19, Ins. 4-9. 15

during its saturation patrols or other immigration enforcement operations.

See Kidd Dep. 27:7-15 (role during

16

saturation patrols was not “supervisory”)

[Hickey Opp’n Dec. Ex. 219]. This

17

statement is therefore immaterial to the

resolution of Defendants’ motion and

18

should be disregarded. Liberty Lobby,

477 U.S. at 248; L.R. Civ. 56.1(a). 19

20

16. The MCSO advised Mr. Kidd when it Undisputed. However, Mr. Kidd

was planning on conducting a

explicitly denied supervising MCSO

21

saturation patrol that might encompass saturation patrols. Kidd Dep. 27:7-15

the MCSO's 287(g) authority. See

[Hickey Opp’n Dec. Ex. 219]. Mr. Kidd

22

October 1, 2010 Deposition of Jason testified that he believed that MCSO Douglas Kidd at p. 20, ln. 18 to p. 21, saturation patrols were based on “state

23

ln. 14. Mr. Kidd also received from the crime, not 287(g).” Kidd Dep. 34:18-24

MCSO in advance the MCSO

[Hickey Opp’n Dec. Ex. 219]. Thus,

Operations Plans for certain saturation Mr. Kidd stated that it “was not ICE’s

24

patrols. Id at p. 34, ln. 18 to p. 35, ln. job” to ensure that racial motivations did

11. Mr. Kidd also received from the not cause MCSO saturation patrol stops.

25

MCSO post-saturation patrol Shift

Kidd Dep. 153:4-18 [Hickey Opp’n Dec.

26

Summaries. Id. at p. 36, ln. 7 to p. 37, Ex. 219]. This statement is therefore

ln.11.

immaterial to the resolution of

27

Defendants’ motion and should be disregarded. Liberty Lobby, 477 U.S. at

28

- 70 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 71 of 78

1

248; L.R. Civ. 56.1(a).

2 17. Mr. Kidd was also involved in training Undisputed.

MCSO deputies regarding 287(g)

3

authority. See October 1, 2010

Deposition of Jason Douglas Kidd at p.

4

21, lns. 15 to p. 22, ln. 11.

5 18. Mr. Kidd testified that ICE provided Undisputed that ICE training of 287(g)

MCSO 287(g) deputies with training certified deputies contained a brief

6

regarding racial profiling. See October segment on racial profiling.

1, 2010 Deposition of Jason Douglas

7

Kidd at p. 23, ln. 1 to p. 24, ln. 17.

Disputed to the extent that Defendants

imply that this training was adequate.

8

See Pls.’ SOF 138-144.

9 19. Mr. Kidd is familiar with the MCSO's Undisputed that Mr. Kidd was familiar

use of saturation patrols. See October with and observed a few MCSO

10

1, 2010 Deposition of Jason Douglas saturation patrols.

11

Kidd at p. 25, lns. 6-12. Mr. Kidd attended some MCSO saturation

Disputed to the extent that Defendants

12

patrols and stationed himself at the

imply that Mr. Kidd’s role was more

MCSO command center. Id. at p. 26, than observational. Kidd Dep. 27:7-15

13

lns. 3-14. Mr. Kidd attended some of [Hickey Opp’n Dec. Ex. 219]. This

the saturation patrols as an ICE

statement is therefore immaterial to the

14

observer. Id. At p. 27, lns. 13-15.

resolution of Defendants’ motion and should be disregarded. Liberty Lobby,

15

477 U.S. at 248; L.R. Civ. 56.1(a).

16

20. Mr. Kidd never expressed to the MCSO any criticism of its use of

Disputed. Mr. Kidd testified that he spoke with MCSO’s Lt. Joseph Sousa

17

saturation patrols. See October 1, 2010 about whether MCSO saturation patrol Deposition of Jason Douglas Kidd at p. operations were “within the scope of the

18

31, lns. 2-8.

MOA.” Kidd Dep. 33:16-34:24 [Hickey Opp’n Dec. Ex. 219]. Mr. Kidd also

19

testified that there “some questions” about the arrest of Mr. Ortega

20

Melendres. See Kidd Dep. 121:16122:15 [Hickey Opp’n Dec. Ex. 219].

21

Moreover, the record reveals that ICE Executive Associate Director John

22

Morton stated that “the sweeps [Sheriff Arpaio] conducts in Maricopa County

23

aren’t consistent with [ICE’s] priorities as an agency.” Kidd Dep. 155:24-157:3.

24

Furthermore, Mr. Kidd testified that it

25

“was not ICE’s job” to ensure that racial motivations did not cause MCSO

26

saturation patrol stops. Kidd Dep. 153:4-18 [Hickey Opp’n Dec. Ex. 219].

27

This statement is therefore immaterial to the resolution of Defendants’ motion and

28

should be disregarded. Liberty Lobby, - 71 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 72 of 78

1

477 U.S. at 248; L.R. Civ. 56.1(a).

2 21. Mr. Kidd was knowledgeable or aware Disputed that Mr. Kidd never expressed

of the fact that the MCSO saturation any concerns about MCSO’s use of

3

patrols were using violations of the traffic stops. Mr. Kidd testified that he

Arizona motor vehicle equipment and spoke with MCSO’s Lt. Joseph Sousa

4

moving codes to make traffic stops of about whether MCSO saturation patrol

persons. See October 1, 2010

operations were “within the scope of the

5

Deposition of Jason Douglas Kidd at p. MOA.” Kidd Dep. 33:16-34:24 [Hickey

33, lns. 4-8. Mr. Kidd was further

Opp’n Dec. Ex. 219]. Mr. Kidd also

6

knowledgeable or aware of the fact testified that he recalled “some

that during MCSO conducted traffic questions” about the arrest of Mr. Ortega

7

stops MCSO deputies were

Melendres. See Kidd Dep. 121:16-

encountering people in the United

122:15 [Hickey Opp’n Dec. Ex. 219].

8

States unlawfully. Id. at p. 33, lns. 9-

14. Mr. Kidd never expressed in

Furthermore, Mr. Kidd testified that it

9

writing, or verbally, to the MCSO any “was not ICE’s job” to ensure that racial

concerns about the MCSO using traffic motivations did not cause MCSO stops.

10

stops and during those stops

Kidd Dep. 153:4-18 [Hickey Opp’n Dec.

identifying people in the country

Ex. 219]. This statement is therefore

11

unlawfully. Id. at p. 33, ln. 16 to p. 34, immaterial to the resolution of

ln. 17.

Defendants’ motion and should be

12

disregarded. Liberty Lobby, 477 U.S. at

248; L.R. Civ. 56.1(a).

13

22. ICE was responsible for supervising Disputed. While Mr. Kidd testified that

14

MCSO 287(g) deputies when they

ICE supervised MCSO’s exercise of

exercised their 287(g) authority. See 287(g) authority to some extent, his

15

October 1, 2010 Deposition of Jason testimony indicates that much of

Douglas Kidd at p. 38, lns. 16-19.

MCSO’s immigration enforcement

16

activity, including saturation patrols,

was in fact not supervised by ICE. Kidd

17

Dep. 27:7-15; 34:18-24; 153:4-18

[Hickey Opp’n Dec. Ex. 219].

18

Furthermore, Mr. Kidd testified that it

19

“was not ICE’s job” to ensure that racial

motivations did not cause MCSO

20

saturation patrol stops. Kidd Dep.

153:4-18 [Hickey Opp’n Dec. Ex. 219].

21

This statement is therefore immaterial to

the resolution of Defendants’ motion and

22

should be disregarded. Liberty Lobby,

477 U.S. at 248; L.R. Civ. 56.1(a). 23

23. Mr. Kidd never expressed any concern Disputed. Mr. Kidd only testified that

24

to the MCSO that MCSO 287(g)

he could not “recall” ever reporting in

certified officers were racially

writing any concerns of racial profiling

25

profiling Latinos. See October 1, 2010 by the MCSO. Mr. Kidd further

26

Deposition of Jason Douglas Kidd at p. testified that he and ICE had “no basis”

42, 15-21.

to conclude “one way or the other”

27

whether the MCSO was engaging in racial profiling. Kidd. Dep. 153:4-18

28

[Hickey Opp’n Dec. Ex. 219]. This - 72 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 73 of 78

1

statement is therefore immaterial to the

resolution of Defendants’ motion and

2

should be disregarded. Liberty Lobby,

477 U.S. at 248; L.R. Civ. 56.1(a). 3

24. Mr. Kidd has no knowledge that any Undisputed. Mr. Kidd had no such

4

MCSO 287(g) deputy ever used race as knowledge because it “was not ICE’s

a basis for making a traffic stop or in job” to ensure that racial profiling did

5

using their 287(g) authority. See

not take place in MCSO traffic stops;

October 1, 2010 Deposition of Jason ICE had no way to know “one way or

6

Douglas Kidd at p. 43, lns. 6-18.

the other” whether the MCSO was

engaging in racial profiling. Kidd. Dep.

7

153:4-18 [Hickey Opp’n Dec. Ex. 219].

Mr. Kidd’s lack of knowledge is

8

therefore irrelevant. This statement is

therefore immaterial to the resolution of

9

Defendants’ motion and should be

disregarded. Liberty Lobby, 477 U.S. at

10

248; L.R. Civ. 56.1(a).

11 25. Under the 287(g) program, the MCSO This statement is irrelevant to the

had the highest rate of encountering resolution of Defendants’ motion and

12

and removing persons that were in the should be disregarded. Liberty Lobby,

United States unlawfully of any local 477 U.S. at 248; L.R. Civ. 56.1(a).

13

law enforcement agencies in a 287(g)

program in the country. See October 1,

14

2010 Deposition of Jason Douglas

Kidd at p. 46, ln. 20 to p. 47, ln. 10. 15

26. Mr. Kidd testified that a foreign

16

national working for compensation

Undisputed, but irrelevant to the resolution of Defendants’ motion. Mr.

while visiting the United States on a Ortega Melendres had not and was not

17

tourist visa is in violation of federal working when he was stopped by

law and out-of-status. See October 1, MCSO. Ortega Melendres Dep. 12:3-8;

18

2010 Deposition of Jason Douglas

24:4-7 [Hickey Opp’n Dec. Ex. 240].

19

Kidd at p. 121, ln. 1 top. 125, ln. 9.

20

21

22

23

24

25

26

27

28

- 73 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 74 of 78

1

Plaintiffs’ Supplemental Statements of Facts

Precluding Summary Judgment in Favor of Defendants

2

3

As further evidence precluding Defe ndants’ motion, Plaintiffs also

4 incorporate by reference here their Statemen ts of Facts Nos. 1-25 6 submitted in support

5 of Plaintiffs’ Motion f or Partial Summary Judgment. See Dkt. No. 422. Plaintiffs also

6 submit the following additional facts prec luding summary ju dgment in favor of

7 Defendants.

8 No.

Statement of Fact

Supporting Evidence

9 P257 Anabel Avitia (who is Hispanic) and Declaration of Anabel Avitia at ¶¶ 2-10

10

her husband were stopped twice in (filed concurrently herewith). the month of October 2009. On the

11

first occasion, the couple was followed by an MCSO deputy from

12

the parking lot of a Walgreens to their home. The deputy made a

13

comment about their temporary license plate, but Ms. Avitia

14

informed him (and he confirmed) that there was nothing wrong with

15

the plates. On October 16, 2009, when MCSO was conducting a

16

saturation patrol, Ms. Avitia and her husband were again pulled over for

17

failing to stop at a stop sign, even though they made a complete stop.

18 P258 Andrew Sanchez is a member of

Guzman Dep. 47:1-48:5 [Hickey Opp’n

19

Citizens Camera Crew, a member of Dec. Ex. 218]; Declaration of Andrew Somos America. Mr. Sanchez was Sanchez at ¶¶ 7-10, 12 (filed

20

stopped by the MCSO during the concurrently herewith). Guadalupe sweep on April 3, 2008,

21

and cited for improper use of his horn. Mr. Sanchez challenged the

22

citation in Kyrene Justice Court, and one of the two MCSO deputies who

23

appeared testified that he was trained to enforce the immigration laws.

24

Mr. Sanchez’s citation he received was dismissed.

25 P259 Some Somos America members who Guzman Dep. 42:18-43:13; 45:20-46:12,

26

were stopped did not file their own 49:25-55:17, 89:6-90:19 [Hickey Opp’n civil rights lawsuit because they are Dec. Ex. 218]

27

afraid of retaliation. Some members of Somos America believe they have

28

- 74 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 75 of 78

1

suffered retaliation for speaking out.

2 P260 Somos America has experienced a Guzman Dep. 18-21; 73-77; 81-88

frustration of its mission and a

[Hickey Opp’n Dec. Ex. 218].

3

diversion of its resources as a result

of MCSO’s saturation patrols.

4

Somos America’s volunteers have

had to monitor and observe

5

saturation patrols and assist persons

affected by Defendants’ saturation

6

patrols, rather than conduct citizen

and voters’ drives and educational

7

forums.

8 P261 Dr. Taylor study of the CAD

Taylor Rebuttal Report at 17 [Dkt. No.

database examined 123,831

424].

9

individuals whose names were

checked during MCSO traffic stops

10

from January 1, 2007 through

October 31, 2009. 11

12

P262 Dr. Taylor found that 5,086

Taylor Rebuttal Report at 53 tbl. 6

individuals’ names were checked by (number of stops on saturation patrol

13

MCSO officers during days on

days) [Dkt. No. 424]; Taylor Initial

which a large-scale saturation patrol Report at 16-17, 86 (12 large-scale

14

operation was conducted by the

saturation patrols between January 1,

MCSO. Between 1,312 and 1,988 of 2007 and October 31, 2009) [Dkt. No.

15

those individuals had surnames

424].

associated with Hispanic ethnicity.

16

There were 12 large-scale saturation patrols in the period between

January 1, 2007 through October 31,

17

2009.

18 P263 Dr. Taylor found that 1,623

Taylor Rebuttal Report at 54 tbl. 6

19

individuals’ names were checked by (number of stops on saturation patrol MCSO officers who were known to days by saturation patrol active officers);

20

have participated in that saturation Taylor Initial Report at 16-17, 86 (12 patrol, during days on which a large- large-scale saturation patrols between

21

scale saturation patrol operation was January 1, 2007 and October 31, 2009, conducted by the MCSO. Between no officer data for January 2008 patrol)

22

498 and 742 of those individuals had [Dkt. No. 424] surnames associated with Hispanic

23

ethnicity. There were 12 large-scale saturation patrols in the period

24

between January 1, 2007 through October 31, 2009, 11 of which had

25

associated information concerning which officers participated in the

26

saturation patrol.

27

P264 Saturation patrol involved officers, Taylor Rebuttal Report at 31 [Dkt. No. meaning an MCSO officer who had 424].

28

ever participated in a large-scale - 75 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 76 of 78

1

saturation patrol, were 13.6% to

15% more likely to check Hispanic

2

names, even on non-saturation patrol

days, as compared to MCSO officers

3

who had never participated in a

saturation patrol. 4

P265 Dr. Camarota testified that a higher Camarota Dep. 237:14-238:3 (“Q. You

5

rate of Hispanics stopped during

think that because saturation patrols are

saturation patrols would be expected aimed at illegal immigration that it

6

if the operations are “successful”. would be expected that the rate of

Hispanics being stopped during the

7

saturation patrols would be higher? A. If

they're successful.”) [Hickey Opp’n Dec.

8

Ex. 217].

9 P266 MCSO is a hierarchical

Sousa Dep. I at 17:2-18:2 (follows

organization. Deputies follow

directives and polices of Sheriff Arpaio

10

directives and the orders of MCSO and “chain of command”) [Hickey

leadership, including Sheriff Arpaio. Opp’n Dec. Ex. 232]; Kikes Dep. 15:14-

11

16:4 (obeys Sheriff Arpaio’s orders and

directives) [Hickey Opp’n Dec. Ex.

12

221]; Sands Dep. I at 17:18-22 (Sheriff

Arpaio is final “decisionmaker” and he

13

follows his directives) [Hickey Opp’n

Dec. Ex. 231]; Madrid Dep. 21:16-24

14

(as Deputy and Sergeant, follows

Arpaio’s law enforcement directives)

15

[Hickey Opp’n Dec. Ex. 222].

16 P267 Ms. Meraz and Mr. Nieto were

Nieto Dep. 13:7-14:1 (describing where

stopped in the area where a

Plaintiffs were stopped) [Hickey Opp’n

17

saturation patrol took place, and by Dec. Ex. 224]; Armendariz Dep. I at

officers working that saturation

97:25-98:3 (location of command post)

18

patrol.

[Hickey Opp’n Dec. Ex. 214]; Kikes

19

Dep. 52:22-53:16 [Hickey Opp’n Dec. Ex. 221]; Beeks Dep. 147:20-148:9

20

[Hickey Opp’n Dec. Ex. 215]; Melendres MCSO 1851-52, Ex. 6 to

21

Beeks Dep. (introduced at Beeks Dep. 80:11-81:10) (Arrest List for MCSO

22

saturation patrol on March 28, 2008 listing Deputies Armendariz, Beeks, and

23

Kikes) [Hickey Opp’n Dec. Ex. 216].

24

P268 Plaintiffs David Rodriguez, Jessika Jessika Rodriguez Dep. 6:8-14, 60:5-10 Rodriguez, Manuel Nieto and Velia [Hickey Opp’n Dec. Ex. 230]; David

25

Meraz all live and drive in Maricopa Rodriguez Dep. 6:14-19, 37:3-6 [Hickey

County.

Opp’n Dec. Ex. 229]; Nieto Dep. 6:7-10,

26

35:6-10 [Hickey Opp’n Dec. Ex. 224] Meraz Dep. 5:12-15; 34:4-16 [Hickey

27

Opp’n Dec. Ex. 223].

28

- 76 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 77 of 78

1 P269 Adolfo Maldonado is a member of Declaration of Adolfo Maldonado at ¶¶

Somos America and an Hispanic

1-12 (filed concurrently herewith); see

2

resident of Maricopa County. Mr. also Guzman Dep. 37:7-38:5 [Hickey

Maldonado has been stopped twice Opp’n Dec. Ex. 218].

3

by the MCSO, both times during

MCSO saturation patrols. On March

4

22, 2008, Mr. Maldonado was

stopped by MCSO officers during a

5

saturation patrol in Phoenix. On

July 14, 2008, Mr. Maldonado was

6

stopped again by MCSO officers

during a saturation patrol in Mesa.

7

The MCSO deputy asked for his

Social Security number, even though

8

Mr. Maldonado had provided his

drivers’ license.

9

10

11

RESPECTFULLY SUBMITTED this 3rd day of June, 2011.

12

13

By /s/ Stanley Young

14

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 77 -

Case 2:07-cv-02513-GMS Document 456 Filed 06/03/11 Page 78 of 78

1 CERTIFICATE OF SERVICE

2 I hereby certify that on the 3rd day of June, 2011, I caused the attached document

3 to be electronically transmitted to the Cler k’s Office using the CM/ECF System for

4 filing and transmittal of a Notice of El ectronic Filing to the following CM/ECF

5 Registrants:

6

Timothy P. Casey

7

timcasey@azbarristers.com

8

Thomas P. Liddy

liddyt@mcao.maricopa.gov

9

Maria R. Brandon

10

brandon@mcao.maricopa.gov

11

Attorneys for Defendant Sheriff Joseph Arpaio and the

Maricopa County Sherriff’s Office

12

13

/s/ Stanley Young

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 78 -

 </s> Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 1 of 13

1 Timothy J. Casey (#013492) SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
2 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540
3 Telephone: (602) 277-7000 Facsimile: (602) 277-8663
4 timcasey@azbarristers.com

5 Thomas P. Liddy (#019384) MARICOPA COUNTY ATTORNEY’S OFFICE
6 Civil Services Division 222 N. Central, Suite 1100
7 Phoenix, Arizona 85004 602-506-8066
8 Co-counsel for Defendants Arpaio and MCSO

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11 Manuel de Jesus Ortega Melendres, et al.,

12 13 vs.

Plaintiffs,

14 Joseph M. Arpaio, et al.

15

Defendants.

No. CV 07-02513-PHX-GMS
DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
(Oral Argument Requested)

16

17

Defendants Joseph M. Arpaio and the Maricopa County Sheriff’s Office submit this

Reply in support of their Motion for Summary Judgment. For the Court’s convenience, the 18

same abbreviations used in the Motion are used in this Reply. 19
Defendants also incorporate herein by this Reference their Response in Opposition to

20 Plaintiffs’ Motion for Partial Summary Judgment (Dkt#452), and their Response, Objections,

21 Controverting Statement of Facts, and Separate Statement of Additional Facts (Dkt#453).

22

MEMORANDUM OF POINTS AND AUTHORITIES

23 I. PLAINTIFFS LACK STANDING.

24

The undisputed evidence demonstrates that although the individual Plaintiffs have

25 been exposed for years to MCSO scrutiny under its alleged “racial profiling” policy, pattern,

26 or practice, they have nevertheless experienced no additional traffic stop encounters with the

27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

MCSO and do not have a “credible” and “genuine” threat of suffering the same harm or injury again in the future. Ellis v. Dyson, 421 U.S. 426, 434-435 (1975). Plaintiffs recognize

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 2 of 13

1 this fundamental problem and, therefore, argue that they still have standing because they

2 have allegedly proven a prima facie case of “a widespread, ongoing, and officially

3 sanctioned policy, practice, or pattern of Defendants targeting Hispanic drivers and

4 passengers that realistically threatens future injury.” (Response (Dkt#455) at p. 1, lns. 19-

5 21). Plaintiffs are mistaken.

6

Even under their policy, pattern, or practice claim, the individual Plaintiffs still must

7 affirmatively prove “the likelihood of substantial and immediate irreparable injury.”
O’Shea v. Littleton, 414 U.S. 488, 502 (1974) (emphasis added); City of Los Angeles v. 8
Lyons, 461 U.S. 95, 105 (1983); Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001); 9
Rodriguez v. Cal. Highway Patrol, 89 F.Supp.2d 1131, 1142 (N.D. Cal. 2000). The 10
likelihood of substantial and immediate irreparable injury must be “a credible threat of 11
recurrent injury.” LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985) (emphasis
12 added). “A claim is not ripe for adjudication if it rests upon contingent future events that

13 may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523

14 U.S. 296, 299 (1998). Standing “must affirmatively appear in the record.” FW/PBS, Inc. v.

15 City of Dallas, 493 U.S. 215, 231 (1990).

16

On point is Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D.Wash.

17 2007). The district court held:

18

A plaintiff seeking declaratory or injunctive relief must demonstrate that he or she is under a realistic threat of future injury. While the fact that

19

the plaintiff has suffered injury in the past may make the repetition of the injury more likely, it does not in itself create a threat of future harm

20

sufficient to confer standing.

21

A past injury is likely to recur when the harm alleged is directly traceable to a written policy. An injury is also likely to recur when it is a part of

22

an officially sanctioned pattern of behavior. However, a plaintiff seeking to challenge an unconstitutional policy must show a genuine

23

threat of enforcement of the policy against the plaintiff. Moreover, standing is inappropriate where the future injury could be inflicted

24

only in the event of future illegal conduct by the plaintiff.

25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The Court finds that the Plaintiff does not have standing to seek declaratory or injunctive relief. As the Plaintiff explained at oral argument, the assessment of booking fees without any prior hearing is imminently likely to recur due to the existence of both the statute and the County's written policy. However, the Plaintiff has not demonstrated that he, personally, is likely to be arrested and assessed the booking fee
2

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 3 of 13

1

again. While he could arguably be arrested and assessed the booking

fee at anytime, such a speculative injury is insufficient to confer

2

standing. In order to demonstrate standing, the Plaintiff would need

to show that he is at least reasonably likely to be arrested again. The

3

Plaintiff has not made this argument.

4 2007 U.S. Dist. LEXIS 27667, * 5-7 (citations and internal quotations omitted) (emphasis

5 added).

6

The record, here, shows that the individual Plaintiffs have completely failed to

7 demonstrate a credible and likely threat of immediate irreparable injury. The undisputed

8 evidence shows that the individual Plaintiffs have had no further encounters with the MCSO
9 -- either in large or small scale saturation patrols or in routine MCSO traffic stops -- over a
10 period of three to four years since their initial traffic stops. SOF (Dkt#413-1) at ¶¶ 100-06, and 146-48. The individual Plaintiffs offer no facts, law, explanation, or argument as to the
11 reasons why, if they face a credible and likely immediate irreparable injury from the
12 Defendants’ alleged policy, pattern, or practice, that they have not already experienced a
13 recurrence over the multiple years since their first and only encounter. They also offer no
14 evidence or argument as to when the “immediate irreparable injury” will likely occur again
15 in the future. Quite frankly, whether the individual Plaintiffs are ever again stopped by the
16 MCSO are “contingent future events that may not occur as anticipated, or indeed may not
17 occur at all.” Texas, 523 U.S. at 299.

18

Plaintiffs’ reliance on their policy, pattern, or practice claim is misplaced for another

19 reason. The evidence conclusively establishes that Defendants did not act with racially-

20 ethnically discriminatory intent against Latinos, or anyone, and that no policy, pattern, or

21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

practice of the Defendants violated the Plaintiffs’ Fourteenth Amendment Rights. See Dkt# Nos. 452 and 453. Plaintiffs’ expert Ralph Taylor, Ph.D. offers no more than the factually unsupported opinion that the individual Plaintiffs travel on roads in Maricopa County and, therefore, will have a greater statistical chance of being again stopped “during a major saturation patrol” than a non-Hispanic (Response at p. 8, lns. 19-23). Dr. Taylor, however, does not address whether the individual Plaintiffs face “likely immediate irreparable injury” given the undisputed facts that large scale saturation patrols are infrequent events and do not occur on a daily, weekly, or even monthly basis, and that for the 34-month time period
3

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 4 of 13

1 covered by Plaintiffs’ lawsuit there were only thirteen (13) large scale saturation patrols

2 conducted by the MCSO. See Dkt# 452 at ¶¶ 104 and 106. Dr. Taylor’s opinion, therefore,

3 is not the type of evidence that proves “a credible threat of recurrent injury.” LaDuke, 762

4 F.2d at 1323. Moreover, Dr. Taylor’s opinion is, at its core, “conjectural” and addresses a

5 “hypothetical” statistical “chance” of the named Plaintiffs being stopped again. Speculation

6 and conjecture is not evidence sufficient to establish standing to obtain equitable relief, even

7 where a plaintiff has asserted a policy, pattern, or practice claim. Multi-Ethnic Immigrant

Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621, 628 (C.D. Cal. 2007); Lyons, 8
461 U.S. at 105-08 (threat of future injury not sufficiently real and immediate to establish 9
existing controversy where the claim of future injury rested on assumption that plaintiffs 10
would engage in conduct leading to an encounter with police involving the use of a
11 chokehold).

12

Finally, Plaintiffs’ arguments regarding the standing of the Somos organization are

13 not persuasive. The Supreme Court has repeatedly refused to recognize a generalized

14 grievance against allegedly unconstitutional government conduct as sufficient to confer

15 standing. United States v. Hays, 515 U.S. 737, 743 (1995). If a government acts

16 unconstitutionally, such as in discriminating based on race or ethnicity, the resulting injury

17 “accords a basis for standing only to those persons who are personally denied equal

18 treatment.” Allen v. Wright, 468 U.S. 737, 755 (1984) (emphasis added). Moreover, the

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Supreme Court holds that even when a plaintiff has alleged a redressable injury sufficient to satisfy the standing requirements of Article III, federal courts should refrain from “adjudicating abstract questions of wide public significance which amount to generalized grievances.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982).
Somos’ grievance is precisely the type of generalized grievance that is prohibited. Somos disagrees with the Defendants’ law enforcement policy in enforcing the law, including those laws related to illegal immigration, and chooses to spend its time or money to help those persons it believes are directly affected by that policy. Any tangible effect of the Defendants’ policy on Somos is too “remote, fluctuating, and uncertain” to confer
4

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 5 of 13

1 standing on it. Frothingham v. Mellon, 262 U.S. 447, 487 (1923).1

2

For the reasons stated above and in Defendants’ Motion, the named Plaintiffs lack the

3 standing required to obtain their requested equitable relief.

4 II. THERE IS NO FOURTH AMENDMENT VIOLATION.

5

A. Stop One: Mr. Melendres

6

Plaintiffs concede that Deputy DiPietro had probable cause to stop the truck in which

7 Mr. Melendres was a passenger. (Response at p. 14, lns. 26-28). They, therefore, argue that

the alleged Fourth Amendment violation for Mr. Melendres was actually “the unreasonable 8
extension of that pre-textual traffic stop beyond the time necessary to investigate the driver’s 9
traffic violation.” (Id. at p. 14, ln. 28 to p. 15, ln. 1). This argument lacks merit. 10
There was no unreasonably long traffic stop or questioning of the passengers in the
11 truck. Deputy DiPietro made the traffic stop and promptly called on his radio for a 287(g)

12 MCSO deputy to assist at the stop to investigate the truck’s occupants. SOF (Dkt#413-1) at

13 ¶ 19. Deputy Rangel arrived at the traffic stop within one minute of receiving the call for a

14 287(g) deputy. Id. at ¶ 20. Deputy Rangel asked the passengers in the Spanish language for

15 identification. Id. at ¶ 22; see also INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration

16 officers could question an individual although they lacked reasonable suspicion that the

17 individual was an illegal alien). Deputy Rangel questioned the truck’s several passengers

18 while Deputy DiPietro was simultaneously questioning the driver of the truck. SOF

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

(Dkt#413-1) at ¶ 23; see also Muehler v. Mena, 544 U.S. 93, 101 (2005) (“mere police questioning [regarding identification] does not constitute a seizure unless it prolongs the detention of the individual…”).
The total amount of time Deputy Rangel spent questioning all of the truck’s several passengers was, according to the deputy, fifteen (15) minutes. Id. at ¶ 34. Regardless of whether the time was 15 minutes per Deputy Rangel, or 21 minutes per Plaintiffs (i.e., Plaintiffs assert the call log shows a 21-minute time period when Deputy Rangel called out
1 In an effort to avoid Somos’ dismissal, Plaintiffs have gone to the extraordinary step of producing for the first time with their Response, and long past the discovery cutoff date, a declaration of Adolfo Maldonado dated June 3, 2011, a purported member of Somos. (Dkt.457-2). Plaintiffs did not disclose Mr. Maldonado as a witness during discovery, never disclosed Mr. Maldonado’s expected testimony, and obviously did not produce his newly-formulated affidavit during discovery. Defendants did not know of Mr. Maldonado and have had no opportunity to cross examine him on the
5

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 6 of 13

1 of the stop, but the log does not reflect when the deputy finished the questioning of the

2 suspects), the reasonableness of a detention is evaluated “from the perspective of a

3 reasonable officer on the scene.” Graham v. Connor, 490 U.S. 386, 387 (1989). “[T]he

4 reasonableness of a detention may be determined in part by whether the police are diligently

5 pursuing a means of investigation which is likely to resolve the matter one way or another

6 very soon….” Michigan v. Summers, 452 U.S. 692, 703, fn. 14 (1981).

7

The evidence shows that Deputy Rangel was “diligently pursuing a means of

investigation which [was] likely to resolve the matter one way or another very soon” while 8
Deputy DiPietro was simultaneously dealing with the truck’s driver. SOF (Dkt#413-1) at ¶ 9
20; Summers, 452 U.S. at 703 fn. 14. Deputy Rangel questioned several passengers, 10
pursuant to his 287(g) authority, as to their lawful presence in the United States. SOF
11 (Dkt#413-1) at ¶¶ 25-28. He arrested Mr. Melendres for probable cause that the federal

12 immigration laws have been violated. Id. at ¶¶ 30-33. Plaintiffs simply have put forward no

13 evidence of prolonged questioning or of a prolonged traffic stop. Their time calculation of a

14 21-minute traffic stop and questioning unfairly and incorrectly includes an unknown amount

15 of time after Deputy Rangel decided at the scene to arrest the passengers and until they had

16 been transported from the scene. See Plaintiffs’ Responses and Objections to Defendants’

17 Statement of Facts in Opposition to Defendants’ Motion for Summary Judgment (Dkt#456)

18 at ¶ 34, p. 17, lns. 1-5).

19

To survive summary judgment, the Plaintiffs “must do more than simply show that

20 there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v.
21 Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Plaintiffs must set out “specific fact showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
22 248 (1986) (emphasis added). Mere speculation by the Plaintiffs that “warning the driver is
23 unlikely to have required another 15 to 20 minutes” does not suffice. Id. at 252 (the
24 “existence of a scintilla of evidence” is insufficient; rather, “there must be evidence on which
25 a jury could reasonable find for the [non-moving party]”). Defendants, therefore, are entitled
26 to judgment in their favor on Mr. Melendres’ Fourth Amendment claim.
27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

contents of his affidavit. The Court should strike the Maldonado Declaration as untimely disclosed.
6

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 7 of 13

1

B. Stop Two: Mr. and Mrs. Rodriguez

2

Plaintiffs argue two points to support their claim that Mr. and Mrs. Rodriguez’s

3 Fourth Amendment rights were violated. First, they argue that, because Mr. and Mrs.

4 Rodriguez informed Deputy Ratcliffe that they did not see the “Road Closed” sign and
5 because other motorists driving on the closed road were not cited, Deputy Ratcliffe somehow
6 “no longer had probable cause to believe that they had committed a traffic citation worthy of 7 citation.” (Response at p. 18, lns. 2-6) (emphasis added). Second, they also argue that their
traffic stop was unreasonably extended after any initial suspicion of a traffic violation was 8
dispelled. These arguments lack merit. 9
The undisputed evidence shows that Deputy Ratcliffe had probable cause to stop the 10
Rodriguez vehicle. Knowingly or unknowingly disobeying a traffic control sign is a 11
violation of Arizona law. A.R.S. § 28-644. Therefore, the factual testimony from Mr. and 12 Mrs. Rodriquez as to whether they ever saw the “Road Closed” sign is immaterial. It was 13 within Deputy Ratcliffe’s discretion whether to issue a citation to Mr. Rodriguez, and he did
14 so because Mr. Rodriguez was unquestionably driving on a closed road. SOF (Dkt#413-1) at
15 ¶¶ 44-45, and 51-52. Both parties’ police practices experts examined the undisputed facts

16 about the Rodriguez traffic stop and concluded that Deputy Ratcliffe had cause to stop the

17 Rodriguez vehicle based on those facts. Id. at ¶¶ 114-116. Even Mrs. Rodriguez is not

18 critical of the actual traffic stop. Id. at ¶¶ 112-113. Finally, Plaintiffs offer no legal authority

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

for their novel argument that probable cause to make a traffic stop or to issue a citation is “dispelled” when a violation is subjectively classified by the violator as not “worthy of citation.” (Response at p. 18, lns. 1-6).
The evidence shows that there was no prolonged traffic stop. The total time for the Rodriguez traffic stop was, according to Deputy Ratcliffe, roughly ten (10) minutes. Id. at ¶ 58. Plaintiffs’ own police practice expert, Mr. Stewart, did not testify that the evidence supports the conclusion that the Rodriguez stop was prolonged. Mr. Stewart provided no opinion testimony that Deputy Ratcliffe’s supposed request for a Social Security card, or supposed insistence on Mr. Rodriguez’s Social Security number to complete the citation in any manner prolonged the traffic stop. Mrs. Rodriguez also did not testify that the traffic
7

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 8 of 13

1 stop was prolonged.

2

The fact that Mrs. Rodriguez “estimates” that the stop lasted “approximately 20

3 minutes” is immaterial. Plaintiffs admit that “the absolute length of the traffic stop is

4 immaterial to the resolution of Defendants’ motion….” See Dkt#456 at ¶ 58, p.24, ln. 28 to
5 p. 25, ln. 1. This is particularly true given the irony that Plaintiffs now, in order to avoid
6 summary judgment, complain about the alleged prolonged length of the stop when they took 7 additional time at the scene during the traffic stop, and arguably prolonged the stop, to do the
following: (a) ask questions of Deputy Ratcliffe about the possible affect that the citation 8
would have on Mr. Rodriguez’s commercial driver’s license (SOF (Dkt#413-1) at ¶¶ 54-55); 9
(b) argue with Deputy Ratcliffe that they did not see any other drivers on the closed road 10
receiving citations by another deputy, and then accusing Deputy Ratcliffe of selective 11
enforcement (Id.); and (c) repeatedly asking Deputy Ratcliffe for a warning instead of a 12 citation, which Mr. Rodriguez admitted prolonged his stop. (See Dkt#456 at ¶ 52 at David 13 Rodriguez Deposition at p. 27, lns. 9-15 (“[W]hen I asked [Deputy Ratcliffe] if I could get a
14 warning too, that’s – that’s what—that’s what also prolonged it.”) (emphasis added). On
15 the record before the Court, therefore, Defendants are entitled to judgment in their favor on

16 the Rodriguez’s Fourth Amendment claims.

17

C. Stop Three Ms. Meraz and Mr. Nieto

18 19 20 21 22 23 24 25 26 27 28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

Plaintiffs claim that Ms. Meraz and Mr. Nieto were stopped without cause (Motion at p. 21, lns. 5-7), and then were unreasonably seized after the stop in violation of their Fourth Amendment rights. (Id. at p. 21, lns. 10-13). These arguments lack merit.
The undisputed evidence shows that Deputy Kikes had probable cause or reasonable suspicion to stop the Meraz-Nieto vehicle. For a law enforcement officer “to initiate an investigatory stop of a motorist, there must at least exist reasonable suspicion that the motorist is engaging in illegal activity.” Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011). Deputy Kikes heard Deputy Armendariz’s request for backup over the radio and, given what he heard, believed that Deputy Armendariz was in trouble of an unknown nature. SOF (Dkt#413-1) at ¶ 77. Deputy Kikes, more specifically, believed in good-faith that he had probable cause to stop the Meraz-Nieto vehicle because he believed there was an
8

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 9 of 13

1 emergency situation involving Deputy Armendariz and some type of crime. Id. at ¶¶ 85 and

2 117. Both parties’ police practices experts examined all of the facts regarding the

3 Meraz-Nieto traffic stop and concluded in their professional opinions that Deputy

4 Kikes had reasonable suspicion under the circumstances that allowed him to properly
5 stop the Meraz-Nieto vehicle. Id. at ¶¶ 118-119. The fact that Plaintiffs, to avoid
6 summary judgment, now disagree with their own expert’s analysis of the facts is indicative 7 of the tenuous nature of their claims and insufficient to create a genuine fact issue. Liberty
Lobby, 477 U.S. at 252. Deputy Kikes had reasonable suspicion, if not probable cause, to 8
stop the Meraz-Nieto vehicle. 9
As for the post-stop conduct of Deputy Kikes, Plaintiffs’ own police practices expert 10
testified that Deputy Kikes acted “reasonably” in his post-stop conduct and treatment of Mr. 11
Nieto. Id. at ¶ 111. There is no testimony that Ms. Meraz was treated unreasonably in any 12 manner. Finally, as to Deputy Beeks, he saw Mr. Nieto acting very “belligerent”, “non13 compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks thought
14 that Mr. Nieto might use his vehicle as a weapon. Id. at ¶ 92. As such, Deputy Beeks pulled
15 his handgun to his side for safety purposes. Id. There is no evidence that these Plaintiffs

16 were actually stopped “at gun point.” Plaintiffs Meraz and Nieto offer nothing more than

17 “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Meraz

18 and Nieto’s Fourth Amendment claims are ripe for summary dismissal.

19 III. DEFENDANTS HAVE CONCLUSIVELY ESTABLISHED THAT

PLAINTIFFS’ POLICY, PATTERN, OR PRACTICE CLAIM FAILS AS A

20

MATTER OF LAW.

21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

The parties have dueling motions on the Plaintiffs’ Fourteenth Amendment claim. Plaintiffs, however, have presented no direct evidence and insufficient circumstantial evidence on which to base a finding, as a matter of law, that Defendants’ employ a policy, pattern, or practice that has a racially discriminatory effect on Plaintiffs and was based on racially discriminatory intent or motive as to Plaintiffs. The Court, therefore, should grant the Defendants’ Motion and deny Plaintiffs’ Motion for Partial Summary Judgment.
Before Deputy DiPietro found probable cause to stop the truck in which Mr.
9

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 10 of 13

1 Melendres was a passenger, he did not know or see the race of the truck’s driver or the race

2 of the passengers in the truck. See Defendants’ Response to Plaintiffs’ Statement of Facts in

3 Support of their Motion for Partial Summary Judgment (“SSOF”) (Dkt#453) at ¶ 3. Before

4 making the decision to conduct the traffic stop of the Rodriguez’ truck and to issue a citation
5 to the truck’s driver (Mr. Rodriguez), Deputy Ratcliffe did not see the race or ethnicity of
6 the truck’s driver or its occupants. Id. at ¶ 10. Due to the Meraz-Nieto vehicle’s window 7 tinting, Deputy Kikes could not see the race, ethnicity, or other characteristics of the
vehicle’s occupants. Id. at ¶ 16. The evidence further shows that the MCSO does not use 8
race or ethnicity as an indicator or factor to make vehicle stops. Id. at ¶ 82; see also 9
Longmire v. Starr, 2005 U.S. Dist. LEXIS 18388 *7 (N.D. Tex. 2005) (in light of the facts 10
showing the traffic stop of the plaintiff was based on race-neutral probable cause, “Plaintiff 11
cannot establish that the allegedly discriminatory purpose was a motivating factor in the 12 officer’s decision to stop his vehicle.”); United States v. Montero-Camargo, 208 F.3d 1122, 13 1139-40 (9th Cir. 2000) (no constitutional violation when officers did not know the race of
14 the driver or vehicle occupants before actually stopping the vehicle.); United States v. Eliseo-
15 Gonzalez, 2009 U.S. LEXIS 91831 *4 (M.D. Fla. 2009) (“[N]o racial profiling took place in

16 this case. The officer testified that he could not see inside the vehicle when it passed his

17 position and could not observe race or gender because of the dark tint.”); United States v.

18 Hernandez-Bustos, 2005 U.S. LEXIS 16311, *4 ¶ 3 (D. Kan. 2005) (no racial profiling when

19
20
21
22
23
24
25
26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

the officer made the traffic stop without knowing or seeing the driver’s race or ethnicity). Because the named Plaintiffs’ Fourteenth Amendment claim fails, Plaintiffs’ policy, pattern, or practice claim based upon their traffic stops also must fail. Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88-89 (1995).
The evidence also demonstrates that the Defendants’ policy of enforcing the laws related to illegal immigration is race-neutral, Defendants’ use of saturation patrols is a reasonable and common law enforcement technique, and the discovery of illegal immigrants in Maricopa County, who are predominately Latinos from Mexico, during saturation patrols is not evidence of Defendants’ alleged racial animus or intent against Latinos. SSOF (Dkt#453) at ¶¶ 22-34, and 109-110. The MCSO’s saturation patrols are initiated, planned,
10

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 11 of 13

1 and executed based on race-neutral considerations. Id. at ¶¶ 23, 27-30, 35-43, 60-80, 107-

2 108. Additionally, there is no evidence that Arpaio adopted, approved of, agreed with citizen

3 letters that expressed racially offensive or insensitive remarks about Latinos or that asked the

4 MCSO to engage in the racial profiling of Latinos, let alone advocated the use of racial

5 profiling. Id. at ¶¶ 44-61; see also Response to Plaintiffs’ MPSJ (Dktt#452 and 453).

6

The evidence also shows that Plaintiffs’ saturation patrol statistics do not establish

7 that the named Plaintiffs’ Fourteenth Amendment rights were violated. Id. at ¶¶ 96-100.

Assuming, arguendo, that Plaintiffs’ saturation patrol statistics are somehow relevant to the 8
named Plaintiffs’ claims, the statistics, at best, show only that Defendants’ policy, pattern, or 9
practice had a disproportionate impact on Latinos in general during saturation patrols, not the 10
disparate treatment of Latinos during saturation patrols. An official policy, pattern, or
11 practice is not unconstitutional solely because it has a racially disproportionate impact.

12 Castaneda v. Partida, 430 U.S. 482, 493 (1971); see also Vill. Of Arlington Heights v.

13 Metro. Housing Dev. Corp., 429 U.S. 252, 264-65 (1977) (“[O]fficial action will not be held

14 unconstitutional solely because it results in a racially disproportionate impact.”).

15 IV. CONCLUSION

16

The Plaintiffs lack standing and their policy, pattern, and practice claim does not save

17 their lawsuit from dismissal. The undisputed evidentiary record demonstrates that each of

18 the Plaintiffs’ traffic stops were properly predicated upon probable cause or reasonable

19 suspicion, and no stop was unreasonably prolonged. Finally, the evidentiary record

20 demonstrates that Plaintiffs have failed to prove that the Defendants’ conduct toward

21 Plaintiffs had a racially discriminatory effect or that Defendants’ conduct resulted from a

racially discriminatory intent. Accordingly, summary judgment is appropriate in 22

Defendants’ favor. 23
DATED this 16th day of June, 2011.

24 SCHMITT, SCHNECK, SMYTH & HERROD,

25

P.C.

26
27
28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

s/Timothy J. Casey______ Timothy J. Casey Schmitt, Schneck, Smyth & Herrod, P.C. 1221 E. Osborn Rd., Suite 105 Phoenix, Arizona 85014
11

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 12 of 13

1

Telephone: (602) 277-7000

Facsimile:(602) 277-8663

2

3

MARICOPA COUNTY ATTORNEY’S OFFICE

Thomas P. Liddy

4

Civil Services Division

222 N. Central, Suite 1100

5

Phoenix, Arizona 85004

602-506-8066

6

Co-counsel for Defendants Arpaio and MCSO

7 CERTIFICATE OF SERVICE
8
I hereby certify that on June 16, 2011, I electronically transmitted the attached 9 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
Notice of Electronic Filing to the following CM/ECF registrants: 10
The Honorable G. Murray Snow 11 United States District Court
401 West Washington Street, 12 Phoenix, Arizona 85003-2158
13 Stanley Young, Esq. Andrew Carl Byrnes, Esq.
14 COVINGTON & BURLING, LLP 333 Twin Dolphin Road
15 Redwood Shores, California 94065 Counsel for Plaintiffs
16
Daniel Pochoda, Esq. 17 Annie Lai, Esq.
ACLU FOUNDATION OF ARIZONA 18 3707 N. 7th Street, Suite 235
Phoenix, Arizona 85014 19 Counsel for Plaintiffs
20 Monica M. Ramirez, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION
21 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
22 San Francisco, California 94111 Counsel for Plaintiffs
23
Nancy Ramirez, Esq. 24 MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATION FUND 25 634 S. Spring Street, 11th Floor
Los Angeles, California 90014 26 Counsel for Plaintiffs
27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

12

Case 2:07-cv-02513-GMS Document 465 Filed 06/16/11 Page 13 of 13

1 Thomas P. Liddy Deputy County Attorneys, Civil Services Division
2 Maricopa County Attorney’s Office 222 N. Central, Suite 1100
3 Phoenix, Arizona 85004 Co-counsel for Defendants Arpaio and MCSO
4 s/Eileen Henry______
5 Eileen Henry, Paralegal SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
SCHMITT, SCHNECK, SMYTH & HERROD, P.C. Professional Corporation

13

 </s> Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 1 of 15

COVINGTON & BURLING LLP 1 333 Twin Dolphin Drive
Suite 700 2 Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700 3 Facsimile: (650) 632-4800

4 Stanley Young (Pro Hac Vice)

syoung@cov.com 5 Andrew C. Byrnes (Pro Hac Vice)

6

abyrnes@cov.com Attorneys for Plaintiffs (Additional attorneys

7 for Plaintiffs listed on next page)

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF ARIZONA

10 Manuel de Jesus Ortega Melendres, et al.,
11 Plaintiffs,
12 vs.
13 Joseph M. Arpaio, et al.,
14 Defendants.
15

) No. CV 07-2513-PHX-GMS ) ) ) REPLY MEMORANDUM IN ) SUPPORT OF PLAINTIFFS’ ) MOTION FOR PARTIAL ) SUMMARY JUDGMENT ) ) ORAL ARGUMENT REQUESTED ) ) The Honorable Judge G. Murray Snow

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 2 of 15

Additional Attorneys for Plaintiffs: 1

2

COVINGTON & BURLING LLP 1 Front Street

3

San Francisco, CA 94111-5356 Telephone: (415) 591-6000

4

Facsimile: (415) 591-6091 Tammy Albarran (Pro Hac Vice)

5

talbarran@cov.com Kevin Hickey (Pro Hac Vice)

6

khickey@cov.com Matthew Steilen (Pro Hac Vice)

7

msteilen@cov.com Lesli Gallagher (Pro Hac Vice)

8 lgallagher@cov.com

9

ACLU FOUNDATION OF ARIZONA 3707 N. 7th St., Ste. 235

10

Phoenix, AZ 85014 Telephone: (602) 650-1854

11

Facsimile: (602) 650-1376 Daniel Pochoda (021979)

12

dpochoda@acluaz.org Anne Lai (330036*)

13

alai@acluaz.org *Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

15

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street

16

San Francisco, California 94111 Telephone: (415) 343-0775

17

Facsimile: (415) 395-0950 Cecillia Wang (Pro Hac Vice)

18 cwang@aclu.org

19

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

20

634 South Spring Street, 11th Floor Los Angeles, California 90014

21

Telephone: (213) 629-2512 Facsimile: (213) 629-0266

22

Nancy Ramirez (Pro Hac Vice) nramirez@maldef.org

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 3 of 15

1

Defendants’ Opposition to Plai ntiffs’ Motion for Pa rtial Summary Judgment

2 (Dkt. No. 452) (“Defs.’ Opp’n”) fails to crea te any genuine dispute of fact precludi ng

3 summary judgment on Plaintiffs’ Fourteen th Amendment claims. The undispute d

4 evidence in Plaintiffs’ Motio n for Partial Summary Judgme nt (Dkt. No. 421) (“ Pls.’

5 MSJ”) shows that Sheriff Arpaio adopted a policy and practice of targeting Hispanics in

6 the MCSO’s immigration enforcement operations, and that this policy led to the

7 discriminatory treatment suffered by Plain tiffs. Defendants completely ignore the

8 undisputed, contemporaneous written evidence th at specific saturation patrol operations

9 were implemented by the MCSO (e.g., in Queen Creek, Mesa , and Sun City) as a direct

10 result of race-based requests for MCSO action. See Pls.’ MSJ at 20-24. This evidence,

11 among much else, shows a pattern of dis criminatory conduct t hat has injured the

12 Plaintiffs.

13

Instead of addressing Plaintiffs’ evidence, Defendants rely on their own post hoc,

14 generalized denials of racial animus. Suc h self-serving denials are insufficient to stave

15 off summary judgment in the face of undisputed wr itten and testimonial evidence

16 establishing the MC SO’s discriminatory purpose. See Villiarimo v. Al oha Island Air,

17 Inc., 281 F.3d 1054, 1061 (9t h Cir. 2002) (“[T]his court has refused to find a genui ne

18 issue where the only evidence presented is uncorroborated and self-serving testimony.”

19 (internal quotation an d citation omitted)); Kennedy v. Applause, Inc., 90 F.3d 1477,

20 1481 (9th Cir. 1996) (same); see also Zeigler v. Town of Kent , 258 F. S upp. 2d 49, 56

21 (D. Conn. 2003) (“It is the rare case, indeed, where a defendant would admit to having

22 acted with racial animus.”).

23

Further, Defendants are wrong t hat the M CSO’s statements and actions can be

24 justified by the demographics of illegal immigration in Arizona. The fact that a majority

25 of offenders may be of a particular race does not justify the targeting of an entire racial

26 group. United States v. Montero-C amargo, 208 F.3d 1122, 1135 (2000) (“[A]t this

27 point in our nation’s history . . . Hispanic appearance is . . . of such little probative value

28 that it may not be considered as a relevant [or appropriate] factor” in the enforcement of

- 1 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 4 of 15

1 immigration laws). The balance of Defendant s’ arguments merely attempt to distract 2 the Court from the undisputed evidence. Plaintiffs’ motion should be granted.1

3 I. 4

The MCSO’s Immigration Enforcement Operations Are Motivated By and Planned in Response to Explicit Calls for Targeting of Hispanics

5

Notwithstanding the denials of defense counsel and MCSO officers in this

6 litigation, the undisputed contemporaneous evidence of Sheriff Arpaio’s motivations for

7 his policy decisions establish that the MCS O acted with discriminatory intent. This

8 evidence includes the fact that Sheriff Arpaio’s initial decision to launch an immigration

9 “crackdown” and sat uration patrols was m ade in direct response to havi ng “heard t he

10 people speak” about their hos tility towards the Hispanic co mmunity. Pls.’ MSJ at 16-

11 18. This hostility was reflected in Sheri ff Arpaio’s own statements. Moreover,

12 Defendants ignore num erous specific a nd undisputed examples of the MCS O

13 conducting operations in response to explicit calls from Sher iff Arpaio’s constituents to

14 target Hispanic individuals. Sheriff Arpa io adopted these raci ally discriminatory

15 requests for action through his distribution of them to Chief Sands and Sheriff Arpaio’s

16 own annotations that they were “for our operation.” Pls.’ MSJ at 20-24. It is this

17 contemporaneous evidence, not the self-serving representations of Defendants, that is

18 decisive for any inqui ry about discriminatory intent. See Vill. of Arli ngton Heights v.

19 Metro. Housing Dev. Corp., 429 U.S. 252, 265- 66 (1977) (listing a non-exha ustive list

20 of factors courts m ay consider as evidence of discriminatory intent). Defendants thus

21 fail to raise any genuine factual dispute as to their intent.

22

23

1 In further support of Plaintiffs’ moti on, Plaintiffs submit their Responses to

Defendants’ Separate Statement of Additional Facts (“Pls.’ Resp. to Defs.’ SSOF”) and

24 Plaintiffs’ Reply t o Defendants’ Responses to Plaintiffs’ Separate Statement of Facts

(“Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF”), filed concurrently herewith. Plaintiffs

25 submit that this subm ission is necessary be cause the nearly 200-p age objections and

responses filed with Defendant s’ opposition [Dkt. No. 453] contain scores of meritless

26 evidentiary objections and artificial “disputes” of fact, and over a hundred new facts, that

serve only to confuse the record in this case. Plaintiffs therefore submit these materials

27 for the benefit of the court, should it wish to consider them, in order to clarify the factual

record. See BNSF Ry. Co. v. Coconino Land & Cattle LLC, 2010 WL 4929244 (D. Ariz.

28 2010) (allowing party to file reply statement of facts in court’s “broad discretion”).

- 2 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 5 of 15

A. Sheriff Arpaio’s Own Statements Express Racial Animus and

1

Establish His Discriminatory Intent

2

Defendants fail to dispute that Sheriff Arpaio’s decision to prioritize immigration

3 enforcement was motivated by hostility towards Hispanics. They do not even address

4 many of Sheriff Arpaio’s own public statements to that effect. See Pls.’ MSJ at 3-4, 18.

5

The only specific remark that Defendants address in any detail is Sheriff Arpaio’s

6 statement that Mexicans are “all dirty.” De fs.’ Opp’n at 15-16. D efendants argue that

7 this comment was “likely” taken out of context. Id. However, the full context only

8 serves to dem onstrate Sheriff Arpaio’s de humanizing view of M exican immigrants as

9 vessels for disease. See Pls.’ Rep. to Defs. SSOF 43. The original quote reads: “There’s

10 no control, no health checks or anything. They chec k fruits and vegetables, how come

11 they don’t check people? No one talks about that! They’re all dirty.” Pls.’ SOF 19. In

12 an attempt to justify this stigmatizing remark, Defendants make the sam e gross

13 characterizations about Mexica n individuals, pointing t o the ICE indicators of

14 immigration status, such as disheveled dress and punge nt body odor, that have nothi ng

15 to do with being Mexican or Hispanic. See, e.g., Defs.’ Opp’n at 16.

16

Moreover, Defendants fail to address the great majority of Sheriff Arpaio’s other

17 derogatory comments, such as his view that Mexican immigrants have failed to

18 assimilate, his characterization of illegal im migration from Mexico as an “epidemic,”

19 and his fear that Mexican im migrants are attempting to reconquer United States

20 territory. Pls.’ SOF 16, 18-20. Contrary to Defendants’ contention, these statements are

21 comparable to, if not even more stigmatizing than, the s tatements that have been found

22 to be expressions of racial bias by other courts. See Pls.’ MSJ at 18 (citing cases).

23

B. Defendants Ignore Undisputed Evidence That Discriminatory

24

Requests for Police Action Motivated MCSO Operations

25

Defendants admit that Sheriff Arpaio se nt racially-charged letters to his

26 command staff, and in particular to Chief Sa nds, who decides where, when, and how to

27 conduct saturation patrols. Defs.’ Opp’ n at 21. Defenda nts do not de ny that these

28 letters contain discrim inatory animus. Id. Instead, Defenda nts argue that Sheriff

- 3 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 6 of 15

1 Arpaio’s distribution and endorsement of th ese letters lacks significance because they

2 are just “another piece of intelligence” that Sheriff Arpaio wanted Chief Sands to “look

3 at.” Id. at 21-23. But Defendants ignore the fact that many of these letters contain no

4 evidence of any crime, see, e.g., Pls.’ SOF 81, 84, 88, 97; in ot her words, there was

5 nothing to look i nto. Further, Defendants fail to addres s Sheriff Arpaio’s handwritten

6 notes instructing Chief Sands to use these r acially-charged citizen complaints “for our 7 operations” (and notations to similar effect). See Pls.’ SOF 79, 85, 90, 93, 97.2

8

Defendants’ attempts to argue t hat other factors informed the MCSO’s decision

9 to conduct saturation patrols, Defs.’ Opp’n at 22, do not raise a triable fact issue. See

10 Pls.’ Resp. to Defs.’ SSOF 67-68. As Sheriff Arpaio has publicly stated, “I always have

11 an official reason, so I can win the lawsuits, and then I have my reason.” Pls.’ Resp. to

12 Defs.’ SSOF 44. The fact that the MCSO ma y have considered other factors does not

13 preclude a finding tha t MCSO’s saturation pa trols operations were racially motivated.

14 See Arlington Heights, 429 U.S. a t 265 (race need only be one “m otivating factor” not

15 “sole” factor in decision). Def endants’ evidence is simply insu fficient to rebut the

16 undisputed evidence—established through the MCSO’s own planning docum ents and

17 news releases—that MSCO sa turation patrol operations we re improperly initiated in

18 response to race-based requests for action, Pls .’ MSJ at 21-24, a nd that facially-neutral

19 traffic laws were discriminatorily applied during such operations, Pls.’ MSJ at 24-34.

20

Finally, Defendants overlook Pl aintiffs’ undisputed e vidence of a direct causal

21 connection between such comp laints and particular MC SO saturation patrols. See Pls.’

22

23

2 Although Defendants seek to downplay th eir significance, Sheriff Arpaio’s “thank

you notes” in response to these letters are al so highly probative of Arpai o’s intent.

24 These were not “pro forma” responses sent in response to any lette r received by S heriff

Arpaio. To the contr ary, many of these notes were highly personalized, expressing

25 agreement with specific remarks and in some cases affirmatively expressing an intent to

take action on the basis of the complaints. See, e.g., Pls.’ SOF 32, 40, 84, 93; Pls.’

26 Reply to Defs.’ Resp. to Pls.’ SOF 40. For example, in response to a letter affirming that

he had the right to “investigate people based on the color of their skin, or their accent or

27 the way they look,” Sheriff Ar paio thanked the writer fo r her support of his illegal

immigration policies and told her how much he enj oyed reading her story about her

28 Italian mother and the mother’s own endorsement of racial profiling. Pls.’ SOF 40.

- 4 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 7 of 15

1 MSJ at 20-24. Speci fically, Defendants fail to refute that: (1) the saturation patrol

2 occurring in Sun City on A ugust 13-14, 20 08 was conducted i n response to a request

3 that the MCSO “check out Su n City” because pe ople were speaking Spanish at a local

4 McDonald’s, which Sheriff Arpaio forwarded to Chief Sands with the notation “for our

5 operation”; (2) two saturation patrols in Mesa during the summer of 2008 were a direct

6 result of letters sent by Sheriff Arpaio to Ch ief Sands as “intelligence” stating that “the

7 head of M esa’s police uni on is a Hispan ic” and suggesting t hat the MCS O should

8 “determine whether these day laborers are he re [legally]”, to which Sheriff Arpaio

9 responded, “I will be going int o Mesa”; and (3) the saturation patrol occurring on

10 October 3, 2007 in Queen Creek was conducted in response to “emails from the town

11 council in reference to day laborers,” in cluding one com plaining of His panic men

12 “being silly” and making people in the town feel “uncomfortable,” a race-based

13 complaint that Sheriff Arpaio thought should be “look[ed] in to.” Pls.’ MSJ at 22-23.

14 Even the MCSO’s own News Release confirmed that th e Queen Creek saturation patrol

15 was based on the very same “citizen com plaints regarding day laborers.” Pls.’ SOF 53 16 (citing Hickey Dec. Ex. 10).3

17

As Deputy Chief Sands ha s explained, the MCSO views it as politically

18 beneficial for the MCSO to respond to citiz en complaints by carrying out immigration

19 operations. See Pls.’ SOF 100 (citing Sands Dep. II 122: 21-123:18). The uncontested

20 written evidence makes clear that the MCSO did precisely that . This reliance on

21

22

3 Notably, the MCSO News Release for the Queen Creek satu ration patrol that

describes the operation as being responsive to email complaints also refers to the Cave

23 Creek saturation patrol (during which Mr. Ortega Melendres was stopped) as part of the

same effort. See Pls.’ SOF 53 (citing Hickey Dec. Ex. 10) (“The Queen Creek operation

24 comes on the heels of Sheriff Arpaio’s enforcement efforts in . . . Cave Creek where day

laborers sought sanctuary at the Good Shephe rd of Hills church.”) These same racial

25 considerations thus underlie the Cave Creek operation as well. See Defs.’ Resp. to Pls.’

SOF 176 (noting that the operation was based on citizen complaints about day laborers).

26 Contrary to Defendants’ claim, Defs.’ Opp’n at 24-25, the MCSO did not reserve official

action for instances when its own investigation confirme d that there was criminal

27 activity. The MCSO’s follow- up undercover investigation i n Cave Creek revealed no

information pertaining to human smuggling, drop h ouses, or even illegal immigration,

28 Pls.’ SOF 173, and yet it went ahead with the operation anyway.

- 5 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 8 of 15

1 racially-biased citizen complaints vi olated the Fourteenth Amendment. Smith v. Town

2 of Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982); United States v. Yonkers Bd. of Educ.,

3 837 F.2d 1181, 1224 -25 (2d Cir. 1987); Cmty. Hous. Trust v. Dep’t of C onsumer &

4 Regulatory Affairs, 257 F. S upp. 2d 208, 227 (D.D.C. 2003) ( decision “tainted with

5 discriminatory intent” due to reliance on discriminatory citizen complaints).

6

It is neither surprising no r informative that Sheriff Arpaio and Deputy Chief

7 Sands would, in testim ony provided in this litigation, de ny that they considered race in

8 the planning and execution of saturation patrols. See Smith, 682 F. 2d at 106 4

9 (“Municipal officials acting in their official capacities seldom, if ever, announce on the

10 record that they are pursuing a particular course of a ction because of their desire to

11 discriminate against a racial minority.”). What matters is what Sheriff Arpaio and other

12 MCSO personnel wrote and intended at the tim e of the saturation patrols. The written

13 record indicates, without dispute, that th e MCSO endorsed and acted on t he remarks

14 from Sheriff Arpaio’s constituents, and used them in the MCSO’s operations. On this

15 point, it is more revealing that Sheriff Arpa io admitted that he wo uld not personally be

16 “bothered” if he were racially profiled. Pls.’ SOF 166.

17 II. 18

The Defendants’ Policy of Targeting Hispanics in Immigration Enforcement Operations, Including Saturation Patrols, Directly Harmed the Plaintiffs4

19

Instead of pointing to any dispute of fact, Defendants respond to Plaintiffs’

20 evidence of discrim ination by disparagin g it as occurring at an “amorphous macro

21 level.” Defs.’ Opp’n at 3-5. In fact, Plaint iffs have demonstrated that they have bee n

22 directly harmed by t he MCSO’s specific pol icies and practices. If MCSO leadership

23 institutes a policy and practice of intentiona lly discriminating in the enforcement o f

24 immigration law, and Plaintiffs are subject to selective enforcemen t pursuant to this

25 policy and practice, then Plaintiffs ha ve suffered a cons titutional injury. See, e.g., Doe

26

4 For all the reasons stated in Plaintiffs’ opposition, Plaintiffs have standing. Pls.’

Opp’n at 5-11. Defendants contention that the declaration of Aldolfo Maldonado should

27 be stricken is without merit. Defs.’ Repl y at 5 n.1 [Dkt. N o. 465]. Plaintiff Som os

America’s representative, Lydia Guzman, id entified Mr. Maldonado as a memb er that

28 had been stopped by the MCSO in her deposition. See Pls.’ Resp. to Defs.’ SOF 152.

- 6 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 9 of 15

1 v. Vill. of Mamar oneck, 462 F. Supp. 2d 520, 546- 49 (S.D.N.Y. 2006) (finding that

2 discriminatory intent as to plaintiffs established by stat ements and policies of political

3 leadership and the police department).

4

The MCSO’s discriminatory practices injured each named Plaintiff. Mr. Ortega

5 Melendres was stopped, questioned, searched, and arrested during a saturation patrol at

6 a Cave Creek churc h that focused on da y laborers. Pls.’ MSJ 8-9. That operation was

7 conducted despite a prior wr itten finding that there was “no information discovered

8 pertaining to forced labor, human smuggling or possible ‘drop-houses.’” See Pls.’ SOF

9 173. The operation was initiated based on citizen complaints, many of which are 10 racially charged,5 and explicitly involved pretextual traffic stops of vehicles carrying

11 Hispanic men who appeared to be day labore rs. Pls.’ MSJ at 8-9, 26. Like wise, Mr.

12 Rodriguez was asked for his Social Secu rity information—even though similarly

13 situated non-Hispanic drivers were not—p ursuant to the MCSO’s practice of making

14 unreasonable requests for docum entation based on race. Pls.’ MSJ at 9, 27; Pls.’ Resp.

15 to Defs.’ SOF 134. Finally, Mr. Nieto and Ms. Mer az were detained at gunpoint during

16 a saturation patrol in order to che ck Mr. Nieto’s identification and confirm that he and

17 Ms. Meraz were U.S. citizens. See Pls.’ MSJ 9, 27; Pls.’ SS OF 267. Thus, the MCSO

18 injured each Plaintiff purs uant to the MCSO’s discriminatory effo rts to enforce the

19 immigration laws. See Pls.’ M SJ at 5-6, 26-27 (describing the practice o f initiating

20 pretextual traffic stops for minor traffic viol ations to screen motorists for immigration

21 violations and ask passengers for identification); Pls.’ MSJ at 15- 24 (the MCS O’s

22 immigration enforcement operations initiated and conducted based on race).

23

Moreover, the evidence shows that the individual deputies who stopped Plaintiffs

24 acted with discriminatory intent. Pls.’ Op p’n at 28- 34. The r ace of Plai ntiffs was

25 visually apparent (at som e point during the interaction) to the MCSO officers who

26 5 Although the Cave C reek operation was based on citizen complaints, see Defs.’
27 Resp. to Pls.’ SOF 176, no written complaints have been produced to Plaintiffs regarding this operation. If written complaints did exist, they were likely destroyed by Defendants.
28 See Pls.’ Renewed Mot. for Sanctions 7-10.

- 7 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 10 of 15

1 interacted with the named Plaintiffs and made the decisions to extend those interactions:

2 Deputies DiPietro, Rangel, Ratcliffe, Armenda riz, Kikes and Beeks. Pls.’ Resp. to

3 Defs.’ SSOF at 3-4, 10, 16-19. The record also shows that some of the HSU supervisors

4 and officers involved in Plaintiffs’ stops circulated ex tremely inappropriate racially

5 charged emails making fun of Mexicans. Pls.’ SOF 147-49 (discussing racially-charged

6 jokes distributed by MCS O officers, incl uding “Mexican 300” vide o circulated by 7 Deputy Rangel and “Mexican Yoga” em ail circulated by Ser geant Palmer).6 This is

8 further evidence of their intent.

9 III. Reliable Statistical Evidence Demonstrates the Discriminatory Impact of the MCSO’s Policies on Plaintiffs and other Hispanics in Maricopa County
10

11

Defendants attack the releva nce and reliability of the de tailed statistical analysis

12 of MCSO traffic stop patterns as laid out by Plaintiffs’ expert Dr. Ralph Tayl or.

13 Defendants largely fail to identity any s pecific issues with Dr. Taylor’s report, and

14 instead quote technical statistic al terms out of context. Defs.’ Opp’n at 32-33. These

15 attempts to diminish Dr. Tayl or’s study are m isleading. See Pls.’ Opp’n at 27-28 n.14.

16 As Plaintiffs have already explained, Dr. Ta ylor’s analysis demonstrates discriminatory

17 effect and is also probative of discrim inatory intent. Pls.’ MSJ at 31 -34. As such, it is 18 directly relevant to Plaintiffs’ claims. See Pls.’ Opp’n at 23-27. 7

19

6 The circulation of these em ails for years while this la wsuit was ongoing is a very serious matter and demonstrates MCSO’s tolerance of these attitudes within its agency.

20

Pls.’ MSJ 8, 30-31. Defendants’ decision to address it only in a brief footnote is further evidence of their cav alier approach to officer oversight. Contr ary to Defenda nts’

21

contention, such inci dents were far from “isolated”; Plaintiffs presented dozens of examples in their statements of fact. See, e.g., Pls.’ SOF 145-151. In response,

22

Defendants countered with only a single instance of HSU Lieutenant Sousa objecting to such email from posse members, not MCSO officers. See Pls.’ Resp. to Defs.’ SSOF 95.

23

7 Defendants citation to Lacy v. Villenueve , 2005 U.S. Dist. LEXIS 31638 (W.D.

Wash. 2005) and Giron v. City of Alexandria , 693 F. Supp. 2d 904 (E.D. Ark. 2010)

24 undermines their own argument as these courts accepted statistical evidence as proof of

discriminatory effect. Similarly , although the court in United States v. Hernandez-

25 Bustos, 2005 U.S. Dist. LEXIS 16311 (D. Kan. 2005) did exclude a racial profilin g

study as unreliable, it did s o for a number of reasons inapplicable to this case (e.g., the

26 study looked at stops in a different county than the one at issue). Id. at *19. Indeed,

Defendants make no effort to expl ain why any of the concerns in Hernandez-Bustos

27 actually apply to Dr. Tayl or’s study. Statis tical evidence such a s Dr. Taylor’s study is

widely accepted as relevant and adm issible evidence tending to show a pattern of

28 discrimination. See, e.g., Obrey v. Johnson, 400 F.3d 691, 696-97 (9th Cir. 2005).

- 8 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 11 of 15

1

Defendants raise four specific concerns about Dr. Taylor’s study, none of w hich

2 have any merit. Defs.’ O pp’n at 32-33. First, Defendants claim that Dr. Taylor should

3 have ignored traffic stops wi th “a hum an smuggling interdiction component.”

4 Defendants do not explain why Dr. Taylor should have excl uded such incidents, nor

5 why such an excl usion would make any sens e in a case concerned with the MCSO’s

6 discriminatory enforcement of i mmigration laws. I n any e vent, human smuggling

7 arrests were a small part of saturation patrols. See Pls.’ SOF 61-73. Second, contrary to

8 Defendants’ claim, Dr. Taylor did not “fail[] to exclude dup licate records”; in fact, Dr.

9 Taylor specifically excluded duplicate records. See Taylor Rebuttal Report at 4-5, 11-13

10 (Dkt. No. 424, Ex. C). Third, Dr. Taylor properly excluded MCSO incidents that were

11 not described as “traffic stops” or “traffic violations” because these incidents (e.g., “tow

12 truck request,” “vehicle accident w/injuri es,” “injured/sick per son” “reckless boat

13 driving”) involve non-discretionary police calls unrelated to the types of routine traffic

14 stops at issue in this case. See Taylor Rebuttal Report at 10- 11. Fourth, Defendants

15 fault Dr. Taylor for not incl uding socioeconomic variables in hi s model, failing to

16 mention that (1) Defe ndants’ own expert di d not i nclude such variables and (2) the

17 existing data shows that socioeconom ic variables would not have affected Dr. Tayl or’s

18 findings about the relative stop rates of Hispanics. See Taylor Rebuttal Report at 36-37.

19 IV. The MCSO’s Immigration Enforcement Operations Are Not Race-Neutral

20

Finally, Defendants spend much of their opposition insisting that their statements

21 and actions can be explained by the demographic realities of illegal immigration. Defs.’

22 Opp’n at 9-16. While it indeed is possible to have an immigration enforcement program

23 that is racially neutral, and many law enforcem ent agencies do, that is not the case here.

24 As discussed at length, the undisputed written evidence shows that Defendants’

25 decision-making on imm igration enforcement was improperly motivated by

26 considerations of race and ethnicity.

27

Defense counsel contends that the MC SO’s disproportionate targeting of

28

- 9 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 12 of 15

1 Hispanics in the agency ’s immigration enforcement efforts is justified by the fact that a

2 majority of illegal immigrants in Arizon a are Hispanic. Defs.’ Opp’n at 12-15.

3 However, Plaintiffs have established that Defendants are not stopping a disproportionate

4 number of Hispanics based on r ace-neutral indicators of unlawful imm igration status, 5 such as observing them at border crossings 8 or finding im migrants in a hum an 6 smuggling load.9 See Pls.’ MSJ at 20 (immigration st atus not usually observable), 33

7 (explaining how m any Hispanics seized on saturation patrols were not illegal

8 immigrants). The only explanation for the high number of His panics stopped on

9 saturation patrols that is supported by the re cord is that Hispanics are purposefully

10 targeted for stops and investigations based on “what they look like.” Pls.’ SOF 11.

11

Defense counsel presents theories about his clients’ motivations, but fails to offer

12 proof that these were in fact their motivations. For example, counsel argues that Sheriff

13 Arpaio’s selection of immigration enforcement as a priority for the agency was based on

14 “escalating drug and human trafficking crime, and serious public safety concerns.”

15 Unlike Plaintiffs, who cite re cord evidence that the MCSO was motivated by racial

16 animus and stereotypes, defense counsel ci tes no contemporaneous evidence to support

17 the notion that Defendants were motivated by public safety concerns. Defs.’ Opp’n at 9-

18 10 (citing to the brief of an e ntirely different government official in a different lawsuit).

19 In addition, if the MCSO’s immigration enforcement activities were in fact motivated by

20

21

8 Defendants’ discussion about unla wful entry into the United States being a criminal offense, Defs.’ Opp’n at 11, is irre levant as MCSO does not even purport to be

22

enforcing the federal criminal il legal entry law, but rather the civil violation of bei ng present in the U nited States without au thorization. The Suprem e Court has never held

23

that local law enforcement officers have authority, in the absence of a 287(g) agreement, to enforce the civil violations of the im migration law. Defendants m iscite Muehler v.

24

Mena, 544 U.S. 93, 96, 101 (2005), which involved questioning during a joint operation by local police and federal immigration aut horities. As Defendants acknowledge, local

25

law enforcement office rs decidedly do not have such authority in the Nint h Circuit. United States v. Arizona, __ F.3d __, 2011 WL 1346945, at *17 (9th Cir. Apr. 11, 2011).

26

9 While Defendants make liberal reference to the interdiction of human smuggling

on saturation patrols, the reality is that the operations netted almost no arrests under the

27 state human smuggling statute and were not designed to do so. See Pls.’ SOF 61- 73.

This is not surprising. MCSO saturation patrols took place in urban areas of Maricopa

28 County, such as downtown Phoenix or Mesa, rather than on known smuggling corridors.

- 10 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 13 of 15

1 public safety concerns, one would expect the MCSO’s program to be closely tailored to

2 the detection of illegal immigrants who are committing violent crimes or other criminal

3 acts. Instead, the vast m ajority of those stopped and arrested on saturation patrols are

4 not involved in any kind of smuggling activity or violent criminal activity whatsoever.

5 See Pls.’ MSJ at 24-28 ( describing the unus ual design of M CSO’s saturation patr ol

6 operations); Pls.’ SOF 61-73 (detailing arrests on saturation patrols). Indeed, the MCSO

7 distinguishes its program from that of other Arizona law enforcement agencies, in that

8 the MCSO “go[es] after illegals, not the crime first.” Pls.’ SOF 8.

9

Defendants also arg ue that they only target H ispanics for immigration

10 investigations after a stop is initiated. Defs .’ Opp’n at 15-16. First, the evidence shows

11 that Defendants are disproportionately stopping Hispanics. See Pls.’ MSJ at 31-34.

12 Second, contrary to Defendants’ contention, racial profiling that only commences after a

13 stop is made is no more permissible than making an initial stop based on race.

14 Notwithstanding how ICE may train its ag ents, racial profiling i n immigration

15 enforcement is unlawful in the Ninth Circuit. Montero-Camargo, 208 F.3d at 113416 36.10 While it may be the case that a majority of illegal immigrants in Maricopa County

17 are Hispanic, it does not follow that a majority of Hispanics are illegal immigrants. (In

18 fact, this is not the case. See Pls.’ Resp. to Defs.’ SSOF 30.) Sheriff Arpaio’s insistence

19 on equating Hispanic-appearing individuals to illegal immigr ants only demonstrates the

20 race-conscious nature of his agency’s program.

21

Plaintiffs fully agree that one can oppose illegal immigr ation without have racial

22 or ethnic animus. Defs.’ Opp’n at 15. Ho wever, the Constitution prohibits generalized

23 law enforcement activity based on race, and that is what the MCSO is engaging in here.

24 10 Defendants’ citation to an unpublished 5th Circuit opinion for the contrary
25 proposition is telling. Regardless of whether r ace may be considered as a factor in “the poultry-producing region of Scott County, Mississippi,” see United States v. Vandyck-
26 Aleman, 2006 U.S. A pp. LEXIS 24245 at *9 ( 5th Cir. 2006), the Ninth Circuit law is clear that race may not be considered in areas, like Maricopa County, where a substantial
27 part of the resident population is both Hispanic and legally present. Montero-Camargo, 208 F.3d at 1134-36. It is not clear why Defendants would even cite to Vandyck-Aleman
28 unless the MCSO is, in fact, relying on Hispanic appearance.

- 11 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 14 of 15

1

RESPECTFULLY SUBMITTED this 23rd day of June, 2011.

2

By /s/ Stanley Young

Stanley Young (Pro Hac Vice)

3

Andrew C. Byrnes (Pro Hac Vice)

COVINGTON & BURLING LLP

4

333 Twin Dolphin Drive

Suite 700

5

Redwood Shores, CA 94065-1418

6

Tammy Albarran (Pro Hac Vice)

Lesli Gallagher (Pro Hac Vice)

7

Kevin J. Hickey (Pro Hac Vice)

Matthew Steilen (Pro Hac Vice)

8

1 Front Street

San Francisco, CA 94111-5356 9

ACLU FOUNDATION OF ARIZONA

10

Daniel Pochoda

Annie Lai

11

3707 N. 7th St., Ste. 235

Phoenix, Arizona 85014

12

Telephone: (602) 650-1854

Facsimile: (602) 650-1376 13

ACLU FOUNDATION

14

IMMIGRANTS’ RIGHTS PROJECT

Cecillia Wang

15

39 Drumm Street

San Francisco, California 94111

16

Telephone: (415) 343-0775

Facsimile: (415) 395-0950 17

MEXICAN AMERICAN LEGAL

18

DEFENSE & EDUCATIONAL FUND

Nancy Ramirez

19

634 South Spring Street, 11th Floor

Los Angeles, California 90014

20

Telephone: (213) 629-2512 x136

Facsimile: (213) 629-0266

21

Attorneys for Plaintiffs

22

23

24

25

26

27

28

- 12 -

Case 2:07-cv-02513-GMS Document 466 Filed 06/23/11 Page 15 of 15

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 23rd da y of June, 2011 I caused the attached

3 document to be electronically transmitted to the Clerk’s Office using the CM/ECF

4 System for filing and transm ittal of a Notice of Electroni c Filing to the following

5 CM/ECF Registrants:

6

Thomas P. Liddy

7

liddyt@mcao.maricopa.gov

8

Maria R. Brandon

brandon@mcao.maricopa.gov 9

Timothy P. Casey

10

timcasey@azbarristers.com’

11

Attorneys for Defendant Sheriff Joseph Arpaio and the

Maricopa County Sherriff’s Office

12

13

/s/ Stanley Young

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 13 -

 </s> Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 1 of 276

1 COVINGTON & BURLING LLP 333 Twin Dolphin Drive
2 Suite 700 Redwood Shores, CA 94065-1418
3 Telephone: (650) 632-4700 Facsimile: (650) 632-4800
4
Stanley Young (Pro Hac Vice) 5 syoung@cov.com
Andrew C. Byrnes (Pro Hac Vice) 6 abyrnes@cov.com

7 Attorneys for Plaintiffs (Additional attorneys for Plaintiffs listed on next page)
8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11

12

Manuel de Jesus Ortega Melendres, et al.,

13

Plaintiffs,

14

vs.

15 Joseph M. Arpaio, et al.,

16

Defendants.

17

18

19

20

) No. CV 07-2513-PHX-GMS ) ) PLAINTIFFS’ RESPONSES TO ) DEFENDANTS’ SUPPLEMENTAL ) STATEMENT OF FACTS AND ) REPLY TO DEFENDANTS’ ) RESPONSES AND OBJECTIONS ) TO PLAINTIFFS’ SEPARATE ) STATEMENT OF FACTS IN ) SUPPORT OF PLAINTIFFS’ ) MOTION FOR PARTIAL ) SUMMARY JUDGMENT ) ) ) (The Honorable Judge G. Murray Snow) )

21

22

23

24

25

26

27

28

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 2 of 276
1 Additional Attorneys for Plaintiffs:
2
COVINGTON & BURLING LLP 3 1 Front Street
San Francisco, CA 94111-5356 4 Telephone: (415) 591-6000
Facsimile: (415) 591-6091 5 Kevin Hickey (Pro Hac Vice)
khickey@cov.com 6 Matthew Steilen (Pro Hac Vice)
msteilen@cov.com 7 Lesli Gallagher (Pro Hac Vice)
lgallagher@cov.com
8
ACLU FOUNDATION OF ARIZONA 9 3707 N. 7th St., Ste. 235
Phoenix, AZ 85014 10 Telephone: (602) 650-1854
Facsimile: (602) 650-1376 11 Daniel Pochoda (021979)
dpochoda@acluaz.org 12 Anne Lai (330036*)
alai@acluaz.org 13 *Admitted pursuant to Ariz. Sup. Ct. R. 38(f) 14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT 15 39 Drumm Street
San Francisco, California 94111 16 Telephone: (415) 343-0775
Facsimile: (415) 395-0950 17 Cecillia Wang (Pro Hac Vice)
cwang@aclu.org
18
MEXICAN AMERICAN LEGAL DEFENSE 19 AND EDUCATIONAL FUND
634 South Spring Street, 11th Floor 20 Los Angeles, California 90014
Telephone: (213) 629-2512 21 Facsimile: (213) 629-0266
Nancy Ramirez (Pro Hac Vice) 22 nramirez@maldef.org
23 24 25 26 27 28
2

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 3 of 276

1

In opposing Plaintiffs’ m otion for partial summary judgment, Defendants Sheriff

2 Arpaio and the Maricopa County Sheri

ff’s Office (“MCSO”) (collectively,

3 “Defendants”) submitted responses to Plainti ffs’ Separate Statement of Facts in Support

4 of Plaintiffs’ Partial Motion for Summary Judgment, Dkt. No. 422 (A pril 29, 2011)

5 (“Pls.’ SOF”) as well as Defendants’ Separa te Statement of Additional Facts (“Defs.’

6 SSOF”). See Defs.’ Resp. to Pls.’ Statement of Fact s in Support of Pls.’ Mot. for Partial

7 Summ. J. and Controverting Statem ent of Facts, including, at pp. 144-172, Defendants’

8 Local Rule 56.1(b)(2) Separate Statement of Additional Facts (“Defs.’ SSOF”), Dkt. No.

9 453.

10

Defendants’ Separate Statement of Additional Facts introduces over one hundred

11 new facts. Defenda nts’ “disputes” regarding the facts contai ned in Plaintiffs’ Separat e

12 Statement of Facts, in large part, fail to di rectly address the actu al fact asserted by

13 Plaintiffs, attempt to conf use the undisput ed facts in this case, and consist largely of 14 unnecessary and meritless boilerplate objections.1 In no case do De fendants’ additional

15 facts or responses create a genuine, material di spute of fact. Plaintiffs therefore submit

16 these Responses to Defendants' Separate Statement of Add itional Facts (Pls.’ Resp. to

17 Defs.’ SSOF”) and Reply to Defendants' Responses to P laintiffs' Separate Statement of

18 Facts in Support of Plainti ffs' Motion for Summary Judgment (“Pls.’ Reply to Defs.’

19 Resp. to Pls.’ SOF”) for the bene fit of the Court, should it wi sh to consider them, and in

20 attempt to clarify the factual record. See BNSF Ry. Co. v. Coco nino Land and Cattle

21 LLC, 2010 WL 4929244, at *1-*2 (D. Ariz. 2010) (allowing party to file reply to

22 statement of facts in court’s discretion).

23

24

25

1 To the extent that Defendants’ boilerplate objections fail to identify the specific portions of the record they seek to challenge, they should be disregarded. Courts

26

“cannot and should not be expected to go through the [evidence] ‘with a fine-tooth comb’ and pick out the ‘certain portions’ which defendants (from their viewpoint) feel

27

should be stricken.” Ernst Seidelman Corp. v. Mollison, 10 F.R.D. 426, 428 (S.D. Ohio 1950).

28 3

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 4 of 276

1

By not disputing a statement of fact, Plain tiffs do not waive any objections to the

2 admissibility or authenticity of that statement of fact or any document cited therein, and

3 Plaintiffs expressly reserve the right to m ake such objections at trial. Plaintiffs’

4 responses here are made only for the purposes of the Court’s consideration of Plaintiffs’’

5 Motion for Partial Summary Judgment.

6 I. 7
8

PLAINTIFFS’ RESPONSES AND OBJECTIONS TO DEFENDANTS’ LOCAL RULE 56.1(B)(2) SEPARATE STATEMENT OF ADDITIONAL FACTS IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

9 No. Defendants’ SSOF

Plaintiff’s Response

10 1
11 12 13 14
15 2
16 17
3
18 19 20 21 22

Plaintiffs’ Fourteenth Amendment claim asserts that each of the named Plaintiffs during the operation of a motor vehicle on a public roadway in Maricopa County was stopped, detained, questioned, and/or searched by MCSO deputies allegedly in violation of their Fourteenth Amendment rights to equal protection. See Defendants’ Statement of Facts (Dkt#4131) at ¶¶ 1-2. MCSO Deputy Louis DiPietro stopped the truck in which Plaintiff Melendres was a passenger. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 16-17. Before Deputy Louis DiPietro found probable cause to stop the truck in which Mr. Melendres was a passenger, he did not know or see the race of the truck’s driver or the race of the passengers in the truck. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 125.

This statement simply provides “background about the action or the parties” and therefore does no properly belong in Defendants’ separate statement of additional facts. L.R. Civ. 56.1(a). The Plaintiffs’ First Amended Complaint speaks for itself. Undisputed.
Disputed. See Pls. Resp. to Defs.’ SOF2 125. Deputy DiPietro suspected that the vehicle contained day laborers and that the occupants were thus Hispanic. See Pls.’ SOF3 112-118, 171-180 (Dkt. No. 422). Further, the undercover unit that called out the description of the truck so that Deputy DiPietro could follow it clearly observed the appearance of

23

24

2 Pls.’ Resp. and Objections to Defs.’ Statements of Fact [] in Opp’n to Defs.’ Mot. for Summ. J., Dkt. No. 456 (hereinafter “Pls.’ Resp. to Defs.’ SOF”).

25 3 Separate Statements of Fact in Support of Pls.’ Mot. for Partial Summ. J., Dkt. No. 422 (hereinafter “Pls.’ SOF”).
26 4 Dec. of Kevin Hickey in Support of Pls.’ Mot. for Partial Summ. J., Dkt. No. 426 27 (hereinafter “Hickey Dec.”).

28 4

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 5 of 276

1 No. Defendants’ SSOF
2 3 4 5

Plaintiff’s Response the passengers who got in the truck, DiPietro Dep. 51:9-52:16 [Hickey Dec. Ex.4 44], and Deputy DiPietro had observed their race by the time he called for others to come investigate their immigration status. Id. at 54:24-55:11 [Hickey Dec. Ex. 44].

6 4
7 8 9 10 11 12 13 14 15
5
16 17 18 19 20 21 22 23 24 25

Race was not a factor in Deputy Louis DiPietro’s finding that he had probable cause to stop the truck. Deputy DiPietro testified: Q. Did race of either the driver or the
passengers of the truck play any role in your decision to find probable cause to stop this truck? A. No. Q. Do you ever use race to stop vehicles? A. No, I don't. Q. Do you ever use race to find probable cause for traffic stops? A. No. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 126. Plaintiff Manuel Melendres does not have an opinion on whether he was racially profiled: Q. You also claim in your lawsuit that you have suffered unlawful discrimination. Do you believe that the deputies that you encountered on September 26, 2007, were intentionally trying to deprive you of your constitutional rights? A. I cannot say that. I can't be -- tell you for sure. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 128.

Disputed. See Pls.’ Resp. to Defs.’ SOF 126. Deputy DiPietro suspected that the vehicle contained day laborers and that the occupants were thus Hispanic. See DiPietro Dep. 51:9-52:16 [Hickey Dec. Ex. 44], Pls.’ SOF at 112-118, 171-180. Deputy DiPietro was instructed to stop the vehicle carrying Ortega Melendres by officers who did not have any information about Ortega Melendres other than what was visually discernible, including his race. See Pls.’ SOF 173-76. The officers believed on this basis that Ortega Melendres was a day laborer and an illegal immigrant. See DSOiPFi5etErox.D4e]p. . 47:6-48:14. [Defs.’ Disputed. See Pls.’ Resp. to Defs.’ SOF 128. Mr. Ortega Melendres was asked whether officers “were intentionally trying” to deprive him of his rights, not whether he had been racially profiled. Mr. Ortega Melendres is not a legal expert, and his uncertainty says nothing about whether he was racially profiled. Plaintiffs have presented evidence that Mr. Ortega Melendres was discriminated against, including that there was no lawful reason for Deputy DiPietro to call other officers to the scene to investigate the Hispanic passengers’ immigration status, and the fact that the Caucasian driver was not cited or questioned. Pls.’ SOF 178, 181, 184.

26 5 Defs.’ Statement of Facts in Support of Their Mot. for Summ. J., Dkt. No. 413, and 27 exhibits thereto (hereinafter “Defs.’ SOF Ex.”)

28 5

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 6 of 276

1 No. Defendants’ SSOF

6 Defense police practices expert Bennie

2

Click opines that “[t]here is no evidence

that Deputy DiPietro knew the race or

3

ethnicity of the vehicle’s occupants prior

to the truck stopping or that race or

4

ethnicity played any role in Deputy

DiPietro’s actions.” See Defendants’

5

Statement of Facts (Dkt#413-1) at ¶ 129.

6

7

8

9

10

11

12

13

14

Plaintiff’s Response Disputed. See Pls.’ Resp. to Defs.’ SOF 129. Plaintiffs have presented evidence that the undercover unit that called out the description of the truck to Deputy DiPietro observed the passengers getting in the truck (and thus their appearance), DiPietro Dep. II 51:9-52:16 [Hickey Dec. Ex. 44], that Deputy DiPietro suspected that the vehicle contained day laborers and that the occupants were thus Hispanic, see Pls.’ SOF at 112-118, 171-180, and that Deputy DiPietro could observe their race by the time he called for others to come investigate their immigration status. DiPietro Dep. II 54:24-55:11 [Hickey Dec. Ex. 44]. Plaintiffs have also presented evidence that there was no lawful reason for Deputy DiPietro to call other officers to the scene to investigate the Hispanic passengers’ immigration status, Pls.’ SOF 181, 184, and the fact that the Caucasian driver was not cited or questioned. Pls.’ SOF 178.

15 7
16 17 18 19 20 21 22 23 24 25

Plaintiffs’ police practices/racial profiling expert Robert Stewart testified that he lacks any factual basis to support a conclusion that Deputy DiPietro acted with racially discriminatory intent or motive in stopping the Melendres truck: Q. Do you believe that Louis DiPietro had
discriminatory intent or motivation as to race in stopping the truck in which Mr. Melendres was a passenger? A. I don’t know. Q. Is it your opinion that Deputy DiPietro had a racially discriminatory intent or motivation in stopping the truck in which Mr. Melendres was a passenger? A. I don’t know. Q. Is there any evidence that Deputy DiPietro knew the race of the driver of

Undisputed that Mr. Stewart testified as recited. However, this statement is immaterial. See Pls.’ Resp. to Defs.’ SOF 131. Plaintiffs have offered evidence that Deputy DiPietro suspected the vehicle contained day laborers and that the occupants were thus Hispanic. See Pls.’ SOF 112-118, 171-180. Mr. Stewart also explained that the conduct directed toward Mr. Ortega Melendres seemed to be racially motivated because deputies believed that “if you are Mexican and you’re a day laborer, then you must be here illegally,” and the MCSO operates and designs activities and carries out functions on that basis. Stewart Dep. 159:25-161:12 [Hickey Opp’n Dec.6 Ex. 233].

26 6 Dec. of Kevin Hickey in Support of Pls.’ Opp’n to Defs.’ Mot for Summ. J, Dkt No. 458 27 (hereinafter “Hickey Opp’n Dec.”).

28 6

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 7 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

the truck before stopping it?

Mr. Stewart also compared the

2 3

A. I don’t know whether that information was given to him by the observer.

treatment of Mr. Ortega Melendres with that of the Caucasian driver, who was not cited or questioned.

Q. Is there any evidence that Deputy

Stewart Dep. 110:24-112:10 [Hickey

4

DiPietro knew the race of any

Opp’n Dec. Ex. 233].

occupants in the truck before stopping

5

it?

6

A. I don’t recall whether that information was given by the observer either.

7

Q. Is there any evidence that Deputy

DiPietro used race as a factor in any

8

form to decide to stop the truck?

9

A. No, sir.

Q. Is there any evidence that Deputy

10

DiPietro knowingly harbored explicit

bias towards specific groups of

11

people?

12

A. Not that I know of.

Q. Is there any evidence that Deputy

13

DiPietro had unconscious bias toward

certain group of people?

14

A. We don’t know.

15
16 8
17 18 19 20 21
9
22 23

See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 131). Deputy DiPietro made the traffic stop involving Mr. Melendres based on raceneutral probable cause. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 17, 107-109).
MCSO Deputy Matthew Ratcliffe made the traffic stop of the Rodriguez Plaintiffs. See Defendants’ Statement of Facts (Dkt#413-1) at ¶¶ 44-45.

Disputed. See Pls.’ Resp. to Defs.’ SOF 107-109 (Mr. Ortega Melendres does not believe the truck was speeding); see also Pls.’ SOF 172-74 (purpose of saturation patrol leading to stop was to look for illegal immigration among day laborers); 178-179 (Caucasian driver treated differently than Mr. Ortega Melendres and Hispanic passengers). Undisputed.

24

10

Before making the decision to conduct the Undisputed that Deputy Ratcliffe so traffic stop of the Rodriguez’ truck, and to testified, but immaterial. See Pls.’

25

issue a citation to the truck’s driver,

Resp. to Defs.’ SOF 132. Plaintiffs’

Deputy Ratcliffe did not see the race of the Fourteenth Amendment claim does

26

truck’s driver or of any occupants of the not depend on Deputy Ratcliffe truck. See Defendants’ Statement of Facts having observed the race of the

27

(Dkt#413-1) at ¶ 132.

driver or occupants before he stopped them. Deputy Ratcliffe did see the

28

race of the Rodriguezes before he

7

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 8 of 276

1 No. Defendants’ SSOF
2 3 4

Plaintiff’s Response made the decision to treat them differently from the other nonHispanic motorists and prolong the stop to obtain Mr. Rodriguez’s Security number. See Pls.’ SOF 186198.

5

11

Plaintiff Jessica Rodriguez testified that Deputy Ratcliffe was not acting with

Disputed. See Pls.’ Resp. to Defs.’ SOF 133. Mrs. Rodriguez was asked

6 7 8

racially discriminatory intent or motive: Q. Do you believe that Deputy Ratcliffe
was intentionally trying to deprive you of your constitutional rights? A. No.

whether Deputy Ratcliffe “was intentionally trying” to deprive her of her rights, not whether she had been racially profiled. Mrs. Rodriguez is not a legal expert, and her answer says nothing about whether the

9 10

See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 133.

Rodriguezes were racially profiled. Moreover, Ms. Rodriguez does believe that she and Mr. Rodriguez were treated differently based on

11

their race. J. Rodriguez Dep. 63:1116, 66:4-16 [Hickey Opp’n Dec. Ex.

12

230].

12 Defense police practices expert Mr.

Disputed. See Pls.’ Resp. to Defs.’

13

Bennie Click testified that there is no

SOF 134. Plaintiffs have presented

evidence that Deputy Matthew Ratcliffe evidence that other non-Hispanic

14

racially profiled or otherwise acted with motorists on the same stretch of road

racially discriminatory intent or motive did not get cited or asked for their

15

toward Mr. and Mrs. Rodriguez. See

Social Security Numbers. See Pls.’

Defendants’ Statement of Facts (Dkt#413- SOF 190-198; J. Rodriguez Dep.

16

1) at ¶ 134.

15:23-16:3 [Hickey Opp’n Dec. Ex.

230].

17

Further, Deputy Ratcliffe is a 287(g)

18

deputy and has participated on at

least four saturation patrols.

19

Ratcliffe Dep. 12:18-25, 60:20-62:23

[Hickey Opp’n Dec. Ex. 228].

20

According to Plaintiffs’ expert Dr.

Taylor, MCSO officers such as

21

Deputy Ratcliffe were more likely to

check Hispanic surnames (or to pull

22

over and question Hispanic

individuals) on saturation patrol days

23

than non-saturation patrol days. Pls.’

SOF 239-41.

24

Finally, Plaintiffs have presented

25

evidence that the MCSO, of which Deputy Ratcliffe is a part, had a

26

policy or practice of targeting Hispanic individuals. See Pls.’ SOF

27

25-51, 74-104, 110-122, 145-154.

13 Plaintiffs’ police practices/racial profiling Undisputed that Mr. Stewart so

28

8

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 9 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

expert, Mr. Robert Stewart, has no opinion testified; however, this statement is

2

as to whether Deputy Matthew Ratcliffe immaterial. See Pls.’ Resp. to Defs.’

had racially discriminatory intent or

SOF 135. Determining what

3

motive in stopping the Rodriguez vehicle: motivations were present in Deputy

4 5

Q. Is it your opinion that Deputy Ratcliffe had discriminatory intent or motive in stopping the Rodriguez vehicle?

Ratcliffe’s mind at the time of the stop is not a matter for expert opinion testimony. F.R.E. 702; In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d

A. Don’t know.

531, 545-47 (S.D.N.Y. 2004)

6 7

See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 135.

(questions of knowledge, motive, intent, and state of mind describe matters which a jury is capable of

understanding and deciding without

8

the expert’s help, and are

inadmissible under Rule 702). Mr.

9

Stewart also testified that the events

that transpired after the stop appeared

10

to be racially motivated because the

Rodriguezes were treated differently

11

than other non-Hispanic motorists

that he and the other MCSO officer

12

dealt with and because it was not

reasonable for Deputy Ratcliffe to

13

have demanded Mr. Rodriguez’s

Social Security number. See Stewart

14

Dep. 85:4-86:21, 163:22-165:19

[Hickey Opp’n Dec. Ex. 233].

15 14 Deputy Matthew Ratcliffe made the traffic Disputed that the stop was “race-

16

stop involving the Rodriguez Plaintiffs neutral.” See Pls.’ Resp. to Defs.’ based on race-neutral probable cause. See SOF 134-140 (other non-Hispanic

17

Defendants’ Statement of Facts (Dkt#413- motorists not cited, not asked for

1) at ¶¶ 44-45, 51-52, and 112-116

Social Security information, and not

18

followed by MCOS deputy). Undisputed that there was probable

19

cause for the initial seizure. See Pls.’ Resp. to Defs.’ SOF 112-116.

20 15 MCSO Deputy Michael Kikes made the Undisputed.

traffic stop of siblings, Plaintiffs Mr. Nieto

21

and Ms. Meraz. See Defendants’

Statement of Facts (Dkt#413-1) at ¶¶ 84-

22

85.

23

16

Due to the Plaintiffs Meraz-Nieto

Disputed and immaterial. See Pls.’

vehicle’s window tinting, Deputy Michael Resp. to Defs.’ SOF 86. Deputy

24

Kikes could not see the race, sex, or other Armendariz states that he provided a characteristics of the vehicle’s occupants. description of the vehicle and its

25

See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 86.

occupants to Deputy Kikes. Pls.’ SOF 204. Further, Plaintiffs’

26

Fourteenth Amendment claim is not contingent on Deputy Kikes having

27

observed their race before he stopped them. He could clearly see their race

28

by the time he forcefully removed

9

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 10 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response Mr. Nieto from the vehicle.

2 17 Plaintiffs’ police practice/racial profiling Disputed. See Pls.’ Resp. to Defs.’

3

expert, Mr. Robert Stewart, testified that SOF 143. Mr. Stewart’s statement

he had no evidence of racially

about what motivations were present

4

discriminatory intent or motive by Deputy in Deputy Kikes’ mind at the time of Michael Kikes in making the traffic stop the stop is not a matter for expert

5

of the Meraz-Nieto vehicle. See

opinion testimony, F.R.E. 702; In re

Defendants’ Statement of Facts (Dkt#413- Rezulin Prods. Liab. Litig., 309 F.

6

1) at ¶ 143.

Supp. 2d at 545-47 (questions of knowledge, motive, intent, and state

7

of mind describe matters which a jury is capable of understanding and

8

deciding without the expert’s help, and are inadmissible under Rule

9

702), and is thus immaterial.

Furthermore, Mr. Stewart testified

10

that there was no lawful basis to stop

Meraz and Nieto. Stewart Dep.

11

98:15-99:15 [Hickey Opp’n Dec. Ex.

233]. Mr. Stewart also noted that it

12

appeared that Deputy Armendariz

sent Deputy Kikes to stop Plaintiffs

13

because he wanted them to be

investigated as possible illegal

14

immigrants. See Stewart Dep.

162:17-163:15 [Hickey Opp’n Dec.

15

Ex. 233].

16

18

There is no evidence that MCSO Deputy Ramon Armendariz, who had the initial

Disputed. See Pls.’ Resp. to Defs.’ SOF 141. Defendants

17

interaction with the Plaintiffs Meraz and mischaracterize Mr. Stewart’s Nieto and called for back-up that led to the testimony. Mr. Stewart testified that

18

traffic stop of the Plaintiffs made by

one indication that Deputy

Deputy Michael Kikes, had any racially Armendariz had discriminatory intent

19

discriminatory intent or motive in any

was that he did not have a lawful

manner dealing with the Plaintiffs. See basis to send the backup officers to

20

Defendants’ Statement of Facts (Dkt#413- stop Meraz and Nieto. Stewart Dep.

1) at ¶ 141.

98:15-99:15 [Hickey Opp’n Dec. Ex.

21

233].

Mr. Stewart also noted that Deputy

22

Armendariz could hear that Meraz

and Nieto were playing Spanish

23

music, that he had an opportunity to

observe their race, that the officers

24

were on a saturation patrol, and that

it appeared that Deputy Armendariz

25

sent Deputy Kikes to stop Plaintiffs

because he wanted them to be

26

investigated as possible illegal

immigrants. See Stewart Dep.

27

162:17-163:15 [Hickey Opp’n Dec.

Ex. 233].

28

10

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 11 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

19 There is no evidence of racially

Disputed. See Pls.’ Resp. to Defs.’

2

discriminatory intent or motive by Deputy SOF 142. Mr. Stewart’s statement

Douglas Beeks in drawing his weapon

about what motivations were present

3

when he joined Deputy Michael Kikes

in Deputy Beeks’s mind at the time

after the traffic stop of Plaintiff Meraz and of the stop is not a matter for expert

4

Nieto was made. See Defendants’

opinion testimony, F.R.E. 702; In re

Statement of Facts (Dkt#413- 1) at ¶ 142. Rezulin Prods. Liab. Litig., 309 F.

5

Supp. 2d at 545-47 (questions of

knowledge, motive, intent, and state

6

of mind describe matters which a

jury is capable of understanding and

7

deciding without the expert’s help,

and are inadmissible under Rule

8

702), and is immaterial. Liberty

Lobby, 477 U.S. 242, 248 (1986).

9

Furthermore, Mr. Stewart testified

10

that Deputy Beeks did not have a lawful reason to draw his firearm.

11

See Stewart Dep. 90:22-25, 100:1523 [Hickey Opp’n Dec. Ex. 233]

12 20 Plaintiffs’ police practices/racial profiling Disputed. See Pls.’ Resp. to Defs.’

expert Robert Stewart testified that there is SOF 144. Plaintiffs have presented

13

no evidence that Plaintiffs Ms. Meraz and evidence (and Mr. Stewart testified

Mr. Nieto were racially profiled in either that) there was no lawful basis to

14

the traffic stop or during their subsequent stop Meraz and Nieto. See Pls.’

treatment by the MCSO deputies. See Resp. to Defs.’ SOF 68-77; Stewart

15

Defendants’ Statement of Facts (Dkt#413- Dep. 98:15-99:15 [Hickey Opp’n

1) at ¶ 144.

Dec. Ex. 233].

16

Mr. Stewart also noted that Deputy

17

Armendariz could hear that Meraz and Nieto were playing Spanish

18

music, that he had an opportunity to observe their race, that the officers

19

were on a saturation patrol, and that it appeared that Deputy Armendariz

20

sent Deputy Kikes to stop Plaintiffs because he wanted them to be

21

investigated as possible illegal immigrants. See Stewart Dep.

22

162:17-163:15 [Hickey Opp’n Dec. Ex. 233]. Finally, Mr. Stewart

23

testified that Deputy Beeks did not have a lawful reason to draw his

24

firearm. See Stewart Dep. 90:22-25, 100:15-23 [Hickey Opp’n Dec. Ex.

25

233].

21 MCSO Deputy Michael Kikes made the Disputed. See Pls.’ Resp. to Defs.’

26

traffic stop involving Plaintiffs Meraz and SOF 68-77, 117-19 (lack of probable

Nieto either on race-neutral probable cause cause for stop); 141-45 (evidence of

27

or reasonable suspicion. See Defendants’ discriminatory intent); see also Pls.’

Statement of Facts (Dkt#413-1) at ¶¶ 117- SOF 202-213 (evidence of

28 11

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 12 of 276

1 No. Defendants’ SSOF 119.
2
3
4
5

Plaintiff’s Response discriminatory intent in stop of Ms. Meraz and Nieto, including fact that Deputy Armendariz could observe their Hispanic appearance and hear Spanish music, an ongoing saturation patrol, no lawful explanation for stop and gun-point detention, and release upon discovery of U.S. citizenship).

6

22

Sheriff Joseph Arpaio determined that public safety in Maricopa County would

Disputed. The cited portion of the record does not state that Sheriff

7

benefit if the MCSO would enforce federal Arpaio initiated his “crackdown” on

immigration law under the federal

illegal immigration or sought 287(g)

8

government’s 287(g) program (allowing authority for public safety reasons.

local enforcement officer to enforce

On the contrary, Sheriff Arpaio

9

federal immigration law) while concurrently enforcing Arizona law

stated that his decision was based on having “heard the people speak” and

10

related to human smuggling. See

was responding to their “frustration.”

Plaintiffs’ Statement of Facts (Dkt#422) at Pls.’ SOF 22. Sheriff Arpaio and the

11

¶ 3 and Defendants’ Response, Rule 56 (c)(2) Objections, and Controverting

MCSO adopted the new priority in consideration of anti-Mexican and

12

Statement of Fact at ¶ 3 admitting to the anti-Hispanic sentiments expressed

same.

by his constituents that Sheriff

13

Arpaio shared. See Pls’ SOF 12-50, 75-101.

14

15

23

Plaintiffs’ police practices/racial profiling expert, Robert L. Stewart, testified that:

Undisputed.

16

(a) crime related to illegal immigration is a problem in Maricopa County; and (b) that

17

human smuggling is a crime in Arizona and is a problem in Maricopa County.

18

See Deposition of Robert L. Stewart at p. 31, ln. 23 to p. 32, ln. 4 (for point “a) and

19

p. 34, lns. 12- 17 (for point “b” above), attached as Exhibit 17.

20 24
21 22 23 24

Robert Stewart testified that a local law enforcement agency has broad discretion in setting its enforcement policies. See Deposition of Robert L. Stewart at p. 26, lns. 19-23, attached as Exhibit 17.

Disputed. Mr. Stewart testified that a law enforcement agency’s discretion to set its own enforcement policies is “not limitless.” Stewart Dep. 26:317 [Defs.’ Resp. to Pls.’ SOF7 Ex. 17]. Certainly, no law enforcement decision may be improperly based on race.

25

26

7 Defs.’ Resp. to Pls.’ Statement Of Facts In Support Of Pls.’ Mot. For Partial Summ. J. and Controverting Statement Of Facts, Dkt. No. 435 (hereinafter “Defs.’ Resp. to Pls.’

27 SOF”).

28 12

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 13 of 276

1 No. Defendants’ SSOF 25 Robert Stewart testified that a local law

Plaintiff’s Response Undisputed that Mr. Stewart testified

2

enforcement agency has discretion in

as stated. Mr. Stewart also testified

determining what crimes it should

that a law enforcement agency’s

3

prioritize for enforcement. See

discretion to set its own enforcement

Deposition of Robert L. Stewart at p. 26, policies is “not limitless.” Stewart

4

ln. 25 to p. 27, ln. 4; see also p. 27, ln. 23 Dep. 26:3-17 [Defs.’ Resp. to Pls.’

to p. 28, ln. 1, attached as Exhibit 17.

SOF Ex. 17]. Certainly, no law

5

enforcement decision may be

improperly based on race.

6

7 26 Sheriff Joseph Arpaio properly designated Disputed that Sheriff Arpaio

illegal immigration as an enforcement

properly designated illegal

8

priority for the MCSO. See Defendants’ immigration as an enforcement

Statement of Facts (Dkt#413-1) at the

priority for the MCSO.

9 10 11 12 13 14 15

Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

Sheriff Arpaio stated that his decision was based on having “heard the people speak” and was responding to their “frustration.” Pls.’ SOF 22. Sheriff Arpaio and the MCSO adopted the new priority in consideration of anti-Mexican and anti-Hispanic sentiments expressed by his constituents that Sheriff Arpaio shared. See Pls.’ SOF 12-50, 75-101. In adopting and implementing this policy, MCSO has discriminated based on race.

16

17

27 Mr. Bennie Click, testified that the

Undisputed that Mr. Click wrote as

18

MCSO’s use of law enforcement

stated in his report.

19 20 21 22

saturation patrols is a long-standing, common, and reasonable tool of law enforcement, and that it is an agency policy decision as to what particular problems are to be addressed by or with a saturation patrol. More specifically, Mr. Click testified:
Saturation patrol operations have long

Disputed, however, that the MCSO’s use of law enforcement saturation patrols comply with long standing, common, or reasonable law enforcement practice. While it would be consistent with generally accepted practice for saturation patrols to focus on a specific type of

23

been an accepted strategy used by law criminal activity, such as DUIs or

enforcement agencies to address

gang activity, in the saturation

24

specific crime problems in a particular patrols conducted by the MCSO

location…. It is an agency policy

since 2007, officers have not been

25

decision to use saturation patrols to address a particular problem.

given instructions to look for any patterns of criminal conduct or

26 27 28

Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops

specific criminal suspects, nor has MCSO relied on comparative analysis of crime or traffic hazards to justify a saturation patrol. Instead, the saturation patrols conducted by

13

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 14 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

and street contacts. The goal of these the MCSO focused on illegal

2

lawful stops and contacts is [to]

immigration and day laborers, using

discover other crime. This can also pretextual traffic stops for minor

3

have a deterrent effect. Lawful stops violations in order to investigate the

and contacts is also used to gather

driver and/or passengers for

4

intelligence about criminal activity. immigration violations. See Pls’

5

The specific criminal activity that is identified as the focus of a saturation

SOF 104-117. Further, Defendants have put forth

6

patrol operations is any agency policy no evidence that the saturation

decision. This is a common law

patrols were directed at human

7

enforcement practice. The Sheriff has smuggling activities. In fact, the

the authority to designate illegal

operations netted almost no human

8 9 10 11 12 13 14 15 16

immigration an enforcement priority. Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling corridors have been identified that lead from the Mexico border to Maricopa County and beyond. This can result in different and reasonable law enforcement policies in Maricopa County than in other parts of the country. Arizona has specific immigration-related statutes that many other states do not have. These statutes make certain immigration related activities a crime and therefore can impact agency policies.”

smuggling loads. See Pls.’ SOF 6173. Further, while Defendants contend that the saturation patrol in which Mr. Ortega Melendres was stopped related to human smuggling activities, MCSO’s own internal correspondence confirms that an undercover investigation of the church conducted prior to the operation revealed “no information pertaining to forced labor, human smuggling[,] possible ‘drop houses,’” nor did it uncover any evidence that the day laborers congregating at the church were illegal immigrants. Melendres MCSO 014686 [Hickey Dec. Ex. 139].

17

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click

18

dated January 21, 2011, at pgs. 46-49, attached thereto as Exhibit 16; see also

19

March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p.

20

342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to

21

the foundation for his opinions and that his opinions in the report were the same he

22

would provide at trial to a reasonable degree of probability in his field of

23

expertise).

28 It is the experience of many MCSO

Undisputed that MCSO deputies

24

deputies that most illegal immigrants

believe that most illegal immigrants

discovered in Maricopa County are from are Latino or Hispanic.

25 26 27 28

Mexico or Central or South American. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11; Deposition of

Such a belief does not justify treating Hispanics or Latinos differently, however. It is not the case that most Latinos or Hispanics in Maricopa County are illegal immigrants, as even Dr. Camarota acknowledges.

14

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 15 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

Manual Madrid dated 10/27/09 at p. 189, See Camarota Report 24 n.25 [Defs.’

2

lns. 18-21, attached as Exhibit 10;

SOF Ex. 19].

Deposition of Brett Palmer dated 10/23/09

3

at p. 30, lns. 2-16, attached as Exhibit 9;

and Deposition of Brian Sands dated

4

12/14/09 at p. 94, lns. 3-6, attached as

Exhibit 14.

5 29 Joseph Arpaio’s professional experience in Undisputed that Sheriff Arpaio

6

his law enforcement career as Sheriff is believes a majority of illegal that most of the illegal immigrants he has immigrants in Arizona come from

7 8 9 10 11

observed in Maricopa County are originally from Mexico, or Central or South America. See Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns. 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of

Mexico or Latin America. Such a belief does not justify treating Hispanics or Latinos differently, however. It is not the case that most Latinos or Hispanics in Maricopa County are illegal immigrants, as even Dr. Camarota acknowledges. See Camarota Report 24 n.25 [Defs.’ SOF Ex. 19].

12

Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as

13

Exhibit 16.

30 “It is well established that illegal

Undisputed that a majority of illegal

14

immigrants in Arizona and in the United immigrants in Arizona are Hispanic,

States as a whole are overwhelmingly

but disputed that this fact is relevant.

15

Hispanic. The Pew Hispanic Center has The demographics of illegal

estimated that 94 percent of illegal

immigration in Arizona do not give

16

immigrants in Arizona are from Mexico Sheriff Arpaio or the MCSO a

alone, not including the rest of Latin

license to profile and target

17

America.” See Defendants’ Statement of Hispanics in the hope of finding

Facts (Dkt#413-1) at Ex. 19 (Dr. Camarota illegal immigrants. The large

18

Report) at pg. 14; DSOF (Dkt#413-1) at majority of Hispanics in Maricopa

Ex. 20 (Camarota deposition) at p. 122, County are U.S. citizens or legally

19

lns. 13-16 (foundation for his report).

present, as even Dr. Camarota

acknowledges. See Camarota Report

20

24 n.25 [Defs.’ SOF Ex. 19].

21
31
22 23 24 25 26
27 32
28

Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that the MCSO had the authority under the ICE-MCO Memorandum of Agreement to perform pure immigration enforcement. See Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20, attached as Exhibit 2.
The ICE-MCSO Memorandum of Agreement expressly allowed MCSO
15

Undisputed that the 287(g) program allows certified local law enforcement officers to assist in certain specified enforcement of federal immigration law. Disputed that the ICE-MCSO Memorandum of Agreement (MAO) permits a local law enforcement agency to adopt the enforcement tactics employed by MCSO. Undisputed that the 287(g) program allowed certified local law

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 16 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

287(g) certified deputies to enforce federal enforcement officers to assist in

2

immigration law. See Deposition of Jason certain specified enforcement of

Kidd (ICE Assistant SAC Phoenix) at p. federal immigration law.

3

55, ln. 14 to p. 56, ln. 11; see also p. 52,

lns. 8-25, attached as Exhibit 2.

Otherwise disputed. Local law

4

enforcement authority under 287(g)

is subject to limitations and specified

5

conditions, including but not limited

to those set forth in the applicable

6

Memorandum of Agreement (MOA).

See, e.g., Ex. A to Pls.’ First Am.

7

Compl., Dkt. No. 26 (MOA in effect

before 2009).

8

33 Mr. Jason Kidd of ICE testified that the Undisputed that Mr. Kidd so

9

MCSO “has the authority to enforce the testified, and that the MCSO has the

state laws, and some of those [Arizona] authority to enforce state laws.

10

law do include immigration related

However, that enforcement must

matters.” See Deposition of Jason Kidd comply with the requirements of the

11

(ICE Assistant SAC Phoenix) at p. 56, lns. U.S. Constitution.

14-19; see also p. 53, lns. 3-7, attached as

12

Exhibit 2.

13

34

Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix, testified that it

Disputed in that Mr. Pena testified that an MCSO had authority to make

14

was completely proper for MCSO deputies a traffic stop under state law and, if to make traffic stops of motorists under reasonable suspicion was developed,

15

Arizona law during saturation patrols and to call a 287(g) certified officer.

call for a 287(g) certified deputy to

Pena Dep. 168:1-22 [Defs.’ Resp. to

16 17 18

determine if someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.

Pls.’ SOF Ex. 1]. Disputed that this fact has any relevance to whether racial profiling by MCSO occurred. Mr. Pena testified that it was “not [his] job” to

determine whether race motivated

19

MCSO stops. Pena Dep. 206:18-

207:3 [Hickey Opp’n Dec. Ex. 225].

20

Mr. Pena testified that he “did not

know one way or the other” the

21

motivation of any MCSO officers

during traffic stops. Pena Dep.

22

186:11-14 [Hickey Opp’n Dec. Ex.

225]. Indeed, Mr. Pena “never went

23

into the field” to observe MCSO

officers’ actions. Pena Dep. 137:9-

24

20 [Hickey Opp’n Dec. Ex. 225].

This statement is therefore irrelevant

25

and should be disregarded. Liberty

Lobby, 477 U.S. at 248; L.R. Civ.

26

56.1(a).

27

35

Arizona is a border state close to the USMexico border and Maricopa County is a

Undisputed that Arizona is close to the Mexican border and that

28

major human smuggling corridor. See Maricopa County is a human

16

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 17 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

Defendants’ Statement of Facts (Dkt#413- smuggling corridor.

2 3 4 5 6 7 8

1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-49, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

However, this statement is immaterial, since MCSO has not established that its saturation patrol operations were directed at human smuggling activities. Liberty Lobby, 477 U.S. at 248. In fact, the operations netted almost no human smuggling loads. See Pls.’ SOF 6173. Further, while Defendants contend that the saturation patrol in which Mr. Ortega Melendres was stopped related to human smuggling

activities, MCSO’s own internal

9

correspondence confirms that an undercover investigation of the

10

church conducted prior to the operation revealed “no information

11

pertaining to forced labor, human smuggling[,] possible ‘drop houses,’”

12

nor did it uncover any evidence that the day laborers congregating at the

13

church were illegal immigrants. Melendres MCSO 014686 [Hickey

14

Dec. Ex. 139].

36 Most of the day-laborers in Maricopa

Undisputed that these MCSO

15

County, in the experience of many MCSO deputies believe that most day

deputies, are illegal immigrants. See

laborers are illegal immigrants.

16

Deposition of Louis DiPietro dated

MCSO deputies also testified that

10/21/09 at p. 51, lns. 2-4, attached as

most day laborers are Hispanic. Pls.’

17

Exhibit 13; Deposition of Carlos Rangel SOF 113.

18 19 20

dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; and Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14.

Such a belief does not justify treating Hispanics or Latinos differently, however. It is not the case that most Latinos or Hispanics in Maricopa County are illegal immigrants, as even Dr. Camarota acknowledges.

21

See Camarota Report 24 n.25 [Defs.’ SOF Ex. 19].

22 37 Under the ICE-MCSO Memorandum of Undisputed.

Agreement, the MCSO had deputies

23

trained and certified to conduct

immigration enforcement under the 287(g)

24

program. See Plaintiffs’ Statement of

Facts (Dkt#422) at ¶ 3 and Defendants’

25

Response, Rule 56(c )(2) Objections, and

Controverting Statement of Fact at ¶ 3

26

admitting to the same.

27

38

Under that program, there are a number of Undisputed that during the 287(g) ICE-approved articulable “indicators” that training, ICE provided officers with a

28

a local law enforcement officer that is

list of articulable indicators that it

17

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 18 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

287(g) certified is trained by ICE to look stated were relevant to developing

2

for in determining whether a person may reasonable suspicion of an

be in the United States unlawfully. One of immigration violation. ICE stated

3

the ICE approved indicators is that

that apparent Mexican ancestry was

person’s race or ethnicity, including

relevant, though standing alone, it

4

Mexican ancestry. See Deposition of Brett would be insufficient. Disputed to

Palmer dated 10/23/09 at p. 19, ln. 1 to p. the extent that this is intended to be a

5

20, ln. 6, attached as Exhibit 9.

statement of the law in the Ninth

Circuit. It is not. See United States

6

v. Montero-Camargo, 208 F.3d 1122,

1135 (9th Cir. 2000) (discussing

7

United States v. Brignoni-Ponce, 422

U.S. 873 (1975) and explaining why,

8

“at this point in our nation’s history,”

and considering the makeup of the

9

local Hispanic population, “Hispanic

appearance is . . . of such little

10

probative value that it may not be

considered [] a relevant [or

11

appropriate] factor” in the

enforcement of immigration laws).

12

ICE guidelines cannot overrule

federal constitutional law.

13 39 ICE approves of the use of race as one

Undisputed that ICE instructed

14

indicator among several in the exercise of officers that race may be a relevant 287(g) authority in the determination of factor in developing reasonable

15

whether someone may be in the United suspicion of an immigration States unlawfully. See Deposition of ICE violation, though it could not be the

16

former Special Agent in Charge, Phoenix, only factor. However, the law in the

Mr. Alonzo Pena, at p. 54, lns. 16-22,

Ninth Circuit is that race may not

17

attached as Exhibit 1 (“[Race] could be play any role in obtaining reasonable used, but, again, it couldn’t—it is not to be suspicion of an immigration

18

used solely. It is never to be used just as violation. See Montero-Camargo,

a—as an individual factor.”); see also

208 F.3d at 1135 (discussing United

19

Deposition of Brett Palmer dated 10/23/09 States v. Brignoni-Ponce, 422 U.S. at p. 25, lns. 9-18 attached as Exhibit 9 873 (1975) and explaining why, “at

20

(“That is part of the 287(g) training that is this point in our nation’s history,”

part of our SOP, yes.”); Exhibit 9 at p.

and considering the makeup of the

21

151, lns. 4-9 (“MCSO 287(g) officers can local Hispanic population, “Hispanic consider race as one relevant factor with appearance is . . . of such little

22

others to have reasonable suspicion that human smuggling may be occurring.”).

probative value that it may not be considered [] a relevant [or

23

appropriate] factor” in the enforcement of immigration laws).

24

The fact that MCSO officers consider race as “one [] factor” in their

25

investigations, therefore, is unlawful. ICE guidelines cannot overrule

26

federal constitutional law.

40 Although ICE approves of the use of race Disputed. The evidence shows that

27

as one indicator, among several other

MCSO is disproportionately stopping

indicators, as a basis to form reasonable Hispanics on immigration operations.

28 18

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 19 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

suspicion of unlawful status, the MCSO See Pls.’ SOF 236-247; see also, e.g.,

2

does not use race as an indicator or factor Pls.’ Resp. to Defs.’ SOF 129, 134,

to make vehicle stops under Arizona law. 145 (setting forth the bases for

3

See Deposition of Brett Palmer dated

Plaintiffs’ claim that they were

10/23/09 at p. 19, ln. 1 to p. 20, ln. 6; p. discriminated against on their traffic

4

145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. stops).

3, attached as Exhibit 9.
5

Moreover, racial profiling that commences after a stop is no more

6

lawful than a stop based on race. The consideration of race to any

7

degree in the formation of reasonable suspicion of an immigration violation

8

is unconstitutional. See MonteroCamargo, 208 F.3d at 1135

9

(discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975)

10

and explaining why, “at this point in our nation’s history,” and

11

considering the makeup of the local Hispanic population, “Hispanic

12

appearance is . . . of such little probative value that it may not be

13

considered [] a relevant [or appropriate] factor” in the

14

enforcement of immigration laws).

41 Another ICE approved indicator is that the Undisputed that ICE instructed

15

person does not speak the English

officers that the inability to speak

language. See Deposition of Manuel

English may be a relevant factor in

16

Madrid dated 10/27/09 at p. 31, lns. 10-18, obtaining reasonable suspicion of an

attached as Exhibit 10; see Deposition of immigration violation. Standing

17

Ramon Armendariz at p. 44, lns. 1-4,

alone, however, it would be

attached as Exhibit 8; see Deposition of insufficient. See United States v.

18

Carlos Rangel dated 10/20/09 at p.21, ln. 3 Manzo-Jurado, 457 F.3d 928, 936-37

to p. 22, ln. 5, attached as Exhibit 11.

(9th Cir. 2006) (“By itself . . . an

19

individual's inability to understand

English will not justify an

20

investigatory stop because the same

characteristic applies to a sizable

21

portion of individuals lawfully

present in this country.”). Simply

22

speaking only Spanish does not

support reasonable suspicion of an

23

immigration violation. Compare

Farm Labor Organizing Comm. v.

24

Ohio State Highway Patrol, 308 F.3d

523, 539-40 (6th Cir. 2002)

25

(cautioning that placing any criminal

significance on the fact that a person

26

speaks Spanish can be a pretext for

discrimination due to the “close

27

connection between the Spanish

language and a specific ethnic

28

19

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 20 of 276

1 No. Defendants’ SSOF
2 3 4

Plaintiff’s Response community”), with Pls.’ SOF 137 (citing testimony of Sergeant Palmer that, in his view, “speak[ing] only Spanish” is a basis for investigation). ICE guidelines cannot overrule federal constitutional law.

5

42

Additional ICE approved indicators of

Disputed. MCSO witnesses testified

unlawful presence are: (a) an overcrowded that they believed these factors gave

6

vehicle; (b) none of the occupants have luggage or only small items of property

rise to reasonable suspicion that the occupants of a vehicle are unlawfully

7

easily transported; (c) the people in the present in the human smuggling vehicle are unrelated or do not know each context. However, the cited portion

8

other; (d) whether the people in the vehicle of the record does not establish that are dressed in a disheveled manner; (e) these indicators were approved by

9

pungent body odor of the people in the ICE. vehicle; (f) the vehicle is a known human

10

smuggling corridor. See Deposition of Carlos Rangel dated 10/20/09 at p. 95, ln.

11

12 to p. 96, ln. 12 attached as Exhibit 11; see Deposition of Manuel Madrid dated

12

10/27/09 at p. 38, ln. 9 to p. 39, ln. 4, attached as Exhibit 10; see Deposition of

13

Brett Palmer dated 11/09/10 at p. 38, ln. 21 to p. 39, ln. 14, attached as Exhibit 12.

14 43 Joseph Arpaio gave an interview with GQ Undisputed that Sheriff Arpaio so

magazine online in late 2008 or early

testified. See Pls.’ SOF 19.

15

2009. In that story, there is statement

Otherwise disputed. Sheriff Arpaio

attributed to him that illegal immigrants provides no reason to believe that the

16

coming over the Mexican border as being quotation was taken out of context.

“dirty.” That statement was likely taken Speculative testimony is insufficient

17

out of context by the reporter. According to avoid summary judgment. See

to Arpaio,

Karazanos v. Navistar Int’l. Transp.

18 19 20 21

It reflects my views only those that come across the border and do not go through the proper checks, through the regular ports to come in her with no checks at all. And there is no way to determine whether they have a disease or not. I can talk about swine flu,

Corp., 948 F.2d 332, 337 (7th Cir. 1991) (“A party to a law suit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture.” (quotation marks and citation omitted)). Even if the quotation had the context

22

tuberculosis and I believe I was referring to those instances when

supplied by Sheriff Arpaio in his deposition, it shows that Sheriff

23

people come across with doing the proper checks.

Arpaio regards Mexicans as “dirty” and in need of a disease screening.

24 25

See Deposition of Joseph Arpaio dated 12/16/09 at p. 19, ln. 17 to p. 20, ln. 12, attached as Exhibit 16.

This is equally probative of the aPnlsi.m’ uMsSaJll8e1g5e-d2b0y. Plaintiffs. See

26 27 8 Pls.’ Mot. for Partial Summ. J., Dkt. No. 421 (hereinafter “Pls.’ MSJ”).

28 20

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 21 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

44 Joseph Arpaio testified that he did not

Undisputed that Sheriff Arpaio so

2

agree with the comments made by an

testified. Otherwise disputed.

author about federal judge Mary Murguia. Sheriff Arpaio also testified that (1)

3

See Deposition of Joseph Arpaio dated he underlined the comments about

11/16/10 at p. 26, ln. 5 to p. 28, ln. 25,

Judge Murguia, (2) forwarded the

4

attached as Exhibit 15. In fact, Arpaio

letter to then-Chief Deputy

thought the comments were “rather nasty. Hendershott, then Deputy-Chief

5

And this is their opinion. It doesn’t mean Sands, Lisa Allen and then-Deputy

it is my opinion. I’ve been a federal

Chief Jack MacIntyre “for their

6

official, law enforcement official, for 26 information,” and (3) did not

years. I have respect to the courts, and I communicate to his command staff

7

don’t agree with that.”). Id.

or anyone else that he disagreed with

the statements in the letter. See Pls.’

8

SOF 48. According to Plaintiffs’

police practices expert Mr. Robert

9

Stewart, these actions send a

message to subordinates that the

10

sentiments expressed in the letter

communicate the Sheriff’s desires for

11

the agency. See Pls.’ SOF 51.

12

Sheriff Arpaio’s testimony that he disagreed with the letter is

13

insufficient to avoid summary judgment. Self-serving denials made

14

during litigation and without supporting evidence do not create a

15

genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc.,

16

281 F.3d 1054, 1061 (9th Cir. 2002) (“[T]his court has refused to find a

17

genuine issue where the only evidence presented is uncorroborated

18

and self-serving testimony.” (internal quotation marks and citation

19

omitted)).

Sheriff Arpaio himself has publicly

20

stated, “I always have an official

reason, so I can win the lawsuits, and

21

then I have my reason.” I 261:14-262:15 [Hickey

ARreppaliyoDDeecp.9.

22

Ex. 241].

23

45

When Joseph Arpaio was asked whether he agreed with the referenced language in

Undisputed that Sheriff Arpaio so testified. Otherwise disputed. The

24

document Melendres MCSO 76123, Ex. language in question is from a citizen 24 to Arpaio Depo. II, Arpaio testified that letter, which reads, “Because of their

25

“I don’t agree with that.” See Deposition demeanor, it is obvious to pick out

26 9 Dec. of Kevin Hickey in Support of Reply Mem. Support of Pls.’ Mot. for Summ. J., filed 27 concurrently herewith.

28 21

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 22 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

of Joseph Arpaio dated 11/16/10 at p. 160, the illegals from the American

2

ln. 19 to p. 161, ln. 10, attached as Exhibit citizens.” Melendres MCSO 76123

15.

[Hickey Dec. Ex. 29]. This

3

statement is consistent with

statements made by Sheriff Arpaio

4

outside the context of litigation. See

Pls.’ SOF 11 (MCSO can enforce

5

immigration law based on “speech,

what [people] look like, if they look

6

like they came from another

country”); see also Pls.’ SOF 12-13.

7

Sheriff Arpaio chose to include the

letter in his immigration file. Pls.’

8

SOF 24.

9

Sheriff Arpaio’s denial is insufficient to avoid summary judgment. Self-

10

serving denials made during litigation and without supporting

11

evidence do not create a genuine issue of material fact. Villiarimo,

12

281 F.3d at 1061 (“[T]his court has refused to find a genuine issue where

13

the only evidence presented is uncorroborated and self-serving

14

testimony.” (internal quotation marks and citation omitted)).

15

Sheriff Arpaio himself has publicly

stated, “I always have an official

16

reason, so I can win the lawsuits, and

then I have my reason.” Arpaio Dep.

17

I 261:14-262:15 [Hickey Reply Dec.

Ex. 241].

18 46 When Richard H. wrote to him and Joseph Undisputed that Sheriff Arpaio so

19

Arpaio was questioned about the contents testified. Otherwise disputed.

of Melendres MCSO 075284, Arpaio

Sheriff Arpaio’s testimony refers to

20

testified that he had “no knowledge of

language from a citizen letter, which

percentage or whatever he’s talking about. reads, “It is a fact that at least 90% of

21

Once again, that’s his comment not mine.” the illegals in Mesa are Hispanic and See Deposition of Joseph Arpaio dated you need to fit that fact into your

22

11/16/10 at p. 88, ln. 22 to p. 89, ln. 23, attached as Exhibit 15.

concept and fear of racial profiling.” Melendres MCSO 75284 [Hickey

23

Dec. Ex. 21]. The letter is fully consistent with statements made by

24

Sheriff Arpaio outside the context of litigation. See Pls.’ SOF 12-14.

25

Defendants have adopted the same position in their litigation papers.

26

See Defs.’ Resp. in Opp’n to Pls.’ Mot. for Partial Summ. J. 12:15-13:9

27

(Dkt. No. 452).

Sheriff Arpaio’s denial is insufficient

28 22

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 23 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response to avoid summary judgment. Self-

2

serving denials made during

litigation and without supporting

3

evidence do not create a genuine

issue of material fact. Villiarimo,

4

281 F.3d at 1061 (“[T]his court has

refused to find a genuine issue where

5

the only evidence presented is

uncorroborated and self-serving

6

testimony.” (internal quotation marks

and citation omitted)).

7

Sheriff Arpaio himself has publicly

8

stated, “I always have an official reason, so I can win the lawsuits, and

9

then I have my reason.” Arpaio Dep. I 261:14-262:15 [Hickey Reply Dec.

10

Ex. 241].

47 When questioned about whether he agreed Undisputed that Sheriff Arpaio so

11

with Richard H.’s statement, Joseph

testified. Otherwise disputed. The

Arpaio responded: “Once again, that’s his statement from Richard H. is, “What

12

statement, and I don’t know what context our open border crowd calls racial

he’s talking about, about ducks or

profiling is what I call reasonable

13

whatever he’s mentioning…. I can’t read suspicion and probable cause, both of

his mind. This is his opinion, not mine.” which are legal grounds for further

14

See Deposition of Joseph Arpaio dated

action. If it walks like a duck and

11/16/10 at p. 85, ln. 18 to p. 86, ln. 24, quacks like a duck….” Melendres

15

attached as Exhibit 15.

MCSO 72425 [Hickey Dec. Ex. 80].

Sheriff Arpaio testified that he did

16

not understand this statement. Id.

17

Sheriff Arpaio took action at the time he received the letter that showed he

18

understood and agreed with the statement. Sheriff Arpaio saved the

19

letter in his immigration file and circulated it to Chief Sands, who

20

plans saturation patrols. Pls.’ SOF 36. He saved and circulated other

21

letters from the same author, some of which similarly advocate racial

22

profiling. Pls.’ SOF 34-38. Sheriff Arpaio also saved and circulated

23

other materials advocating racial profiling. Pls.’ SOF 25-33. Arpaio

24

has made similar statements himself. See Pls.’ SOF 11.

25

Sheriff Arpaio’s blanket denials are

insufficient to avoid summary

26

judgment. Self-serving denials made

during litigation and without

27

supporting evidence do not create a

genuine issue of fact. Villiarimo,

28

23

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 24 of 276

1 No. Defendants’ SSOF
2 3 4

Plaintiff’s Response 281 F.3d at 1061 (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony.” (internal quotation marks and citation omitted)).

5

Sheriff Arpaio himself has publicly stated, “I always have an official

6

reason, so I can win the lawsuits, and then I have my reason.” Arpaio Dep.

7

I 261:14-262:15 [Hickey Reply Dec. Ex. 241].

8 48 When a Carol B. indicated racial profiling Undisputed that Sheriff Arpaio so

was a desirable law enforcement tool

testified. Otherwise disputed. The

9

because her own Italian mother

statement from Carole B. is, “[My

experienced many years ago, Joseph

mother] was pulled off the train and

10

Arpaio testified that “This is just her

interrogated along with all the other

comments, her opinions. I have no

Italian women on board. . . . [S]he

11

comment on her comment. I wasn’t there. believed it was the right thing to do.”

I wasn’t involved with her family.” See Pls.’ SOF 40.

12 13

Deposition of Joseph Arpaio dated 11/16/10 at p. 277, ln. 23 to p. 278, ln. 11, attached as Exhibit 15.

Sheriff Arpaio took action at the time he received the letter that demonstrated his agreement with its

14

sentiments. He saved the letter in his immigration file, and wrote a thank

15

you letter to Carole B. that stated, “I especially enjoyed reading the story

16

of your Italian grandmother [sic] and her experiences after coming into the

17

country legally.” OSLS000121 [Hickey Dec. Ex. 185].

18

Sheriff Arpaio did not testify that he

disagreed with the statement. When

19

asked at deposition whether he had

an opinion on whether the treatment

20

of Carole B.’s mother had been “the

right thing to do,” Apraio said he had

21

“no opinion” as to whether it was

correct or incorrect. Arpaio Dep. II,

22

at 278:6-279:1 [Defs.’ Resp. to Pls.’

SOF Ex. 15]

23 49 Joseph Arpaio testified that racial profiling Undisputed that Sheriff Arpaio so

24

is morally wrong. See Deposition of Joseph Arpaio dated 12/16/09 at p. 113,

testified. Otherwise disputed. Plaintiffs have adduced a large

25

lns. 10-11; 115, lns. 2-17, attached as Exhibit 16; see also Arpaio Deposition

amount of undisputed documentary evidence and testimony that

26

dated 11/16/10 at p. 77, lns. 22-23, attached as Exhibit 15. Arpaio further

demonstrates MCSO does racially profile.

27 28

testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I can say, we don’t do that.

Sheriff Arpaio has no personal knowledge of whether individual

24

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 25 of 276

1 No. Defendants’ SSOF

We don’t stop people by their

2

appearance.”).

3

4

5

6

7

8

9

Plaintiff’s Response officers are engaged in racial profiling, but trusts his staff to bring the issue to him. Arpaio Dep. I, at 114:16-115:1 [Defs.’ Resp. to Pls.’ SOF Ex. 16]. His testimony is therefore insufficient to avoid summary judgment. See Karazanos, 948 F.2d at 337 (“A party to a law suit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture.” (quotation marks and citation omitted)). Sheriff Arpaio himself testified that he would not be bothered if he were racially profiled. Pls.’ SOF 166.

10

Absent specific evidentiary support,

Sheriff Arpaio’s blanket denials of

11

racial profiling do not create a

genuine issue of fact. Villiarimo,

12

281 F.3d at 1061 (“[T]his court has

refused to find a genuine issue where

13

the only evidence presented is

uncorroborated and self-serving

14

testimony.” (internal quotation marks

and citation omitted)).

15 50 MCSO Deputy Chief Brian Sands makes Undisputed only as to Chief Sand’s

16

the decision of where, when, and how to role in planning saturation patrols do a saturation patrol. See Deposition of and his testimony that racial profiling

17

Brian Sands dated 12/14/09 at p. 71, lns. is “morally wrong” and illegal.

19-21; p. 79, lns. 23-25, attached as

Otherwise disputed. Plaintiffs have

18

Exhibit 14. Chief Sands testified that racial adduced a large amount of profiling is morally wrong. Id. at p. 147, undisputed documentary evidence

19

ln. 20 to p. 148, ln. 5, attached as Exhibit and testimony that demonstrates that 14. Chief Sands further understands that MCSO does racially profile.

20 21

racial profiling is illegal. See Deposition of Brian Sands dated 11/15/10 at p. 92, ln. 24 to p. 93, ln. 1, attached as Exhibit 18.

Absent specific evidentiary support, blanket denials of racial profiling by MCSO do not create a genuine issue

of fact. Villiarimo, 281 F.3d at 1061

22

(“[T]his court has refused to find a

genuine issue where the only

23

evidence presented is uncorroborated

and self-serving testimony.” (internal

24

quotation marks and citation

omitted)).

25 51 MCSO Lieutenant Joseph Sousa, the head Undisputed that Lieutenant Sousa so

26

of MCSO’s Human Smuggling Unit

testified. Otherwise disputed.

(“HSU”), and one of the top planners for Plaintiffs have adduced a large

27

executing and supervising saturation patrols, testified that racial profiling is

amount of undisputed documentary evidence and testimony that

28

prohibited by MCSO policy, is illegal, and demonstrates that MCSO does

25

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 26 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

HSU members do not racially profile.

racially profile.

2 3 4

See Deposition of Joseph Sousa dated 12/10/09 at p.135, ln. 24 to p. 136, ln. 17, attached as Exhibit 5; see also Sousa Deposition dated 10/22/10 at p. 30, lns. 14- 17, attached as Exhibit 19.

Lieutenant Sousa admitted in deposition testimony that he had no personal knowledge of whether HSU officers were racially profiling during their stops, but simply trusted

5

deputies not to racially profile. Sousa Dep. I, at 136:10-137:3 [Defs.’

6

Resp. to Pls.’ SOF Ex. 5]. His testimony is therefore insufficient to

7

avoid summary judgment. See Karazanos, 948 F.2d at 337 (“A

8

party to a law suit cannot ward off summary judgment with an affidavit

9

or deposition based on rumor or conjecture.” (quotation marks and

10

citation omitted)).

Absent specific evidentiary support,

11

blanket denials of racial profiling by

MCSO do not create a genuine issue

12

of fact. Villiarimo, 281 F.3d at 1061

(“[T]his court has refused to find a

13

genuine issue where the only

evidence presented is uncorroborated

14

and self-serving testimony.” (internal

quotation marks and citation

15

omitted)).

16

52

HSU Sergeant Manuel Madrid, one of two Undisputed that Sgt. Madrid so supervising sergeants for the unit, and a testified. Otherwise disputed.

17

Latino himself, testified that racial

Plaintiffs have adduced a large

profiling is illegal, that race or ethnicity amount of undisputed documentary

18

can never be used in making a traffic stop, evidence and testimony that and that the HSU members he supervises demonstrates that MCSO does

19 20

do not racially profile. See Deposition of Manuel Madrid dated 10/27/09 at p. 20, lns. 14-23; p. 195, lns. 15-17, and p. 202, 18-22, attached as Exhibit 10.

racially profile. Sgt. Madrid admitted in deposition that he was not present at stops and that MCSO did not collect data on

21

the race of individuals stopped.

Madrid Dep. I, at 196:22-198:1

22

[Hickey Dec. Ex. 50]. Instead, Sgt.

Madrid simply trusts his deputies not

23

to engage in racial profiling. Id. at

198:2-12 [Hickey Dec. Ex. 50]. His

24

testimony is therefore insufficient to

avoid summary judgment. See

25

Karazano, 948 F.2d at 337 (“A party

to a law suit cannot ward off

26

summary judgment with an affidavit

or deposition based on rumor or

27

conjecture.” (quotation marks and

citation omitted)).

28

26

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 27 of 276

1 No. Defendants’ SSOF
2 3 4 5 6

Plaintiff’s Response Absent specific evidentiary support, blanket denials of racial profiling by MCSO do not create a genuine issue of fact. Villiarimo, 281 F.3d at 1061 (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony.” (internal quotation marks and citation omitted)).

7

53

HSU Sergeant Brett Palmer, the remaining Undisputed that Sgt. Palmer so supervisory sergeant for the unit, testified testified. Otherwise disputed.

8

that racial profiling is wrong and illegal, Plaintiffs have adduced a large and that the HSU members he supervises amount of undisputed documentary

9

do not racially profiling. See Deposition evidence and testimony that of Brett Palmer dated 10/23/09 at p. 36, demonstrates that MCSO does

10

lns 10-25; p. 135, lns. 5-25; p. 139, ln. 21 racially profile. Absent specific to p. 140, ln 18; p. 145, lns. 12-25; and p. evidentiary support, blanket denials

11

153, lns. 13-15, attached as Exhibit 9.

of racial profiling by MCSO do not create a genuine issue of fact.

12

Villiarimo, 281 F.3d at 1061 (“[T]his court has refused to find a genuine

13

issue where the only evidence presented is uncorroborated and self-

14

serving testimony.” (internal quotation marks and citation

15

omitted)).

54 Louis DiPietro, the deputy that made the Undisputed that Deputy DiPietro so

16

traffic stop on Plaintiff Melendres, knows testified. Otherwise disputed.

and understands that racial profiling is

Plaintiffs have presented specific,

17

illegal. See Deposition of Louis DiPietro undisputed evidence that race was a

dated 10/21/09 at p. 87, lns. 17-19,

factor in the stop and investigation of

18

attached as Exhibit 13. Race was not a Mr. Ortega Melendres.

19 20 21

factor in Deputy DiPietro’s finding that he had probable cause to stop the truck in which Plaintiff Melendres was a passenger. Id. at Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 125-126

Deputy DiPietro was instructed to stop the vehicle carrying Mr. Ortega Melendres if he could develop probable cause to do so. See Pls.’ SOF 174. He received his instruction from officers in an undercover unit,

22

who observed Mr. Ortega Melendres and others enter the vehicle in

23

question from a church parking lot. Id. Those officers did not have any

24

information about Mr.Ortega Melendres other than what was

25

visually discernible to them, including his race. See Pls.’ SOF

26

173-76.

After stopping the car, Deputy

27

DiPietro suspected that Mr. Ortega

Melendres was an illegal immigrant

28

27

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 28 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8

Plaintiff’s Response because he was (DiPietro believed) a day laborer. DiPietro Dep. 49:1750:25 [Defs.’ SOF Ex. 4]. Deputy DiPietro testified that most day laborers in Maricopa County are Hispanic. Id. at 51:2-6 [Defs.’ SOF Ex. 4]. Deputy DiPietro called for backup to investigate the alienage of the Latino passengers. Pls.’ SOF 178-79. Mr. Ortega Melendres was removed from the vehicle and detained, and the driver left the scene in the vehicle, after receiving only a verbal warning. See Pls.’ SOF 181.

9

Deputy DiPietro’s general denials of racial profiling are insufficient to

10

avoid summary judgment. Absent specific evidentiary support, blanket

11

denials of racial profiling by MCSO do not create a genuine issue of fact.

12

Villiarimo, 281 F.3d at 1061 (“[T]his court has refused to find a genuine

13

issue where the only evidence presented is uncorroborated and self-

14

serving testimony.” (internal quotation marks and citation

15

omitted)).

55 Matthew Ratcliffe, the deputy that made Undisputed that Deputy Ratcliffe so

16

the traffic stop on the Rodriguez Plaintiffs testified. Otherwise disputed.

knows and understands that racial

Plaintiffs have presented specific,

17

profiling is illegal and wrong. See

undisputed evidence that race was a

Deposition of Matthew Ratcliffe dated

factor in the citation and

18

10/15/09 at p. 115, lns.18-25, attached as investigation of the Rodriguezes.

19 20 21

Exhibit 6. Race was not a factor in Deputy Ratcliffe’s finding that he had probable cause to stop the truck in which the Rodriguez Plaintiffs were driving or occupying. Id. at Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 132-135.

After Deputy Ratcliffe stopped the Rodriguezes, he asked for Mr. Rodriguez’s driver’s license, registration, proof of insurance, and social security information. Pls.’ SOF 188. Other vehicles stopped at

22

the same time were released without a citation, and at least one vehicle

23

was permitted to drive through to the marina. Pls.’ SOF 192, 198. Deputy

24

Ratcliffe proceeded to cite Mr. Rodriguez. Pls.’ SOF 193. In

25

completing Mr. Rodriguez’s citation, Deputy Ratcliffe asked again for his

26

social security information. Pls. SOF 193. This does not conform with

27

MCSO policy, which provides that additional forms of identification

28

should be requested “if the violator

28

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 29 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8 9 10 11 12

Plaintiff’s Response does not have a driver’s license.” Pls.’ SOF 195. The record contains examples of citations with the block for Social Security number left blank. Pls.’ SOF 195. Deputy Ratcliffe himself stopped several other white drivers the same day, but he did not personally issue those drivers citations. Pls.’ SOF 197. Deputy Ratcliffe’s general denials of racial profiling are insufficient to avoid summary judgment. Absent specific evidentiary support, blanket denials of racial profiling by MCSO do not create a genuine issue of fact. Villiarimo, 281 F.3d at 1061 (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and selfserving testimony.” (internal quotation marks and citation omitted)).

13 56 Michael Kikes, the deputy that made the Undisputed that Deputy Kikes so

traffic stop on the Plaintiffs Meraz and testified. Otherwise disputed.

14

Nieto knows and understands that racial Plaintiffs have presented specific,

profiling is illegal and wrong. See

undisputed evidence that race was a

15

Deposition of Michael Kikes dated

factor in the stop and use of force

02/15/10 at p. 46, lns. 14-17, attached as against Meraz and Nieto. See Pls.’

16

Exhibit 7. Race was not a factor in

Resp.

17 18 19

Deputy Kikes’s finding that he had probable cause to stop the truck in which Plaintiffs Meraz and Nieto were driving or occupying. Id. at Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 85-86.

Ms. Meraz and Mr. Nieto pulled into a gas station where Deputy Armendariz had detained two Hispanic men pursuant to a traffic stop. Pls.’ SOF 200-01. Ms. Meraz and Mr. Nieto were listening to

20

Spanish music and singing along. Deputy Armendariz ordered Ms.

21

Meraz and Mr. Nieto to leave the scene, and they complied. Pls.’ SOF

22

202. Deputy Armendariz called for backup around the same time. Pls.’

23

SOF 203.

Knowing only that Deputy

24

Armendariz had requested backup,

Deputies Kikes and Beeks pursued

25

Ms. Meraz and Mr. Nieto’s vehicle

and pulled it over in the driveway of

26

Ms. Meraz and Mr. Nieto’s father’s

business. Pls.’ SOF 207. Deputy

27

Beeks drew his weapon. Pls.’ SOF

209. Mr. Nieto called 911 to request

28

29

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 30 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Plaintiff’s Response assistance in dealing with the deputies. Pls.’ SOF 208. Deputy Kikes ordered Mr. Nieto to get off the phone and then used force to remove him from the vehicle. Deputy Kikes and other officers placed Mr. Nieto against his vehicle and removed his wallet to obtain his identification. Pls.’ SOF 210. At the same time, Mr. Nieto’s father came out of his business and told the deputies that Mr. Nieto and Ms. Meraz were U.S. citizens. Pls.’ SOF 211. After checking Mr. Nieto’s identification, officers released Mr. Nieto and Ms. Meraz without charge. Pls.’ SOF 212-13. Deputy Kikes’s general denials of racial profiling are insufficient to avoid summary judgment. Absent specific evidentiary support, blanket denials of racial profiling by MCSO do not create a genuine issue of fact. Villiarimo 281 F.3d at 1061 (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and selfserving testimony.” (internal quotation marks and citation omitted)).

17 57 Arpaio, via his secretary, normally writes Undisputed that Sheriff Arpaio so

“thank-you” notes or letters to all people testified. Otherwise disputed. There

18

that write to him regardless of their

are many letters written to Sheriff

contents. Id. at ¶ 57. See Deposition of Arpaio for which Defendants have

19

Joseph Arpaio dated 11/16/10 at p. 16, ln. not produced any “thank you” letters.

15 to p. 17, ln. 12, attached as Exhibit 15. It may be that such letters were not

20

preserved. Plaintiffs are therefore

unable to determine whether the

21

Sheriff’s testimony on this subject is

true.

22 58 Arpaio forward the letters predominately Disputed. The letters on record were

23

to only Chief Brian Sands, when he believes the letter may be of interest to

not forwarded “predominantly to only Chief Brian Sands.” Many

24

them. See Deposition of Joseph Arpaio letters were also forwarded to other dated 11/16/10 at p. 21, ln. 9 to p. 22, ln. staff members, including then-Chief

25

4, attached as Exhibit 15.

Deputy Hendershott, then-Deputy Chief Jack MacIntyre, Captain

26

Chagolla, and Lisa Allen, among others. See, e.g., Pls.’ SOF 26 (citing

27

letters forwarded to Sands and others), 28 (Sands and others), 33

28

(Sands and others), 39 (Hendershott),

30

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 31 of 276

1 No. Defendants’ SSOF
2

Plaintiff’s Response 42 (Sands and others), 48 (Sands and others), 49 (Sands and others).

3

Furthermore, this statement does not create a genuine issue of fact. Chief

4

Sands is the person within the MCSO who was in charge of planning

5

saturation patrols. Pls.’ Resp. to Defs.’ SSOF 63, infra. Therefore,

6

the fact that he was the recipient of the letters is highly probative of the

7

MCSO’s discriminatory intent.

59 When Arpaio was questioned about

Disputed. Sheriff Arpaio did not

8

whether he agreed with the racially

testify that he disagreed with the

charged comments contained within a

racially charged comments contained

9

letter co-written by a Sarah M. and an a in the letter in question.

10 11 12

Erika S Arpaio made it abundantly clear that he did not adopt or agree or endorse their comments. See Deposition of Joseph Arpaio dated 11/16/10 at p. 107, ln. 20 to p. 109, ln. 14, attached as Exhibit 15.

The comments in question are, “Stopping Mexicans to make sure they are legal is not racist, because our state is a border state to Mexico. So of course, there will be more Mexican illegals here than any other

13

ethnic group.” Melendres MCSO 78209 [Hickey Dec. Ex. 22].

14

Sheriff Arpaio took no action at the

time he received the letter that

15

evidenced any disagreement with it.

He initialed the letter and requested a

16

thank you. Pls.’ SOF 43. Indeed, the

letter is consistent with statements

17

Sheriff Arpaio himself has made

outside the context of litigation. See

18

Pls.’ SOF 12-14.

19

Sheriff Arpaio himself has publicly stated, “I always have an official

20

reason, so I can win the lawsuits, and then I have my reason.” Arpaio Dep.

21

I 261:14-262:15 [Hickey Reply Dec. Ex. 241].

22 60 When Arpaio was asked whether he

Undisputed that Sheriff Arpaio so

agreed with the racially charged language testified. Otherwise disputed.

23 24 25 26 27

in another letter, document Melendres MCSO 7540304, Ex. 23 to Arpaio Depo. II, Arpaio testified that he did not even understand what the author was thinking and “I can’t believe what he’s thinking when he wrote this.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 157, lns. 18-25, attached as Exhibit 15.

The question posed to Sheriff Arpaio was, “Q. The paragraph that you think you may have emphasized [by drawing a line next to it], the one at the bottom of the first page, does that describe a violation of the law? . . . Does [the author] describe any crimes committed or potentially committed by the day laborers in that

28

paragraph? A. I can’t speak for him.

31

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 32 of 276

1 No. Defendants’ SSOF
2 3 4

Plaintiff’s Response I can’ think -- I can’t believe what he’s thinking when he wrote this. It's difficult to make a decision over one paragraph and not knowing what he's really thinking.” Melendres MCSO 75403-04 [Hickey Dec. Ex. 28].

5

The undisputed facts show that (1) Sheriff Arpaio initialed the letter, (2)

6

highlighted the section describing day laborers in Mesa by drawing a

7

line next to it, and (3) forwarded the letter to Chief Sands, who plans

8

saturation patrols. Pls.’ SOF 87, 90. Sheriff Arpaio received a similar

9

letter concerning Mesa in the following weeks and also forwarded

10

it to Chief Sands. Pls.’ SOF 91. He wrote on the second letter, “I will be

11

going into Mesa.” Melendres MCSO 76195 [Hickey Dec. Ex. 27]. MCSO

12

conducted a saturation patrol in Mesa approximately one month later. Pls.’

13

SOF 95. Sheriff Arpaio did not express any disagreement with the

14

statements in the letter at the time.

Absent specific evidentiary support,

15

blanket denials of racial profiling by

MCSO do not create a genuine issue

16

of fact. Villiarimo, 281 F.3d at 1061

(“[T]his court has refused to find a

17

genuine issue where the only

evidence presented is uncorroborated

18

and self-serving testimony.” (internal

quotation marks and citation

19

omitted)).

20 21 22 23

61

Defense expert Mr. Bennie Click opined: The 3 incident that are the basis of this suit do not support that deputies engage in improper tactics such as racial profiling and improper stops to carry out their responsibilities. Every MCSO deputy and supervisor

Undisputed that Mr. Click so testified. Otherwise disputed. Plaintiffs have adduced undisputed evidence showing that MCSO engages in racial profiling and that this has caused injury to the named Plaintiffs. See Pls.’ MSJ 3:16-12:18, 14:18-31:15; Pls.’ Resp. to Defs.’

24

deposed understood, without equivocation, that racial profiling is

Mot. for Summ. J. 28:1-34:12, and exhibits cited therein. This evidence

25

wrong, a serious crime and could result shows discriminatory conduct at all

in the loss of their jobs. This

levels of MCSO.

26 27

understanding by all personnel is a strong motivator not to racially profile any person.

Absent specific evidentiary support, blanket denials of racial profiling by MCSO do not create a genuine issue

See Defendants’ Statement of Facts

of fact. Villiarimo, 281 F.3d at 1061

28

32

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 33 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

(Dkt#413-1) at the Report of Ben Click (“[T]his court has refused to find a

2

dated January 21, 2011, at pgs. 43 and 44, genuine issue where the only

attached thereto as Exhibit 16; see also evidence presented is uncorroborated

3

March 18, 2011 Deposition of Defense and self-serving testimony.” (internal

Expert Ben Click at p. 341, ln. 24 to p.

quotation marks and citation

4

342, ln. 14, attached as Exhibit 17 to

omitted)).

Dkt#413-1 (wherein Mr. Click testified to

5

the foundation for his opinions and that his

opinions in the report were the same he

6

would provide at trial to a reasonable

degree of probability in his field of

7

expertise).

8

62

Joseph Arpaio forwards citizen letters to staff in his office when he believes the

9

letter may be of interest to them. See Deposition of Joseph Arpaio dated

10

11/16/10 at p. 21, ln. 9 to p. 22, ln. 4, attached as Exhibit 15.

Undisputed.

11 63 MCSO Chief Brian Sands makes the

Undisputed only that Chief Sands

decision of where, when, and how to do a typically decides whether, when, and

12

saturation patrol. See Deposition of Brian how to do a saturation patrol.

Sands dated 12/14/09 at p. 71, lns. 19-21; Otherwise disputed. However, Chief

13

p. 79, lns. 23-25, attached as Exhibit 14. Sands testified that Sheriff Arpaio is

There are a multitude of different law

the final decision-maker for the

14

enforcement reasons a saturation patrol is office, and could make the final

conducted, and conducted in a particular decision on where to plan an

15

area. Id. at p. 71, lns. 9-16.

operation. Sands Dep. I, 17:18-22

[Hickey Opp’n Dec. Ex. 231], 79:23-

16

80:4 [Defs.’ Resp. to Pls.’ SOF Ex.

14]; see also Pls.’ SOF 85 (Sheriff

17

Arpaio expects Chief Sands to do

whatever he can about forwarded

18

citizen complaints). Circulation of

citizen complaints by the Sheriff to

19

his subordinates communicates the

Sheriff’s desires. Pls.’ SOF 51.

20

The undisputed documentary

21

evidence shows that specific saturation patrols were planned on

22

the basis of racially charged citizen complaints that did not describe any

23

crime, and which were forwarded by Sheriff Arpaio to Chief Sands. See

24

Pls.’ SOF 84, 93, 95, 97-98 (operations based on racially charged

25

citizen complaints).

Chief Sands testified that a site for a

26

saturation patrol could be selected

based on citizen requests: “Q. BY

27

MR. KOZINETS: Chief Sands, what

procedure is used for selecting when

28

33

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 34 of 276

1 No. Defendants’ SSOF
2 3 4 5 6

Plaintiff’s Response and where to perform an anti-illegal immigration sweep? . . . THE WITNESS: There is no one reason. There's a multitude of reasons. It could be requests from people in the community. It could be a request from city officials. It could be based on criminal contact.” Sands Dep. I, at 71:9-16 [Hickey Dec. Ex. 76]; see also Pls. SOF 75.

7

64

The race or ethnicity of people play no role in Chief Brian Sands’ selection of

Disputed. Plaintiffs have adduced uncontested documentary evidence

8

saturation patrol locations. See

that specific saturation patrols were

Deposition of Brian Sands dated 12/14/09 planned on the basis of racially

9

at p. 182, ln. 24 to p. 183, ln. 5, attached as charged complaints that described no

Exhibit 14.

crime. See Pls.’ SOF 84, 93, 95, 97-

10

98. Plaintiffs have adduced uncontested documentary evidence

11

that Sheriff Arpaio retained and circulated to his staff materials

12

advocating racial profiling. See Pls.’ SOF 25, 28, 30, 32, 33, 36-38, 40,

13

42-43.

Absent specific evidentiary support,

14

blanket denials of racial profiling by

MCSO do not create a genuine issue

15

of fact. Villiarimo, 281 F.3d at 1061

(“[T]his court has refused to find a

16

genuine issue where the only

evidence presented is uncorroborated

17

and self-serving testimony.” (internal

quotation marks and citation

18

omitted)).

19

65

The ethnic constituency in a neighborhood Disputed. The record shows that

plays no role in Chief Brian Sands

Sheriff Arpaio received letters

20

selecting locations for saturation patrols. calling for saturation patrols in

See Deposition of Brian Sands dated

Latino neighborhoods, and that

21

12/14/09 at p. 183, lns. 6-15, attached as Sheriff Arpaio circulated these letters

Exhibit 14.

to his staff. Sheriff Arpaio received

22

a letter stating, “The claim about your profiling in doing your job is

23

ridiculous Where else would you look for illegal aliens except in the

24

neighborhoods where they would reside[?]” OSLS002990 [Hickey

25

Dec. Ex. 193]. He circulated the letter to Chief Sands, who plans

26

saturation patrols, as well as to others. Pls.’ SOF 28. Sheriff Arpaio

27

received another letter that advocated racial profiling and stated, “These

28

Latino communities secrete and

34

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 35 of 276

1 No. Defendants’ SSOF
2 3 4

Plaintiff’s Response conceal these newly arrived illegals . . ..” OSLS002976-89 [Hickey Dec. Ex. 192]. Sheriff Arpaio circulated the letter to Chief Sands, Chief Deputy Hendershott, and Lisa Allen. Pls.’ SOF 25-26.

5

Saturation patrols are regularly planned on the basis of citizen

6

complaints. Pls.’ SOF 75. Plaintiffs have also adduced uncontested

7

documentary evidence that specific saturation patrols were planned on

8

the basis of racially charged complaints that described no crime.

9

See Pls.’ SOF 84, 93, 95, 97-98.

Absent specific evidentiary support,

10

blanket denials of racial profiling by

MCSO do not create a genuine issue

11

of fact. Villiarimo, 281 F.3d at 1061

(“[T]his court has refused to find a

12

genuine issue where the only

evidence presented is uncorroborated

13

and self-serving testimony.” (internal

quotation marks and citation

14

omitted)).

15

66

Even with an MCSO emphasis on enforcing laws related to illegal

Disputed. MCSO News Releases for saturation patrols expressly state that

16

immigration, the MCSO does not focus or the operations are aimed at

target areas believed to contain a high

combating illegal immigration. ORT

17

percentage of illegal immigrants. See

421-22 [Hickey Dec. Ex. 7]; Pls.’

Deposition of Brian Sands dated 12/14/09 SOF 53. An MCSO officer referred

18

at p. 94, ln. 22 to p. 95, ln. 10, attached as to the operations as “roundups on Exhibit 14. Chief Sands testified that “the illegal immigrants.” Pls.’ SOF 56.

19

[illegal] immigration problems that we have are so widespread throughout

MCSO also conducted a series of operations aimed at locations where

20

Maricopa County there [are] very few

Hispanic day laborers were suspected

places you can go [on a saturation patrol] to be, on the assumption that the

21

where you are not going to encounter an laborers were illegal immigrants. illegal alien. Whether to focus on a group Pls.’ SOF 76, 78, 80, 82, 87, 91, 96.

22 23 24 25

of people standing on a corner because they look a certain way is not good practice and would certainly be easier to just go up and start grabbing people off the street corner because they are day laborers, but it is not a practice or anything that we condone in the sheriff’s office.” Id.

Additionally, the record shows that MCSO planned specific saturation patrols on the basis of citizen complaints concerning individuals believed to be illegal immigrants. See Pls.’ SOF 84, 93, 95, 97-98. As a general matter, saturation patrols are regularly planned on the basis of

26

citizen complaints. Pls.’ SOF 75.

27

Absent specific evidentiary support, blanket denials of racial profiling by

28

MCSO do not create a genuine issue

35

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 36 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response of fact. Villiarimo, 281 F.3d at 1061

2

(“[T]his court has refused to find a

genuine issue where the only

3

evidence presented is uncorroborated

and self-serving testimony.” (internal

4

quotation marks and citation

omitted)).

5 67 MCSO Lt. Joe Sousa testified that the

Disputed. MCSO News Releases for

6

areas for saturation patrols are not selected saturation patrols expressly state that

because they may have a high

the operations are aimed at

7

concentration of suspected illegal aliens. combating illegal immigration. ORT

See Deposition of Joseph Sousa dated

421-22 [Hickey Dec. Ex. 9]; Pls.’

8

12/10/09 at p. 96, ln. 25 to p. 97, ln. 3, attached as Exhibit 5.

SOF 53. An MCSO officer referred to the operations as “roundups on

9

illegal immigrants.” Pls.’ SOF 56. MCSO also conducted a series of

10

operations aimed at Hispanic day laborers on the basis of the

11

assumption that they were illegal immigrants. Pls.’ SOF 76, 78, 80,

12

82, 87, 91, 96.

Additionally, the record shows that

13

MCSO planned specific saturation

patrols on the basis of citizen

14

complaints concerning individuals

believed to be illegal immigrants.

15

See Pls.’ SOF 84, 93, 95, 97-98. As

a general matter, saturation patrols

16

are regularly planned on the basis of

citizen complaints. Pls.’ SOF 75.

17

The complaints in the record

uniformly concern illegal

18

immigration. Pls.’ SOF 76, and

exhibits cited therein.

19

Absent specific evidentiary support,

20

blanket denials of racial profiling by MCSO do not create a genuine issue

21

of fact. Villiarimo, 281 F.3d at 1061 (“[T]his court has refused to find a

22

genuine issue where the only evidence presented is uncorroborated

23

and self-serving testimony.” (internal quotation marks and citation

24

omitted)).

68 The sites for saturation patrols are

Disputed.

25 26

determined based on a combination of the following types of information or factors:

Defendants' sequence of factors that go into the determination of how the

A. The area’s crime history and statistics. sites of saturation patrols are selected

27

See Deposition of Brian Sands dated is misleading. When asked how 12/14/09 at p. 71, lns. 19-21; p. 79, locations for saturation patrols were

28

lns. 23-25, p. 139, ln. 5 to p.140, ln. 6; selected, Chief Sands listed "requests

36

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 37 of 276

1 No. Defendants’ SSOF p. 142; lns. 5-25; and p. 143, lns. 7-

Plaintiff’s Response from people in the community" first.

2

16, attached as Exhibit 14; see also Sands Dep. I, at 71:9-16 [Defs.’

Deposition of Joseph Sousa dated

Resp. to Pls.’ SOF Ex. 14].

3

12/10/09 at p. 89, lns. 20 to p. 91, ln.

23, attached as Exhibit 5.

4 5 6 7 8 9

B. Intelligence and data regarding possible criminal activity at the possible site. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns 916; p. 124, ln. 19 to p. 125, ln. 13; p. 133, lns. 7-19; p. 138, ln. 5 to p. 139, ln. 4; p. 139, ln. 5 to p.140, ln. 15; p. 142, lns. 5-25; p. 143, lns. 7-16; p. 143, ln. 24 to p.144, ln 15; and p.146, ln. 9 to p.147, ln. 15, attached as Exhibit 14.

Even the examples that Defendants cite to for support that MCSO relied on crime history or reports of criminal activity establishes that MCSO conducted no comparative crime analysis to justify the large concentration of resources in that particular area as opposed to other locations in Maricopa County. See, e.g., Sands Dep. I, at 138:20-139:14, 141:6-8, 142:17-25, 143:21-23, 144:16-18 [Defs.’ Resp. to Pls.’ SOF

10

C. Requests for assistance in a particular Ex. 14]; see also Sousa Dep. I, at

area from Arizona Legislators and

89:20-92:23 (could not recall MCSO

11

information offered in the request.

doing any type of comparative crime

See Deposition of Brian Sands dated analysis prior to a sweep except

12

12/14/09 at p. 133, ln. 23 to p. 134, ln. possibly for one location where

9, attached as Exhibit 14.

MCSO did not end up going)

13 14 15

D. Requests for assistance from city officials for a particular area. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 9-16, attached as Exhibit 14.

[Hickey Dec. Ex. 88]. In the isolated instances where "recent [criminal] activity" had been a purported factor in the decision to conduct a saturation patrol in the area, Chief Sands acknowledged that the activity

16

E. Information provided by local police was not unique to the community

officers from other law enforcement selected for the saturation patrol, nor

17

agencies. See Deposition of Brian could he confirm that the saturation

Sands dated 12/14/09 at p. 80, ln. 18 to patrol did anything target that

18

p. 81, ln. 2, attached as Exhibit 14.

particular activity. See, e.g., Sands

19 20 21 22 23

F. Requests for assistance from private citizens in the community providing information about possible criminal activity; but such information provided by private citizens is independently evaluated and confirmed by the MCSO. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 9-16; p. 79, lns.17-22, attached as Exhibit 14.

Dep. I, at 138:5-139:21 [Defs.’ Resp. to Pls.’ SOF Ex. 14]; see also Pls.’ SOF 106 (officers not briefed to target any particular type of criminal activity on saturation patrols; Sousa Dep. I, at 95:23-96:10 (no saturation patrols initiated by traffic concerns) [Hickey Dec. Ex. 40]. Chief Sands reported that one supposed “spike in crime” that MCSO relied on was based on “news stories,” and he

24

could not confirm whether MCSO

ever consulted with the local police

25

department regarding the stories.

Sands Dep. I, at 139:22-140:22

26

[Defs.’ Resp. to Pls.’ SOF Ex. 14].

Moreover, Chief Sands testified that

27

MCSO gathered no statistics other

than the few general statistics that

28 37

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 38 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff’s Response were attached to some operations plans, explaining that, "Typically we don't do a comparative analysis. The mere fact that there is criminals there and bad guys" is justification enough for MCSO to launch a saturation patrol. Sands Dep. I, at 145:1-11 [Defs.’ Resp. to Pls.’ SOF Ex. 14].
Finally, MCSO conducted no analysis after any of the operations to see if crime went down. Sands Dep. I, at 141:18-20, 143:21-23, 144:1921 [Defs.’ Resp. to Pls.’ SOF Ex. 14]
Defendants refer to only a single example of MCSO initiating a saturation patrol in Mesa in part in response to request from Arizona Legislators, but they have failed to demonstrate that the letter contained any criminal intelligence. Referring to his decision to respond to the request from Senator Russell Pearce, Linda Gray and some other politicians known for their antiimmigrant platforms, Sheriff Arpaio said, referring to some funding that these politicians had helped him secure, "I have a strange old philosophy that if someone does something for you . . . I think if they want something back, we ought to do it." ORT 59-65, Ex. 13 to Arpaio Dep. I (introduced at Arpaio Dep. I at 175:4-20) (East Valley Tribune series) [Hickey Dec. Ex. 12, Hickey Reply Dec. Ex. 241]; Arpaio Dep. I at 182:11-186:22 [Hickey Reply Dec. Ex. 241].
Defendants could not identify any specific examples of MCSO initiating a saturation patrol in response to requests from city officials or police, but the single example that appears in the record is the Queen Creek patrol, which was initiated in response to “emails from the town council in reference to day
38

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 39 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff’s Response laborers in their city.” Pls.’ SOF 98. The nature of the emails MCSO was responding to in that instance complained of Hispanic men making the residents feel uncomfortable, and not any criminal activity. Pls.’ SOF 96-97.
Plaintiffs dispute that MCSO only acted on citizen requests after “independently evaluat[ing] and confirm[ing]” them. The record reveals that MCSO regularly initiated saturation patrols based on raciallycharged citizen complaints containing no information about criminal activity. See Pls.’ SOF 75101. Sheriff Arpaio routinely passes on such citizen complaints to Chief Sands for use in planning operations. Pls.’ SOF 77, 79, 85, 90, 93, 99; see also Pls.’ SOF 74 (Sands is responsible for planning saturation patrol operations, including site selection), 75, 100 (acknowledging that saturation patrols are regularly initiated based on citizen complaints).
An example of MCSO initiating a saturation patrol in response to citizen requests is the one in Cave Creek where Mr. Ortega Melendres was stopped. See Pls.' Resp. to Defs.' SOF 12. MCSO's own internal correspondence for that operation confirms that an undercover followup investigation of the church revealed “no information pertaining to forced labor, human smuggling[,] drop ‘drop houses,’” nor did it uncover any evidence that the day laborers congregating at the church were illegal immigrants. Melendres MCSO 014686 [Hickey Dec. Ex. 139].
Finally, Defendants are mistaken in their view that self-serving testimony about other factors that were
39

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 40 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8 9 10 11

Plaintiff’s Response considered in the planning of saturation patrols precludes a finding that the patrols were racially inspired. First, their self-serving denials made during litigation and without evidentiary support are insufficient to create a genuine issue of material fact. See Villiarimo, 281 F.3d at 1061 ("[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony." (internal quotation marks and citation omitted)). Second, “[r]arely can it be said that a [governmental] body . . . made a decision motivated solely by a single concern . . . .” Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977).

12 69
13 14 15 16

In evaluating private citizen complaints, there is an independent investigation of the complaint made to determine its legitimacy and whether there is any basis to do anything. See Deposition of Brian Sands dated 12/14/09 at p. 82, lns. 5-23), attached as Exhibit 14. “Generally speaking, I [Chief Sands] likes to know what is going on in the community as a whole relative to crime before we do a

Disputed. The record reveals that saturation patrols have been planned without any objective crime or traffic analysis, see Pls.’ SOF 107, but on the basis of racially charged citizen complaints that admittedly contain no description of criminal activity. See Pls.’ SOF 75-101.

17

saturation patrol.” see also Deposition of Moreover, Chief Sands’s and Lt. Joseph Sousa dated 12/10/09 at p. 86, ln. 3 Sousa’s self-serving denials made

18

to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen

during litigation and without any evidentiary support are insufficient to

19

complaints; that if the citizen is racially create a genuine issue of fact. See profiling and not describing any criminal Villiarimo, 281 F.3d at 1061 (“[T]his

20

activity, the complaint is rejected; the efforts MCSO takes to independently

court has refused to find a genuine issue where the only evidence

21

evaluate whether criminal activity is

presented is uncorroborated and self-

taking place); Deposition of Brian Sands serving testimony.” (internal

22

dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. quotation marks and citation 16, attached as Exhibit 14 (providing a omitted)).

23

detailed discussion of the MCSO rejecting racially motivated tips that provide no

24

evidence of criminal activity).

70 More specifically as to how the MCSO Undisputed only that Chief Sands so

25

handles citizen complaints that may be testified. Otherwise disputed. The

made by persons with racial prejudice, or record reveals that saturation patrols

26

express racial prejudice as those letters have been planned without any

Plaintiffs complain of in their Motion,

objective crime or traffic analysis,

27

Chief Sands testified:

see Pls.’ SOF 107, but on the basis of

28

Q. How do you satisfy yourself that a

racially charged citizen complaints

40

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 41 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

complaint that you are about to act on that admittedly contain no

2

was not motivated by race or

description of criminal activity. See

ethnicity?

Pls.’ SOF 75-101.

3

A. I ignore it, unless there is some type of For example, the operation that

4

crime relative to it that would still lead MCSO conducted in Cave Creek in

to the discovery of that crime, not

which Mr. Ortega Melendres was

5

excluding the person or the

apparently based on citizen

information source’s information for complaints. See Pls.’ Resp. to Defs.’

6

giving us that information. To ignore SOF 12. However, MCSO’s own all information would be contrary to internal correspondence confirms

7 8 9

good law enforcement. Q. So even if you have reason to believe
that a complaint may be motivated by racism, you would not discount the complaint solely on that basis?

that an undercover investigation of the church conducted prior to the operation revealed “no information pertaining to forced labor, human smuggling[,] possible ‘drop houses,’” nor did it uncover any evidence that

10

A. If the complaint is racial only in itself, the day laborers congregating at the

there is no follow-up done on it.

church were illegal immigrants.

11

There is no need to follow up on a

Melendres MCSO 014686 [Hickey

complaint about someone that is Irish Dec. Ex. 139].

12 13 14

or Jewish or ethnically Mexican that lives in a house with a whole group of other people. I mean, there is no need to follow up. That would be – there is no crime involved.

Defendants cannot manufacture a genuine issue of fact on this point by offering self-serving testimony that lacks evidentiary support elsewhere in the record. See Villiarimo, 281

Q. If you believe a crime may be

F.3d at 1061 (“[T]his court has

15

involved, you might pursue that tip refused to find a genuine issue where

even though you have reason to

the only evidence presented is

16

believe that the tip was also made on uncorroborated and self-serving

some improper consideration of race testimony.” (internal quotation marks

17

or ethnicity?

and citation omitted)).

18

A. Keep in mind I am not supporting racial or prejudicial attitudes in the

19

community at all when I say this, but sometimes the information sources

20

that we end up using in law enforcement are people that are in

21

involved in – in criminal elements in their community or neighborhood they

22

live in and oftentimes these people give us information. It can be

23

corroborated to solve a murder or human smuggling case, that person

24

may be, in fact, motivated for ulterior motives of his own, and I am just

25

being honest with you in saying that he may be racially prejudiced at the

26

same time and its- it would be hard to disqualify that information and say

27

that the information source doesn’t like certain groups of people so we are

28

not going to- we are not going to

41

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 42 of 276

1 No. Defendants’ SSOF

investigate the crime that he very well

2

be a witness to.”

Plaintiff’s Response

3

See Deposition of Brian Sands dated 12/14/09 at p. 82, ln. 24 to p. 84, ln. 12,

4

attached as Exhibit 14.

71 It is standard practice for a top law

Disputed. When Mr. Click was

5

enforcement officer to forward to support asked what he would have done if he

staff letters received from the public, even received racist citizen

6

letters containing racially offensive

correspondence when he was the

comments, and this is what defense expert Police Chief in Texas, he responded,

7

Bennie Click did when he was Chief of “I don’t think I would even respond

Police for Dallas, Texas and received such to it. I don’t know what they did. I

8

letters:

don’t think I’d even respond to it.”

9

Q. But would you expect and want the To the extent he might have done head—in terms of best practices the anything with it internally, Mr. Click

10

head of a law enforcement agency, testified that he might pass it on to like the MCSO, to indicate, well, we his assistant and one of his chiefs for

11

can’t help this kind of stuff. Some the purpose of instructing his racist folks out there, but, of course, subordinates that the department

12

we don’t want to have anything to do should not “align [it]self with people with them. You would want that to that have views that you should do

13

take place in some way, shape, or form, don’t you?

something that’s unlawful or unconstitutional” or “put much

14 15 16

A I certainly don’t think you align yourself with people that have views that you should do something that that’s unlawful or unconstitutional.
Q. And if you had seen this particular

weight on something like this.” Click Dep. 166:9-168:1 [Defs.’ Resp. to Pls.’ SOF Ex. 20]; see also Pls.’ SOF 52. In contrast, Sheriff Arpaio instructions on such correspondence communicated the opposite intent.

17

letter as head of the Dallas Department, what would you have

Pls.’ SOF 46. He repeatedly endorsed the comments, treated them

18 19 20

done upon receiving it? A. I would have given it to probably my
administrative assistant and may have shared it with one of my chiefs. I would have interpreted it as, you

as relevant “intelligence,” and/or passed them on for use in planning operations. Pls.’ SOF 26, 28, 30, 33, 36-37, 39, 42-43, 45, 47-49, 77, 79, 85, 90, 93, 99.

know, here we’ve got a person out

Finally, Plaintiffs’ police practices

21

there that appears—and we don’t

expert Mr. Stewart made clear that it

know his intent was, but appears to is not standard practice for the head

22

suggest that we need to just assume of a law enforcement agency to pass

that people coming—and I think he on racially charged materials that do

23

uses Mexico here, but he talks about not describe any criminal activity.

Latinos—that we should just assume Pls’ SOF 50-51, 101.

24

that just because they’re Latino that

that’s probable cause or reasonable

25

suspicion. But I don’t think they’re

going to put much weight on

26

something like this.”

27

See Deposition of Bennie Click at p. 167, ln. 1 to p. 168, ln 1, attached as Exhibit 20.

28 42

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 43 of 276

1 No. Defendants’ SSOF (emphasis added).

Plaintiff’s Response

2 72 The MCSO rejects race-based information Disputed. Defendants

3

that it receives from its telephone hot-line. mischaracterize Chief Sands’s

Chief Sands testified:

testimony. Chief Sands testified that

4 5

Q. Are you aware of your office having received tips relating to illegal immigration that have come from

he did not typically receive the tips and therefore could not “analyze” the motivation for making them.

persons or members of groups that

The record shows that MCSO

6

have expressed hatred for illegal

regularly receives race-based

immigrants?

requests for sweeps that contain no

7 8 9

A. I don’t typically receive all these tips or the communication so it is hard for me to analyze what motivates people that are giving us information. I will say, though, that I have sat in on

information about criminal activity, and that Sheriff Arpaio has passed on such requests to Chief Sands for use in planning operations. Pls.’ SOF 76-77.

10

meetings over tips that have come in Chief Sands’s self-serving denial and when there is no need to follow up made during litigation and without

11

on something based on the caller’s

evidentiary support is insufficient to

information and it only attributed—the create a genuine issue of fact.

12

information is only attributed to

Villiarimo, 281 F.3d at 1061 (“[T]his

somebody’s ethnicity or appearance, court has refused to find a genuine

13

we don’t follow up on it. Whether those are racially motivated

issue where the only evidence presented is uncorroborated and self-

14

complaints, I wouldn’t know. But when the information is only such

serving testimony.” (internal quotation marks and citation

15

directed towards a group of people or omitted)). a business or—and just solely on their

16

race or ethnicity, we don’t follow-up on it.

17

See Deposition of Brian Sands dated

12/14/09 at p. 84, ln. 24 to p. 85, ln. 16,

18

attached as Exhibit 14.

19

73

The MCSO consistently rejected racially Disputed. The record reveals that charged citizen complaints when there was saturation patrols have been planned

20

no mention of any facts indicating criminal activity, and when there was

without any objective crime or traffic analysis, see Pls.’ SOF 107, but on

21

criminal activity identified, the MCSO independently evaluated the same. See

the basis of citizen complaints, many of which are, ethnically and racially

22

Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11,

derogatory, advocate racial profiling in law enforcement, and contain no

23

attached as Exhibit 5 (discussing the

information about criminal activity,

investigation of citizen complaints; that if See Pls.’ SOF 75-101. Sheriff

24

the citizen is racially profiling and not describing any criminal activity, the

Arpaio routinely passes on such citizen complaints to Chief Sands for

25

complaint is rejected; the efforts MCSO use in planning operations. Pls.’ takes to independently evaluate whether SOF 77, 79, 85, 90, 93, 99; see also

26

criminal activity is taking place);

Pls.’ SOF 74 (Sands is responsible

Deposition of Brian Sands dated 12/14/09 for planning saturation patrol

27

at p. 81, ln. 3 to p. 85, ln. 16, attached as operations, including site-selection), Exhibit 14 (providing a detailed discussion 75, 100 (MCSO acknowledges that

28

of the MCSO rejecting racially motivated that saturation patrols are regularly

43

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 44 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

tips by citizens that provide no evidence of initiated based on citizen

2

criminal activity).

complaints).

3

For example, the operation that MCSO conducted in Cave Creek in

4

which Mr. Ortega Melendres was apparently based on citizen

5

complaints. See Pls.’ Resp. to Defs.’ SOF 12. However, MCSO’s own

6

internal correspondence confirms that an undercover investigation of

7

the church conducted prior to the operation revealed “no information

8

pertaining to forced labor, human smuggling[,] possible ‘drop houses,’”

9

nor did it uncover any evidence that the day laborers congregating at the

10

church were illegal immigrants. Melendres MCSO 014686 [Hickey

11

Dec. Ex. 139].

Chief Sands’s and Lt. Sousa’s self-

12

serving denials made during

litigation and without evidentiary

13

support are insufficient to create a

genuine issue of material fact. See

14

Villiarimo, 281 F.3d at 1061 (“[T]his

court has refused to find a genuine

15

issue where the only evidence

presented is uncorroborated and self-

16

serving testimony.” (internal

quotation marks and citation

17

omitted)).

18

74

Defendants’ police practices expert Mr. Undisputed that Mr. Click so Click testified the “[t]he method by which testified. Otherwise disputed.

19 20 21 22 23 24 25 26

the MCSO chooses target areas for saturation patrols is reasonable and consistent with standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

The record reveals that saturation patrols have been planned without any objective crime or traffic analysis, see Pls.’ SOF 107, but on the basis of citizen complaints, many of which are ethnically and racially derogatory, advocate racial profiling in law enforcement, and contain no information about criminal activity, See Pls.’ SOF 75-101. Sheriff Arpaio routinely passes on such citizen complaints to Chief Sands for use in planning operations. Pls.’ SOF 77, 79, 85, 90, 93, 99; see also Pls.’ SOF 74 (Sands is responsible for planning saturation patrol

27

operations, including site-selection),

75, 100 (MCSO acknowledges that

28

44

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 45 of 276

1 No. Defendants’ SSOF
2 3 4 5

Plaintiff’s Response that saturation patrols are regularly initiated based on citizen complaints). It is not standard practice for the head of a law enforcement agency to pass on racially charged materials that do not describe any criminal activity. Pls’ SOF 50-51, 101.

6

Further, saturation patrols were not

designed to target any particular type

7

of criminal activity. MCSO officers

have not been given instructions to

8

look for any patterns of criminal

conduct or specific criminal suspects.

9

Pls.’ SOF 106.

10 11 12 13 14 15 16 17 18 19

75

As for citizen complaints that contained actual or perceived racially prejudice comments, Mr. Click concluded that the “MCSO took steps not to respond to requests to that [which] would have amounted to racial profiling.” See Defendants’ Statement of Facts (Dkt#4131) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

Disputed. The record reveals that saturation patrols have been planned without any objective crime or traffic analysis, see Pls.’ SOF 107, but on the basis of citizen complaints, many of which are ethnically and racially derogatory, advocate racial profiling in law enforcement, and contain no information about criminal activity, See Pls.’ SOF 75-101. Sheriff Arpaio routinely passes on such citizen complaints to Chief Sands for use in planning operations. Pls.’ SOF 77, 79, 85, 90, 93, 99; see also Pls.’ SOF 74 (Sands is responsible for planning saturation patrol operations, including site-selection), 75, 100 (MCSO acknowledges that

that saturation patrols are regularly

20

initiated based on citizen

complaints).

21 76 Plaintiffs’ own police practices-racial

Undisputed that Mr. Stewart offered

22

profiling expert, Mr. Robert Stewart, testified that he did not draw the

the quoted testimony. Otherwise disputed. Mr. Stewart did not offer

23

conclusion, based on his analysis, that any any opinion at all on this issue. He MCSO saturation patrol was unjustified or did not state that any MCSO

24 25 26

unwarranted: Q. Have you formed the opinion that any
particular MCSO saturation patrol was unjustified or unwarranted? A. Based on crime data?

saturation patrol was justified or warranted, and was not asked that question. See Stewart Dep. 23:1421. [Defs.’ Resp. to Pls.’ SOF Ex. 17]. Mr. Stewart did opine that it is not

27

Q. For any reason.

generally accepted practice for the

head of a law enforcement agency to

28

45

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 46 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

A. I did not draw that conclusion.

pass on racially charged materials

2 3

See Deposition of Robert Stewart at p. 23, lns. 14-18, attached as Exhibit 17. (emphasis added).

that do not describe criminal activity to officers tasked with designing enforcement operations. Pls.’ SOF 101. Mr. Stewart also stated that

4

saturation patrols typically focus on a

spike in a specific type of criminal

5

activity, and that the claim that

MCSO’s saturation patrols were

6

aimed at general crime suppression is

not supported by the record. Pls.’

7

SOF 104, 125.

8

77

When Chief Sands was asked whether he Undisputed only that Chief Sands so agreed with a particular author’s statement testified. Otherwise disputed.

9 10 11 12 13

in a document that Arpaio had forwarded to him that stated that “we have too many dysfunctional Hispanics already here,” Chief Sands expressly rejected the statement. See Deposition of Brian Sands dated 11/15/10 at p. 34, ln. 21 to p. 35, ln. 4, attached as Exhibit 18. Chief Sands never drew the conclusion that because Arpaio sent him a letter that he was to take law enforcement action on it. Id.

Chief Sands testified that Sheriff Arpaio expected him “to do whatever [he could] about a citizen’s complaint.” Pls.’ SOF 85. He also acknowledged that saturation patrols are regularly initiated based on citizens’ complaints. Pls.’ SOF 75, 100. Just because Chief Sands does not

14

agree with a statement today does not mean he did not consider it at the

15

time. Self-serving denials such as this, made during litigation and

16

without record support, are insufficient to create a genuine issue

17

of fact. Villiarimo, 281 F.3d at 1061 (“[T]his court has refused to find a

18

genuine issue where the only evidence presented is uncorroborated

19

and self-serving testimony.” (internal quotation marks and citation

20

omitted)).

78 As for Arpaio not checking a particular Undisputed only that Sheriff Arpaio

21

document’s statistics for accuracy before offered the quoted testimony.

he forwarded it to management level staff, Otherwise disputed.

22 23 24 25 26 27

Arpaio testified that in that particular situation he sent the document to Chiefs Sands and Freeman so they could check on it “[b]ecause this is another piece of intelligence. It could be true, or it could not. That’s why I sent it to them.” See Deposition of Joseph M. Arpaio dated 11/16/10 at p. 72, lns. 8-14, attached as Exhibit 15. The document is “[j]ust another intelligence-type report, whether its true or not, I think that they [Chiefs Sands and Freeman] should look at it.” Id.

The document contained no “intelligence” to pass on. After examining the document for a few moments during deposition, Sheriff Arpaio acknowledged that some of its content “does not sound right,” and that many of the “statistics” had nothing to do with any legitimate law enforcement concern (e.g., “the number of Spanish radio stations in Phoenix”). Pls.’ SOF 49.

28

46

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 47 of 276

1 No. Defendants’ SSOF at p. 72, lns. 4-6.

Plaintiff’s Response

2 79 Expert Mr. Click summarized Chief Sands Disputed. There is no support in the

3

handling of racially charged letters succinctly:

record for this conclusion. The record reveals that saturation

4

I don’t think that—certainly Chief

patrols have been planned without

Sands is by just the nature of his

any objective crime or traffic

5

position has been around a long time, analysis, see Pls.’ SOF 107, but on

and I don’t think he’s going to be

the basis of citizen complaints, many

6

influenced by an email like this. It

of which are ethnically and racially

would be just more informative or more derogatory, advocate racial profiling

7

just educational as to what a citizen is in law enforcement, and contain no

saying out there.”

information about criminal activity,

8 9 10 11

See Deposition of Bennie Click at p. 163, ln.16 to p. 164, ln. 22, attached as Exhibit 20 (emphasis added); see also p. 164, ln. 20 to p. 165, ln. 16 (unlikely that someone with Chief Sands’ law enforcement experience would take any action based just on this email).

See Pls.’ SOF 75-101. Chief Sands, who is responsible for planning saturation patrol operations, Pls.’ SOF 74, testified that he understood that he was expected “to do whatever [he could] about a citizen’s complaint” passed on by Sheriff Arpaio. Pls.’ SOF 85. He also

12

acknowledged that saturation patrols

are regularly initiated based on

13

citizens complaints. Pls.’ SOF 75,

100.

14

Furthermore, Mr. Click’s testimony

15

concerns Chief Sands’s state of mind, and should be disregarded

16

under Federal Rule of Evidence 702. See In re Rezulin Prods. Liab. Litig.,

17

309 F. Supp. 2d at 545-47 (questions of knowledge, motive, intent, and

18

state of mind describe factual matters which a jury is capable of

19

understanding and deciding without the expert’s help).

20

Further, the testimony lacks any

record support and is insufficient to

21

avoid summary judgment. See

Villiarimo, 281 F.3d at 1061 (“[T]his

22

court has refused to find a genuine

issue where the only evidence

23

presented is uncorroborated and self-

serving testimony.” (internal

24

quotation marks and citation

omitted)).

25 80 Defense expert Mr. Bennie Click testified Disputed.

26 27 28

that the MCSO saturation patrols were reasonably and appropriately planned, executed, supervised and de-briefed. See Defendants’ Statement of Facts (Dkt#4131) at the Report of Ben Click dated

MCSO saturation patrols were improperly planned. Rather than being based on objective crime or traffic analysis, they were instead

47

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 48 of 276

1 No. Defendants’ SSOF January 21, 2011, at pgs. 43-48, attached

2

thereto as Exhibit 16; see also March 18,

2011 Deposition of Defense Expert Ben

3

Click at p. 341, ln. 24 to p. 342, ln. 14,

attached as Exhibit 17 to Dkt#413-1

4

(wherein Mr. Click testified to the

foundation for his opinions and that his

5

opinions in the report were the same he

would provide at trial to a reasonable

6

degree of probability in his field of

expertise).

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 48

Plaintiff’s Response motivated by citizen complaints, many of which are ethnically and racially derogatory, advocate racial profiling in law enforcement, and contain no information about criminal activity. See Pls.’ SOF 107; see also Pls.’ SOF 75-101. Employing such complaints to plan operations is not a generally accepted police practice. Pls’ SOF 101. While it would be consistent with generally accepted practice for saturation patrols to focus on a specific type of criminal activity, such as DUIs or gang activity, in the saturation patrols conducted by the MCSO since 2007, officers have not been given instructions to look for any patterns of criminal conduct or specific criminal suspects. Instead, the saturation patrols conducted by the MCSO focused on illegal immigration and day laborers, using pretextual traffic stops for minor violations in order to investigate the driver and/or passengers for immigration violations. See, Pls’ SOF 104-117. Defendants’ own expert, Mr. Ben Click, also acknowledged that MCSO officers were told that saturation patrols were “an illegal immigration enforcement effort.” Pls.’ SOF 111. MCSO’s saturation patrols were not adequately supervised. The operations plans detail no specific role for supervisors, Pls.’ SOF 159, and supervisors merely stayed at the command post rather than being out on traffic stops. See, e.g., Pls.’ SOF 158. The agency makes no effort to document the race or ethnicity of individuals contacted on saturation patrols, and to the extent that citizen contacts were recorded at all, those records were destroyed. Pls.’ SOF 155-156, 162. In the face of data that suggested Hispanics were being subject to disproportionate scrutiny, and despite having no means to verify that their officers were racially profiling, supervisors said they

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 49 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8

Plaintiff’s Response simply “trusted” their subordinates not to profile. Pls.’ SOF 157-158, 160, 164-65. After being confronted with evidence of MCSO supervisors’ cavalier attitude towards monitoring deputies’ conduct for possible racial profiling, even Mr. Click agreed that the level of supervision was not “generally acceptable.” Pls.’ SOF 169; see also Pls.’ SOF 167-68 (agreement by Mr. Stewart). Finally, MCSO saturation patrols were not appropriately debriefed. See Pls.’ SOF 163.

9 81 The MCSO makes only lawful traffic

Disputed. The cited portion of the

stops based on probable cause or

record discusses only the three traffic

10

reasonable suspicion that a violation of the stops of the named Plaintiffs.

traffic code or vehicle code exists. See, Further, those traffic stops (or the

11

e.g., Defendants’ Statement of Facts

extension of those stops) were not

(Dkt#413-1) at ¶¶ 17, and 107-109

supported by reasonable suspicion or

12

(Deputy DiPietro had probable cause to probable cause of a violation of the

stop the truck in which Plaintiff Melendres traffic or vehicle code. See Pls.’

13

was a passenger); at ¶¶ 44-45, 51-52, and Response to Defs.’ SOF 18, 45, 50,

113-116 (Deputy Ratcliffe had probable 108, 117-118.

14

cause to stop the Plaintiff Rodriguez truck

because it was driving on a closed road);

15

and at ¶¶ 117-119 (Deputy Kikes had

either probable cause or reasonable

16

suspicion to stop the Plaintiffs Meraz and

Nieto).

17 82 The MCSO does not use race as an

Disputed. The evidence shows that

18

indicator or factor to make vehicle stops. MCSO disproportionately stops

See Deposition of Brett Palmer dated

Hispanics during immigration

19

10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. operations. See Pls.’ SOF 236-247; 145, lns. 12- 25; p. 150, ln. 25 to p. 151, see also, e.g., Pls.’ Resp. to Defs.’

20

ln. 3, attached as Exhibit 9.

SOF 129, 134, 145 (setting forth the bases for Plaintiffs’ claim that they

21

were discriminated against on their traffic stops).

22

The self-serving statement of Sgt.

Palmer, made during litigation and

23

without evidentiary support, is

insufficient to create a genuine issue

24

of material fact. See Villiarimo, 281

F.3d at 1061 (“[T]his court has

25

refused to find a genuine issue where

the only evidence presented is

26

uncorroborated and self-serving

testimony.” (internal quotation marks

27

and citation omitted)).

28

Moreover, MCSO admits to relying

49

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 50 of 276

1 No. Defendants’ SSOF
2 3 4 5 6 7 8 9 10 11 12 13

Plaintiff’s Response on race after a stop is made in immigration investigations. Pls.’ SOF 136; see also Pls.’ SOF 135 (citing testimony of Sgts Palmer and Madrid as to what they believe is permissible). However, racial profiling that commences after a stop is no more lawful than a stop based on race. The consideration of race in the formation reasonable suspicion of an immigration violation is unconstitutional. See MonteroCamargo, 208 F.3d at 1132-35 (discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and explaining why, “at this point in our nation’s history,” and considering the makeup of the local Hispanic population, “Hispanic appearance is . . . of such little probative value that it may not be considered [] a relevant [or appropriate] factor” in the enforcement of immigration laws).

14

83

Plaintiffs’ police practices-racial profiling expert, Mr. Robert Stewart, admits that a

Undisputed.

15

traffic stop can be made for probable cause even if the stopping police officer

16

has some other motivation to stop the motorist. See Deposition of Robert L.

17

Stewart at p. 36, lns. 13-16; p. 115, lns. 48; p. 118, lns. 10-14, attached as Exhibit

18

17.

84 The Defendants’ police practices expert, Undisputed that Mr. Click so

19

Mr. Click, testified

testified. However, Mr. Click also

20 21 22 23 24

Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops and contacts is also used to gather intelligence about criminal activity.

testified that in his experience, saturation patrols focus on a specific criminal problem, such as DUIs or gang activity. Officers would be instructed to look for those individuals in their traffic and street contacts. As he explained, “If it’s drunk drivers . . . I want them out looking for drunk drivers.” Pls.’ SOF 105.

25

See Defendants’ Statement of Facts

(Dkt#413-1) at the Report of Ben Click

26

dated January 21, 2011, at pgs. 46 and 48-

49, attached thereto as Exhibit 16; see also

27

March 18, 2011 Deposition of Defense

Expert Ben Click at p. 341, ln. 24 to p.

28

50

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 51 of 276

1 No. Defendants’ SSOF 342, ln. 14, attached as Exhibit 17 to

Plaintiff’s Response

2

Dkt#413-1 (wherein Mr. Click testified to

the foundation for his opinions and that his

3

opinions in the report were the same he

would provide at trial to a reasonable

4

degree of probability in his field of

expertise).

5 85 The MCSO acted reasonably and

Disputed. The cited testimony does

6

appropriately in instituting a policy of

not support the conclusion that the

asking all passengers in a vehicle stopped policy in question was adopted “to

7

during a saturation patrol for their identification in an effort to reduce the

reduce the potential for racial profiling,” but only to reduce the

8 9

potential for racial profiling by deputies during saturation patrols. Mr. Click testified:

appearance of racial profiling. The record shows that the policy was adopted to increase opportunities for

Sergeant [Manuel] Madrid reasonably investigating alienage. MCSO’s

10

instituted a policy in the HSU [Human regular practice is to only investigate

Smuggling Unit] that all passengers in passengers where there is reasonable

11

vehicles that had been stopped would suspicion that they are engaged in

be contacted. He stated that this was criminal activity, as is consistent

12

done to avoid the appearance that

with generally accepted police

deputies could pick and chose whom practices. Pls.’ SOF 126. Contacting

13

they contacted.

passengers is a feature unique to

14 15 16 17 18 19 20

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

saturation patrols and other immigration operations. Pls.’ SOF 126-127. Because MCSO considers the lack of identification documents by a person (even a passenger, who is not required to carry identification) to be grounds for asking about a person’s immigration status, Pls.’ SOF 182, it is apparent that MCSO instituted the practice of asking passengers for identification in an effort to increase the opportunities for immigration screenings.

86 The MCSO’s use of a “zero-tolerance” Disputed. While Plaintiffs do not

21

policy requiring deputies to stop all

dispute that the MCSO adopted a

vehicles they observed that had either a “zero-tolerance policy” to deflect

22

moving or equipment violation was “a

allegations of racial profiling, it was

reasonable practice… that removed the adopted in name only. MCSO

23

deputies’ discretion to pick and chose who officers’ own testimony establishes

they stopped” and was intended to reduce that actually following a zero-

24

the potential of racial profiling during

tolerance policy with respect to stops

saturation patrols. Defense expert Mr.

would have been difficult or

25

Click testified:

impossible. Pls.’ SOF 120. There is

26 27 28

In order to reduce the potential of racial profiling during saturation patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be

no way that MCSO could have “removed” deputies’ discretion to selected what vehicles to pull over. See, e.g., Armendariz Dep. I, at 29:21-30:10 (deputies have to

51

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 52 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

stopped. This is a reasonable practice. exercise discretion) [Hickey Dec. Ex.

2

Zero tolerance removed the deputies’ 1].

discretion to pick and chose who they

3

stopped.

4

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click

5

dated January 21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18,

6

2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14,

7

attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the

8

foundation for his opinions and that his opinions in the report were the same he

9

would provide at trial to a reasonable degree of probability in his field of

10

expertise).

87 There was a zero tolerance policy for

Disputed. MCSO officers’ own

11

traffic stops during saturation patrols. See testimony establishes that actually

Deposition of Brett Palmer dated 10/23/09 following a zero-tolerance policy

12

at p.56, ln. 2 to p. 58, ln. 16, attached as with respect to stops would have

Exhibit 9 (zero tolerance policy on

been difficult or impossible. Pls.’

13

saturation patrols adopted to try to stop SOF 120. There is no way that

every vehicle with a violation and write MCSO could have “removed”

14

tickets to all to avoid charges of racial

deputies’ discretion to selected what

profiling); see also p. 94, ln. 20 to p. 95, vehicles to pull over. See, e.g.,

15

ln. 1 (zero tolerance policy for any traffic Armendariz Dep. I, at 29:21-30:10

or vehicle violations); p. 98, ln. 18 to p. (“I can’t pull two vehicles over at

16

99, ln. 17 (the zero tolerance for arrests once . . . .”) [Hickey Dec. Ex. 1].

17 18 19 20 21 22 23

made and the zero tolerance policy for traffic violators); see also Deposition of Manuel Madrid dated 10/27/09 at p. 125, ln. 12 to p. 127, ln. 7, attached as Exhibit 10 (on large scale saturation patrols, there was a zero tolerance policy to pull over and cite all infractions); p. 130, lns. 18-23 (same); see also Deposition of Joseph Sousa dated 12/10/09 at p. 144, lns. 22-25, attached as Exhibit 5 (on zero tolerance operation, any vehicle that is observed to violate the vehicle or traffic code that can be stopped will be stopped).

Defendants’ citation to Lt. Sousa’s testimony is misleading. Lt. Sousa testified that the zero-tolerance policy applied to arrests and that while vehicles violating the traffic code “can be stopped,” it does not follow that they “will be stopped”. In fact, he stated that officers “didn’t have to stop every single vehicle they saw with a violation,” as that “would be impossible.” Sousa Dep. I at 144:22-25 [Defs.’ Resp. to Pls.’ SOF Ex. 5], 147:17-148:4 [Hickey Dec. Ex. 88].

24

Although Sgts. Palmer and Madrid

both reported that MCSO had a zero-

25

tolerance policy with respect to

traffic stops, it is apparent that they

26

had no way of monitoring what their

deputies were in fact doing. See Pls.’

27

SOF 123, 157-158. Under such

circumstances, racial profiling using

28 52

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 53 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response minor and pretextual traffic

2

violations would be even harder to

detect. Pls.’ SOF 122.

3 88 Plaintiffs’ citations to the testimony of

Disputed that Plaintiffs’ citations to

4

Chief Brian Sands, Lt. Joe Sousa and Deputy Ramon Armendariz for the

those portions of the record are “mistaken.”

5 6 7 8

principal that deputies still had broad discretion on which vehicles to actually stop during a large scale saturation patrol is mistaken. Chief Sands did not testify that the zero tolerance policy was not in effect or used during traffic stops, he was merely testifying to the realities in Maricopa County that it was difficult to

First, Defendants do not address the testimony of Lt. Sousa. They include only a misleading parenthetical to another part of Lt. Sousa’s testimony, where he says that vehicles violating the traffic code “can be stopped,” not that they “will be stopped.”

9

apply the policy given the traffic volume Second, Chief Sands’ testimony in Maricopa County and the volume of speaks for itself. He unambiguously

10

violations experienced by deputies. In stated that “it is difficult to have a soproper context, Chief Sands testified that called zero-tolerance policy on traffic

11

because there is so much traffic, “[t]he

stops.” Sands Dep. I, at 123:15-17

zero tolerance [as to traffic stops] is not a [Hickey Dec. Ex. 76]. Defendants do

12

hard and fast rule that you will make every not point to any portion of Chief traffic violator that you see. You may only Sands’ testimony where he states that

13

have the opportunity to stop one of three at there was any zero-tolerance policy

the same given time. So in itself, it is

with respect to traffic stops that

14

difficult to have a so-called zero tolerance would eliminate the possibility of policy on traffic stops.” See Deposition racial profiling.

15 16 17

of Brian Sands dated 12/14/09 at p. 123, lns. 9-17, attached as 14; see also p. 123, ln. 18 to p. 124, ln. 18 (questions that immediately follow address that the goal is to stop as many vehicles as possible).

Finally, Plaintiffs point to Deputy Armendariz’s testimony in order to demonstrate the impossibility of having a zero-tolerance policy with respect to traffic stops that would

Plaintiffs’ citation to the testimony of

remove all officer discretion. See,

18

MCSO Deputy Ramon Armendariz also is e.g., Armendariz Dep. I, at 29:21-

taken wholly out of context. Plaintiffs

30:10 (“I can’t pull two vehicles over

19

never questioned Deputy Armendariz

at once . . . .”) [Hickey Dec. Ex. 1].

about the zero tolerance policy during

Deputy Armendariz confirmed that

20

saturation patrols. In fact, when Plaintiffs his practices did not change after

questioned Deputy Armendariz about his joining HSU, and that he would

21

discretion used during traffic stops, the make the same number of traffic

line of questioning was not related to

stops on a “special operation,” such

22

saturation patrols or his later membership as a saturation patrol. Armendariz

in the Human Smuggling Unit, but to his Dep. I, at 29:2-7 [Hickey Dec. Ex.

23

every-day traffic patrol operations during 1].

his prior assignment to the MCSO Special

24

Assistance Unit (“SAU”) for Maricopa

County District. See deposition of Ramon

25

Armendariz dated 11/24/09 at p. 26, ln. 13

to p. 30, ln. 10, attached as Exhibit 21; see

26

also Deposition of Joseph Sousa dated

12/10/09 at p. 144, lns. 22-25, attached as

27

Exhibit 5 (on zero tolerance operation, any

vehicle that is observed to violate the

28 53

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 54 of 276

1 No. Defendants’ SSOF

vehicle or traffic code that can be stopped

2

will be stopped).

Plaintiff’s Response

3

89

The MCSO has a policy prohibiting racial Disputed. The cited testimony does profiling. See Deposition of Brian Sands not describe an agency-wide policy

4

dated 12/14/09 at p. 194, lns. 14-17, attached as Exhibit 14.

prohibiting racial profiling. Defendants have never produced

5

such a policy. Pls.’ SOF 129-130.

90 Defendants’ expert Mr. Bennie Click

Disputed. Mr. Click could not

6

testified to the following:

identify a single agency-wide written

7 8

The MCSO maintains comprehensive and detailed policies and procedures that all personnel are required to have a working knowledge of. A number of

policy prohibiting racial profiling. Click Dep. at 95:20-24, 97:1-23 [Hickey Dec. Ex. 40]. See also Pls.’ SOF 130.

9

MCSO policies prohibit racial profiling. The MCSO policies are

To the extent that some of MCSO’s informational bulletins or unit-wide

10

reasonable and conform to nationally policies included a prohibition on

recognized standards.

racial profiling, they did not define

11 12 13 14 15 16

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable

what conduct was prohibited. This would have been important, as MCSO’s saturation patrol operations only prohibited profiling based solely on race in the decision about whether or not to initiate an immigration investigation, Pls.’ SOF 132, and MCSO officers admittedly used race as a factor in determining whether individuals are illegally present. Pls.’ SOF 135-36.

degree of probability in his field of

In these respects, MCSO fell below

17

expertise).

generally accepted practice. Pls.’

SOF 143.

18 91 The MCSO instructed the deputies that

Undisputed. However, Defendants

19

were to participate in a saturation patrol have not established that officers during the pre-saturation patrol briefing understood what conduct was

20

that they were not to racially profile any prohibited. MCSO’s saturation person during the up-coming saturation patrol operations only prohibited

21

patrol that day. See Deposition of Brian profiling based solely on race in the Sands dated 12/14/09 at p. 194, lns. 18-21; decision about whether or not to

22

p. 195, lns. 2-5, attached as Exhibit 14.

initiate an immigration investigation, Pls.’ SOF 132, and MCSO officers

23

admittedly used race as a factor in determining whether individuals are

24

illegally present. Pls.’ SOF 135-36.

92 The MCSO deputies were appropriately Disputed. The MCSO officers who

25

trained about racial profiling first at the were deposed could only recall

police academy, again when they actually learning about racial profiling in their

26

started their work at the MCSO, and, if the basic academy training and (if

deputy underwent 287(g) certification with applicable) 287(g)-training. Pls.’

27

ICE, again at the five-week ICE training SOF 138-141. One officer called the

academy. Each MCSO deputy has

basic academy training “short and

28

54

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 55 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

undergone education and training about sweet.” Pls.’ SOF 140. ICE

2

the improper and unlawful use of race in provides only a “brief training block

law enforcement, i.e., racial profiling,

on civil rights law” in the 287(g)

3

while at the police academy at the start of training. Pls.’ SOF 134. Further,

their law enforcement careers. See

ICE appears to have trained officers

4

Deposition of Brian Sands dated 12/14/09 to rely on some indicators of

at p. 194, ln. 22 to p. 195, ln. 1, attached as reasonable suspicion that are not

5

Exhibit 14. When the deputy graduates appropriate, such as apparent

from the police academy and joins the

Mexican ancestry. See Pls.’ Resp. to

6

MCSO for active duty, he or she is taught Defs.’ SSOF 38-39, 41, supra.

about the MCSO policy and prohibition Under these circumstances, the

7

again racial profiling. Id. Each MCSO failure to have any in-house or

deputy that underwent ICE education and ongoing training on racial profiling,

8

training to become 287(g) certified to

Pls.’ SOF 142, failed to prepare

enforce federal immigration law learned officers for the immigration

9

about the law enforcement prohibition

enforcement task that they were

against racial profiling. Id. at p. 195, lns. given and did not comply with

10

6-10. Defense expert Bennie Click

generally accepted practices. Pls.’

testified:

SOF 144.

11

The MCSO provides academy training

12

to deputies emphasizing that racial profiling is unacceptable conduct. The

13

deputies that were 287(g) received additional training from ICE personnel.

14

This training is reinforced at each saturation patrol operation briefing as it

15

is contained in the operations plan. The effectiveness of training is not

16

measured by how recently the training was done or how frequently it is

17

presented, but measured by how well the deputies conduct and performance

18

reflect the performance objectives of the training. Mr. Kidd [of ICE] stated

19

that during ICE training for 287(g) certification, there is a block of

20

instruction that discusses racial profiling and that it is prohibited.

21

See Defendants’ Statement of Facts

(Dkt#413-1) at the Report of Ben Click

22

dated January 21, 2011, at pgs. 43-44,

attached thereto as Exhibit 16; see also

23

March 18, 2011 Deposition of Defense

Expert Ben Click at p. 341, ln. 24 to p.

24

342, ln. 14, attached as Exhibit 17 to

Dkt#413-1 (wherein Mr. Click testified to

25

the foundation for his opinions and that his

opinions in the report were the same he

26

would provide at trial to a reasonable

degree of probability in his field of

27

expertise).

28 55

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 56 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

93 As to the issue of whether there was

Disputed. The operations plans

2

proper supervision during saturation

detail no specific role for

patrols, expert Mr. Bennie Click testified supervisors, Pls.’ SOF 159, and

3

that the “Operations Plans were reasonable supervisors merely stayed at the

and met the standard of care. There is no command post rather than being out

4

evidence that there was confusion over the on traffic stops. See, e.g., Pls.’ SOF

objective of the operations, personnel

158. MCSO conducted no de-

5

assignments or the specific duties to be briefing with officers after an

performed.” See Defendants’ Statement operation. Pls.’ SOF 163. Yet, in

6

of Facts (Dkt#413-1) at the Report of Ben the face of data that suggested

Click dated January 21, 2011, at pg. 44, Hispanics were being subject to

7

attached thereto as Exhibit 16; see also disproportionate scrutiny, and despite

March 18, 2011 Deposition of Defense having no means to verify that their

8

Expert Ben Click at p. 341, ln. 24 to p.

officers were racially profiling,

342, ln. 14, attached as Exhibit 17 to

supervisors said they simply

9

Dkt#413-1 (wherein Mr. Click testified to “trusted” their subordinates not to

the foundation for his opinions and that his profile. Pls.’ SOF 157-158, 160,

10

opinions in the report were the same he 164-65. After being confronted with

would provide at trial to a reasonable

evidence of MCSO supervisors’

11

degree of probability in his field of

cavalier attitude towards monitoring

expertise). Mr. Click further testified that deputies’ conduct for possible racial

12

the “level of supervision required

profiling, even Mr. Click agreed that

generally depends on a deputies’ training, the level of supervision was not

13

experience and past performance. There is “generally acceptable.” Pls.’ SOF

no evidence that any deputy lacked

169; see also Pls.’ SOF 167-68

14

supervision.” Id. at p. 44.

(agreement by Mr. Stewart).

15

94 Defendants’ expert Mr. Bennie Click

Disputed. Mr. Click did not attempt

16

testified that the MCSO acted reasonably to assess whether MCSO’s failure to

and appropriately in not collecting data collect any race or ethnicity data on

17

about the race ethnicity of persons stopped the individuals stopped (and

or contacted by the MCSO and provided destruction of officer stat sheets with

18

detail explanation for such data collection general information about their

is not standard in law enforcement. Mr. citizen contacts), Pls.’ SOF 155-156,

19

Click testified:

162, fell below generally accepted

20 21 22 23

The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling

practices in light of the heightened risk of racial profiling created by MCSO. In such a context, the failure to collect any data on the race of individuals stopped is unreasonable. See Stewart Dec. ¶¶ 5-6, 37-38 [Dkt. 423]. For example, data from one

24

effect on law enforcement activity,

saturation patrol showed that all but

putting the communities’ safety at great one of the motorists arrested were

25

risk. Not collective this data [as opined Hispanic. But Sgt. Madrid and Lt. by Plaintiffs’ expert Mr. Stewart] does Sousa both dismissed the figures,

26

not fall below the standard of care. The saying it was not a concern for them. collection of data is a policy decision Pls.’ SOF 160. Chief Sands

27

for each agency. There are numerous acknowledged that 90 percent of factors that may any evaluation of this arrests made during a smaller

28

data difficult at best. These include saturation patrol in Fountain Hills

56

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 57 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

such as community demographics,

were of Hispanic individuals, even

2

officer experience level, officer

though the area was predominantly

training, officer performance history, non-Hispanic. Pls.’ SOF 161.

3 4 5

officer work ethic, location assigned, traffic/pedestrian volume, different duties, call volume and the nature of investigations officer can be involved in.

Even in the face of such disparities, MCSO finds no need to collect data about stops. MCSO does not even collect data to ensure that the policies it supposedly put in place to deflect

6

Mandated data collection is suspect when used to determine the race or

allegations of racial profiling (such as the zero-tolerance policy) are in

7

ethnicity of persons officer stopped. In fact being carried forth by officers.

many instances, a person’s race or

Pls.’ SOF 122-23. Such resistance to

8

ethnicity is not obvious. Race may be documentation of law enforcement

easier to determine because of kin

activity is suggestive of an effort to

9

color, however, ethnicity is less

conceal racial profiling and

apparent. Many people have surnames implicitly allow it to continue. See

10

that are not indicative of their ethnicity. Chavez v. United States, No. 01A number of ethnic groups have similar 000245, 2010 WL 3810629, at *4 (D.

11

physical characteristics. Most

Ariz. June 21, 2010).

countries have citizens of various races

12

and ethnicities and country of origin may be misleading. Even self-

13

identification is problematic because of the increasing number of persons with

14

mixed racial and ethnic backgrounds. Officers misidentifying a person’s race

15

or ethnicity can be controversial in itself and could create a perception of a

16

racially or ethnically insensitive department.”

17

See Defendants’ Statement of Facts

(Dkt#413-1) at the Report of Ben Click

18

dated January 21, 2011, at pgs. 45-46

attached thereto as Exhibit 16; see also

19

March 18, 2011 Deposition of Defense

Expert Ben Click at p. 341, ln. 24 to p.

20

342, ln. 14, attached as Exhibit 17 to

Dkt#413-1 (wherein Mr. Click testified to

21

the foundation for his opinions and that his

opinions in the report were the same he

22

would provide at trial to a reasonable

degree of probability in his field of

23

expertise).

24

95

As soon as the person with day-to-day

Disputed. There is no record

responsibilities for the Human Smuggling evidence that Lieutenant Sousa

25

Unit, Lt. Joseph Sousa, learned that

“immediately stopped all such

MCSO deputies and personnel were using emails.” The cited portion of the

26

MCSO email accounts to circulate inappropriate and offensive emails h

testimony refers only to a single instance of Lt. Sousa objecting to the

27

became “livid” and immediately stopped circulation of “Operation Wetback” all such emails. See Deposition of Joseph emails from posse members, not

28

Sousa dated 10/22/10 at p. 90, ln. 19 to p. MCSO officers. The instruction to

57

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 58 of 276

1 No. Defendants’ SSOF 91, ln. 21, attached as Exhibit 19.

Plaintiff’s Response the posse was apparently ineffective.

2

Months after Sousa requested the

posse be instructed not to send

3

“Operation Wetback” emails, another

such email was sent to MCSO.

4

MCSO0295020 [Hickey Dec. Ex.

111].

5

Further, the sheer number of

6

inappropriate, racial derogatory emails circulated within the agency

7

over a period of years shows that such conduct was openly tolerated.

8

Plaintiffs presented dozens of examples of this occurring, Pls.’ SOF

9

145-151, and did not attempt to catalogue them all. Sheriff Arpaio

10

could not even say whether the circulation of one such email violated

11

department policy. Pls.’ SOF 152.

96 The traffic stop of Mr. and Rodriguez was Disputed. See Pls.’ Resp. to Defs.’

12

unrelated to a saturation patrol. See

SOF 43. The cited portion of the

Defendants’ Statement of Facts (Dkt#413- record establishes only that MCSO

13

1) at ¶ 43.

was not conducting a saturation

patrol on that date “in that location”

14

and that Deputy Ratcliffe was not a

part of a saturation patrol at the time

15

he made the stop.

16

While Deputy Ratcliffe was not a part of a saturation patrol that day, he

17

has participated on at least four MCSO saturation patrols. Ratcliffe

18

Dep. 59:15-63:15 [Hickey Opp’n Dec. Ex. 228].

19 97 The traffic stop of Ms. Meraz and Mr.

Disputed. Ms. Meraz and Mr. Nieto

Nieto, while occurring when a saturation were stopped in the area where a

20

patrol was simultaneously on-going in the saturation patrol took place, and by

area, was unrelated to that saturation

officers working that saturation

21

patrol. See Defendants’ Statement of

patrol. Nieto Dep. 13:7-14:1

Facts (Dkt#413-1) at ¶¶ 64-88.

(describing where Plaintiffs were

22

stopped) [Hickey Opp’n Dec. Ex.

224]; Armendariz Dep. I at 97:25-

23

98:3 (location of command post)

[Hickey Opp’n Dec. Ex. 214]; Kikes

24

Dep. 52:22-53:16 [Hickey Opp’n

Dec. Ex. 221]; Beeks Dep. 147:20-

25

148:9 [Hickey Opp’n Dec. Ex. 215];

Melendres MCSO 1851-52, Ex. 6 to

26

Beeks Dep. (introduced at Beeks

Dep. 80:11-81:10) (Arrest List for

27

MCSO saturation patrol on March

28, 2008 listing Deputies

28

58

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 59 of 276

1 No. Defendants’ SSOF
2

Plaintiff’s Response Armendariz, Beeks, and Kikes) [Hickey Opp’n Dec. Ex. 216].

3

98

While Mr. Melendres’ traffic stop technically could be considered as part of

Disputed. Defendants acknowledge that the operation was considered to

4

a small MCSO saturation patrol, and was be a saturation patrol by Deputy considered as such by Deputy DiPietro, DiPietro, who stopped Mr. Ortega

5

the operation was actually a small HSU Melendres. See Defs.’ SSOF 98. detail targeting only specific vehicles that Moreover, the operation was

6

had picked up persons from a suspected specifically labeled as a human smuggling drop house/day laborer saturation/crime suppression patrol

7

location, and did not involve the MCSO by an MCSO officer who oversaw

making general traffic stops of any

that operation. See Madrid Dep. I, at

8

vehicles other than those that had visited 48:1-5 (“Q. And do you recall what

the church property and picked-up

you were doing in Cave Creek that

9

passengers and where probable cause was day? A. We were doing a found to stop those particular vehicles. suppression patrol.”) [Defs.’ SOF Ex.

10

See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12.

3].

11 99 Plaintiffs’ statistical expert, Dr. Ralph

Disputed. See Pls.’ Resp. to Defs.’

Taylor conducted a statistical analysis of SOF 122. Dr. Taylor’s study

12

all the MCSO traffic stops conducted from explicitly focused on comparing

January 1, 2007 to October 31, 2009 and MCSO activity on saturation patrol

13

concluded that Latinos in Maricopa

days with other days, and by officers

County are stopped by MCSO personnel involved in saturation patrol

14

in roughly the same proportion to their operations with other officers. He

share of Maricopa County’s population. did not set out to measure Hispanic

15

See Defendants’ Statement of Facts

stop rates against Hispanics’ share of

(Dkt#413-1) at ¶ 122.

the Maricopa County population. Dr.

16

Taylor explicitly stated that such an

“unqualified comparison” was “non-

17

informative” and not generally

accepted in the field. See Taylor

18

Rebuttal Report at 38-40 [Dkt. No.

424, Ex. C]; Taylor Dep. 130:9-14

19

(comparison with Census population

data is “noninformative”) [Defs.’

20

SOF Ex. 21].

21

100 Defense expert statistician Steve Camarota, Ph.D., testified to his statistical

Undisputed that the quoted passage appears in Dr. Camarota’s report.

22

analysis:

See Pls.’ Resp. to Defs.’ SOF 123.

[My] findings show that the Hispanic Disputed to the extent that

23

share of those stopped by the MCSO Defendants’ attempt to rely on Dr.

deputies is roughly equal to their

Camarota’s finding as evidence

24

proportion of the county and the state’s tending to show the MCSO is or is

overall population. About one-third of not engaging in racial profiling. Dr.

25

stops are of individuals with a Hispanic Camarota made no conclusion as to

last name, which closely matches their whether the MCSO was targeting

26

share of the county and state

Hispanics or not; his only conclusion

populations. Analysis at the sub-

was that, on an agency-wide basis,

27

county level also tends to show stops in Hispanic are stopped by the MCSO

proportion to local population shares…. roughly in proportion to their share

28

59

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 60 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

Equally important, despite a

of the population. See Camarota

2

significant increase in concern over Dep. 105:2-113:11 [Hickey Opp’n

illegal immigration in recent years in Dec. Ex. 217]. This fact is not

3

the county and state, there was no

informative as to the ultimate issue

increase in the Hispanic share of those of whether profiling is in fact

4

stopped by MCSO between 2005 and occurring. See Pls.’ Resp. to Defs.’

2009. Overall, the surname analysis SOF 122.

5 6

shows Hispanics are being stopped at a rate that reflects their share of the population.

Moreover, Plaintiffs object to Dr. Camarota’s expert report in its entirety as deficient under the

7

See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 123.

Federal Rules of Evidence 702 and Federal Rule of Civil Procedure 26.

8

See Pls.’ Resp. to Defs.’ SOF 123.

101 Dr. Ralph Taylor’s saturation patrol

Disputed. See Pls.’ Resp. to Defs.’

9

opinions are unreliable because his study SOF 124. Dr. Taylor’s study is

is admittedly “quasi-experimental” in

“quasi-experimental” in design,

10

nature. See Defendants’ Statement of

which simply refers to the fact that

Facts (Dkt#413- 1) at ¶ 124.

his study compares MCSO officers

11

working on saturation patrols to other

MCSO officers—as opposed to a

12

random assignment of officers to

saturation patrols by the researcher.

13

See Taylor Dep. 48:12-21 (“Q.

What's a quasi experimental study?

14

A. A quasi experimental refers to

several classes of research designs

15

which are used in situations where

the investigator hopes to learn about

16

the effects of a variable ften called a

treatment and does not have the

17

benefit of randomly assigned control

groups.”) [Hickey Opp’n Dec. Ex.

18

234].

19

Dr. Taylor testified that this design

was reliable and, indeed, of the “best

20

scientific quality” in the existing

circumstances, superior to a study

21

with randomly assigned control

groups. See Taylor Dep. 49:24-50:24

22

(“Unless those conditions [such a

cooperative agency] are satisfied, it's

23

quite possible that the costs in the

adverse consequences of random

24

assignment might outweigh the

benefits and, thereby, produce a

25

study of inferior quality to the study

produced here. . . . My testimony

26

today is that a randomized control

trial in this context would have

27

produced a superior study only if it

was the case that several conditions

28

60

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 61 of 276

1 No. Defendants’ SSOF
2 3 4

Plaintiff’s Response were true, and those conditions are not true in this case. Therefore, my current study is of the best scientific quality in the available -- given the available circumstances.”) [Hickey Opp’n Dec. Ex 234].

5

Defendants do not cite any expert

opinion or other evidence to

6

contradict the reliability of Dr.

Taylor’s study, only out-of-context

7

misuse of technical statistical terms.

8 102 Dr. Ralph Taylor’s “quasi-experimental” Disputed. See Pls.’ Resp. to Defs.’

study does not result in definitive findings SOF 124. Dr. Taylor’s study reaches

9

or conclusions, only “inferences.” See definitive findings and conclusions

Defendants’ Statement of Facts (Dkt#413- by relying on the widely accepted

10

1) at ¶ 124.

method of statistical inference based

on analysis of data patterns (such as

11

significance testing). See Taylor

Dep. Tr. at 48:2-11 [Hickey Opp’n

12

Dec. Ex. 234] (“I’d like to

distinguish between the use of

13

statistical inference and conclusions.

The conclusions are about the data

14

patterns, and those rely on a set of

mediating statistical inferences. . . .

15

The data patterns are subjected to

statistical inference testing. The

16

results of the statistical inference

testing support a conclusion about

17

the data pattern.”); Taylor Initial

Report at 7-11 (“My major

18

conclusions with regard to MCSO’s

traffic stops of Hispanic persons in

19

Maricopa County from January 1,

2007 through October 31, 2009 are . .

20

. .) (emphasis added) [Dkt. No. 424,

Ex. B].

21 103 Dr. Ralph Taylor’s saturation patrol

Disputed that the issues listed as (1)-

22

analysis also: (1) fails to exclude those (4) are “failures” or in any way affect patrols that included a human smuggling the validity of Dr. Taylor’s

23

interdiction component, or otherwise

conclusions. See Pls.’ Resp. to

exclude human smuggling load vehicles Defs.’ SOF 124. These issues were

24

found containing multiple illegal

specifically addressed in great detail

immigrants as occupants, which skews his in Dr. Taylor’s rebuttal report and

25

saturation patrol results; (2) fails to exclude duplicate records in the MCSO

were found to have no impact on his results and conclusions. See Taylor

26

Computer Aided Dispatch database, which Rebuttal Report at 4-15, 36-37 [Dkt.

skews his saturation patrol results; (3)

No. 424, Ex. C].

27 28

excludes thousands of other cases that should have been included in the analysis, which artificially inflates his saturation

Regarding (1), Defendants cite no reason why immigration or human

61

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 62 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response

patrol results (he admits that he excluded smuggling stops should be excluded

2

18% of all MCSO traffic stops per year from the analysis, nor do

because they did not “align” with

Defendants’ establish that human

3

Plaintiffs’ case theory or Plaintiffs’

smuggling stops were a significant

“concerns”); and (4) fails to account for component of large-scale saturation

4

any socio-economic variables that affected patrols. See Pls.’ SOF 61-73 (most

his saturation patrol model. See

saturation patrols had no human

5

Defendants’ Statement of Facts (Dkt#413- smuggling arrests).

1) at ¶ 124.
6

Regarding (2), Dr. Taylor re-ran his analysis excluding additional

7

duplicate records and confirmed all of his findings using this re-

8

processed data. See Taylor Rebuttal Report at 4-5 [Dkt. No. 424, Ex. C].

9

Any asserted “failure” had absolutely no impact on any of Dr. Taylor’s

10

findings and conclusions.

Regarding (3), the exclusion of these

11

“other cases” was not “improper” but

based on sound methodology. Dr.

12

Taylor excluded incidents described

as non-discretionary police action

13

(e.g., “vehicle accident w/ injuries”

“patrol/vacation watch”) rather than

14

as “traffic stops” or “traffic

violations.” See Taylor Rebuttal

15

Report at 10-11 [Dkt. No. 424, Ex.

C].

16

Regarding (4), the CAD database

17

does not include socioeconomic data and Dr. Camarota’s argument for

18

why socioeconomics might affect Dr. Taylor’s findings is not borne out by

19

the data. See Taylor Rebuttal Report at 36-37 [Dkt. No. 424, Ex. C].

20 104 Saturation patrols are infrequent events

and do not occur on a daily, weekly, or

21

even monthly basis. See Defendants’

Response in Opposition to Plaintiffs’

22

Motion for Sanctions (Dkt#235) at

Siemens Affidavit, Exhibit 8 at ¶ 4

23

(Dkt235-2) (patrols do not occur on a

daily or weekly basis); see Plaintiffs’

24

Statement of Facts (Dkt#422) at ¶ 60

(identifying 13 large scale saturation

25

patrols over a 34 month time period).

26

27

28 62

Undisputed that large-scale saturation patrols, with associated Operations Plans, do not occur on a daily or weekly basis. See Pls.’ SOF 60. MCSO and the Human Smuggling Unit also conduct smallscale saturation patrols which involve fewer deputies and occurred on a much more frequent basis. See Sousa Dep. I at 142:22-143:9 [Defs.’ Resp. to Pls.’ SOF Ex. 5] (“Q. There was a press release recently that characterized the sweep that just occurred last month as the 13th crime suppression illegal immigration operation by the sheriff's office. Do

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 63 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response you know how they are counting for

2

the 13 different operations? Because

there seem to be more than 13 . . . A.

3

I believe -- I believe we are only --

only counting the big operations

4

where we bring in multiple divisions

like I talked about earlier, and those

5

are the ones that we actually put an

ops plan together. Those smaller

6

ones we covered earlier was just

small-scale human smuggling unit

7

addressing some complaints working

in the area.”).

8

These small-scale operations occur

9

with much greater frequency. For example, in December of 2007 alone,

10

MCSO conduced at least 6 smallerscale saturation patrols. See MCSO

11

14665-66 (12/01/07 saturation patrol); MCSO 14900 (12/05/07

12

saturation patrol); MCSO 14663-64 (12/08/07 saturation patrol); MCSO

13

14905-07 (12/14/07 & 12/15/07 saturation patrol); MCSO 14659

14

(12/19/07 saturation patrol); MCSO 14909 (12/22/07 saturation patrol)

15

[Hickey Reply Dec. Ex. 242].

The stop of Mr. Ortega Melendres,

16

for example, occurred during one of

these smaller crime suppression

17

operations. Pls.’ SOF 171; Pls.’

Resp. to Defs.’ SOF 12.

18 105 Saturation patrols are, by the nature,

Disputed. Lieutenant Sousa and

19

special operations intended to address concerns about criminal activity or

Chief Sands acknowledge that saturation patrols are initiated based

20

possible problems in the community. See on citizen complaints. Pls.’ SOF 75, Defendants’ Response in Opposition to 100. Many of these citizen

21

Plaintiffs’ Motion for Sanctions (Dkt#235) complaints are crude, ethnically and

at Siemens Affidavit, Exhibit 8 at ¶

racially derogatory, advocate racial

22

4(Dkt235-2).

profiling in law enforcement, and contain no information about

23

criminal activity. See Pls.’ SOF 2545. Sheriff Arpaio annotates and

24

sends these complaints to Chief Sands, who is responsible for

25

planning and selecting sites for saturation patrols. See Pls.’ SOF 26,

26

28, 30, 32-33, 36-37, 39, 42-43, 7475, 77, 79, 81. MCSO deputies

27

understood the focus of MCSO’s saturation patrols was illegal

28 63

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 64 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response immigration. Pls.’ SOF 110.

2 106 For the 34 month time period covered by Undisputed that at least 13 large-

3

Plaintiffs’ Motion addressing January 1, scale saturation patrols involving 2007 to October 31, 2009, there were only multiple MCSO units occurred

4 5 6

thirteen (13) large scale saturation patrols conducted by the MCSO. See Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 60 (identifying 13 large scale saturation patrols over a 34 month time period).

during this period. However, MCSO and the Human Smuggling Unit also conduct “smallscale” saturation patrols which involve fewer deputies and occurred

on a much more frequent basis. See

7

Sousa Dep. I at 142:22-143:9 [Defs.’

Resp. to Pls.’ SOF Ex. 5]. This

8

number does not take into account

the small scale saturation patrol

9

operations conducted by the MCSO,

which are occur much more

10

frequently. For example, in

December of 2007 alone, MCSO

11

conduced at least 6 smaller-scale

saturation patrols. See MCSO

12

14665-66 (12/01/07 saturation

patrol); MCSO 14900 (12/05/07

13

saturation patrol); MCSO 14663-64

(12/08/07 saturation patrol); MCSO

14

14905-07 (12/14/07 & 12/15/07

saturation patrol); MCSO 14659

15

(12/19/07 saturation patrol); MCSO

14909 (12/22/07 saturation patrol)

16

[Hickey Reply Dec. Ex. 242].

17

107 Chief Brian Sands does not select locations for saturation patrols because of

Disputed. Several saturation patrol operations, including that in which

18

the sole factor that there are day-laborers, Mr. Ortega Melendres was stopped, or so-called day-laborers, at a particular were explicitly focused on day

19

location. See Deposition of Brian Sands laborers. Sousa Dep. I at 110

dated 12/14/09 at p. 183, lns. 16-20,

[Hickey Dec. Ex. 88] (saturation

20

attached as Exhibit 14.

patrol in Queen Creek to investigate complaints about day laborers);

21

Madrid Dep. I at 86:17-87:11 (saturation patrol based on

22

complaints about day laborers) [Hickey Dec. Ex. 50]; Melendres

23

MCSO 75244-47 [Hickey Dec. Ex. 34] (example of complaint about day

24

laborers that motivated saturation patrol); ORT 104 [Hickey Dec. Ex.

25

10] (Press Release that “Sheriff Arpaio goes After Day Laborers”);

26

ORT 109-110 [Hickey Dec. Ex. 204] (saturation patrol targeting “growing

27

number of day laborers in the area”). MCSO officers believe that most day

28

laborers are Hispanic. See Pls.’ SOF

64

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 65 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response 113.

2 108 While some saturation patrols involved Disputed. While MCSO alleges that

3

sites were day laborers were located, every saturation patrols targeting day

saturation patrol in an area with day

laborers were motivated by

4

laborers was conducted because there were complaints about alleged criminal

other race neutral factors related to

activity associated with day laborers,

5

criminal activity which controlled Chief the record reveals that most

Bran Sands’ decision to conduct a

“complaints” about day laborers that

6

particular saturation patrol at a particular motivated MCSO’s saturation patrols location. See Deposition of Brian Sands contain no evidence of any actual

7

dated 12/14/09 at p. 183, lns. 21-25,

crime and were often motivated by

attached as Exhibit 14; see also Deposition ethnic or racial animus. MCSO

8

of Manuel Madrid dated 10/27/09 at p. 86, officers’ self-serving denials about ln. 17 to p. 87, ln. 4, attached as Exhibit 10 the motivations of these saturation

9

(day laborers at site of saturation patrol had been harassing children going to

patrols are contradicted by the evidentiary record.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

school); Deposition of Joseph Sousa dated 12/10/09 at p. 111, ln. 11 to p. 112, ln. 1, attached as Exhibit 5 (day laborers at site of saturation patrol were being aggressive toward other citizens; day laborers congregating in area were “making catcalls at little girls;” ICE advised MCSO “that day laborers were also being forced to work human smuggling charges off.”); Deposition of Joseph Sousa dated 12/10/09 at p. 94, lns. 20-24, attached as Exhibit 5 (sites are not selected because they have a high concentration of day laborers); Id. at p. 96, ln. 25 to p. 97, ln. 3 (site for saturation patrols also are not selected because they may have a high concentration of suspected illegal immigrants); see also Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12 (On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic

For example, MCSO maintains that the Cave Creek saturation patrol during which Mr. Ortega Melendres was stopped was conducted either because of citizen complaint about (1) a drop house at the church in Cave Creek served; or (2) day laborers stepping out into traffic. First, it is notable that the testimony of Deputy Rangel, Sergeant Madrid and Deputy DiPietro is not even consistent—two contend that the citizen complaints were about a drop house, and the other contends they were about a possible traffic hazard. See Pls.’ Resp. to Defs.’ SOF 12. In any event, MCSO’s own internal correspondence confirms that an undercover investigation of the church conducted prior to the operation revealed “no information pertaining to forced labor, human smuggling[,] possible ‘drop houses,’” nor did it uncover any evidence that the day laborers congregating at the church were illegal immigrants. Melendres MCSO 014686 [Hickey Dec. Ex. 139]. Deputy DiPietro testified that the

25

problems.).

operation in Cave Creek was undertaken to investigate the

26

Hispanic day laborers because the day laborers were thought to be

27

illegal immigrants. Pls.’ SOF 172. MCSO undertook the Cave Creek

28

operation even though they had no

65

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 66 of 276

1 No. Defendants’ SSOF
2 3 4 5 6

Plaintiff’s Response information prior to the operation that these day laborers were undocumented, see Melendres MCSO 014686 [Hickey Dec. Ex. 139], and appearance as part of a Hispanic work crew does not give rise to reasonable suspicion that a person is an undocumented immigrant. See United States v. Manzo-Jurado, 457 F.3d at 937-38.

7

109 While the MCSO saturation patrols were designed to address crime in a given

Undisputed that MCSO saturation patrols were focused on

8

geographic area, another focus of the patrols was the enforcement of the laws

apprehending illegal immigrants. Disputed that saturation patrols were

9

related to illegal immigrations. See

“designed to address crime in a given

Plaintiffs’ Statement of Facts (Dkt#422) at geographic area.” The record reveals

10

¶¶ 22 and 110, and Defendants’ Response, that saturation patrols have been

Rule 56(c )(2) Objections, and

planned without any objective crime

11

Controverting Statement of Fact at ¶110 or traffic analysis, see Pls.’ SOF 107,

above.

but instead were motivated by citizen

12

complaints, many of which are, ethnically and racially derogatory,

13

advocate racial profiling in law enforcement, and contain no

14

information about criminal activity, see Pls.’ SOF 75-101.

15

MCSO’s officers understood

saturation patrols to be aimed at

16

immigration enforcement. Pls.’ SOF

110. Defendants’ own expert, Mr.

17

Ben Click, also acknowledged that

MCSO officers were told that

18

saturation patrols were “an illegal

immigration enforcement effort.”

19

Pls.’ SOF 111.

20

110 Regardless of whether an illegal immigrant’s unlawful presence in

Disputed. The 287(g) program allows certified local law

21

Maricopa County is a civil or criminal

enforcement officers to assist in

violation of the law, the fact remains that certain specified enforcement of

22

MCSO deputies that were 287(g) certified federal immigration law. Local law

were authorized to enforce federal

enforcement authority under 287(g)

23

immigration law, criminal or civil. See is subject to limitations and specified Plaintiffs’ Statement of Facts (Dkt#422) at conditions, including but not limited

24

¶ 3 and Defendants’ Response, Rule 56(c)(2) Objections, and Controverting

to those set forth in the applicable Memorandum of Agreement (MOA).

25

Statement of Fact at ¶ 3 admitting to the See, e.g., Ex. A to Pls.’ First Am.

same.

Compl., Dkt. No. 26 (MOA in effect

26

before 2009)

Unlawful presence is only a civil

27

violation of the immigration law.

Gonzales v. City of Peoria, 722 F.2d

28

66

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 67 of 276

1 No. Defendants’ SSOF

Plaintiff’s Response 468, 476 (9th Cir. 1983), overruled

2

on other grounds by Hodgers-Durgin

v. de la Vina, 199 F.3d 1037 (9th Cir.

3

1999). Further, MCSO officers were

prohibited from enforcing the civil

4

provisions of the immigration law

after the loss of their 287(g) field

5

authority in October 2009. Id.; see

also United States v. Arizona, No. 10-

6

16645, __ F.3d __, 2011 WL 1346945,

at *17 (9th Cir. Apr. 11, 2011).

7 111 Plaintiffs’ expert Mr. Robert Stewart

Disputed. Defendants

8

testified that Deputy Kikes acted

mischaracterize Mr. Stewart’s

“reasonably” in his post-stop conduct and testimony. Mr. Stewart specifically

9

treatment of Mr. Nieto. See Plaintiffs’ Statement of Facts (Dkt#422) at ¶ 120.

testified that he saw several unreasonable actions in the stop of

10

Ms. Meraz and Mr. Nieto; for example, there was no reason for the

11

MCSO officers to draw their weapons. Stewart Dep. 90:22-90:25;

12

100:15-101:16 [Hickey Opp’n Ex. 233, Defs.’ SOF Ex. 18].

13

Furthermore, whether or not Deputy Kikes acted reasonably is a matter

14

for the Court’s determination, not that of a party or its witness. See,

15

e.g., Weitzenhoff, 35 F.3d at 1287.

16 17 II.
18

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSES TO PLAINTIFFS’ SEPARATE STATEMENT OF FACTS, IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGEMENT

19 Pls.’ Defendants’ Response, Rule 56(c)(2)

20

SOF

Objections, And Controverting Statement Of Fact

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

21 1
22 23 24 25 26 27 28

Disputed. Defendants object on the ground set forth below to the use of the particular exhibits identified below for purposes of summary judgment motion practice. The Court should strike the exhibits identified below. Controverting Statement: This statement is misleading as stated and as used in the motion. Defendants do not dispute that Arpaio in the 2006-07 time period, against the backdrop of rampant illegal immigration, escalating drug and human trafficking crime, and

Not genuinely disputed. Defendants do not actually dispute Plaintiffs’ proffered fact that “[i]n 2006, Maricopa County Sheriff Joseph Arpaio announced a new focus for his agency—to find and lock up illegal immigrants.” Pls.’ SOF 1 (emphasis added). Plaintiffs never claimed that illegal immigration was or is the only focus of the MCSO. Defendants’

67

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 68 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

serious public safety concerns, established protestations therefore do not

3

an additional focus for the MCSO wherein create a dispute of fact.

4 5 6 7 8 9 10

it would enforce federal immigration law under the federal government’s 287(g) program (allowing local enforcement officer to enforce federal immigration law) and the power of local law enforcement agencies to enforce Arizona law related to human smuggling. See A.R.S. § 13-2319, (Arizona’s Human Smuggling statute). Even Plaintiffs’ police practices/racial profiling expert, Robert L. Stewart admits that: (a) crime related to illegal immigration is a problem in Maricopa County; and (b) that human smuggling is a crime in Arizona and is a problem in Maricopa County. See

This fact is not in conflict with Plaintiffs’ SOF 102 or 110. The facts offered in 102-110 explain that while some officers have taken the position that the saturation patrols are designed to address crime generally, the saturation patrols were not designed to do so and officers also understood that the focus of the saturation patrols has been on illegal immigration. See, Pls’ SOF 102-110.

Deposition of Robert L. Stewart at p. 31, ln. Defendants object to document

11

23 to p. 32, ln. 4 (for point “a”) and p. 34, ORT 78-80 as inadmissible

lns. 12-17 (for point “b” above), attached as hearsay with no applicable

12

Exhibit 17.

exception. However, when

13 14 15 16 17 18 19

Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that the ICEMCSO Memorandum of Agreement expressly allowed MCSO 287(g) certified deputies to enforce federal immigration law. Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 55, ln. 14 to p. 56, ln. 11; see also p. 52, lns. 8-25, attached as Exhibit 2. Mr. Kidd further testified that Arpaio “has the authority to enforce the state laws, and some of those [Arizona] laws do include immigration related matters.” Id. at p. 56, lns. 14-19; see also p. 53. lns. 3-7 (emphasis added).

confronted with this document, Arpaio acquiesced in its statements. ORT 78-80, Ex. 5 to Arpaio Dep. I (introduced at Arpaio Dep. I at 34:19-38:8) (testifying that he “may have” made the statements about putting illegal immigrants in chain gains and tents and about “illegals” staying out of Maricopa County because he was the sheriff there) [Hickey Dec. Ex. 7]. By acquiescing, Arpaio made partyopponent admissions that are not hearsay. See Fed. R. Evid.

20

The testimony cited in Plaintiffs’ Statement 801(d)(2)(B) advisory

of Fact paragraph 110 contradicts the

committee’s note (stating that

21

statement in the motion it is offered to

acquiescing in a statement

support. The Plaintiffs’ Statement of Fact at constitutes a party admission);

22

¶ 110 demonstrates that the cited MCSO United States v. Monks, 774 F.2d

deputies understood that “one of the

945, 950 (9th Cir. 1985); United

23

purposes” or one of the focuses of the

States v. Wilson, 2000 WL

MCSO saturation patrols in which they were 1007004 (9th Cir. July 20, 2000).

24

involved was illegal immigration. In

This document is also not hearsay

addition, Plaintiffs’ statement here directly because it is offered to

25

conflicts with their own proffered statement demonstrate Arpaio’s intent and

of fact at paragraph 102 (“In this litigation, the announced focus of his

26

some MCSO officers have taken the

agency, and not the truth of its

position that the saturation patrols are

content. See, e.g., Ciampi v. City

27

designed to address crime generally.

of Palo Alto, 2011 WL 1793349

Officers were instructed to simply ‘enforce (N.D. Cal. May 11, 2011)

28 68

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 69 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

the law’ or ‘enforce the traffic laws.’”).

(allowing the admission of

3 4 5 6

Objections: Document ORT78-80 is a Washington Post news article dated 05/21/06 and is inadmissible hearsay. There are no applicable exceptions, and Plaintiffs do not quote any alleged statement by any Defendant in the article that arguable may constitute an admission of a party opponent.

newspaper articles where they contained relevant statements by defendant for a defamation claim, but where they were not offered for the truth of the statements themselves). Defendants also object to

7

As such, the Plaintiffs’ may not rely on this document ORT 84-85 as document to prove the truth of the matters inadmissible hearsay; as support,

8 9 10 11 12 13 14 15

set forth therein.

they incorrectly cite the part of

Document ORT84-85 is an Arizona Republic news article dated 03/02/07 alleged to quote Arpaio. It is inadmissible hearsay and unreliable. See F.R.E. 403. Arpaio testified that he did not recall making the statement referenced in the news articles and “I will say it is probably taken out of context.” (Arpaio Deposition I at p. 38, lns.5-8, attached as Hickey Dec. Ex 4). This alleged statement, therefore, lacks authenticity and foundation, and is unreliable. It cannot be used to support Plaintiffs Statement of Fact (Dkt#422) (“PSOF”) paragraph No. 1.

Arpaio’s deposition for document ORT 78-80, not ORT 84-85. In fact, when confronted with statements from ORT 84-85, Arpaio acquiesced in these statements. ORT 84-85, Ex. 6 to Arpaio Dep. I (introduced at Arpaio Dep. I at 45:14-50:18) (testifying that what he was referring to in statements about going after “illegals” were his agency’s authority under the 287(g) agreement and those instances in which people had committed no crime other than

16

immigrating illegally) [Hickey Dec. Ex. 8]. By acquiescing,

17

Arpaio made party-opponent admissions that are not hearsay.

18

See Fed. R. Evid. 801(d)(2)(B); Monks, 774 F.2d at 950; Wilson,

19

2000 WL 1007004. This document is also not hearsay

20

because it is offered to demonstrate Arpaio’s intent and

21

the announced focus of his agency, and not the truth of its

22

content. See, e.g., Ciampi, 2011 WL 1793349.

23 2

Disputed.

Not genuinely disputed.

24

Controverting Statement: Plaintiffs’

Defendants do not actually

25

statement is misleading and

dispute Plaintiffs’ proffered fact

mischaracterizes the evidence in an attempt that “[a]t the time, Sheriff Arpaio

26

to unfairly attribute racially discriminatory made public statements equating

intent or motive to Arpaio for his decision illegal immigrants with people

27

to enforce laws related to illegal

from Mexico and suggesting that

immigration.

his new enforcement priority

28 69

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 70 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

The undisputed, objective, and race-neutral would focus on persons from

3

evidence shows that “[i]t is well established Mexico. He stated, for example,

that illegal immigrants in Arizona and in the that as far as he was concerned,

4

United States as a whole are

‘the only sanctuary for illegal

overwhelmingly Hispanic. The Pew

immigrants is in Mexico.’” Pls.’

5

Hispanic Center has estimated that 94

SOF 2 (emphasis added).

percent of illegal immigrants in Arizona Defendants do not dispute that the

6

are from Mexico alone, not including the quoted statement was attributed

rest of Latin America.” See Defendants’

to Sheriff Arpaio in an MCSO

7

Statement of Facts (Dkt# 413-1) at Ex. 19 press release, ORT104, but

(Dr. Camarota Report) at pg. 14; Dkt#413- instead put forth several

8

1 at Ex. 20 (Camarota deposition) at p. 122, arguments attempting to justify

lns. 13-16 (foundation for his report). As Sheriff Arpaio’s comments by

9

stated by the Fifth Circuit in United States v. reference to studies regarding

Vandyck-Aleman, 201 Fed. Appx. 215, 218, immigration in Arizona in an

10

2006 U.S. App. LEXIS 24245 *9 (5th Cir. unnecessary attempt to create a

2006), cert. denied, 549 U.S. 1188 (2007), dispute of fact where none exists.

11

“Although ethnicity generally may play no Regardless of the demographics

role in the enforcement of criminal law of of illegal immigration, there is no

12

this country, enforcement of the

legitimate reason why a law

immigration laws demands that the

enforcement official should

13

officials focus on individuals most likely condemn the members of an

to violate those laws. In the poultry-

entire race by publicly equating

14

producing region of Scott County,

them to illegal immigrants.

15 16 17 18

Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non-Hispanic) white. Accordingly, the district court did not err by finding that the officers’ decision to approach Vandyck’s house and to question him when he came to the door was justified.” (emphasis added).

Defendants’ citation to an unpublished 5th Circuit opinion in United States v. VandyckAlema is neither relevant nor helpful. Regardless of whether race may be considered as a factor in “the poultry producing region of Scott County,

19

Arpaio’s professional experience in his law Mississippi,” see United States v. enforcement career as Sheriff is that most of Vandyck-Aleman, 2006 U.S. App.

20

the illegal immigrants he has observed in Maricopa County are originally from

LEXIS 24245 at *9 (5th Cir. 2006), the Ninth Circuit law is

21

Mexico, or Central or South America. See clear that race may not be Deposition of Joseph Arpaio dated 11/16/10 considered in areas, like

22

at p. 81, lns. 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to

Maricopa County, where a substantial part of the resident

23

the border, I believe it’s a fact that many population is both Hispanic and people arrested here, in the state of Arizona, lawfully in the United States,

24

border area, may come from Latin America either because they are U.S. or Mexico.”); Deposition of Joseph Arpaio citizens or lawfully admitted

25

dated 12/16/09 at p. 9, lns. 17- 23; p. 219, aliens. United States v. Montero-

lns. 1-12, attached as Exhibit 16.

Camargo, 208 F.3d 1222, 1134-

26 27

Other MCSO personnel that have learned from their law enforcement experience in Maricopa County that most illegal immigrants in Maricopa County are from

36 (9th Cir. 2000). It is not clear why Defendants would even cite to Vandyck-Aleman unless the MCSO is, in fact, relying on

28 70

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 71 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Mexico, or Central or South America. See Hispanic appearance.

3 4 5 6 7

Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11; Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; and Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-

Further, Defendants’ own argument is contradictory insofar as it attempts to justify Sheriff Arpaio’s comments by arguing that the ICE-approved indicators incorporate race or ethnicity, while also arguing that the MCSO does not use race as an indicator or factor to make vehicle stops.

8

6, attached as Exhibit 14.

Defendants object to document

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for in determining whether a person may be in the United States unlawfully. One of the ICE approved indicators is that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether someone may be in the United States unlawfully. See Deposition of ICE former Special Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race] could be used, but, again, it couldn’t—it is not to be used solely. It is never to be used just as a—as an individual factor.”); see also Deposition of Brett Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the 287(g) training that is part of our SOP, yes.”); Exhibit 9 at p. 151, lns. 4-9 (“MCSO 287(g) officers can consider race as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”).

ORT 78-80 as inadmissible hearsay with no exception, arguing that Plaintiffs do not quote any alleged Arpaio statement in the document. However, when confronted with quotes that he allegedly made in ORT 78-80, Arpaio acquiesced in them. ORT 78-80, Ex. 5 to Arpaio Dep. I (introduced at Arpaio Dep. I at 34:19-38:8) (testifying that he “may have” made the statements about putting illegal immigrants in chain gains and tents and about “illegals” staying out of Maricopa County because he was the sheriff there) [Hickey Dec. Ex. 7]. By acquiescing, Arpaio made partyopponent admissions that are not hearsay. See Fed. R. Evid. 801(d)(2)(B); Monks, 774 F.2d at 950; Wilson, 2000 WL 1007004. This document is also not hearsay because it is offered to demonstrate Arpaio’s intent, and not the truth of its content. See, e.g., Ciampi, 2011 WL 1793349 (allowing the admission of newspaper articles where they contained relevant statements by

24

Although ICE approves of the use of race as defendant for a defamation claim,

one indicator, among several other

but where they were not offered

25

indicators, as a basis to form reasonable

for the truth of the statements

suspicion of unlawful status, the MCSO themselves).

26

does not use race as an indicator or factor

to make vehicle stops under Arizona law.

27

See Deposition of Brett Palmer dated

10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p.

28 71

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 72 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

145, lns. 12-25; p. 150, ln. 25 to p. 151, ln.

3

3, attached as Exhibit 9.

4

While Plaintiffs’ statement sets forth facts that are largely undisputed as to Arpaio’s

5

quotes from his own MCSO News Release, and in equating illegal aliens/immigrants

6

discovered in Maricopa County as coming predominantly from the Republic of Mexico

7

given that Arizona is a border state with that nation, this paragraph does not support the

8

statement set forth in the Motion. Plaintiffs Motion (at p.3, lns. 24-26) which is

9

supposedly supported by PSOF No. 2 makes a statement that is different from the facts

10

that are set forth in PSOF No. 2. The Motion states: “When he [Arpaio] made this

11

policy decision, Sheriff Arpaio made clear that he equated ‘illegals’ with Hispanics

12

generally and persons from Mexico in particular.” (Motion at p.3, lns. 24-26).

13

Neither PSOF No. 2 nor the evidence listed therein supports the Plaintiffs’ statement in

14

their Motion that Arpaio equated illegal immigrants with “Hispanics generally.”

15

Arpaio was referring specifically to illegal immigrants from Mexico.

16

Document ORT104 is an MCSO News

Release. It states nothing that would allow

17

a reasonably objective person that was not

advocating for a particular outcome to

18

conclude that Arpaio equated “illegals with

Hispanics generally”. To the contrary, the

19

News Release states that the MCSO

responded to Queen Creek citizen

20

complaints regarding day laborers harassing

school children at a bus stop and that the

21

MCSO investigated the complaint and

eventually arrested 16 illegal aliens under

22

the federal immigration law.

23

Defendants do not dispute the quotes attributed to Arpaio in Document ORT104;

24

however, they dispute the characterization, implied meaning, and interpretation

25

Plaintiffs ascribe to the quotes.

Objections: Document ORT78-80 is a

26

Washington Post news article dated

05/21/06 and is hearsay and inadmissible.

27

There are no exceptions and Plaintiffs do

not quote any alleged Arpaio statement in

28 72

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 73 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

the article. As such, the Plaintiffs’ may not

3

rely on this document to support this

statement of fact.

4 3

Admit

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

5 4

Admit

6 5 6
7 7

Admit Admit Disputed

Not genuinely disputed.

8

Controverting Statement: Plaintiffs’

9 10 11 12

Motion (p. 5, ln. 7) states that Arpaio began to “hunt for illegal immigrants” and relies on this statement as support for the remainder of Plaintiffs’ argument therein. The evidence cited by Plaintiffs in support of PSOF No. 7 does not support the argumentative conclusion that illegal aliens were “hunted” or the subject of a hunt.

Defendants do not actually dispute this fact and do not dispute the quotations set forth therein by Plaintiffs but instead attempt to create a dispute of fact where none exists by questioning Plaintiffs use of the word “hunted” in their brief and by

13

The cited evidence shows that the MCSO “has been at the forefront of the fight

quoting additional portions of ORT42-22, Hickey Dec. Ex. 9.

14 15 16 17 18 19

against illegal immigration” and that its personnel will be, through saturation patrols, on “roadways and highways commonly used as transportation corridors for human trafficking” targeting “vehicles commonly used to move human cargo to destination inside and outside the county [i.e., so-called load vehicles]. If a vehicle is stopped for cause, anyone inside who is determined to be an illegal alien by the Sheriff’s immigration [i.e., 287(g) certified deputies] will be arrested and jailed.”

The record here makes clear that the MCSO was not simply targeting “load vehicles” or even other criminal activity, but rather Hispanic individuals based solely on race, often in response to citizen complaints that describe no criminal activity. See, e.g., Pls.’ SOF 25, 53-57, 74-125, including Pls’ Replies to Defs’ Resp. thereto.

20

ORT42-22, Hickey Dec. Ex. 9.

Defendants do not dispute the other

21

quotations set forth in PSOF No. 7.

22 8
23 24 25 26 27 28

Admit with clarification. There is nothing unique or extraordinary about addressing the presence of illegal immigrants even if they are not involved in crime. It is a policy decision by the specific law enforcement agency on when and to what extent they take action to address illegal immigrants discovered in their jurisdiction. For example, when the MCSO entered into its agreement with ICE in 2007, the George W. Bush Administration gave wide discretion to ICE and local law
73

Pls’ SOF 8 is admitted. Defendants do not dispute this fact or the statement made by Sheriff Arpaio. Defendants “clarifications” do not raise any genuine dispute of fact but rather present additional argument attempting to justify Sheriff Arpaio’s statement. Further, it is Sheriff Arpaio himself who distinguished his program as

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 74 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

enforcement agencies operating under the unique. See ORT 84-85, Ex. 6 to

3

287(g) program as to the arresting of illegal Arpaio Dep. I (introduced at

immigrants regardless of whether they were Arpaio Dep. I at 47:22-49:8)

4

suspected of engaging in serious crime.

[Hickey Dec. Ex. 8].

5 6 7 8 9 10

After the election of President Barrack Obama, however, the federal government changed its policy priorities and desired ICE and local 287(g) agencies to arrest only illegal aliens suspected of serious crime. See Deposition Alonzo Pena at p. 150, ln. 21 to p. 155, ln. 4 (in particular p. 153, lns. 154, ln. 24); see also p. 274, ln. 11 to p. 275, ln 17, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 233, lns. 7-13 (ICE policy priorities changed after January 2009), attached as Exhibit 2.

Mr. Pena further testified that he was aware of such actions only when the MCSO officer “is not exceeding the amount of . . . time that he could have that person detained.” Pena Dep. 97:6-16 [Hickey Opp’n Dec. Ex. 225], and when the MCSO officer has “the legal basis to detain that person on his own state charges.” Pena Dep. 98:7-11 [Hickey Opp’n Dec. Ex. 225].

11 12 13 14 15 16

In addition, Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.

Further, Mr. Kidd also testified that he spoke with MCSO’s Lt. Joseph Sousa about whether MCSO saturation patrol operations were “within the scope of the MOA.” Kidd Dep. 33:1634:24 [Hickey Opp’n Dec. Ex. 219]. Mr. Kidd also testified that there were “some questions” about the arrest of Mr. Ortega Melendres. See Kidd Dep. 121:16-122:15 [Hickey Opp’n

17

Finally, Jason Kidd, the ICE Assistant

Dec. Ex. 219].

Agent in Charge Phoenix, testified that

18

Arpaio had the authority under the ICE-

MCSO Memorandum of Agreement to do

19

pure immigration enforcement. Deposition

of Jason Kidd (ICE Assistant SAC Phoenix)

20

at p. 159, lns. 13-20 (the MOA “does not

limit the type of enforcement”), attached as

21

Exhibit 2

22 9 10
23 24 25 26 27 28

Admit. Partial Admit and Partial Dispute. Controverting Statement: Defendants do not dispute that effective October 16, 2009, the ICE-MCSO Memorandum of Agreement was modified to terminate the MCSO’s 287(g) authority in the field. Plaintiffs, however, suggest that ICE terminated the agreement because it determined that MCSO had violated the agreement or otherwise acted unlawfully and that somehow the MCSO saturation
74

Pls’ SOF 10 is admitted in part and is not genuinely disputed. Defendants do not dispute this fact. Defendants specifically do not dispute that effective October 16, 2009, the ICE-MCSO Memorandum of Agreement was modified to terminate the MCSO’s 287(g) authority in the

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 75 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

patrols should stop. (Motion at p. 5, fn. 3). field. Plaintiffs’ original

3

That suggestion is not correct.

statement did not claim that the

4 5 6 7

The termination decision was the result of a change in policy priorities of the new administration of President Barrack Obama. After the 2008 general election, the federal government changed its policy priorities and desired ICE and local 287(g) agencies to arrest only illegal immigrants suspected of serious crime. See Deposition Alonzo Pena

MCSO does not retain authority to enforce any laws, but simply stated that that the “agreement with ICE was modified so that deputies no longer had authority to enforce federal immigration laws outside of the jail context.” Pls.’ SOF 10.

8

at p. 150, ln. 21 to p. 155, ln. 4 (in particular Mr. Pena further testified that he p. 153, lns. 154, ln. 24); see also p. 274, ln. was aware of such actions only

9

11 to p. 275, ln 17, attached as Ex. 1; see also Defendants’ Statement of Facts

when the MCSO officer “is not exceeding the amount of . . . time

10

(Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at p. 49, attached

that he could have that person detained.” Pena Dep. 97:6-16

11

thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben

[Hickey Opp’n Dec. Ex. 225], and when the MCSO officer has

12

Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

“the legal basis to detain that person on his own state charges.”

13

(wherein Mr. Click testified to the foundation for his opinions and that his

Pena Dep. 98:7-11 [Hickey Opp’n Dec. Ex. 225].

14 15

opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise) wherein Mr. Click testified:

Mr. Kidd also testified that he spoke with MCSO’s Lt. Joseph Sousa about whether MCSO saturation patrol operations were

16

“The 287(g) agreement with the MCSO “within the scope of the MOA.”

was not renewed in October, 2009 for field Kidd Dep. 33:16-34:24 [Hickey

17

operations because of a change in focus Opp’n Dec. Ex. 219]. Mr. Kidd

and priorities by the new federal

also testified that there were

18

administration. See ICE managers’ Mr. “some questions” about the arrest

Pendergraph’s, Mr. Pena’s and Mr.

of Mr. Ortega Melendres. See

19

Kidd’s statements. The 287(g) agreement Kidd Dep. 121:16-122:15

was continued for detention operations.” [Hickey Opp’n Dec. Ex. 219].

20

Moreover, the record reveals that

Id.

ICE Executive Associate Director

21

22 23 24

The MCSO maintains authority to enforce immigration related laws. Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio “has the authority to enforce the state laws, and some of those [Arizona] laws do include immigration

Furthermore, Mr. Kidd testified that it “was not ICE’s job” to ensure that racial motivations did not cause MCSO saturation patrol stops. Kidd Dep. 153:4-18 [Hickey Opp’n Dec. Ex. 219].

25

related matters.” Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 56,

26

lns. 14-19; see also p. 53. lns. 3-7, attached as Exhibit 2 (emphasis added).

27

The ICE agents with knowledge of MCSO

saturation patrols did not have concerns or

28 75

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 76 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

complaints about the effectiveness or

3

lawfulness of the patrols. See Defendants’

Supplemental Statement of Facts re

4

Testimony of ICE Witnesses in Support of

their Motion for Summary Judgment dated

5

April 29, 2011 (Dkt# 414 and 415) (motion

to file same under) at ¶¶ 5-10, 12-13, and

6

19-25. According to ICE Assistant Special

Agent in Charge Jason Kidd, he was

7

knowledgeable or aware of the fact that the

MCSO saturation patrols were using

8

violations of the Arizona motor vehicle

equipment and moving codes to make traffic

9

stops of persons. Id. at ¶ 21. Mr. Kidd was

further knowledgeable or aware of the fact

10

that during MCSO conducted traffic stops

MCSO deputies were encountering people

11

in the United States unlawfully. Id. Mr.

Kidd never expressed in writing, or

12

verbally, to the MCSO any concerns about

the MCSO using traffic stops and during

13

those stops identifying people in the country

unlawfully. Id.

14

According to ICE Assistant Special Agent in

15

Charge Jason Kidd, under the 287(g) program, the MCSO had the highest rate of

16

encountering and removing persons that were in the United States unlawfully of any

17

local law enforcement agencies in a 287(g) program in the country. Id. at ¶251

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

18 11 Disputed.

Not genuinely disputed.

19 20 21 22 23 24

Controverting Statement: While the Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion. Plaintiffs unfairly attempt to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because of a statement based on his law enforcement experience and, in proper context, a statement that merely restates some of the ICE- approved indicators of unlawful presence in the United States.

Defendants do not dispute that Arpaio made the cited statement, that his deputies could still “take care of the situation” and enforce the federal immigration laws against people based on their “speech, what they look like, if they look like they came from another country.” Pls’ SOF 11. Instead, Defendants put forth several arguments attempting to

25

There are a number of ICE-approved

justify Sheriff Arpaio’s comments

articulable “indicators” that a local law

in an unnecessary attempt to

26

enforcement officer that is 287(g) certified create a dispute of fact where

is trained by ICE to look for in determining none exists.

27 28

whether a person may be in the United States unlawfully. Cf. INS v. Delgado, 466

First, Defendants present no evidence that Arpaio was

76

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 77 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

U.S. 210, 212 (1984) (immigration officers referring to ICE approved

3

could question an individual although they indicators when making the

lacked reasonable suspicion that the

quoted statement. In fact, when

4

individual was an illegal alien); Muehler v. he made this statement, Arpaio

Mena, 544 U.S. 93, 101 (2005) (“[M]ere was discussing the imminent loss

5

police questioning does not constitute a

of his agency’s 287(g) field

seizure…. Hence, the officers did not need authority and what he believed

6

reasonable suspicion to ask Mena for her his officers could continue to do

name, date and place of birth, or

without ICE.

7 8 9 10 11 12

immigration status.”). One such ICE approved indicator is that the person does not speak the English language. See Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as Exhibit 10; see Deposition of Ramon Armendariz at p. 44, lns. 1-4, attached as Exhibit 8; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5, attached as Exhibit 11. Another number of ICE additional approved

Second, notwithstanding what ICE trains its officers, racial profiling in immigration enforcement is unlawful in the Ninth Circuit. See MonteroCamargo, 208 F.3d at 1135 (discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and explaining why, “at this point in our nation’s history,” and considering the makeup of

13

indicators are: (a) an overcrowded vehicle; the local Hispanic population, (b) none of the occupants have luggage or “Hispanic appearance is . . . of

14

only small items of property easily

such little probative value that it

transported; (c) the people in the vehicle are may not be considered [] a

15

unrelated or do not know each other; (d) whether the people in the vehicle are

relevant [or appropriate] factor” in the enforcement of

16 17 18 19 20 21

dressed in a disheveled manner; (e) pungent body odor of the people in the vehicle; (f) the vehicle is located in a known human smuggling corridor. See Deposition of Carlos Rangel dated 10/20/09 at p. 95, ln. 12 to p. 96, ln. 12 attached as Exhibit 11; see Deposition of Manuel Madrid dated 10/27/09 at p. 38, ln. 9 to p. 39, ln. 4, attached as Exhibit 10; see Deposition of Brett Palmer dated 11/09/10 at p. 38, ln. 21 to p. 39, ln. 14, attached as Exhibit 12.

immigration laws). Further, Defendants citation to an unpublished 5th Circuit opinion is not instructive. Regardless of whether race may be considered as a factor in “the poultry producing region of Scott County, Mississippi,” see VandyckAleman, 2006 U.S. App. LEXIS 24245 at *9, the Ninth Circuit law is clear that race may not be

Another of the ICE approved indicators is considered in areas, like

22

that of a person’s race or ethnicity,

Maricopa County, where a

including Mexican ancestry. See

substantial part of the resident

23

Deposition of Brett Palmer dated 10/23/09 population is both Hispanic and

at p. 19, ln. 1 to p. 20, ln. 7, attached as

legally present. Montero-

24

Exhibit 9. ICE approves of the use of race Camargo, 208 F.3d at 1134-36.

as one indicator among several in the

It is not clear why Defendants

25

exercise of 287(g) authority in the

would even cite to Vandyck-

determination of whether someone may Aleman unless the MCSO is, in

26

be in the United States unlawfully. See fact, relying on Hispanic

Deposition of ICE former Special Agent in appearance.

27 28

Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as Exhibit 1 (“[Race]

Further still, Defendants own argument is contradictory insofar

77

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 78 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

could be used, but, again, it couldn’t—it is as it attempts to justify Sheriff

3

not to be used solely. It is never to be used Arpaio’s comments by arguing

just as a—as an individual factor.”); see also that the ICE-approved indicators

4

Deposition of Brett Palmer dated 10/23/09 incorporate race or ethnicity,

at p. 25, lns. 9-18 attached as Exhibit 9

while also arguing that the MCSO

5

(“That is part of the 287(g) training that is does not use race as an indicator

part of our SOP, yes.”); Exhibit 9 at p. 151, or factor to make vehicle stops.

6

lns. 4-9 (“MCSO 287(g) officers can

consider race as one relevant factor with

7

others to have reasonable suspicion that

human smuggling may be occurring.”).

8

The Fifth Circuit’s decision in United States

9

v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th

10

Cir. 2006), cert. denied, 549 U.S. 1188 (2007) is instructive. There, the Court held

11

that “[a]lthough ethnicity generally may play no role in the enforcement of criminal

12

law of this country, enforcement of the immigration laws demands that the

13

officials focus on individuals most likely to violate those laws. In the poultry-

14

producing region of Scott County, Mississippi, as the agent testified

15

without contradiction, the population of illegal aliens is predominately Hispanic,

16

not (non- Hispanic) white. According, the district court did not err by finding that the

17

officers’ decision to approach Vandyck’s house and to question him when he came to

18

the door was justified.” (emphasis added).

Although ICE approves of the use of race as

19

one indicator, among several other

indicators, as a basis to form reasonable

20

suspicion of unlawful status, the MCSO

does not use race as an indicator or

21

factor to make vehicle stops under

Arizona law. See Deposition of Brett

22

Palmer dated 10/23/09 at p. 19, ln. 1 to p.

20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to

23

p. 151, ln. 3, attached as Exhibit 9.

24 12
25 26 27 28

Disputed. Controverting Statement: While Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion in that it unfairly attempts to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because he
78

Not genuinely disputed. Defendants do not dispute that Arpaio made the cited statement, that he “rarely run[s] across people other than Hispanics crossing the border illegally” Pls’ SOF 12. Instead, Defendants put

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 79 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

has set as a law enforcement priority for his forth several arguments

3

office the enforcement of law related to

attempting to justify Sheriff

illegal immigration. In other words,

Arpaio’s comments in an

4

Plaintiffs conflate the MCSO’s targeting of unnecessary attempt to create a

crimes regarding human smuggling or

dispute of fact where none exists.

5 6

illegal immigration with the targeting of Latinos because of their race. Arpaio’s professional experience in his law

Regardless of the demographics of illegal immigration, there is no legitimate reason why a law

7

enforcement career as Sheriff is that most of enforcement official should the illegal immigrants he has observed in condemn the members of an

8

Maricopa County are originally from

entire race by publicly equating

Mexico, or Central or South America. See them to illegal immigrants.

9 10 11 12 13 14 15 16 17

Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns. 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the state of Arizona, border area, may come from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16. This is neither shocking nor indicative of racial animus against Latinos. According to the objective and race-neutral evidence, “[i]t is well established that illegal immigrants in Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has estimated that 94 percent of illegal immigrants in Arizona are from Mexico alone, not including the

Notwithstanding what ICE trains its agents, racial profiling in immigration enforcement is unlawful in the Ninth Circuit. See Montero-Camargo, 208 F.3d at 1135 (discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and explaining why, “at this point in our nation’s history,” and considering the makeup of the local Hispanic population, “Hispanic appearance is . . . of such little probative value that it may not be considered [] a relevant [or appropriate] factor” in the enforcement of immigration laws).

18

rest of Latin America.” Defendants’ Statement of Facts (Dkt#413-1) at Ex. 19

Further, Defendants citation to an unpublished 5th Circuit opinion is

19

(Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota

not instructive. Regardless of whether race may be considered

20

deposition) at p. 122, lns. 13-16 (foundation as a factor in “the poultry

for his report). Arpaio’s professional

producing region of Scott County,

21

experience is no more derived from personal Mississippi,” see Vandyck-

racial animus toward Latinos than is the

Aleman, 2006 U.S. App. LEXIS

22

conclusion reached by the Pew Hispanic Center.

24245 at *9, the Ninth Circuit law is clear that race may not be

23 24 25 26 27

Arpaio’s professional experience is no more derived from personal racial animus toward Latinos than are the objective experiences of other MCSO personnel that have learned that most illegal immigrants in Maricopa County are from Mexico, or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13; Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p.

considered in areas, like Maricopa County, where a substantial part of the resident population is both Hispanic and legally present. MonteroCamargo, 208 F.3d at 1134-36. It is not clear why Defendants would even cite to VandyckAleman unless the MCSO is, in fact, relying on Hispanic

28 79

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 80 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

94, ln. 1, attached as Exhibit 11; Deposition appearance.

3

of Manual Madrid dated 10/27/09 at p. 189,

lns. 18-21, attached as Exhibit 10;

4

Deposition of Brett Palmer dated 10/23/09

at p. 30, lns. 2-16, attached as Exhibit 9; and

5

Deposition of Brian Sands dated 12/14/09 at

p. 94, lns. 3-6, attached as Exhibit 14; See

6

also United States v. Vandyck-Aleman, 201

Fed. Appx. 215, 218, 2006 U.S. App.

7

LEXIS 24245 *9 (5th Cir. 2006), cert.

denied, 549 U.S. 1188 (2007) (“Although

8

ethnicity generally may play no role in the

enforcement of criminal law of this

9

country, enforcement of the immigration

laws demands that the officials focus on

10

individuals most likely to violate those

laws. In the poultry-producing region of

11

Scott County, Mississippi, as the agent

testified without contradiction, the

12

population of illegal aliens is

predominately Hispanic, not (non-

13

Hispanic) white.”).

14 13
15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed

Not genuinely disputed.

Controverting Statement: While the Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion. Plaintiffs unfairly attempt to cast upon Arpaio some type of racially discriminatory intent or motive toward Latinos in general because of a statement based on his law enforcement experience and, in proper context, a statement that merely restates, perhaps inartfully, one of the ICE-approved indicators of unlawful presence in the United States. There are a number of ICE-approved articulable “indicators” that a local law enforcement officer who is 287(g) certified is trained by ICE to look for when determining whether a person may be in the United States unlawfully. One of the ICEapproved indicators is that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether someone may be in the United States unlawfully.

Defendants do not dispute that Arpaio made the cited statement, that he believes that the Hispanic illegal immigrants who come to Arizona “by and large” have “certain appearances” including “brown…skin color.” Pls’ SOF 13. Instead, Defendants put forth several arguments attempting to justify Sheriff Arpaio’s comments in an unnecessary attempt to create a dispute of fact where none exists. First, Defendants reference to ICE-approved indicators is inapposite. Arpaio was not referring to any such indicators, but was expressing his own subjective view. Second, notwithstanding what ICE trains its agents, racial profiling in immigration enforcement is unlawful in the Ninth Circuit. See MonteroCamargo, 208 F.3d at 1135

80

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 81 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

See Deposition of ICE former Special Agent (discussing United States v.

3

in Charge, Phoenix, Mr. Alonzo Pena, at p. Brignoni-Ponce, 422 U.S. 873

54, lns. 16-22, attached as Exhibit 1

(1975) and explaining why, “at

4

(“[Race] could be used, but, again, it

this point in our nation’s history,”

couldn’t—it is not to be used solely. It is and considering the makeup of

5

never to be used just as a—as an individual the local Hispanic population,

factor.”); see also Deposition of Brett

“Hispanic appearance is . . . of

6

Palmer dated 10/23/09 at p. 25, lns. 9-18 such little probative value that it

attached as Exhibit 9 (“That is part of the may not be considered [] a

7

287(g) training that is part of our SOP,

relevant [or appropriate] factor”

yes.”); Exhibit 9 at p. 151, lns. 4- 9

in the enforcement of

8

(“MCSO 287(g) officers can consider race immigration laws).

9 10 11 12 13 14 15 16 17

as one relevant factor with others to have reasonable suspicion that human smuggling may be occurring.”); see also United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) (“Although ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultryproducing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non-Hispanic) white.”). Although ICE approves of the use of race as

Further, Defendants citation to an unpublished 5th Circuit opinion is not instructive. Regardless of whether race may be considered as a factor in “the poultry producing region of Scott County, Mississippi,” see VandyckAleman, 2006 U.S. App. LEXIS 24245 at *9, the Ninth Circuit law is clear that race may not be considered in areas, like Maricopa County, where a substantial part of the resident population is both Hispanic and legally present. MonteroCamargo, 208 F.3d at 1134-36. It is not clear why Defendants would even cite to Vandyck-

18

one indicator, among several other indicators, as a basis to form reasonable

Aleman unless the MCSO is, in fact, relying on Hispanic

19 20 21 22

suspicion of unlawful status, the MCSO does not use race as an indicator or factor to make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.

appearance. Further, Defendants own argument is contradictory insofar as it attempts to justify Sheriff Arpaio’s comments by arguing that the ICE-approved indicators incorporate race or ethnicity,

while also arguing that the MCSO

23

does not use race as an indicator

or factor to make vehicle stops.

24

25 14
26 27 28

Disputed Controverting Statement: While the Defendants do not dispute that Arpaio made the cited statement, the statement is misleading as used in the motion. Plaintiffs unfairly attempt to cast upon Arpaio some
81

Not genuinely disputed. Defendants do not dispute that Arpaio made the cited statement, that Sheriff Arpaio stated, “I have

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 82 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

type of racially discriminatory intent or

to tell you something. It is not

3

motive toward Latinos in general because of politically correct to say this.

a statement based on his law enforcement Where do you think 99 percent of

4

experience and the undisputed facts that

the people come from.” Pls’ SOF

most illegal immigrants are from Mexico. 14. Instead, Defendants put forth

5

The evidence shows that “[i]t is well

several arguments attempting to

established that illegal immigrants in

justify Sheriff Arpaio’s comments

6

Arizona and in the United States as a whole in an unnecessary attempt to

are overwhelmingly Hispanic. The Pew

create a dispute of fact where

7

Hispanic Center has estimated that 94

none exists.

8 9 10 11 12 13 14 15 16 17 18 19 20

percent of illegal immigrants in Arizona are from Mexico alone, not including the rest of Latin America.” DSOF (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).

Regardless of the demographics of illegal immigration, there is no legitimate reason why a law enforcement official should condemn the members of an entire race by publicly equating them to illegal immigrants.

The Fifth Circuit’s decision in United States v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th Cir. 2006), cert. denied, 549 U.S. 1188 (2007) is instructive. There, the Court held that “[a]lthough ethnicity generally may play no role in the enforcement of criminal law of this country, enforcement of the immigration laws demands that the officials focus on individuals most likely to violate those laws. In the poultryproducing region of Scott County, Mississippi, as the agent testified without contradiction, the population of illegal aliens is predominately Hispanic, not (non- Hispanic) white. According, the district court did not err by finding that the officers’ decision to approach Vandyck’s

Notwithstanding what ICE trains its agents, racial profiling in immigration enforcement is unlawful in the Ninth Circuit. See Montero-Camargo, 208 F.3d at 1135 (discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and explaining why, “at this point in our nation’s history,” and considering the makeup of the local Hispanic population, “Hispanic appearance is . . . of such little probative value that it may not be considered [] a relevant [or appropriate] factor” in the enforcement of immigration laws).

house and to question him when he came to Further, Defendants citation to an

21

the door was justified.” (emphasis added) unpublished 5th Circuit opinion is not instructive. Regardless of

22

whether race may be considered as a factor in “the poultry

23

producing region of Scott County, Mississippi,” see Vandyck-

24

Aleman, 2006 U.S. App. LEXIS 24245 at *9, the Ninth Circuit law

25

is clear that race may not be considered in areas, like

26

Maricopa County, where a substantial part of the resident

27

population is both Hispanic and legally present. Montero-

28

Camargo, 208 F.3d at 1134-36.

82

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 83 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
It is not clear why Defendants would even cite to VandyckAleman unless the MCSO is, in fact, relying on Hispanic appearance.

6 15
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed.

Not genuinely disputed.

Controverting Statement: There is nothing

unusual about law enforcement discovering, and seeking to discover, illegal immigrants regardless of whether the particular illegal immigrant committed a state crime.

When Sheriff Arpaio announced his “pure” program, he distinguished it from other agencies’ immigration

Jason Kidd, the ICE Assistant Agent in

enforcement programs. Pls.’ SOF

Charge Phoenix, testified that Arpaio had 8.

the authority under the ICE-MCO Memorandum of Agreement to do pure immigration enforcement. See Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20 (the MOA “does not limit the type of enforcement”), attached as Exhibit 2.

Defendants’ reliance on the testimony of Mr. Kidd and Mr. Pena regarding how the MCSO’s 287(g) authority theoretically could or could not be used is not instructive as to whether or not it is typical or usual for law

Mr. Kidd further testified 287(g) authority enforcement agencies to look for

could be used during or following a lawful illegal immigrants who have not

traffic stop because “[w]hat mattered was committed any other offense.

that there was a legitimate law enforcement encounter. So it could be anything from a traffic violation to a criminal violation that they were able to encounter those people that was a legitimate law enforcement encounter.” Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 171, ln. 18 to p. 172, ln. 5), attached as Exhibit 2.

Mr. Kidd testified that he spoke with MCSO’s Lt. Joseph Sousa about whether MCSO saturation patrol operations were “within the scope of the MOA.” Kidd Dep. 33:16-34:24 [Hickey Opp’n Dec. Ex. 219]. Mr. Kidd also testified that there “some questions” about

According to Jason Kidd, he was

the arrest of Mr. Ortega

knowledgeable or aware of the fact that the Melendres. See Kidd Dep.

MCSO saturation patrols were using

121:16-122:15 [Hickey Opp’n

violations of the Arizona motor vehicle

Dec. Ex. 219].

equipment and moving codes to make traffic stops of persons. See Defendants’ Supplemental Statement of Facts re Testimony of ICE Witnesses in Support of their Motion for Summary Judgment dated April 29, 2011 (Dkt# 414 and 415) (motion

See also, Pls.’ Resp. to Defs’ SSOF re Testimony of ICE Witnesses in Support of their Motion for Summary Judgment dated April 29, 2011 at ¶ 21.

to file same under) at ¶ 21. Mr. Kidd was Further, Defendants arguments

further knowledgeable or aware of the fact based on Mr. Click’s testimony

that during MCSO conducted traffic stops are also inapplicable insofar as

MCSO deputies were encountering people Mr. Click’s testimony focuses on

in the United States unlawfully. Id. Mr. using saturation patrols to address

Kidd never expressed in writing, or verbally, a particular criminal problem,

83

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 84 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

to the MCSO any concerns about the MCSO such as human smuggling. The

3

using traffic stops and during those stops reality is that the MCSO’s

identifying people in the country

saturation patrol operations netted

4

unlawfully. Id.

almost no arrests under the state

5 6 7 8 9 10 11

Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p. 168, ln. 22, attached as Ex. 1. Whether the immigration suspect was involved in a crime or not is immaterial. Id.

human smuggling statute. See Pls.’ SOF 61-73. This is not surprising. The saturation patrols took place in the largely urban areas of Maricopa County, such as downtown Phoenix or Mesa, rather than on highways or known smuggling corridors. Ultimately, Mr. Click’s testimony does not address whether or not it is unusual for a law enforcement agency to look for illegal immigrants who have not committed any other offense. In

The MCSO’s police practices expert, Mr. fact, Defendants fail to engage

12

Bennie Click, testified to a reasonably

with the reasons why simply

degree of probability in his field of expertise looking for illegal immigrants

13

that that MCSO’s use of saturation patrols is who have not committed any

a long-standing, common, and reasonable other offense is unusual. Among

14

tool of law enforcement, and that is an

other reasons, immigration status

agency policy decision as to what particular is often not readily observable

15

problem to address with a saturation patrol. (absent seeing someone cross the

More specifically, Mr. Click testified:

border or finding the person

16 17

“Saturation patrol operations have long been an accepted strategy used by law enforcement agencies to address specific

hiding in a smuggling load) and therefore gives rise to an increased risk of racial profiling.

18

crime problems in a particular location. They generally are of short duration, nor

19

more than several days, because the additional personnel needed for the

20

operation are taken from other assignments. Historically, saturation

21

patrols have targeted gangs, drugs, alcohol, DUI, and curfew violations. They

22

are also used to address traffic issues such as high collision locations. The saturation

23

patrols not only address crime problems, but also reassure the residents and

24

businesses that their crime concerns are being addressed. A strong law enforcement

25

presence also deters crime in the area. Saturation patrols play an important role

26

in the practice of community policing. It is an agency policy decision to use saturation

27

patrols to address a particular problem.

Saturation patrols/crime suppression/task

28 84

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 85 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

force operations usually involve officers

3

making increased number of lawful

traffic stops and street contacts. The goal

4

of these lawful stops and contacts is [to]

discover other crime. This can also have

5

a deterrent effect. Lawful stops and

contacts is also used to gather intelligence

6

about criminal activity.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

7

The specific criminal activity that is identified as the focus of a saturation

8

patrol operations is any agency policy decision. This is a common law

9

enforcement practice. The Sheriff has the authority to designate illegal immigration

10

an enforcement priority.

Arizona’s proximity to the Mexican border

11

results in enforcement issues not faced by

non-border states. Major smuggling

12

corridors have been identified that lead

from the Mexico border to Maricopa

13

County and beyond. This can result in

different and reasonable law enforcement

14

policies in Maricopa County than in other

parts of the country. Arizona has specific

15

immigration-related statutes that many

other states do not have. These statutes

16

make certain immigration related

activities a crime and therefore can

17

impact agency policies.”

18

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click

19

dated January 21, 2011, at pgs. 46 and 4849, attached thereto as Exhibit 16; See also

20

March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342,

21

ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the

22

foundation for his opinions and that his opinions in the report were the same he

23

would provide at trial to a reasonable degree of probability in his field of expertise).

24 16 Admit in part and disputed in part.

Not genuinely disputed.

25 26 27 28

Controverting Statement: Defendants do not dispute the following: (a) that in 2008 Arpaio published a book with co-author Len Sherman titled: Joe’s Law: America’s Toughest Sheriff Takes on Illegal Immigration, Drugs, and Everything Else that Threatens America;” (b) the book

Defendants do not actually dispute this fact. Defendants do not dispute that Arpaio coauthored the book and do not disputed that the quoted portions

85

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 86 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

discusses illegal immigration at length; (c) actually appear in the book, but

3

the book suggests that immigrants from

instead attempt to attribute the

Mexico have displayed a difference in

quoted portions of the book to

4

assimilating into American society as

Len Sherman, the co-author of

compared to historical experiences with

the book, in an unnecessary

5

other immigrant groups; and (d) the book attempt to create a dispute of fact

addresses Arpaio’s immigrant parents from where none exists

6

Italy.

Further, Arpaio promoted Joe’s

7

As for the book’s discussion on the concept Law during book signing and of Mexican “reconquista” or reconquest of interviews and admits the line

8

certain land in the southwestern United States, Arpaio testified that he was not

between what’s in his book and his official business is not very

9

familiar with that concept and attributed

firm, a fact which Defendants

statements about “reconquista” in the book notably do not dispute. Pls.’ SOF

10

to those of his co-author, Len Sherman. See 17. Defendants have presented deposition of Joseph Arpaio dated 12/16/09 no evidence that Arpaio has ever

11

at p. 13, ln. 14 to p. 17, ln. 3, attached as Exhibit 16. More specifically, Arpaio

publicly disclaimed any portion of the book. Sheriff Arpaio’s

12

testified that he did not agree with the statements about reconquest (Id. at p. 16,

statements are not only indicative of his own views, but his desire to

13

lns. 6-8) or that immigrants from Mexico appease constituents who hold had hopes different from his Italian parents hostile views towards Hispanics.

14

(Id. at p. 16, lns. 20-23).

Further, they show the message that Arpaio is sending to the

15

subordinates in the MCSO. Arpaio’s self-serving disavowal

16

made during litigation is therefore insufficient to create a genuine

17

issue of material fact. See Villiarimo v. Aloha Island Air,

18

Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (“[T]his court has

19

refused to find a genuine issue where the only evidence

20

presented is uncorroborated and self-serving testimony.” (internal

21

quotation marks and citation omitted)).

22 17 Admit

23 18 19
24 25 26 27 28

Admit Admit in part and disputed in part. Controverting Statement: Defendants admit that Arpaio has described illegal immigration as an “epidemic”. There is no evidence cited by Plaintiffs wherein Arpaio has described legal immigration as an “epidemic.” While Defendants admit that Arpaio gave an

Not genuinely disputed. Defendants admit that Arpaio has described illegal immigration as an “epidemic”. Plaintiffs original SOF never stated that Arpaio described legal immigration as an “epidemic.” Defendants argue that Arpaio’s

86

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 87 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

interview with GQ magazine online in late comment about Mexican

3

2008 or early 2009, the statement attributed immigrants being “dirty” was

to him that illegal immigrants coming over “likely” taken out of context. Id.

4

the Mexican border as being “dirty” was However, the full context only

likely taken out of context by the reporter. serves to demonstrate Sheriff

5

According to Arpaio,

Arpaio’s dehumanizing view of

6 7 8 9 10

“It reflects my views that only those that come across the border and do not go through the proper checks, through the regular ports to come in her with no checks at all. And there is no way to determine whether they have a disease or not. I can talk about swine flu, tuberculosis and I believe I was referring to those instances when people come across without doing the proper checks.”

Mexican immigrants as vessels for disease. Pls.’ Rep. to Defs. SSOF 43. The original quote reads: “There’s no control, no health checks or anything. They check fruits and vegetables, how come they don’t check people? No one talks about that! They’re all dirty.” Pls.’ SOF 19. Further, Arpaio’s suggestion that

11 12

Deposition of Joseph Arpaio dated 12/16/09 at p. 19, ln. 17 to p. 20, ln. 12, attached as Exhibit 16 (emphasis added).

the comment was taken out of context is a self-serving denial that should be given no weight by the Court. Self-serving denials

13

Objections: The document ORT528-535 is made during litigation and

inadmissible hearsay in that it is a web

without supporting evidence are

14

online story containing opinions and argument of its author, and the Plaintiffs

insufficient to create a genuine issue of material fact. See

15

have not demonstrated the foundation for the authenticity or reliability of any

Villiarimo, 281 F.3d at 1061 (9th Cir. 2002) (“[T]his court has

16

statement therein that is attributed to Arpaio. refused to find a genuine issue As such, the supposed Arpaio statements where the only evidence

17

lack authenticity and foundation to serve as presented is uncorroborated and

admissions by a party opponent. Cox v.

self-serving testimony.” (internal

18

Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v.

quotation marks and citation omitted)).

19 20 21

Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969).

Defendants object to document ORT 528-535 as inadmissible hearsay. However, when confronted with ORT 528-535, Arpaio acquiesced in its statements. ORT 528-535, Ex. 2

22

to Arpaio Dep. I (introduced at

Arpaio Dep. I at 20:13-23:16)

23

(confirming that he had no reason

to disagree with statements about

24

how “[t]here’s no control, no

health checks or anything . . .” for

25

Mexican immigrants and how

such immigrants are “all dirty.”)

26

[Hickey Dec. Ex. 6]. Arpaio’s

acquiescence constitutes party-

27

opponent admissions that make

these statements not hearsay. See

28 87

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 88 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10 20 Admitted in part and d isputed in part.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Fed. R. Evid. 801(d)(2)(B); Monks, 774 F.2d at 950; Wilson, 2000 WL 1007004. Furthermore, this document is also not hearsay because it is offered to show how Arpaio’s intent, and not for the truth of its content. See, e.g., Ciampi, 2011 WL 1793349 (allowing the admission of newspaper articles where they contained relevant statements by defendant for a defamation claim, but where they were not offered for the truth of the statements themselves). Not genuinely disputed.

11

Controverting Statement: While

12 13 14 15

Defendants admit the contents of the MCSO New Release at document ORT000637-39, the contents of the news release, as used by Plaintiffs in their motion is misleading, not given in context, and ignores the environment in which the statement was made. Pursuant to Rule 201, Federal Rules of

Defendants do not actually dispute this fact. Defendants admit the contents of the MCSO news release discussed in Pls’ SOF 20. Plaintiffs never claimed that there was not a swine flu outbreak in 2009 or that individuals from Mexico were not

16

Evidence, the Court may take judicial notice affected, and Plaintiffs submitted that in the winter and spring of 2009, there the entire press release as Exhibit

17

was an influenza problem in the United

209 to the Hickey Declaration.

States associated with the “swine flu.” See Defendants arguments

18

Center for Disease Control and Prevention unnecessarily attempt to create a

(“CDC”) documents at

dispute of fact where none exists.

19 20 21 22

http://www.cdc.gov/h1n1flu/ga.htm (entitled “2009 H1N1 Flu (“Swine Flu”) and You”); http://www.cdc.gov/h1n1flu/cdccresponse.h tm (entitled “The 2009 H1N1 Pandemic Summary and Highlights April 2009 to April 2010”). The CDC considered the swine flu a pandemic. Id.

Further, notwithstanding the outbreak, there was no legitimate law enforcement or public health rationale for opportunistically issuing a News Release depicting Mexican immigrants as vessels for disease.

23

The Court may also take judicial notice that

people in Mexico were affected severely

24

with the global swine flu and that over 150

people were reported to have died from the

25

form of influenza. See

www.cbsnews.com/stories/2009/04/28/healt

26

h/main4973082shtml?tag=c

ontentMain:contentBody (entitled “CDC

27

Warns Swine Flu Death Likely in US. More

than 60 Cases Confirmed: Obama asks for

28 88

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 89 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

$1.5 billion to fight Fast Spreading

3

Disease.”) (confirming reported deaths of

159 persons in Mexico from swine flu).

4

In addition, for completeness purposes

5

pursuant to Rule 106, Federal Rules of Evidence, the following other sections of the

6

news release ought in fairness to be considered contemporaneously with the

7

isolated section used by the Plaintiffs:

“’No one has talked about the people who

8

are coming into the United States illegally

as being a potential source of the spread of

9

swine flu,’ Sheriff Arpaio said today.

‘Unlike those who legally enter this

10

country, and thus can be easily checked

for disease, the very nature of illegal

11

immigration –evading authorities, and

unchecked and untraceable contact with

12

different people – actively promotes the

spread of a communicable disease. If this

13

health crisis doesn’t serve as a wake- up call

to politicians who advocate open borders

14

and who fight this illegal immigration issue

at every turn, then our nation could find

15

itself in serious trouble on a number of

levels.’”

16

***

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

17

“’It takes an average of seven (7) days for

illegal immigrants from the southern

18

Mexican states to be smuggled into

Maricopa County,’ Arpaio says. ‘If illegal

19

aliens are exposed to swine flu in Mexico,

by the time they arrive in the U.S, the

20

disease is fully infectious. Deputies are

exposed to illegal aliens on average about

21

10 to 12 hours while are arrests are in

process.’”

22

See ORT000638, attached to Plaintiffs’

23

Statement of Facts as Exhibit208 (emphasis added).

24 21 Admit

25 22 Disputed.

Not genuinely disputed.

26 27 28

Controverting Statement: This statement states the evidence out of context and is misleading as used in the Plaintiffs’ Motion (at p.16, lns. 5-8) because it is intended to

Defendants do not actually dispute this fact. Defendants admit the contents of the MCSO news release discussed in Pls’

89

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 90 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

draw a causal link between selected

3

constituent correspondence received by

Arpaio and the Defendants’ decisions to

4

conduct certain saturation patrols or their

decision to enforce laws related to illegal

5

immigration.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
SOF 22. Plaintiffs’ SOF 22 simply puts forth the relevant portions of the press release. Defendants arguments unnecessarily attempt to create a dispute of fact where none exists.

6

For completeness purposes pursuant to Rule Plaintiffs, however, disagree with

106, Federal Rules of Evidence, the

Defendants characterization of

7

following other sections of the news release the press release. Nothing in the

(ORT421-22) ought in fairness to be

press release itself establishes

8

considered contemporaneously with the

that: (a) the MCSO is targeting

isolated section used by the Plaintiffs so the human smuggling load vehicles,

9

cited terms are in context:

“Date: July 20, 2007

10

***

not people based on their race or ethnicity; (b) load vehicles can be stopped only for cause; (c) the MCSO intends to enforce Arizona

11 12 13 14

Maricopa County Sheriff Joe Arpaio, who has been at the forefront of the fight against illegal immigration during the past two years [i.e., since 2005] with a workforce of 4,000 employees, announced an expanded and concentrated crackdown on the [illegal immigration] problem on Friday,

and federal laws related to illegal immigration; and (d) the MCSO, and Arpaio in particular, is not expanding the “crackdown” in response to the specific constituent correspondence cited by the Plaintiffs.

July 20, 2007 at his Tent City Jail.

The press release states only that: (a)

15 16 17

Arpaio said that more than 200 armed Sheriff’s deputies…will saturate valley cities as well as roadways and highways commonly used as transportation corridors for human trafficking.

the MCSO “will saturate valley cities as well as roadways and highways commonly used as transportation corridors for human trafficking”; and (b) deputies “will be out en masse to

18

***

enforce both the state and federal

19

***

anti illegal immigration law which [purportedly] allow them to arrest

160 immigration trained deputies and

and jail anyone stopped for cause

20

officers… will be out en masse to enforce and determined to be in the country

both the state and federal anti illegal

unlawful”. The press release does

21

immigration law which allow them to arrest not state that the MCSO, and

and jail anyone stopped for cause and

Arpaio in particular, is not

22

determined to be in the country unlawfully. expanding the “crackdown” in

23 24 25 26 27

‘We are quickly becoming a full fledged anti illegal immigration agency,’ Arpaio says. ‘In the jails and on the streets, we have our employees trained and anxious to make a large dent in the illegal immigration problem. We have heard the people speak, we understand their frustration and will continue to do all that we can to reduce the number of illegal aliens making their way into the United

response to the specific constituent correspondence and in fact, as Defendants point out, states: “We have heard the people speak, we understand their frustration and will continue to do all that we can to reduce the number of illegal aliens making their way into the United States and Maricopa County.” Further, though some of the constituent

28 90

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 91 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

States and Maricopa County.’”

correspondence Plaintiffs refer to in

3 4 5

See ORT421-22 (emphasis added). It is clear, therefore, from the appropriate context of the news release, that: (a) the MCSO is targeting human smuggling load vehicles, not people based on their race or

their motion postdates the July 20, 2007 News Release, some of it predates it. The constituent correspondent Sheriff Arpaio later received is similar in nature.

6

ethnicity; (b) load vehicles can be stopped Notwithstanding Jason Kidd’s

only for cause; (c) the MCSO intends to

testimony regarding the ICE-

7

enforce Arizona and federal laws related to MCO Memorandum and illegal immigration; and (d) the MCSO, and Agreement, racial profiling in

8

Arpaio in particular, is not expanding the “crackdown” in response to the specific

immigration enforcement is unlawful in the Ninth Circuit.

9

constituent correspondence cited by the

See Montero-Camargo, 208 F.3d

Plaintiffs throughout their, the vast majority 1122, 1135 (discussing United

10

of which were written by third parties and States v. Brignoni-Ponce, 422 sent to Arpaio after the July 20, 2007 date of U.S. 873 (1975) and explaining

11 12 13 14 15

the news release. The Plaintiffs’ statement, as used by Plaintiffs in the motion, is also misleading because it suggests that there is something wrong with, or otherwise unlawful about, Arpaio’s law enforcement policies or priorities or his use of the saturation patrol law enforcement technique. That is not the case.

why, “at this point in our nation’s history,” and considering the makeup of the local Hispanic population, “Hispanic appearance is . . . of such little probative value that it may not be considered [] a relevant [or appropriate] factor” in the enforcement of immigration laws).

16 17 18

Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio had the authority under the ICE-MCO Memorandum of Agreement to do pure immigration enforcement. See Deposition of Jason Kidd (ICE Assistant SAC Phoenix)

Plaintiffs have also presented detailed evidence regarding Sheriff Arpaio and the MCSO’s use of specific citizen complaints. See, e.g., Pls’ SOF 23-48, 74-103.

19

at p. 159, lns. 13-20 (the MOA “does not Additionally, Plaintiffs have put limit the type of enforcement”), attached as forth evidence that while

20 21 22 23 24

Exhibit 2. Mr. Kidd further testified 287(g) authority could be used during or following a lawful traffic stop because “[w]hat mattered was that there was a legitimate law enforcement encounter. So it could be anything from a traffic violation to a criminal violation that they were able to encounter those people that was a legitimate law enforcement

saturation patrols that focus on a specific type of criminal activity are generally accepted practice, the saturation patrols conducted by the MCSO since 2007 did not do so and were not carried out in a manner consistent with generally accepted practice. See, e.g., Pls’ SOF 104-127.

encounter.” Deposition of Jason Kidd (ICE With respect to the testimony of

25

Assistant SAC Phoenix) at p. 171, ln. 18 to Mr. Click and Mr. Stewart, see

p. 172, ln. 5), attached as Exhibit 2.

also, Pls’ Resp. to Defs’ SSOF

26 27

According to Jason Kidd, he was knowledgeable or aware of the fact that the MCSO saturation patrols were using

24-27 (discussing much of the same testimony reiterated here).

28

violations of the Arizona motor vehicle

91

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 92 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

equipment and moving codes to make traffic

3

stops of persons. See Defendants’

Supplemental Statement of Facts re

4

Testimony of ICE Witnesses in Support of

their Motion for Summary Judgment dated

5

April 29, 2011 (Dkt# 414 and 415) (motion

to file same under) at ¶ 21. Mr. Kidd was

6

further knowledgeable or aware of the fact

that during MCSO conducted traffic stops

7

MCSO deputies were encountering people

in the United States unlawfully. Id. Mr.

8

Kidd never expressed in writing, or verbally,

to the MCSO any concerns about the MCSO

9

using traffic stops and during those stops

identifying people in the country

10

unlawfully. Id.

11

Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was

12

completely proper for MCSO deputies to make traffic stops of motorists under

13

Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic

14

stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully

15

present in the country. See Deposition of Alonzo Pena at p. 167, ln. 1 to p. 168, ln.

16

22, attached as Ex. 1. Whether the immigration suspect was involved in a crime

17

or not is immaterial. Id.

The MCSO’s police practices expert, Mr.

18

Bennie Click, testified to a reasonably

degree of probability in his field of expertise

19

that that MCSO’s use of saturation patrols is

a long-standing, common, and reasonable

20

tool of law enforcement, and that is an

agency policy decision as to what particular

21

problem to address with a saturation patrol.

More specifically, Mr. Click testified:

22

“Saturation patrol operations have long

23

been an accepted strategy used by law enforcement agencies to address specific

24

crime problems in a particular location…. It is an agency policy decision to use

25

saturation patrols to address a particular problem.

26

Saturation patrols/crime suppression/task

force operations usually involve officers

27

making increased number of lawful traffic

stops and street contacts. The goal of these

28 92

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 93 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

lawful stops and contacts is [to] discover

3

other crime. This can also have a deterrent

effect. Lawful stops and contacts is also

4

used to gather intelligence about criminal

activity.

5

The specific criminal activity that is

6

identified as the focus of a saturation patrol operations is any agency policy

7

decision. This is a common law enforcement practice. The Sheriff has the

8

authority to designate illegal immigration an enforcement priority.

9

Arizona’s proximity to the Mexican border

results in enforcement issues not faced by

10

non-border states. Major smuggling

corridors have been identified that lead

11

from the Mexico border to Maricopa

County and beyond. This can result in

12

different and reasonable law enforcement

policies in Maricopa County than in other

13

parts of the country. Arizona has specific

immigration-related statutes that many

14

other states do not have. These statutes

make certain immigration related

15

activities a crime and therefore can

impact agency policies.”

16

See Defendants’ Statement of Facts

17

(Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 48-

18

49, attached thereto as Exhibit 16; See also March 18, 2011 Deposition of Defense

19

Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

20

(wherein Mr. Click testified to the foundation for his opinions and that his

21

opinions in the report were the same he would provide at trial to a reasonable degree

22

of probability in his field of expertise).

Plaintiffs’ police practices/racial profiling

23

expert, Robert Stewart, testified that a local

law enforcement agency has discretion in

24

setting its enforcement policies. See

Deposition of Robert L. Stewart at p. 26,

25

lns. 19-23, attached as Exhibit 17. Mr.

Stewart testified also that a local law

26

enforcement agency has discretion in

determining what crimes it should prioritize

27

for enforcement. Id. at p. 26, ln. 25 to p. 27,

ln. 4; See also p.27, ln. 23 to p. 28, ln. 1.

28 93

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 94 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2
23

Statement Of Fact Admit

3 24 Admit

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4 25 Disputed.

Not genuinely disputed.

5

Controverting Statement:

(A) Defendants Do Not Endorse, Adopt, Defendants present no evidence

6

or Agree with Private Citizen

controverting Pls.’ SOF 25,

Communications that Call for Illegal

which states that, “Sheriff Arpaio

7

and Immoral Conduct, including calls received and saved letters and

for the Racial Profiling of Latinos.

news clippings explicitly

8 9 10 11 12 13 14 15 16

Defendants admit that Arpaio, as an elected official, receives and saves many letters or communications from private citizens and news clippings. Defendants, however, dispute the statement, as it is used in Plaintiffs’ motion, that any of the citizens’ letters cited by the Plaintiffs in their Motion that actually call for racial profiling, or that are fairly perceived as calling for racial profiling, ever caused or resulted in Arpaio or the MCSO engaging in racial profiling. The evidence shows that Defendants understand and agree that racial profiling is illegal and morally wrong, and that the MCSO does not, in fact, engage in such conduct:

advocating racial profiling in his immigration file.” Defendants’ own brief opposing Plaintiffs’ motion for summary judgment admits that Sheriff Arpaio has saved “letters that Arpaio has received over the years from citizens that have . . . called for the MCSO to target Latinos based solely on their race or ethnicity,” Defs.’ Opp’n at 17, and that “Arpaio sent to certain of his executive management staff copies of citizen letters that . . . called for racial targeting of Latinos.” Id. at 21. In light of these admissions in their brief,

Arpaio testified that racial profiling is

and the undisputed evidence of

17

morally wrong. See Deposition of Joseph the documents found in Sheriff

Arpaio dated 12/16/09 at p. 113, lns. 10-11; Arpaio’s file, it is difficult to see

18

115, lns. 2-17, attached as Exhibit 16; See how Defendants can say that Pls.’

also Arpaio Deposition dated 11/16/10 at SOF 25 is genuinely “disputed.”

19 20 21 22

p.77, lns. 22-23, attached as Exhibit 15. Arpaio further testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I can say, we don’t do that. We don’t stop people by their appearance.”). MCSO Deputy Chief Brian Sands makes the

Instead of addressing Pls.’ SOF 25, Defendants present an extended argument on a different subject--whether the MCSO endorses or acts pursuant to letters calling for racial profiling. Defendants’ argument is non-

23

decision of where, when, and how to do a responsive to Pls.’ SOF 25 and saturation patrol. See Deposition of Brian should be stricken.

24 25 26 27

Sands dated12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14. Chief Sands testified that racial profiling is morally wrong. Id. at p. 147, ln. 20 to p. 148, ln. 5, attached as Exhibit 14. Chief Sands further understands that racial profiling is illegal. See Deposition of Brian Sands dated 11/15/10 at p. 92, ln. 24 to p.

In any case, Defendants’ generalized and self-serving testimony on this issue does not create a genuine factual dispute. See Smith v.Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982) (“Municipal officials acting in their official capacities seldom,

28

94

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 95 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

93, ln. 1, attached as Exhibit 14.

if ever, announce on the record

3 4 5 6 7 8

MCSO Lieutenant Joseph Sousa, the head of MCSO’s Human Smuggling Unit (“HSU”), and one of the top planners for executing and supervising saturation patrols, testified that racial profiling is prohibited by MCSO policy, is illegal, and HSU members do not racially profile. See Deposition of Joseph Sousa dated 12/10/09 at p.135, ln. 24 to p. 136, ln. 17, attached as Exhibit 5; See also Sousa Deposition dated 10/22/10 at p. 30, lns. 14-17, attached as Exhibit 19.

that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.”); Villiarimo, 281 F.3d at 1061 (9th Cir. 2002) (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony.” (internal quotation marks and citation omitted)).

9 10 11 12

HSU Sergeant Manuel Madrid, one of two supervising sergeants for the unit, and a Latino himself, testified that racial profiling is illegal, that race or ethnicity can never be used in making a traffic stop, and that the HSU members he supervises do not racially profile. See Deposition of Manuel Madrid

Arpaio himself has publicly stated, “I always have an official reason, so I can win the lawsuits, and then I have my reason.” Arpaio Dep. I, at 261:14-262:14, Ex. 14 [Hickey Reply Dec. Ex. 241].

dated 10/27/09 at p. 20, lns. 14-23; p. 195, The specific written evidence, in

13

lns. 15-17l, and p. 202, 18-22, attached as most cases not directly addressed

Exhibit 10.

by Defendants, shows that

14 15 16

HSU Sergeant Brett Palmer, the remaining supervisory sergeant for the unit, testified that racial profiling is wrong and illegal, and that the HSU members he supervises do not racially profile. See Deposition of Brett

Defendants in fact both endorsed and acted on communications they received calling for racial targeting. For example, in response to a

17

Palmer dated 10/23/09 at p. 36, lns 10-25; p. letter affirming that he had the 135, lns. 5-25; p. 139, ln. 21 to p. 140, ln right to “investigate people based

18

18; p. 145, lns. 12-25; and p. 153, lns. 13- on the color of their skin, or their

15, attached as Exhibit 9.

accent or the way they look,”

19 20 21 22

Louis DiPietro, the deputy that made the traffic stop on Plaintiff Melendres, knows and understands that racial profiling is illegal. See Deposition of Louis DiPietro dated 10/21/09 at p. 87, lns. 17-19, attached as Exhibit 13. Race was not a factor in Deputy DiPietro’s

Sheriff Arpaio thanked the writer for her support of his illegal immigration policies and told her how much he enjoyed reading her story about how her “Italian grandmother” [sic, mother] had been racially profiled during World War II, something that the

23

finding that he had probable cause to stop mother thought “was the right the truck in which Plaintiff Melendres was a thing to do.”. Pls.’ SOF 40;

24

passenger. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 125-126

[Hickey Dec. Ex. 36]; OSLS000121 (thank you letter

25

from Arpaio) [Hickey Dec. Ex. 185]. Sheriff Arpaio also

26

Matthew Ratcliffe, the deputy that made the testified that he himself would not

traffic stop on the Rodriguez Plaintiffs

be “bothered” if he were the

27

knows and understands that racial profiling subject of racial profiling. Pls.’

is illegal and wrong. See Deposition of

SOF 166.

28

Matthew Ratcliffe dated 10/15/09 at p.115,

95

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 96 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

lns.18-25, attached as Exhibit 6. Race was Sheriff Arpaio received another

3

not a factor in Deputy Ratcliffe’s finding letter stating, “They have the

that he had probable cause to stop the truck nerve to say we are racially

4

in which the Rodriguez Plaintiffs were

profiling. Please, it is what it is.

driving or occupying. See Defendants

If you have dark skin, then you

5

Statement of Facts (Dkt# 413-1) at ¶¶ 132- have dark skin. Unfortunately,

135.

that is the look of the Mexican

6 7 8 9 10 11 12

Michael Kikes, the deputy that made the traffic stop on the Plaintiffs Meraz and Nieto knows and understands that racial profiling is illegal and wrong. See Deposition of Michael Kikes dated 02/15/10 at p. 46, lns. 14-17, p. 108, lns. 9-15, attached as Exhibit 7. Race was not a factor in Deputy Kikes’s finding that he had probable cause to stop the truck in which Plaintiffs Meraz and Nieto were driving or occupying. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 85-86.

illegals who are here illegally.” The letter goes on to say, “I’m begging you to come over to 29th Street/Greenway Parkway area and round them all up.” Sheriff Arpaio forwarded the letter on to Chief Sands with a note that said, “Have someone handle this.” The MCSO then did do saturation patrols in the area near 29th Street and Greenway. Pls SOF 78-79. Defendants ignore the other

13

Defendants further refer the Court to the

undisputed written evidence of direct causal connections between

14

controverting statement set forth below in racist complaints and calls for section (B) regarding the MCSO’s receipt racial profiling and MCSO

15

and evaluation of private citizen complaints, saturation patrols, including the

the MCSO’s handling of the same when

one in which the MCSO detained

16 17 18 19 20 21 22 23 24 25

they appear racially charged, and the MCSO’s independent investigation of the complaint made to determine its legitimacy and whether there is any basis for law enforcement action. See Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed discussion of the MCSO rejecting racially motivated tips by citizens that provide no evidence of criminal activity).

Mr. Ortega Melendres. For example, on or about October 3, 2007, MCSO received an email from Debora B., which had been forwarded by John Kross, the Town Manager of Queen Creek. Debora B. complained that “kids passing [] the area . . . have seen Hispanic man take out cell phones and look like they were taking a picture of the kids.” She described Hispanic men being “silly” and complained that they “see our cars and children pass everyday.” She stated that these Hispanic men “are highly suspected of being illegal immigrants” and that “the situation” was making “a lot of

(B) Defendants Do Not Take Official

people feel uncomfortable.” Pls.’

26

Action, or Plan or Conduct Saturation

SOF 96. Debora B.’s email

Patrols, Based on Private Citizen

focuses expressly and repeatedly

27

Communications that Express solely Racial on the Hispanic ethnicity of the

Prejudice or that Call for Illegal and

day laborers in Queen Creek.

28 96

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 97 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Immoral Conduct, including calls for the Hickey Dec. Ex. 34 (cited in Pls.’

3

Racial Profiling of Latinos.

SOF 96) (e.g., “As I was waiting

4 5 6 7 8

Defendants dispute the statement, as it is used in Plaintiffs’ motion, that any of the citizens’ letters or tips cited by the Plaintiffs in their Motion that actually call for racial profiling, or that are fairly perceived as calling for racial profiling or motivated by racial prejudice, ever caused or resulted in Arpaio or the MCSO taking official action such as conducting a saturation patrol. The evidence shows that Defendants determine

for the light to turn green a Hispanic man who was standing on the SW corner with other Hispanic men came up to my passengers side window and, for the lack of a better description, jeered at me. He then ran back to another Hispanic man and exchanged high fives while both laughed.”)

9

where to conduct a saturation patrol on race-neutral factors:

Sheriff Arpaio thought that this should be “looked into” even

10 11 12

MCSO Deputy Chief Brian Sands makes the decision of where, when, and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 23-25, attached as Exhibit 14.

though he could not tell if any crime was being committed. Pls.’ SOF 97. In fact, Deborah B’s email does not describe any crime.

There are a multitude of different law

Nevertheless, the MCSO then

13

enforcement reasons a saturation patrol is conducted a sweep in Queen

conducted, and conducted in a particular Creek on October 4, 2007. Its

14

area. Id. at p. 71, lns. 9-16. The race or

own Press Release stated,

ethnicity of people, however, play no role “Today, Maricopa County

15

in Chief Sands’ selection of saturation patrol Sheriff’s Joe Arpaio’s Office

locations. Id. at p. 182, ln. 24 to p.183, ln. Illegal Immigration Interdiction

16

4. The ethnic constituency in a

Unit Triple I, responding to

neighborhood plays no role in selecting

Queen Creek citizen complaints

17

locations for saturation patrols. Id. at p. regarding day laborers harassing

183, lns. 6-15. Even with an MCSO

school children at a bus stop,

18

emphasis on enforcing laws related to illegal arrested 16 more illegal aliens

immigration, the MCSO does not focus or under the federal immigration

19

target areas believed to contain a high

laws. Citizens complained that

percentage of illegal immigrants. Id. at p. day laborers are shouting at the

20

94, ln. 22 to p. 95, ln. 10 (“the [illegal]

children and photographing them

immigration problems that we have are so at the bus stop. Sheriff’s deputies

21

widespread throughout Maricopa County contacted the 16 illegals during

there [are] very few places you can go [on traffic investigations.” Hickey

22

a saturation patrol] where you are not

Dec. Ex. 10, cited in Pls.’ SOF

going to encounter an illegal alien.

53. As an internal MCSO email

23

Whether to focus on a group of people

described the operation: “On

standing on a corner because they look a 10/04/07 HSU conducted a detail

24

certain way is not good practice and would in the town of Queen Creek based

certainly be easier to just go up and start

on e-mails from the town council

25

grabbing people off the street corner

in reference to the day laborers in

because they are day laborers, but it is not a their city. There were four traffic

26

practice or anything that we condone in the stops made from UC vehicles

sheriff’s office.”) (emphasis added); See

relaying that day laborers were

27

also Deposition of Joseph Sousa dated

picked up from the area of

12/10/09 at p. 96, ln. 25 to p. 97, ln. 11,

Ocotillo and Ellsworth. Once the

28 97

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 98 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

attached as Exhibit 5 (areas for saturation pick up vehicle was located by

3

patrols are not selected because they may MCSO marked patrol units,

have a high concentration of suspected

Deputies would establish

4

illegal aliens).

probable cause for a traffic stop.

5 6

Sites for saturation patrols are determined based on a combination of the following types of information or factors:

Once the vehicle was stopped HSU detectives would interview the subjects in the vehicles in reference to their legal status to

 The area’s crime history and statistics. be in the US. Once it was

7

Id. at p. 71, lns. 9-16; p 139, ln. 7 to

determined that they were in the

p.140, ln. 5; p. 142; lns. 5-25; and p.

US illegally, they were taken into

8

143, lns. 7-16; See also Deposition of custody under Immigration law.

Joseph Sousa dated 12/10/09 at p. 89, A total of sixteen individuals

9

lns. 20 to p. 91, ln. 23, attached as

were taken into custody and will

Exhibit 5.

be taken to ICE for processing.”

10

Hickey Dec. Ex. 89, cited Pls.’

 Intelligence and data regarding possible SOF 98.

11 12 13 14

criminal activity at the possible site Id. at p. 71, lns 9-16; p. 124, ln. 19 to p. 125, ln. 13; p. 133, lns. 7-19; p. 138, ln. 5 to p. 139, ln. 4; p. 139, ln. 7 to p.140, ln. 5; p. 142, lns. 5-25; p. 143, lns. 7-16; p. 143, ln. 24 to p.144, 15; and p.146, ln. 9 to p.147, ln. 15.

Defendants do not offer any evidence to refute this direct, contemporary documentary evidence that a citizen complaint of being made to feel “uncomfortable” about Hispanics who were doing nothing illegal

15 16 17 18 19 20



Requests for assistance in a particular area from Arizona Legislators and information offered in the request. Id. at p. 133, ln. 23 to p. 134, ln. 9.

led directly to an operation in Queen Creek designed to apprehend illegal immigrants (as to whom there is no evidence that they were even the ones doing the



Requests for assistance from city officials for a particular area. Id. at p. 71, lns. 9-16.

jeering or laughing) through the use of pretextual traffic stops (i.e., upon hearing that Hispanic day laborers had been picked up,

 Information provided by local police officers from other law enforcement agencies. Id. at p. 80, ln. 18 to p. 81, ln.

“Deputies would establish probable cause for a traffic stop”).

21

2.

The Cave Creek operation

(during which Mr. Ortega

22

 Requests for assistance from private

Melendres was stopped) is

citizens in the community providing

mentioned in the same MCSO

23

information about possible criminal

news release that was done for

activity; but such information provided the Queen Creek saturation

24

by private citizens is independently

patrol. See Pls.’ SOF 53 (citing

evaluated and confirmed by the MCSO. Hickey Dec. Ex. 10) (“The Queen

25

Id. at 71, lns. 9-16; p. 79, lns.17-22. In Creek operation comes on the

evaluating private citizen complaints, heels of Sheriff Arpaio’s

26

there is an independent investigation of enforcement efforts in . . . Cave

the complaint made to determine its

Creek where day laborers sought

27

legitimacy and whether there is any

sanctuary at the Good Shepherd

basis to do anything. Id. at p. 82, lns. 5- of Hills church.”) The same

28 98

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 99 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

23) (“Generally speaking, I [Chief

racial considerations thus

3

Sands] likes to know what is going on in underlay the Cave Creek

the community as a whole relative to operation as well. See Defs.’

4

crime before we do a saturation

Resp. to Pls.’ SOF 176 (noting

patrol.”); See Deposition of Joseph

that the operation was based on

5

Sousa dated 12/10/09 at p. 86, ln. 3 to p. citizen complaints about day

88, ln. 11, attached as Exhibit 5

laborers). Deputy DiPietro, who

6

(discussing the investigation of citizen stopped the car carrying Mr.

complaints; that if the citizen is racially Ortega Melendres, was in the

7

profiling and not describing any criminal Cave Creek area to apprehend

activity, the complaint is rejected; the people looking for work at the

8

efforts MCSO takes to independently Good Shepherd of the Hills

evaluate whether criminal activity is

Church. Pls.’ SOF 172. The

9

taking place); Deposition of Brian Sands MCSO stated Defendants’

dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. Motion for Summary Judgment

10

6, attached as Exhibit 14 (providing a that “When a HSU surveillance

detailed discussion of the MCSO

unit observed the white truck stop

11

rejecting racially motivated tips that

at the church and pick up Mr.

provide no evidence of criminal

Melendres and three other men it

12

activity).

radioed MCSO Deputy Louis

DiPietro in his patrol car and

13

More specifically as to how the MCSO

assigned him to follow the truck

handles citizen complaints that may be

(in which Mr. Melendres was a

14

made by persons with racial prejudice,

passenger) and to look for

Chief Brian Sands testified as follows:

probable cause to make a traffic

15 16

“Q. How do you satisfy yourself that a complaint that you are about to act on was not motivated by race or ethnicity?

stop of the truck.” Id. at p. 5. MCSO’s investigation in Cave Creek prior to the Ortega Melendres stop had revealed no

17

A. I ignore it, unless there is some

information pertaining to human

type of crime relative to it that would still smuggling, drop houses, or even

18

lead to the discovery of that crime, not

illegal immigration. Pls.’ SOF

excluding the person or the information

173 (Hickey Dec. Ex. 139) (“On

19

source’s information for giving us that

both days, there was no

information. To ignore all information

information discovered pertaining

20

would be contrary to good law enforcement. to forced labor, human smuggling

21 22

Q. So even if you have reason to believe that a complaint may be motivated by racism, you would not discount the complaint solely on that basis?

or possible ‘drop houses’.”). The only information came from “an unidentified Hispanic male” who stated that day laborers waited at the church for work. Yet the

23

A. If the complaint is racial only in MCSO went ahead with the Cave

itself, there is no follow-up done on it.

Creek operation anyway,

24

There is no need to follow up on a

apparently based simply on the

complaint about someone that is Irish or observation that the people at the

25

Jewish or ethnically Mexican that lives in a church were Hispanic and day

house with a whole group of other people. I laborers. Pls.’ SOF 173 (Hickey

26

mean, there is no need to follow up. That Dec. Ex. 139). Although the

would be – there is no crime involved.

Cave Creek operation was based

27 28

Q. If you believe a crime may be involved, you might pursue that tip even

on citizen complaints, see Defs.’ Resp. to Pls.’ SOF 176, no

99

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 100 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

though you have reason to believe that the written complaints have been

3

tip was also made on some improper

produced to Plaintiffs regarding

consideration of race or ethnicity?

this operation, which suggests

4 5 6

A. Keep in mind I am not supporting racial or prejudicial attitudes in the community at all when I say this, but sometimes the information sources that we end up using in law enforcement are people

that the complaints that led to the Cave Creek operation, unlike Deborah B’s email about Queen Creek, were not preserved. The MCSO conducted another

7

that are in involved in – in criminal elements in their community or

the saturation patrol in Sun City on August 13-14, 2008, after

8

neighborhood they live in and oftentimes receiving a request from Gail v.. these people give us information. It can be that the MCSO “check out Sun

9

corroborated to solve a murder or human City” because people were smuggling case, that person may be, in fact, speaking Spanish at a local

10

motivated for ulterior motives of his own, McDonald’s. Sheriff Arpaio

and I am just being honest with you in

annotated the letter with

11

saying that he may be racially prejudiced instructions to send a thank you at the same time and its- it would be hard letter to Gail v. saying “Will look

12

to disqualify that information and say that into it.” He also forwarded Gail

the information source doesn’t like

v.’s letter to Chief Sands with the

13

certain groups of people so we are not

notation “for our operation.”

going to- we are not going to investigate That “operation,” of course, was

14

the crime that he very well be a witness to.”

the Sun City saturation patrol. Pls.’ SOF 83-86.

15

Deposition of Brian Sands dated 12/14/09 at Other letters targeting Hispanics

p. 82, ln. 24 to p. 84, ln. 12, attached as

led to the MCSO’s two

16

Exhibit 14 (emphasis added).\

saturation patrols in Mesa during

17

Chief Sands further testified:

the summer of 2008. Pls.’ SOF 95. Those patrols came after

“Q. Are you aware of your office having Sheriff Arpaio received a letter,

18

received tips relating to illegal immigration which he forwarded to Chief

that have come from persons or members of Sands as “intelligence,” asking

19

groups that have expressed hatred for

that the MCSO “stop in order to

illegal immigrants?

determine whether these day

20 21 22 23 24 25 26 27 28

A. I don’t typically receive all these tips or the communication so it is hard for me to analyze what motivates people that are giving us information. I will say, though, that I have sat in on m eetings over tips that have come in and when there is no need to follow up on something based n the caller’s information and it only attributed—the information is only attributed to somebody’s ethnicity or appearance, we don’t follow up on it. Whether those are racially motivated complaints, I wouldn’t know. But when the information is only such directed towards a group of people or a business or—and just solely on their race or ethnicity, we

laborers [in Mesa] are here under legitimate circumstances.” Pls.’ SOF 87. Another letter noted that “the head of Mesa’s “police union” was Hispanic” and that, “This is what you get from Mesa.” The letter called for a “sweep” in Mesa. Chief Sands admits that the letter writer believed that certain people standing on street corners in Mesa were illegal aliens because they were “dark-complected.” Pls.’ SOF 92. To all of this, Sheriff Arpaio responded, in his note to Chief Sands referring to a thank

100

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 101 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

don’t follow-up on it.”

you note to Jack Se., “I will be

3 4

See Deposition of Brian Sands dated 12/14/09 at p. 84, ln. 24 to p. 85, ln. 16, attached as Exhibit 14 (emphasis added)

going into Mesa”. Pls.’ SOF 93. An MCSO news release announcing the first Mesa operation said that Sheriff Arpaio

5

Plaintiffs’ police practices and racial

was sending his officers there

profiling expert, Robert Stewart, testified “[i]n keeping with his promise to

6

that he did not draw the conclusion, based the public . . . ..” See Hickey

on his analysis, that any saturation patrol Dec. Ex. 205.

7

was unjustified or unwarranted:.

Defendants admit that Sheriff

8

“Q. Have you formed the opinion that any particular MCSO saturation patrol

Arpaio received these letters, that Sheriff Arpaio sent them to Chief

9

was unjustified or unwarranted?

A. Based on crime data?

10

Q. For any reason.

Sands as “intelligence” relevant to the MCSO’s “operations,” that Sheriff Arpaio and Chief Sands decided to “go into” the particular

11

A. I did not draw that conclusion.”

locales mentioned in these letters, and that the “sweeps” called for

12

See Deposition of Robert Stewart at p. 23, in these letters did then occur.

lns. 14-21, attached as Exhibit 17.

These letters do not describe

13 14 15 16 17 18 19 20 21

(emphasis added). Defendants police practices expert, Bennie Click, testified that “[t]he method by which the MCSO chooses target area for saturation patrols is reasonable and is consistent with standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; See also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

crimes, as there is nothing illegal about speaking Spanish or being “dark-complected.” Abstract protestation about the allegedly race neutral decision-making in the MCSO cannot rebut the specific written evidence about these particular incidents. Indeed, Defendants admit that they do not make saturation patrol plans based on comparative analysis of crime or traffic hazards. Pls.’ SOF 107 and Defendants’ Response thereto; see also Pls.’ Resp. to Defs.’ SSOF 68 (responding to the contention that the MCSO selects location for saturation patrols

22 23

Objections: Defendants object to the following documents as inadmissible hearsay without any exception (Defendants do not object to any comments or notes

based on criminal intelligence). Response to Objections: Defendants’ hearsay objections

24

written by Arpaio on the hearsay communication): (1) Melendres MCSO

are not well taken. The letters are part of Sheriff Arpaio’s

25

075852, Ex. 11 to Arpaio Depo. II; (2)

communications to Chief Sands

Melendres MCSO 075859, Ex. 12 to Arpaio and are both admissions and

26

Depo. II; (3) OSLS002976-89; and (4) OSLS0004172. See Cox v. Amerigas

business records. See Fed. R. Evid. 801(d)(2), 803(6). The

27

Propane, Inc., 2005 U.S. Dist. LEXIS

letters, which Sheriff Arpaio

26344 (Ariz. 2005) (“Evidence a party relies selected to retain in his file (Pls.’

28

upon with respect to a summary judgment SOF 24), are offered to show

101

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 102 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

motion must have an appropriate foundation Sheriff Arpaio’s state of mind.

3

and must be supported… by admissible

The statements from persons

evidence”). Defendants also object to the other than Sheriff Arpaio are not

4

documents on the grounds of relevance.

introduced for the truth of the

They are irrelevant to whether the named matters stated therein; in fact,

5

Plaintiffs’ Fourteenth Amendment rights Plaintiffs disagree with many of

were violated.

those statements. Rather, they

6

provide context for Sheriff

Arpaio’s own statements and

7

show his intent. Thus, these

statements are therefore not

8

hearsay, and do not require a

hearsay exception for admission.

9

See Fed. R. Evid 801(c); see also

U.S. v. Arteaga, 117 F.3d 388,

10

396 (9th Cir. 1997); United States

v. Elekwachi, 1997 WL 174160

11

(9th Cir. Apr. 2, 1997) (a letter

with a purchase order for

12

counterfeiting equipment was not

hearsay when offered to show the

13

defendant’s knowledge of this

equipment); SEC v. Allison, 1982

14

WL 1560 (D. Or. Jan. 17, 1982)

(a letter was not hearsay when

15

offered to prove the defendant’s

intent). They are directly relevant

16

on their face to Plaintiffs’ claims

under the Fourteenth

17

Amendment.

18 26
19 20 21 22 23 24 25 26 27 28

Disputed. Controverting Statement: While Defendants do not dispute that Arpaio receives letters and communications from private citizens, and writes thank-you notes to those citizens for their communications, and on occasion, will send a copy of the citizen communications to members of his executive management staff for appropriate determination, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere writing of a “thank-you” note by an elected official in response to a citizen’s communication to him does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same. Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people
102

Not genuinely disputed.
Defendants do not offer any evidence to rebut Pls.’ SOF 26, which states, “Sheriff Arpaio had his assistant, Helen Gonzalez, send ‘thank you’ letters to many of the individuals who wrote to him advocating racial profiling. He would also circulate the letters to Chief Sands and others within the MCSO leadership.” In their response, Defendants expressly admit that, “Arpaio receives letters and communications from private citizens, and writes thank-you notes to those citizens for their communications, and on

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 103 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

that write to him. See Deposition of Joseph occasion, will send a copy of the

3

Arpaio dated 11/16/10 at p. 16, ln. 15 to p. citizen communications to

17, ln. 12, attached as Exhibit 15. Arpaio members of his executive

4

forwards the letter to people in his office management staff [of which Chief

when he believes the letter may be of

Sands is a part] for appropriate

5

interest to them. Id. at p. 21, ln. 9 to p. 22, determination.”

6 7 8 9 10

ln. 4. The testimony amply demonstrates that Arpaio does not agree with, adopt, or endorse everything that a person writes to him in a letter. Id. at p. 23, lns. 5-23 (“This is their comment, not mine.”); (as to whether he agrees with a comment, “No, I have no idea what he’s talking about.”); (as to whether he disagrees with a comment, “I have no comment at all on that [as to whether he disagreed with a letter’s statement]. Many people write me letter

Further, as for Sheriff Arpaio’s contention that he writes letters back to everyone that writes him, there are many letters written to Sheriff Arpaio for which Defendants have not produced any “thank you” letters. Plaintiffs are therefore unable to determine whether the Sheriff’s testimony on this subject is true.

11

and make different comments and

opinions.”)

12

In addition, Defendants further herein

13

incorporate by this reference their Response and Controverting Statement as to

14

Plaintiffs’ Statement of Fact No. 25 set forth above

15 27 Disputed.

Not genuinely disputed.

16 17 18 19 20 21

Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same.

Defendants offer no evidence to rebut Pls.’ SOF 27, which (referring to Hickey Dec. Ex. 193) states, “One of the letters in Arpaio’s file states, in part, ‘Their claim about your profiling in doing your job is ridiculous Where else would you look for illegal aliens except in neighborhoods where they would

In addition, Defendants further herein

reside[?]”

22 23 24

incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above. Objections: Defendants object to the

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning

25 26

following document as inadmissible hearsay saturation patrols.

without any exception (Defendants do not object to any comments or notes written by

Response to Objections:

Arpaio on the hearsay communication):

Defendants’ hearsay objections

27

OSLS02990. See Cox v. Amerigas Propane, are not well taken. The letter is Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. part of Sheriff Arpaio’s

28

2005). Defendants also object to the

communication to Chief Sands,

103

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 104 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

document on the grounds of relevance. It is Lisa Allen and Paul Chagolla and

3

irrelevant to whether the named Plaintiffs’ is both an admission and a

Fourteenth Amendment rights were

business record. See Fed. R.

4

violated.

Evid. 801(d)(2), 803(6). The

letter, which Sheriff Arpaio

5

selected to retain in his file (Pls.’

SOF 24), shows Sheriff Arpaio’s

6

state of mind. The statements

from persons other than Sheriff

7

Arpaio are not introduced for the

truth of the matters stated therein;

8

in fact, Plaintiffs disagree with

many of those statements.

9

Rather, they provide context for

Sheriff Arpaio’s own statements

10

and show his intent. Thus, these

statements are therefore not

11

hearsay, and do not require a

hearsay exception for admission.

12

See Fed. R. Evid 801(c); Arteaga,

117 F.3d at 396 (9th Cir. 1997);

13

Elekwachi, 1997 WL 174160 (9th

Cir. Apr. 2, 1997); Allison, 1982

14

WL 1560 (D. Or. Jan. 17, 1982).

They are directly relevant on their

15

face to Plaintiffs’ claims under

the Fourteenth Amendment.

16 28 Disputed.

Not genuinely disputed.

17

Controverting Statement: While

18 19 20

Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author and forwarded it to select executive in MCSO management, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere forwarding of a letter or

Defendants do not genuinely dispute that Sheriff Arpaio requested that a copy of this letter (Hickey Dec. Ex. 193) be sent to Brian Sands, Lisa Allen and Paul Chagolla.

21

communication to select executive does not, See also Pls.’ Reply to Defs.’

legally or factually, mean that Arpaio

Resp. to Pls.’ SOF 25, describing

22

adopts, agrees, or endorses all of the

the MCSO’s endorsement of calls

contents of every citizen communication or for racial profiling and its

23

took official action because of the same.

reference to them in planning

24

In addition, Defendants further herein

saturation patrols.

incorporate by this reference their Response Response to Objections:

25 26

and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.

Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s

Objections: Defendants object to the

communications to Chief Sands,

27

following document as inadmissible hearsay Lisa Allen and Paul Chagolla and

without any applicable exception

is both an admission and a

28 104

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 105 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

(Defendants do not object to any comments business record. See Fed. R.

3

or notes written by Arpaio on the hearsay Evid. 801(d)(2), 803(6). The

communication): OSLS02990. See Cox v. letter, which Sheriff Arpaio

4

Amerigas Propane, Inc., 2005 U.S. Dist. selected to retain in his file (Pls.’

LEXIS 26344 (Ariz. 2005). Defendants SOF 24), shows Sheriff Arpaio’s

5

also object to the document on the grounds state of mind. The statements

of relevance. It is irrelevant to whether the from persons other than Sheriff

6

named Plaintiffs’ Fourteenth Amendment Arpaio are not introduced for the

rights were violated.

truth of the matters stated therein;

7

in fact, Plaintiffs disagree with

many of those statements.

8

Rather, they provide context for

Sheriff Arpaio’s own statements

9

and show his intent. Thus, these

statements are therefore not

10

hearsay, and do not require a

hearsay exception for admission.

11

See Fed. R. Evid 801(c); Arteaga,

117 F.3d at 396 (9th Cir. 1997);

12

Elekwachi, 1997 WL 174160 (9th

Cir. Apr. 2, 1997); Allison, 1982

13

WL 1560 (D. Or. Jan. 17, 1982).

They are directly relevant on their

14

face to Plaintiffs’ claims under

the Fourteenth Amendment.

15 29 Disputed.

Not genuinely disputed.

16

Controverting Statement: While

17 18 19 20 21

Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same.

Defendants do not dispute that Hickey Dec. Ex. 195 says what it says: “What your officers are doing is actually 'statistically validating.’ In the real world we all rely on 'stereotyping' every day. It's simply a natural reaction. . . . . If it looks like a duck & quacks like a duck. . . . !"

Moreover, Plaintiffs never even questioned See also Pls.’ Reply to Defs.’

22

Arpaio about this communication to

Resp. to Pls.’ SOF 25, describing

determine his position regarding its

the MCSO’s endorsement of calls

23

contents.

for racial profiling and its

24

In addition, Defendants further herein incorporate by this reference their Response

reference to them in planning saturation patrols.

25 26

and Controverting Statement as to

Response to Objections:

Plaintiffs’ Statement of Fact No. 25 set forth above.

Defendants’ hearsay objections are not well taken. The letter is

Objections: Defendants object to the

part of Sheriff Arpaio’s

27

following document as inadmissible hearsay communication to Chief Sands

without any applicable exception

and is both an admission and a

28 105

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 106 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

(Defendants do not object to any comments business record. See Fed. R.

3

or notes written by Arpaio on the hearsay Evid. 801(d)(2), 803(6). The

communication): OSLS003221. See Cox v. letter, which Sheriff Arpaio

4

Amerigas Propane, Inc., 2005 U.S. Dist. selected to retain in his file (Pls.’

LEXIS 26344 (Ariz. 2005). Defendants SOF 24), shows Sheriff Arpaio’s

5

also object to the document on the grounds state of mind. The statements

of relevance. It is irrelevant to whether the from persons other than Sheriff

6

named Plaintiffs’ Fourteenth Amendment Arpaio are not introduced for the

rights were violated.

truth of the matters stated therein;

7

in fact, Plaintiffs disagree with

many of those statements.

8

Rather, they provide context for

Sheriff Arpaio’s own statements

9

and show his intent. Thus, these

statements are therefore not

10

hearsay, and do not require a

hearsay exception for admission.

11

See Fed. R. Evid 801(c); Arteaga,

117 F.3d at 396 (9th Cir. 1997);

12

Elekwachi, 1997 WL 174160 (9th

Cir. Apr. 2, 1997); Allison, 1982

13

WL 1560 (D. Or. Jan. 17, 1982).

They are directly relevant on their

14

face to Plaintiffs’ claims under

the Fourteenth Amendment.

15 30 Disputed.

Not genuinely disputed.

16

17 18 19

Controverting Statement: While Defendants do not dispute that Arpaio wrote a thank-you note for the cited letter, and sent a copy of the citizen communication to Chief Sands, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere writing of a “thank-you” note by

Defendants, with respect to Hickey Dec. Ex. 195, “do not dispute that Arpaio wrote a thankyou note for the cited letter, and sent a copy of the citizen communication to Chief Sands.”

20

an elected official does not, legally or

See also Pls.’ Reply to Defs.’

factually, mean that Arpaio adopts, agrees, Resp. to Pls.’ SOF 25, describing

21

or endorses all of the contents of the citizen the MCSO’s endorsement of calls

communication or took official action

for racial profiling and its

22

because of the same.

reference to them in planning

23

Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people

saturation patrols.

24

that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p.

25

17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office

26

when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22,

27

ln. 4. The testimony amply demonstrates that Arpaio does not agree with, adopt, or

28

endorse everything that a person writes to

106

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 107 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

him in a letter. Id. at p. 23, lns. 5-23 (“This

3

is their comment, not mine.”); (as to

whether he agrees with a comment, “No, I

4

have no idea what he’s talking about.”); (as

to whether he disagrees with a comment, “I

5

have no comment at all on that [as to

whether he disagreed with a letter’s

6

statement]. Many people write me letter

and make different comments and

7

opinions.”)

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

8

In addition, the mere forwarding of the letter to Chief Sand also does not mean Arpaio

9

adopts, agrees, or endorses all of the contents of the letter. Defendants further

10

herein incorporate by this reference their Response and Controverting Statement as to

11

Plaintiffs’ Statement of Fact No. 25 set forth above.

12 31 Disputed.

Not genuinely disputed.

13

Controverting Statement: While

Defendants do not dispute that Arpaio

Defendants to not dispute that

14

received the stated letter that contained the Hickey Dec. Ex. 197 complains

cited opinion of its third party author,

about “Mexicans…on the

15

Defendants dispute this statement as it is corner…peddling their old corn,

used in Plaintiffs’ motion. The mere receipt peanuts, etc,” and expresses

16

of a letter, and keeping it, by an elected

frustration “at how the police

official does not, legally or factually, mean officers ignore these Mexicans

17

that Arpaio adopts, agrees, or endorses all of when they are speeding right by

the contents of every citizen communication them.”

18 19 20

or took official action because of the same. Moreover, Plaintiffs never even questioned Arpaio about this communication to determine his position regarding its contents.

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning

21 22

In addition, Defendants further herein

saturation patrols.

incorporate by this reference their Response and Controverting Statement as to

Response to Objections:

Plaintiffs’ Statement of Fact No. 25 set forth Defendants’ hearsay objections

23 24 25 26 27 28

above.

are not well taken. The letter,

Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS003259-60. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of

which bears Sheriff Arpaio’s own handwriting, is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the

107

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 108 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

relevance. It is irrelevant to whether the

3

named Plaintiffs’ Fourteenth Amendment

rights were violated.

4

5

6

7

8

9

10

11 32 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment. Not genuinely disputed.

12 13 14 15 16 17 18 19 20
21 33

Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter and that he indicated he would forward it to his illegal immigration officers to look into, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere forwarding of a letter or communication to a select executive does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or took official action because of the same. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above. Disputed.

Plaintiffs do not dispute that the author of Hickey Dec. Ex. 197 author has no knowledge about the immigration status of the Mexican individuals the author complains about, or that Arpaio wrote a note indicating that he would “give the info to my illegal immigration OFFICERS to look into.” See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Not genuinely disputed.

22

23 24 25 26 27 28

Controverting Statement: While Defendants do not dispute that Arpaio received the stated letter that contained the cited opinion of its third party author, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere receipt of a letter, and keeping it or forward it to select executive management, by an elected official does not, legally or factually, mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication

Defendants do not dispute that Hickey Dec. Ex. 196 says, “Joe, those terrorist bear a close resemblance to those Hispanics, they are dark skinned, dark eyed, and have black hair . . . . ‘Hispanic’ criminal immigrants must include some actual Muslim terrorists . . . they are here because Bush, in his insane determination to give this country

108

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 109 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

or took official action because of the same. to Mexico, has made that

3

Moreover, Plaintiffs never even questioned possible.” Defendants also do not

Arpaio about this communication to

dispute that Arpaio requested that

4

determine his position regarding its

a thank you letter be sent to the

contents.

author and that copies be sent to

5

Arpaio, via his secretary, normally writes Brian Sands and Paul Chagolla.

6

“thank-you” notes or letters to all people See also Pls.’ Reply to Defs.’ that write to him. See Deposition of Joseph Resp. to Pls.’ SOF 25, describing

7

Arpaio dated 11/16/10 at p. 16, ln. 15 to p. the MCSO’s endorsement of calls 17, ln. 12, attached as Exhibit 15. Arpaio for racial profiling and its

8

forwards the letter to people in his office when he believes the letter may be of

reference to them in planning saturation patrols.

9

interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.

Response to Objections:

10 11 12

In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.

Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s communication to Brian Sands and Paul Chagolla and is both an admission and a business record.

13

Objections: Defendants object to the

See Fed. R. Evid. 801(d)(2),

following document as inadmissible hearsay 803(6). The letter, which Sheriff

14

without any applicable exception

Arpaio selected to retain in his

(Defendants do not object to any comments file (Pls.’ SOF 24), shows Sheriff

15

or notes written by Arpaio on the hearsay Arpaio’s state of mind. The communication): OSLS003243-44. See Cox statements from persons other

16

v. Amerigas Propane, Inc., 2005 U.S. Dist. than Sheriff Arpaio are not LEXIS 26344 (Ariz. 2005). Defendants introduced for the truth of the

17

also object to the document on the grounds matters stated therein; in fact, of relevance. It is irrelevant to whether the Plaintiffs disagree with many of

18

named Plaintiffs’ Fourteenth Amendment those statements. Rather, they

rights were violated.

provide context for Sheriff

19

Arpaio’s own statements and show his intent. Thus, these

20

statements are therefore not hearsay, and do not require a

21

hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga,

22

117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th

23

Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982).

24

They are directly relevant on their face to Plaintiffs’ claims under

25

the Fourteenth Amendment.

34 Disputed.

Not genuinely disputed.

26

Controverting Statement: While

27 28

Defendants do not dispute that Arpaio received the stated email that contained the cited opinion of its third party author,

Defendants do not dispute that, on October 27, 2009, Richard H.

109

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 110 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Defendants dispute this statement as it is forwarded an email he had sent to

3

used in Plaintiffs’ motion. The mere receipt the Arizona Republic to Helen

of a letter, and keeping it or forwarding it to Gonzalez of the Sheriff’s office,

4

select executive management, by an elected and that, in the email, Richard H.

official does not, legally or factually, mean writes, “the only Hispanics that

5

that Arpaio adopts, agrees, or endorses all of fear to report crimes are the ones

the contents of every citizen communication here illegally,” and continues

6

or took official action because of it.

“[w]hat our open border crowd

Moreover, when question about whether he calls racial profiling is what I call

7

agreed with Richard H.’s statement, Arpaio reasonable suspicion and

responded: “Once again, that’s his

probable cause, both of which are

8

statement, and I don’t know what context legal grounds for further reaction

he’s talking about, about ducks or

. . . . If it walks like a duck and

9

whatever he’s mentioning…. I can’t read quacks like a duck . . . .”

10 11

his mind. This is his opinion, not mine.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 85, ln. 18 to p. 86, ln. 24, attached as Exhibit 15. (emphasis added).

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its

12

In addition, Defendants further herein

reference to them in planning

incorporate by this reference their Response saturation patrols.

13

and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth

Response to Objections:

14 15 16 17 18 19 20 21

above. Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 072425, Ex. 13 to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.

Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s communication to Chief Sands, to whom he forwarded it as shown by the handwritten notation, and is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), show Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein;

22

in fact, Plaintiffs disagree with many of those statements.

23

Rather, they provide context for Sheriff Arpaio’s own statements

24

and show his intent. Thus, these statements are therefore not

25

hearsay, and do not require a hearsay exception for admission.

26

See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997);

27

Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982

28

WL 1560 (D. Or. Jan. 17, 1982).

110

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 111 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4 35 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment. Not genuinely disputed.

5

6 7 8 9

Controverting Statement. While Defendants agree with the statement that Richard H. is known to Arpaio to have written on the subject of illegal immigration, the actual testimony of whether Arpaio has talked to Richard H personally in the past is that Arpaio “may have met him one time.” See Deposition of

Defendants admit that “Richard H. is known to Arpaio to have written on the subject of illegal immigration” and that Arpaio “may have met him one time.” Also, Arpaio’s testimony further states:

Joseph Arpaio dated 11/16/10 at p. 85, ln. “Q. What have you and [Richard

10

18 to p. 86, ln. 24, attached as Exhibit 15. H.] spoken about, if anything?

(emphasis added).
11

A. Well, we may have talked about illegal immigration. I don't

12

recall the conversation. But I'm sure it had to do with illegal

13

immigration.

Q. Why are you sure that your

14

talk with him had to do with

illegal immigration?

15

A. Because he's been very active

16

in the letters to editors and I guess e-mails and been somewhat of a

17

spokesman regarding that problem.

18

Q. Do you know who he's a

spokesman for?

19

A. I -- as I mentioned, letters to

20

the editor, speaks out, once again, regarding the illegal immigration

21

problem.”

Arpaio Dep. II 85 [Hickey Dec.

22

Ex. 15].

23 36 Disputed.

Not genuinely disputed.

24 25 26

Controverting Statement: While Defendants admit that Arpaio forwarded Melendres MCSO 07425 to Chief Brian Sands, Defendants dispute this statement as it is used in Plaintiffs’ motion. The mere

Defendants admit that “Arpaio forwarded Melendres MCSO 07425 [Richard H’s email] to Chief Brian Sands.”

forwarding of the email does not mean that See also Pls.’ Reply to Defs.’

27

Arpaio adopts, agrees, or endorses all of the Resp. to Pls.’ SOF 25, describing

contents of every citizen communication or the MCSO’s endorsement of calls

28

111

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 112 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

took official action because of it. In

for racial profiling and its

3

addition, Defendants further herein

reference to them in planning

incorporate by this reference their Response saturation patrols.

4

and Controverting Statement as to

Plaintiffs’ Statement of Fact No. 25 set forth

5

above.

6 37 Disputed.

Not genuinely disputed.

7 8 9 10 11

Controverting Statement: While Defendants admit that Richard H. has sent other correspondence advocating racial profiling and that Arpaio retained copies of such correspondence and circulated some to select MCSO executive management, the mere receipt or forwarding of the correspondence does not mean that Arpaio adopts, agrees, or endorses all of the contents of every citizen communication or

Pls.’ SOF 37 is not genuinely disputed because Defendants admit that “Richard H. has sent other correspondence advocating racial profiling and that Arpaio retained copies of such correspondence and circulated some to select MCSO executive management”.

12

took official action because of it. When

See also Pls.’ Reply to Defs.’

questioned about the contents of Melendres Resp. to Pls.’ SOF 25, describing

13

MCSO 075284, Arpaio testified that he had the MCSO’s endorsement of calls

“no knowledge of percentage or whatever for racial profiling and its

14

he’s talking about. Once again, that’s his reference to them in planning

comment not mine.” See Deposition of

saturation patrols.

15

Joseph Arpaio dated 11/16/10 at p. 88, ln. 22 to p. 89, ln. 23, attached as Exhibit 15.

Response to Objections:

16 17 18

As for documents OSKS00004525 and OSLS0005154, Plaintiff did not even question Arpaio as to whether he agreed or not with Richard H’s statements.

Defendants’ hearsay objections are not well taken. The pieces of correspondence in several instances are part of Sheriff Arpaio’s communications to

In addition, Defendants further herein

Chief Sands and are both

19

incorporate by this reference their Response admissions and business records.

and Controverting Statement as to

See Fed. R. Evid. 801(d)(2),

20

Plaintiffs’ Statement of Fact No. 25 set forth 803(6). The correspondence,

above.

which Sheriff Arpaio selected to

21

retain in his file (Pls.’ SOF 24),

22 23 24

Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication):

show Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they

25

(1) Melendres MCSO 075284, Ex. 14 to provide context for Sheriff

Arpaio Depo. II; (2) OSLS0004525; and (3) Arpaio’s own statements and

26

OSLS00005154. See Cox v. Amerigas

show his intent. Thus, these

Propane, Inc., 2005 U.S. Dist. LEXIS

statements are therefore not

27

26344 (Ariz. 2005). Defendants also object hearsay, and do not require a

to the documents on the grounds of

hearsay exception for admission.

28 112

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 113 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

relevance. They are irrelevant to whether

3

the named Plaintiffs’ Fourteenth

Amendment rights were violated.

4

5

6

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment.

7 38
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverting Statement: While Defendants admit that Richard H. has sent two other emails wherein he equates probable cause to racial profiling and Arpaio kept the emails in his file, Defendants disputed that the mere receipt or preservation of such communications means that Arpaio adopts, agrees, or endorses all of the contents of such emails. To the contrary, Arpaio testified that racial profiling is morally wrong. See Deposition of Joseph Arpaio dated 12/16/09 at p. 113, lns. 10-11; 115, lns. 2-17, attached as Exhibit 16; See also Arpaio Deposition dated 11/16/10 at p. 77, lns. 22-23, attached as Exhibit 15. Arpaio further testified that the MCSO does not racially profile. Id. at p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I can say, we don’t do that. We don’t stop people by their appearance.”). In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above. Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): (1) Carveout MCSO 0209953-54; and (2) Carveout MCSO 297781. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the emails on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth

Not genuinely disputed.
Defendants do not dispute the contents of Richard H’s emails or that Sheriff Arpaio kept them in his file. See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Response to Objections: Defendants’ hearsay objections are not well taken. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment.

113

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 114 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Amendment rights were violated.

3 39 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Not genuinely disputed.

4

5 6 7 8 9 10 11 12 13

Controverting Statement: Defendants admit that in 2005 an organization calling itself the Minutemen Project wrote Arpaio and stated the cited matters in their correspondence. They further admit that Arpaio sent a note to his then Chief Deputy, David Hendershott, about how to respond to the communication from the Minutemen Project. Defendants, however, dispute that the mere receipt of such a communication and seeking staff direction on how to respond to it means that Arpaio adopts, agrees, or endorses all of the contents of such emails or took any official action in response to the same. In addition, Plaintiffs never questioned Arpaio regarding his position as to anything stated by the author. In addition, Defendants further herein

Defendants do not dispute either the receipt or the content of Hickey Dec. Ex. 201, in which the Minutemen Project wrote to Sheriff Arpaio asking him to “investigate and deport illegal immigrants when they are spotted in our cities,” and further stating, “How is it that hundreds, if not thousand, of day laborers stand on our cities street corners every day of the year without fear of being questioned? . . . If you are serious on working the illegal immigration issue, we are serious about working with you.” Defendants also do not dispute that Sheriff Arpaio sent this letter

14

incorporate by this reference their Response on to Chief Hendershott and told

and Controverting Statement as to

him “We should have a meeting

15

Plaintiffs’ Statement of Fact No. 25 set forth (internally) and decide how to

above.

respond.”

16

Objections: Defendants object to the

See also Pls.’ Reply to Defs.’

following document as inadmissible hearsay Resp. to Pls.’ SOF 25, describing

17

without any applicable exception

the MCSO’s endorsement of calls

(Defendants do not object to any comments for racial profiling and its

18

or notes written by Arpaio on the hearsay reference to them in planning

communication): OSLS0005516. See Cox saturation patrols.

19

v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants

Response to Objections:

20

also object to the document on the grounds Defendants’ hearsay objections

of relevance. It is irrelevant to whether the are not well taken. The letter is

21

named Plaintiffs’ Fourteenth Amendment part of Sheriff Arpaio’s

rights were violated

communication to Chief

22

Hendershott and is both an

admission and a business record.

23

See Fed. R. Evid. 801(d)(2),

803(6). The letter, which Sheriff

24

Arpaio selected to retain in his

file (Pls.’ SOF 24), shows Sheriff

25

Arpaio’s state of mind. The

statements from persons other

26

than Sheriff Arpaio are not

introduced for the truth of the

27

matters stated therein; in fact,

Plaintiffs disagree with many of

28 114

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 115 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10 40 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment. Not genuinely disputed.

11

12 13 14 15 16

Controverting Statement: Plaintiffs do not cite correctly what Carol B reported. While Defendants admit that in July 2007 Carole B. sent a letter to Arpaio stating that Carole B.’s Italian mother was subject to racial profiling and that “she [i.e., the mother] believe it was the right thing to do,” and Arpaio wrote a thank you note, Defendants dispute that the mere receipt of such a communication and writing a “thank-

Defendants do not deny the content of the Carole B. letter. Defendants admit that Sheriff Arpaio wrote the thank you letter, which told Carole B. that Sheriff Arpaio enjoyed reading the story about Carole B.’s Italian “grandmother” [sic, should be “mother”].

you” note means that Arpaio adopts, agrees, Plaintiffs agree with Defendants’

17

or endorses Carole B.’s recitation of her

clarification of the description of

Italian mother’s opinion (or if that opinion is the content of that letter--that the

18

held by Carol B.) that racial profiling is the “she” that Carole B. refers to is

right thing to do. Moreover, when asked Carole B.’s Italian mother and

19

whether he agreed with Carole B’s opinion, that is was Carole B.’s mother

or more accurately, with the opinion of

who Carole B. says had the

20

Carol B.’s Italian mother, Arpaio testified opinion that the racial profiling

that “This is just her comments, her

was “the right thing to do.”

21 22 23 24 25

opinions. I have no comment on her comment. I wasn’t there. I wasn’t involved with her family.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 277, ln. 23 to p. 278, ln. 11, attached as Exhibit 15 (emphasis added). Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Response to Objections: Defendants’ hearsay objections

26

Arpaio dated 11/16/10 at p. 16, ln. 15 to p. are not well taken. The letter is 17, ln. 12, attached as Exhibit 15. Arpaio both an admission (is providing

27

forwards the letter to people in his office when he believes the letter may be of

context for Sheriff Arpaio’s reply) and a business record. See

28

interest to them. Id. at p. 21, ln. 9 to p. 22, Fed. R. Evid. 801(d)(2), 803(6).

115

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 116 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

ln. 4.

The letter, which Sheriff Arpaio

3 4 5

In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.

selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein;

6

Objections: Defendants object to the

in fact, Plaintiffs disagree with

following document as inadmissible hearsay many of those statements.

7

without any applicable exception

Rather, they provide context for

(Defendants do not object to any comments Sheriff Arpaio’s own statements

8

or notes written by Arpaio on the hearsay and show his intent. Thus, these

communication): MCSO 068791-92, Ex. 42 statements are therefore not

9

to Arpaio Depo. II. See Cox v. Amerigas hearsay, and do not require a

Propane, Inc., 2005 U.S. Dist. LEXIS

hearsay exception for admission.

10

26344 (Ariz. 2005). Defendants also object See Fed. R. Evid 801(c); Arteaga,

to the document on the grounds of

117 F.3d at 396 (9th Cir. 1997);

11

relevance. It is irrelevant to whether the

Elekwachi, 1997 WL 174160 (9th

named Plaintiffs’ Fourteenth Amendment Cir. Apr. 2, 1997); Allison, 1982

12

rights were violated.

WL 1560 (D. Or. Jan. 17, 1982).

13 14

Defendants also object to document OSLS000121 because it is irrelevant as to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.

They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment.

15 41 Disputed.

Not genuinely disputed.

16 17 18 19 20 21 22 23

Controverting Statement: While Defendants do not dispute that CT S. wrote the referenced communication and it contained the comments described and that Arpaio wrote a “thank you” letter stating he will “continue to fight the [illegal immigration] problem facing our country, Defendants dispute that such receipt and writing a “thank-you” note means that Arpaio adopts, agrees, or endorses all of the contents of the communication or took any official action in response to the same. In addition, Plaintiffs never questioned Arpaio regarding his position as to anything stated by CT S. in document OSLS000591-95.

Defendants do not dispute that CT S. wrote that illegal Hispanic immigrants are trying to take over and change the culture of the United States and describes the immigration of Hispanics as a “monstrous onslaught” and refers to a Cinco de Mayo program at an elementary school as “openly seditious”, and that Sheriff Arpaio requested that his staff send a thank you letter stating that he will “continue to fight the problem facing our county.”

24 25 26

Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

27

interest to them. Id. at p. 21, ln. 9 to p. 22, Response to Objections:

ln. 4.
28

Defendants’ hearsay objections

116

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 117 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

In addition, Defendants further herein

are not well taken. The letter,

3

incorporate by this reference their Response which bears Sheriff Arpaio’s own

and Controverting Statement as to

handwritten commentary, is both

4

Plaintiffs’ Statement of Fact No. 25 set forth an admission and a business

above.

record. See Fed. R. Evid.

5 6 7 8 9 10 11

Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): OSLS000591-95. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated

801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these

statements are therefore not

12

hearsay, and do not require a

hearsay exception for admission.

13

See Fed. R. Evid 801(c); Arteaga,

117 F.3d at 396 (9th Cir. 1997);

14

Elekwachi, 1997 WL 174160 (9th

Cir. Apr. 2, 1997); Allison, 1982

15

WL 1560 (D. Or. Jan. 17, 1982).

They are directly relevant on their

16

face to Plaintiffs’ claims under

the Fourteenth Amendment.

17 42 Disputed.

Not genuinely disputed.

18

Controverting Statement: While

19 20 21 22 23 24

Defendants do not dispute that Diana E authored a 200-page book on illegal immigration that contains the referenced chapter and sent a copy of the same to Arpaio, Defendants dispute that such receipt and forwarding to select executive management means that Arpaio adopts, agrees, or endorses all of the contents of the book or the referenced chapter in the book. In addition, Plaintiffs never questioned Arpaio regarding his position as to anything stated by Diana E in her book or the

Defendants do not deny that Diana E.’s “book” contains a chapter on “racial profiling,” purporting to capture the view of the community, and that it states, “Of course the Latinos are being targeted; who else is coming over from Mexico - The Swedes?”, and that Sheriff Arpaio forwarded the book to Chief Sands and Captain Chagolla.

referenced chapter.

See also Pls.’ Reply to Defs.’

25 26 27

In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above.

Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

28 117

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 118 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Objections: Defendants object to the

Response to Objections:

3 4 5 6 7 8

following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 7444774738. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.

Defendants’ hearsay objections are not well taken. The statements cited are part of Sheriff Arpaio’s communication to Chief Sands and Captain Chagolla and are both admissions and business records. See Fed. R. Evid. 801(d)(2), 803(6). The communications, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), show Sheriff

9

Arpaio’s state of mind. The statements from persons other

10

than Sheriff Arpaio are not introduced for the truth of the

11

matters stated therein; in fact, Plaintiffs disagree with many of

12

those statements. Rather, they provide context for Sheriff

13

Arpaio’s own statements and show his intent. Thus, these

14

statements are therefore not hearsay, and do not require a

15

hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga,

16

117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th

17

Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982).

18

They are directly relevant on their face to Plaintiffs’ claims under

19

the Fourteenth Amendment.

43 Disputed.

Not genuinely disputed.

20

Controverting Statement: While

21 22 23 24 25 26 27 28

Defendants do not dispute that Sarah M. and Erika S wrote the referenced letter to Arpaio and that it contained the referenced comments, the Defendants dispute that the mere receipt of the letter, sending a thank you note, and sending a copy of the letter to Chief Brian Sands means that Arpaio adopts, agrees, or endorses all of the contents of the letter. Arpaio provided a detailed explanation of why he sent a thank you letter to these authors and it is abundantly clear that he did not adopt or agree or endorse their comments. See Deposition of Joseph Arpaio dated 11/16/10 at p. 107, ln. 20 to p. 109, ln. 14, attached as

Defendants do not dispute that the letter to “Sheriff Joe” from Sarah M. and Erika S. stated that, “Stopping Mexicans to be sure they are legal is not racist. Because our state is a border state to Mexico, so of course, there will be more Mexican illegals here than any other ethnic group”, and that Sheriff Arpaio requested that a thank you letter be sent and also forwarded the letter to Chief Sands and asked for three copies for himself.

118

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 119 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Exhibit 15.

See also Pls.’ Reply to Defs.’

3 4 5

Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio

Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

6 7

forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.

Response to Objections: Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s

8

In addition, Defendants further herein

communication to Chief Sands

incorporate by this reference their Response and is both an admission and a

9

and Controverting Statement as to

business record. See Fed. R.

Plaintiffs’ Statement of Fact No. 25 set forth Evid. 801(d)(2), 803(6). The

10

above.

letter, which Sheriff Arpaio

11 12 13 14 15 16 17

Objections: Defendants object to the following document as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): Melendres MCSO 078209, Ex. 17 to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants also object to the document on the grounds of relevance. It is irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.

selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission.

Defendants also object to document

See Fed. R. Evid 801(c); Arteaga,

18

Melendres MCSO 076783, Ex. 10 to Arpaio 117 F.3d at 396 (9th Cir. 1997);

Depo. II on the grounds of relevance. It is Elekwachi, 1997 WL 174160 (9th

19

immaterial to whether Plaintiffs’ Fourteenth Cir. Apr. 2, 1997); Allison, 1982

Amendment rights were violated.

WL 1560 (D. Or. Jan. 17, 1982).

20

They are directly relevant on their

face to Plaintiffs’ claims under

21

the Fourteenth Amendment.

22 44
23 24 25 26 27 28

Disputed. Controverting Statement: While Defendants do not dispute that Arpaio has received and retained some letters and emails from private citizens that contain language that is, or reasonably could be interpreted, as “racially charged” and “stigmatizing towards Hispanic” and illegal immigrants, Defendants dispute that the mere receipt and keeping of such communications means that Arpaio adopts, agrees, or endorses all of the contents of the
119

Not genuinely disputed. Defendants do not genuinely dispute Pls.’ SOF 44, which states, “Sheriff Arpaio received and retained letters and emails from constituents containing language that is racially charged and stigmatizing towards Hispanics.” In fact, in their brief opposing Plaintiffs’ summary judgment motion, defendants

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 120 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

communication.

admit the existence of “letters that

3 4 5 6

When Arpaio was asked whether he agreed with the referenced language in document Melendres MCSO 76123, Ex. 24 to Arpaio Depo. II, Arpaio testified that “I don’t agree with that.” See Deposition of Joseph Arpaio dated 11/16/10 at p. 160, ln. 19 to p. 161, ln. 10, attached as Exhibit 15.

Arpaio has received over the years from citizens that have expressed racially or ethnically offensive or insensitive remarks about Latinos and/or called for the MCSO to target Latinos based solely on their race or ethnicity” and admit that “Arpaio sent to

7

When Arpaio was asked whether he agreed certain of his executive

with the referenced language in document management staff copies of

8

Melendres MCSO 7540304, Ex. 23 to

citizen letters that expressed

Arpaio Depo. II, Arpaio testified that he did racially offensive or insensitive

9

not even understand what the author was remarks about Latinos and/or

thinking and “I can’t believe what he’s called for racial targeting of

10

thinking when he wrote this.”

Latinos.” Defs.’ Opp’n at 17, 21.

11

See Deposition of Joseph Arpaio dated

Defendants statement as to

11/16/10 at p. 157, lns. 18-25, attached as certain letters that “it is

12 13 14 15 16 17

Exhibit 15. Plaintiffs never asked Arpaio whether he agreed with any comments contained within documents Melendres MCSO 76267, Melendres MCSO 71945, OSLS001235, OSLS0001057, and OSLS001058-60. However, given Arpaio’s prior testimony when he was asked whether he agreed with arguably less offensive remarks, it is reasonable to conclude that it is likely that Arpaio would have testified, had he been asked by Plaintiffs, that he disagreed with

reasonable to conclude that it is likely that Arpaio would have testified, had he been asked by Plaintiffs, that he disagreed with the offensive remarks in each of the foregoing documents” is inadmissible attorney speculation. Sheriff Arpaio’s actions in writing thank you letters and forwarding such letters within his office with requests for follow-up action are undisputed.

18

the offensive remarks in each of the

See also Pls.’ Reply to Defs.’

foregoing documents.

Resp. to Pls.’ SOF 25, describing

19 20 21

Arpaio provided a detailed explanation of why he sent a thank you letter to these authors and it is abundantly clear that he did not adopt or agree or endorse their comments. See Deposition of Joseph

the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Response to Objections:

22

Arpaio dated 11/16/10 at p. 107, ln. 20 to p. 109, ln. 14, attached as Exhibit 15

Defendants’ hearsay objections are not well taken. The letters

23

In addition, Defendants further herein

and emails are part of Sheriff

incorporate by this reference their Response Arpaio’s communications to

24

and Controverting Statement as to

Chief Sands and others in his

Plaintiffs’ Statement of Fact No. 25 set forth office and are both admissions

25

above.

and business records. See Fed. R.

26 27 28

Objections: Defendants object to the following documents as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay

Evid. 801(d)(2), 803(6). The letters, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), show Sheriff Arpaio’s state of mind. The statements

120

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 121 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

communication):

3

(1) Melendres MCSO 76123, Ex. 24 to

4

Arpaio Depo. II; (2) Melendres MCSO 7540304, Ex. 23 to Arpaio Depo. II; (3)

5

Melendres MCSO 76267; (4) Melendres MCSO 71945; (5) OSLS001235; (6)

6

OSLS0001057; and (7) OSLS001058-60. Defendants also object to the foregoing

7

documents on the grounds of relevance. They are irrelevant to whether the named

8

Plaintiffs’ Fourteenth Amendment rights were violated.

9

10

11

12 45 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment. Not genuinely disputed.

13

Controverting Statement: While

14 15 16 17

Defendants do not dispute that Arpaio has written “thank-you” notes to private citizens, including those that may have expressed or used racially offensive opinions or comments, and circulated on some occasions to select executive management copies of the same, Defendants dispute that this means that Arpaio adopts,

Defendants do not genuinely dispute Pls’ SOF 45, which states, “Sheriff Arpaio had thank you notes sent to these individuals or circulated the materials to MCSO leadership, including Chief Sands.”

agrees, or endorses all of the contents of the See also Pls.’ Reply to Defs.’

18

communication or that it resulted in any

Resp. to Pls.’ SOF 25, describing

official action, such as a saturation patrol. the MCSO’s endorsement of calls

19 20

Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph

for racial profiling and its reference to them in planning saturation patrols.

21 22 23

Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio forwards the letter to people in his office when he believes the letter may be of interest to them. Id. at p. 21, ln. 9 to p. 22, ln. 4.

Response to Objections: Defendants’ hearsay objections are not well taken. The letters are part of Sheriff Arpaio’s communications to Chief Sands and others, and are both

24

In addition, Defendants further herein

admissions and business records.

incorporate by this reference their Response See Fed. R. Evid. 801(d)(2),

25

and Controverting Statement as to

803(6). The letters, which Sheriff

Plaintiffs’ Statement of Fact No. 25 set forth Arpaio selected to retain in his

26

above, and their responses to Statement of file (Pls.’ SOF 24), show Sheriff

Facts Nos. 26 to 45.

Arpaio’s state of mind. The

27 28

Objections: Defendants object to the following documents as inadmissible

statements from persons other than Sheriff Arpaio are not

121

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 122 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

hearsay without any applicable exception introduced for the truth of the

3

(Defendants do not object to any comments matters stated therein; in fact,

or notes written by Arpaio on the hearsay Plaintiffs disagree with many of

4

communication):

those statements. Rather, they

5 6 7 8 9

(1) Melendres MCSO 76123, Ex. 24 to Arpaio Depo. II; (2) Melendres MCSO 77958, Ex. 3 to Sand Depo. II (3) OSLS01235; (4) OSLS0001057; and (5) OSLS001058-60. Defendants also object to the foregoing documents on the grounds of relevance. They are irrelevant to whether the named Plaintiffs’ Fourteenth Amendment rights were violated.

provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982

WL 1560 (D. Or. Jan. 17, 1982).

10

They are directly relevant on their

face to Plaintiffs’ claims under

11

the Fourteenth Amendment.

12 46
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverting Statement: This statement is misleading as used in the Motion because it suggests, without actually proving, that MCSO executive staff, such as Chief Brian Sands, assume that Arpaio agrees with the contents of everything that is forwarded to them and that they would or should take official action, such as conducting a saturation patrol, without any MCSO independent analysis. As to the cited document MCSO074133, Ex. 2B to Arpaio Depo. II, Arpaio testified that he did not agree with the comments made by the author. See Deposition of Joseph Arpaio dated 11/16/10 at p. 27, ln. 5 to p. 28, ln. 25, attached as Exhibit 15. In fact, Arpaio thought the comments were “rather nasty. And this is their opinion. It doesn’t mean it is my opinion. I’ve been a federal official, law enforcement official, for 26 years. I have respect to the courts, and I don’t agree with that.”). Id. (emphasis added). As for the citation to Chief Brian Sands’ deposition for the principal that every document that Arpaio forwards to him is something that Arpaio agrees with, Plaintiffs’ mischaracterize the testimony following a confusing, and ambiguous question. For example, the following is the question and answer:
122

Not genuinely disputed.
Defendants do not genuinely dispute the first sentence of Pls.’ SOF 46, which states, “Sheriff Arpaio did not express disagreement with the materials containing racially charged language when he passed them on to his colleagues.” Such lack of disagreement is evident on the face of these materials. While at times instructing his subordinates to follow up on such materials or that he was providing them “for our operations”, he did not also say anything disagreeing with the racially charged language. Defendants also do not genuinely dispute the second sentence of Pls.’ SOF 46, which states, “Chief Sands does not recall the Sheriff ever forwarding any statements that the Sheriff did not agree with.” The deposition testimony cited by Defendants (“I can’t think of any [disagreement] right offhand.”) fully supports the second sentence of Pls.’ SOF 46. See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 123 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

“Q. Has the Sheriff ever, to your

3

memory, forwarded to you, for your

information, any statements that you know

4

the sheriff disagrees with?

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

5

Mr. Liddy: Objection. Form of the question.

6

A. I can’t think of any right offhand.”

7

Deposition of Brian Sands dated 11/15/10 at p. 218, lns. 18-24, attached as Exhibit 18.

8

Moreover, there are times when Chief Sands does not know the reason Arpaio forwards

9

a citizen’s letter to him. Id. at p. 33, ln. 21 to p. 34, ln. 9 (he did not know why Arpaio

10

forwarded to him the letter from John B. (Melendres MCSO 77958, Ex. 3 to Sands

11

Depo. II) stating that certain countries allow their citizens to “run amuck like wild feral

12

[sic] animals” and that “we have too many dysfunctional Hispanics [in the United

13

States] already.”)..

In light of the testimony of Arpaio set forth

14

elsewhere in this Response, it is unfair,

inappropriate, and unreasonable for the

15

Plaintiffs to conclude from Chief Sand’s

answer that he has “knowledge” that Arpaio

16

agreed with the contents of every citizen

communication he forward to Chief Sands.

17

It is also unreasonable to conclude that

Chief Sands believed that Arpaio agreed

18

with every document and thus initiated a

saturation patrol in response to the same.

19

See Deposition of Brian Sands dated

12/14/09 at p. 82, ln. 24 to p. 84, ln. 12,

20

attached as Exhibit 14 (emphasis added). In

addition, Defendants further herein

21

incorporate by this reference their Response

and Controverting Statement as to

22

Plaintiffs’ Statement of Fact No. 25 set forth

above, and their responses to Statement of

23

Facts Nos. 26 to 45.

24 47
25 26 27 28

Disputed. Controverting Statement: While Defendants do not dispute that Arpaio received an email from a private citizen that contained racially prejudiced statement and forwarded it to Chief Brian Sands, there is no evidence that either Arpaio or Chief Sands agreed with, adopted or endorsed the
123

Not genuinely disputed. Defendants do not dispute that the letter that Sheriff Arpaio sent on to Chief Sands stated that Hispanics countries allow their citizens to “run amuck like wild feral animals” and that “we have

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 124 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

contents of the letter in any manner or took too many dysfunctional Hispanics

3

any action based on the same.

[in the U.S.] already”. See

4

To the contrary, the evidence shows that Chief Sands did not take any action in

Hickey Dec. Ex. 79. See also Pls.’ Reply to Defs.’

5

response to the letter. See Deposition of

Resp. to Pls.’ SOF 25, describing

Brian Sands dated 11/15/10 at p. 33, ln. 21 the MCSO’s endorsement of calls

6

to p. 34, ln. 9, attached as Exhibit 18. When for racial profiling and its

Plaintiffs asked Chief Sands whether he

reference to them in planning

7 8

agreed with the author’s statement that “we have too many dysfunctional Hispanics already here,” he expressly rejected the statement. Id. at p. 34, ln. 21 to p. 35, ln.

saturation patrols. Response to Objections: Defendants’ hearsay objections

9 10 11 12

4. In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above. Objections: Defendants object to the

are not well taken. The letter is part of Sheriff Arpaio’s communication to Chief Sands and is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’

13

following document as inadmissible hearsay SOF 24), shows Sheriff Arpaio’s

without any applicable exception

state of mind. The statements

14

(Defendants do not object to any comments from persons other than Sheriff or notes written by Arpaio on the hearsay Arpaio are not introduced for the

15

communication): Melendres MCSO 77958, truth of the matters stated therein;

Ex. 3 to Sands Depo. II. See Cox v.

in fact, Plaintiffs disagree with

16

Amerigas Propane, Inc., 2005 U.S. Dist. many of those statements. LEXIS 26344 (Ariz. 2005). This document Rather, they provide context for

17

is also objectionable because it is irrelevant Sheriff Arpaio’s own statements to whether the named Plaintiffs’ Fourteenth and show his intent. Thus, these

18

Amendment rights were violated.

statements are therefore not hearsay, and do not require a

19

hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga,

20

117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th

21

Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982).

22

They are directly relevant on their face to Plaintiffs’ claims under

23

the Fourteenth Amendment.

48 Disputed.

Not genuinely disputed.

24

Controverting Statement: While

25 26 27 28

Defendants do not dispute that Arpaio received an email from a private citizen that was racially prejudiced and unfavorable to United States District Court Judge Mary Murguia and forwarded it to select MCSO management executives, Defendants dispute this statement as it is used in Plaintiffs’

Defendants do not dispute that Sheriff Arpaio forwarded an email referring to Judge Murguia a “token Hispanic female judge” to Chief Hendershott, Lisa Allen, Chief Sands, and Chief

124

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 125 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

motion. Arpaio forwarded the email to

Macintyre. [Hickey Dec. Ex. 16.]

3

select MCSO management executive

Sheriff Arpaio also testified that

because they were involved in the MCSO (1) he underlined the comments

4

programs related to illegal immigration and about Judge Murguia, (2)

the handling of litigation cases involving the forwarded the letter to then-Chief

5

MCSO. See Deposition of Joseph Arpaio Deputy Hendershott, then

dated 11/16/10 at p. 27, ln. 5 to p. 28, ln. 25, Deputy-Chief Sands, Lisa Allen

6

attached as Exhibit 15. Arpaio testified that and then-Deputy Chief Jack

he did not agree with the comments made MacIntyre “for their

7

by the author. Id. In fact, Arpaio thought information,” and (3) did not

the comments were “rather nasty. And this communicate to his command

8

is their opinion. It doesn’t mean it is my staff or anyone else that he

opinion. I’ve been a federal official, law disagreed with the statements in

9

enforcement official, for 26 years. I have the letter. See Arp. Dep. II at

respect to the courts, and I don’t agree with 25:22-26:16 [Hickey Dec. Ex.

10

that.”).Id. (emphasis added).

15].

11

In addition, Defendants further herein

See also Pls.’ Reply to Defs.’

incorporate by this reference their Response Resp. to Pls.’ SOF 25, describing

12

and Controverting Statement as to

the MCSO’s endorsement of calls

Plaintiffs’ Statement of Fact No. 25 set forth for racial profiling and its

13

above. Objections: Defendants object to the

reference to them in planning saturation patrols.

14

following document as inadmissible hearsay Response to Objections:

15 16 17 18 19 20

without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): MCSO074133, Ex. 2B to Arpaio Depo. II. See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”).

Defendants’ hearsay objections are not well taken. The email is part of Sheriff Arpaio’s communication to Chief Sands and others and is both an admission and a business records. See Fed. R. Evid. 801(d)(2), 803(6). The email, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other

21

than Sheriff Arpaio are not introduced for the truth of the

22

matters stated therein; in fact, Plaintiffs disagree with many of

23

those statements. Rather, they provide context for Sheriff

24

Arpaio’s own statements and show his intent. Thus, these

25

statements are therefore not hearsay, and do not require a

26

hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga,

27

117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th

28

Cir. Apr. 2, 1997); Allison, 1982

125

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 126 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment.

5 49
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverting Statement: While the Defendants do not dispute that Arpaio sent a copy of document Melendres MCSO 076783 to executive management, namely Chiefs Brian Sands and Scott Freeman, that Arpaio did not check the document for accuracy, and that Arpaio testified that some of the statistics in the document did not sound accurate, this statement contains unsupported argument and, as used in the motion, is misleading. Defendants dispute that: (a) the Los Angeles Times discredited the document; (b) that Arpaio sent it to his “officers” other than Chiefs Sands and Freeman. The evidence cited by Plaintiffs does not support the statement that the Los Angeles Times newspaper discredited the document. The evidence cited does not support the statement or suggestion that Arpaio forwarded document Melendres MCSO 076783 to anyone in the MCSO other than Chiefs Sands and Freeman. It is, therefore, misleading to suggest that Sgt. Brett Palmer, who received the document on his own, received the document from Arpaio or believed he was to act on it pursuant to Arpaio’s desire. To the contrary, Sgt Palmer received the document from another deputy at MCSO. See Ex. 5 to Palmer Depo. II at p. 1(Hickey Dec. Ex. 62); see also Deposition of Brett Palmer dated 11/09/10 at p. 50, ln. 19 to. p. 51, ln. 5, attached as Exhibit 12 (“Q. Do you remember receiving this email from Detective Little? A.. It is familiar to me, yes.”). The evidence shows that Sgt. Palmer did not agree with all of the contents of the document. See Deposition of Brett Palmer dated 11/09/10 at p. 50, ln. 19 to. p. 54, ln. 6, attached as Exhibit 12 The evidence shows that Arpaio did not

Not genuinely disputed.
Defendants do not genuinely dispute Pls.’ SOF 49, admitting that Sheriff Arpaio sent a copy of the “statistics” document to Chiefs Brian Sands and Scott Freeman, that he did not check it for accuracy and that some of the statistics in it do not sound accurate. They also do not deny that Sgt. Palmer also sent the same alleged statistics to others in the MCSO. Defendants are aware that these statistics were discredited by the Los Angeles Times. See Ex. 15 to Palmer Dep. II (introduced at Palmer Dep.II 119:12-120:19) [Hickey Dec. Ex. 61, 65]. See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Response to Objections: Defendants’ hearsay objections are not well taken. The document is part of Sheriff Arpaio’s communications to Chief Sands and is both an admission and a business records. See Fed. R. Evid. 801(d)(2), 803(6). The document, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), show Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for

126

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 127 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

agree with all of the contents of the

Sheriff Arpaio’s own statements

3

document. See Deposition of Joseph M. and show his intent. Thus, these

Arpaio dated 11/16/10 at p. 73, lns. 11-19, statements are therefore not

4

attached as Exhibit 15 (“Does not sound

hearsay, and do not require a

right….”).

hearsay exception for admission.

5 6 7 8 9

As for Arpaio not checking the document’s statistics for accuracy, Arpaio testified that he sent it to Chiefs Sands and Freeman so they could check on it “[b]ecause this is another piece of intelligence. It could be true, or it could not. That’s why I sent it to them.” See Deposition of Joseph M. Arpaio dated 11/16/10 at p. 72, lns. 8-14, attached as Exhibit 15; see also p. 72, lns. 4-6 (The

See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment.

10

document is “[j]ust another intelligencetype report, whether its true or not, I think

11

that they [Chiefs Sands and Freeman] should look at it.”).

12 13 14 15 16 17 18 19 20 21 22
50
23 24 25 26 27 28

Finally, there is no evidence cited by Plaintiffs or elsewhere that the MCSO took any official action in response to, or in regards to, the document. Objections: Defendants object to the document Melendres MCSO as inadmissible hearsay without any applicable exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication): See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”). They also object to it on the grounds of relevance. The document is immaterial to whether the named Plaintiffs’ Fourteenth Amendment rights were violated. Disputed Controverting Statement: While Defendants do not dispute that this statement contains the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart, they dispute that Arpaio forwarded communications received from third party private citizens, including communications that contain actual or perceived racial prejudiced or offensive comments, to any MCOS deputies other
127

Not genuinely disputed. Defendants say they dispute Pls.’ SOF 50, which states, “It is not generally accepted practice for the head of a law enforcement agency to circulate materials that advocate racial profiling or are racially charged within his office.”

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 128 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

than executive members of his management The logical consequence of

3

staff, namely Chief Brian Sands, for his

Defendants’ purporting to

information, consideration, and possible

“dispute” Pls.’ SOF 51 is that

4

evaluation. The MCSO acted reasonable or Defendants contend that it is

pursuant to the law enforcement standard of “generally accepted practice for

5

care in its handling of citizen complaints of the head of a law enforcement

all types.

agency to circulate materials that

6 7 8 9 10 11 12

Defense police practices expert Bennie Click testified the “[t]he method by which the MCSO chooses target areas for saturation patrols is reasonable and consistent with standard law enforcement practices.” As for citizen complaints that contained actual or perceived racially prejudice comments, the “MCSO took step not to respond to request to that [which] would have amounted to racial profiling.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached

advocate racial profiling or are racially charged within his office.” Defendants present no evidence for that position. Neither Mr. Stewart nor Mr. Click takes the position that is a generally accepted practice for the head of a law enforcement agency to circulate materials that advocate racial profiling or are racially charged within his office.” Pls.’ SOF 51 is therefore not genuinely disputed.

13 14 15 16 17

thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

Defendants admit that the statement in Pls.’ SOF 51 contains the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart. Defendants further admit that Sheriff Arpaio forwarded communications received from

The MCSO consistently rejected racially third party private citizens,

18

charged citizen complaints when there was including communications that

no mention of any facts indicating criminal contain actual or perceived racial

19

activity, and when there was criminal

prejudiced or offensive

activity identified, the MCSO independently comments, to the executive

20

evaluated the same. See Deposition of

member of his management staff,

Joseph Sousa dated 12/10/09 at p. 86, ln. 3 namely Chief Brian Sands, for his

21

to p. 88, ln. 11, attached as Exhibit 5

information, consideration, and

(discussing the investigation of citizen

possible evaluation

22 23 24 25

complaints; that if the citizen is racially profiling and not describing any criminal activity, the complaint is rejected; the efforts MCSO takes to independently evaluate whether criminal activity is taking place); Deposition of Brian Sands dated 12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, attached as Exhibit 14 (providing a detailed

Further, certain of the letters circulated by Arpaio were sent to individuals other than Chief Brian Sands, including at least Lisa Allen and Paul Chagolla. See, e.g., Hickey Dec. Ex. 192, 193 & 196.

26

discussion of the MCSO rejecting racially The record reveals that saturation

motivated tips by citizens that provide no patrols have been planned

27

evidence of criminal activity).

without any objective crime or

28

In addition, Defendants further herein

traffic analysis. See Pls.’ SOF

128

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 129 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

incorporate by this reference their Response 107. The MCSO has chosen sites

3

and Controverting Statement as to

for saturation patrols on the basis

Plaintiffs’ Statement of Fact No. 25 set forth of citizen complaints that

4

above.

admittedly contain no description

of criminal activity. See Pls.’

5

SOF 75-101. Sheriff Arpaio

routinely passes on such citizen

6

complaints to Chief Sands for use

in planning operations. Pls.' SOF

7

77, 79, 85, 90, 93, 99; see also

Pls.' SOF 74 (Sands is responsible

8

for planning saturation patrol

operations, including site

9

selection), 75, 100

(acknowledging that saturation

10

patrols are regularly initiated

based on citizen complaints)

11

It is not standard practice for the

12

head of a law enforcement agency to pass on racially charged

13

materials that do not describe criminal activity to officers

14

tasked with designing enforcement operations. Pls.’

15

SOF 101.

See also Pls.’ Resp. to Defs’

16

SSOF 68, 73-75.

17 18 19 20 21 22 23 24 25 26
27 51

Disputed

Sands’ and Sousa’s self-serving denials made during litigation and without supporting evidence are insufficient to create a genuine issue of material fact. See Villiarimo, 281 F.3d at 1061 (9th Cir. 2002) (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony.” (internal quotation marks and citation omitted)). In addition, Plaintiffs further herein incorporate by this reference their Reply to Defendants’ Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 set forth above. Not genuinely disputed.

28 129

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 130 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Controverting Statement: While

3 4 5 6 7 8 9 10 11 12 13 14 15

Defendants do not dispute that this statement contains the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart, they dispute that it is accurate in this case. To the contrary, the evidence shows that Arpaio’s circulation of materials to executive management, namely Chief Brian Sands, did not convey the message that the particular communication’s contents were truthful, accurate, or appropriate for action. Moreover, the mere forwarding of such communications did not “communicate [Arpaio’s] desire for the agency’s operations” and there is no evidence offered by Plaintiffs or elsewhere that the MCSO took action based solely on the actual or perceived racial prejudices of any third party communication.

Defendants do not genuinely dispute Pls.’ SOF 51, admitting that the statement therein contains the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart. Defendants further admit that Sheriff Arpaio forwarded communications received from third party private citizens, including communications that contain actual or perceived racial prejudiced or offensive comments, to the executive member of his management staff, namely Chief Brian Sands, for his information, consideration, and possible evaluation

Defense police practices expert Bennie Click testified the “[t]he method by which the MCSO chooses target areas for saturation patrols in reasonable and consistent with standard law enforcement practices.” As for citizen complaints that

Further, certain of the letters circulated by Arpaio were sent to individuals other than Chief Brian Sands. See, e.g., Hickey Dec. Ex. 192, 196.

contained actual or perceived racially

The MCSO has chosen sites for

16

prejudice comments, the “MCSO took step saturation patrols on the basis of

not to respond to request to that [which]

citizen complaints that admittedly

17

would have amounted to racial profiling.” contain no description of criminal

See Defendants’ Statement of Facts

activity. Pls’ SOF 76-100.

18

(Dkt#413-1) at the Report of Ben Click

Sheriff Arpaio routinely passes

dated January 21, 2011, at pg. 47, attached on such citizen complaints to

19

thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben

Chief Sands for use “in his operation”. See, e.g. Id., Pls’

20

Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

SOF 25-43. Chief Sands is responsible for planning

21

(wherein Mr. Click testified to the foundation for his opinions and that his

saturation patrol operations, including site-selection, and

22

opinions in the report were the same he

acknowledges that that saturation

would provide at trial to a reasonable degree patrols are regularly initiated

23

of probability in his field of expertise). The MCSO consistently rejected racially

based on citizen complaints . Pls’ SOF 74-75; see also Id. at 100.

24

charged citizen complaints when there was Further, MCSO officers have not

no mention of any facts indicating criminal been given instructions to look

25

activity, and when there was criminal

for any patterns of criminal

activity identified, the MCSO independent conduct or specific criminal

26

evaluated the same. See Deposition of

suspects nor has MCSO relied on

Joseph Sousa dated 12/10/09 at p. 86, ln. 3 comparative analysis of crime or

27

to p. 88, ln. 11, attached as Exhibit 5

traffic hazards to justify a

(discussing the investigation of citizen

saturation patrol. Pls’ SOF 106-

28 130

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 131 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

complaints; that if the citizen is racially

107. The saturation patrols

3

profiling and not describing any criminal conducted by the MCSO focused

activity, the complaint is rejected; the efforts on illegal immigration and day

4

MCSO takes to independently evaluate

laborers, using pretextual traffic

whether criminal activity is taking place); stops for minor violations in order

5

Deposition of Brian Sands dated 12/14/09 at to investigate the driver and/or

p. 81, ln. 3 to p. 85, ln. 6, attached as

passengers for immigration

6

Exhibit 14 (providing a detailed discussion violations. See, Pls’ SOF 114-

of the MCSO rejecting racially motivated 117.

7 8

tips by citizens that provide no evidence of criminal activity). In addition, Defendants further herein

It is not standard practice for the head of a law enforcement agency to pass on racially charged

9

incorporate by this reference their Response materials that do not describe

and Controverting Statement as to

criminal activity to officers

10

Plaintiffs’ Statement of Fact No. 25 set forth tasked with designing

above.

enforcement operations. Pls’

11

SOF 101.

See also, Pls’ Resp. to Defs’

12

SSOF 73-75.

13

Sands’ and Sousa’s denials should be given no weight by the

14

Court. Self-serving denials made during litigation and without

15

supporting evidence are insufficient to create a genuine

16

issue of material fact. See Villiarimo, 281 F.3d at 1061 (9th

17

Cir. 2002) (“[T]his court has refused to find a genuine issue

18

where the only evidence presented is uncorroborated and

19

self-serving testimony.” (internal quotation marks and citation

20

omitted)).

In addition, Plaintiffs further

21

herein incorporate by this

reference their Reply to

22

Defendants’ Response and

Controverting Statement as to

23

Plaintiffs’ Statement of Fact No.

25 set forth above.

24

The record reveals that saturation

25

patrols have been planned without any objective crime or

26

traffic analysis. See Pls.’ SOF 107; see also Pls.’ Resp. to Defs.’

27

SSOF 68. The MCSO has chosen sites for saturation patrols on the

28

basis of citizen complaints that

131

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 132 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
admittedly contain no description of criminal activity. See Pls.’ SOF 75-101. Sheriff Arpaio routinely passes on such citizen complaints to Chief Sands for use in planning operations. Pls.' SOF 77, 79, 85, 90, 93, 99; see also Pls.' SOF 74 (Sands is responsible for planning saturation patrol operations, including site selection), 75, 100 (acknowledging that saturation patrols are regularly initiated based on citizen complaints)

10

It is not standard practice for the head of a law enforcement agency

11

to pass on racially charged materials that do not describe

12

criminal activity to officers tasked with designing

13

enforcement operations. Pls.’ SOF 101.

14

See also Pls.’ Resp. to Defs’

SSOF 68, 73-75.

15

Sands’ and Sousa’s self-serving

16

denials made during litigation and without supporting evidence are

17

insufficient to create a genuine issue of material fact. See

18

Villiarimo, 281 F.3d at 1061 (9th Cir. 2002) (“[T]his court has

19

refused to find a genuine issue where the only evidence

20

presented is uncorroborated and self-serving testimony.” (internal

21

quotation marks and citation omitted)).

22

In addition, Plaintiffs further

herein incorporate by this

23

reference their Reply to

Defendants’ Response and

24

Controverting Statement as to

Plaintiffs’ Statement of Fact No.

25

25 set forth above.

26 52
27 28

Disputed. Controverting Statement: While Defendants do not dispute the cited portions of expert Bennie Click’s deposition
132

Not genuinely disputed. Defendants do not genuinely dispute Pls.’ SOF 52. Defendants

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 133 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

testimony, they state that Mr. Click’s

do not dispute the cited portions

3

opinions are taken out of context and are, of expert Bennie Click’s

therefore, misleading as used in the Motion. deposition testimony.

4 5

In proper context, Mr. Click’s opinion as cited does not support Plaintiffs’ statement as used in their motion.

Further, while Mr. Click’s opinion regarding whether Sheriff Arpaio’s actions were appropriate

6

More precisely, Mr. Click testified as

is relevant, Mr. Click’s opinion

follows in regard to an email sent by a Mr. as to the question of Chief Sands’

7 8 9

H.: “Q. [In regards to Arpaio forwarding Mr. H.’s email to Chief Sands], [w]ould that be appropriate to do by the Sheriff? A. Well, I’m not sure whether it’s

state of mind with respect to his reading of the email provides no special insight and should not be considered in that regard. Mr. Click simply hypothesized about a factual matter which this Court

10

appropriate or inappropriate. I don’t know is fully capable of understanding if I can comment on that. I think you’ve got and evaluating without an

11

a citizen out there. I mean, it well may be expert’s help. His testimony on

that the intention is that you need to be

this issue is therefore

12

careful of taking any action based on, you inappropriate under Federal Rule know, an email like this because we’re not of Evidence 702. See In re

13

really sure who this guy is. But I think it gives you a sense. We talk about having

Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 545-47 (S.D.N.Y.

14

community meetings and getting a sense of 2004) (questions of knowledge,

what, you know, community feedback is.

motive, intent, and state of mind

15

And maybe it wasn’t done for that purpose. describe factual matters which a I don’t know what his purpose is. I don’t jury is capable of understanding

16

think that— certainly Chief Sands is by just the nature of his position has been

and deciding without the expert’s help).

17 18 19

around a long time, and I don’t think he’s going to be influenced by an email like this. It would be just more informative or more just educational as to what a citizen is saying out there.”

Further still, Defendants are taking Mr. Click’s testimony grossly out of context. When asked what he would have done if he received such correspondence

See Deposition of Bennie Click at p. 163, when he was the Police Chief in

20

ln.16 to p. 164, ln. 22, attached as Exhibit Texas, he responded, “I don’t

20 (emphasis added); see also p. 164, ln. 20 think I would even respond to it.

21

to p. 165, ln. 16 (unlikely that someone with I don’t know what they did. I

Chief Sands’ law enforcement experience don’t think I’d even respond to

22

would take any action based just on this

it.” To the extent he might have

email).

done anything with it internally,

23

Mr. Click testified that he might

24 25 26

It is also clear that Mr. Click was stating his personal practice, and not a law enforcement standard of care opinion, when he stated that he would not have responded to the email of Mr. H. Id. at p. 166, ln. 20 to p. 166, ln. 15.

pass it on to his assistant and one of his chiefs for the purpose of instructing his subordinates that the department should not “align [it]self with people that have views that you should do something that’s unlawful or

27

Most notable, is that Mr. Click, as a former unconstitutional” or “put much

police chief of the City of Dallas, Texas, weight on something like this.”

28 133

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 134 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

would have handled Mr. H.’s email in the Click Dep. at 166:9-168:1 [Defs.’

3

same or similar way as it was handled by Resp. to Pls.’ SOF Ex. 20]; see

Arpaio:

also Pls.’ SOF 52. That is not

4 5 6 7 8

“Q. But would you expect and want the head—in terms of best practices the head of a law enforcement agency, like the MCSO, to indicate, well, we can’t help this kind of stuff. Some racist folks out there, but, of course, we don’t want to have anything to do with them. You would want that to take place in some way, shape, or form, don’t you?

what Sheriff Arpaio’s instructions to his staff were. Pls.’ SOF 46. To the contrary, he repeatedly endorsed the comments, treated them as relevant “intelligence,” and/or passed them on for use in planning operations. Pls.’ SOF 26, 28, 30, 33, 36-37, 39, 42-43, 45, 47-49, 77, 79, 85, 90, 93, 99.

9

A I certainly don’t think you align

yourself with people that have views that

10

you should do something that that’s

unlawful or unconstitutional.

11

Q. And if you had seen this particular

12

letter as head of the Dallas Department, what would you have done upon receiving

13

it?

14 15 16 17 18 19 20 21
22 53 23 54
55 24 56
25 26 27 28

A. I would have given it to probably my administrative assistant and may have shared it with one of my chiefs. I would have interpreted it as, you know, here we’ve got a person out there that appears—and we don’t know his intent was, but appears to suggest that we need to just assume that people coming—and I think he uses Mexico here, but he talks about Latinos—that we should just assume that just because they’re Latino that that’s probable cause or reasonable suspicion. But I don’t think they’re going to put much weight on something like this.”

Id. at p. 167, lns. 1-24 (emphasis added).

Admit.

Admit.

Admit.

Disputed.

Not genuinely disputed.

Controverting Statement: While Defendants do not dispute that a single MCSO employee, Detention Officer Jennifer McGlone, referred to MCSO HSU saturation patrols as “roundups of illegal immigrants,” they dispute that the single
134

Defendants do not actually dispute this fact. Plaintiffs original fact stated only that, “An officer has referred to saturation patrols as ‘roundups on illegal

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 135 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

statement by a single employee in the

immigrants.’ Lieutenant Sousa,

3

MCSO means that the MCSO, in the field, however, stated that such

is conducting “roundups” or otherwise

‘roundups’ would be ‘illegal.’”

4

acting unlawfully or illegally.

Pls.’ SOF 56 (emphasis added).

5

The MCSO has some 4,000 employees. Some employees are on the field side of

Defendants offer no evidence that these statements were not made.

6

operations, such as Enforcement and the Human Smuggling Unit (“HSU”). Other

Further, Defendants description of Lt. Jennifer McGlone is not

7

employees are on the detention side of

supported by the record and

MCSO operations. Detention officers at the should not be considered by the

8 9 10 11 12

MCSO are not deputies and not equipped with the same authority as deputies. Lt. Jennifer McGlone is on the detention side of operations and thus works in the County jails. She is a detention officer, not a field officer. It is, therefore, not surprising that someone that lacks field authority of a deputy, and is in neither Enforcement nor HSU would mischaracterize the MCSO saturation patrols in a manner similar to

Court. In addition, Plaintiffs further herein incorporate by this reference their Reply to Defendants’ Response and Controverting Statement as to Plaintiffs’ Statement of Fact Nos. 25 and 112. Response to Foundation

13

what lay people might characterize it.

Objection:

There are no “roundups of illegal

Defendants offer no reason or

14

immigrants.” See Deposition of Joseph

explanation as to why the witness

Sousa dated 12/10/09 at p. 96, ln. 25 to p. lacks foundation for the

15

97, ln. 3, attached as Exhibit 5 (sites for

statement. Officer Jennifer

saturation patrols also are not selected

McGlone is an MCSO officer and

16

because they may have a high concentration is exposed to MCSO operations,

of suspected illegal immigrants). When Lt. including saturation patrols, at the

17

Sousa learned that Lt. McGlone was using very least through other MCSO

the term “roundup,” he contacted Lt.

officers she associates with. The

18

McGlone’s supervising commander to let very fact that Officer McGlone’s

the detention side know “that’s not we

was cc’ed on an email to “all

19

[HSU or Enforcement] do. These saturation 287(g) officers” in the first

patrols are not illegal [immigrant] roundups instance, as well as the exchanged

20

or sweeps.” See Deposition of Joseph

that followed Officer McGlone’s

Sousa dated 10/22/10 at p. 26, ln. 2 to p. 29, initial comment, indicates that

21

ln. 22, attached as Exhibit 5

Officer McGlone would have

22

In addition, Defendants further herein incorporate by this reference their Response

some basis for characterizing MCSO’s saturation patrols.

23

and Controverting Statement as to Plaintiffs’ Statement of Fact Nos. 25 and

24

112.

Objection: The witness lacks the foundation

25

for the statement.

26

57 Admit.

58 Admit.

27

59 Admit.

28 135

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 136 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

60 Admit.

3

61 Admit.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4

62 Admit.

5

63 Admit.

64 Admit.

6

65 Admit.

7

66 Admit.

8

67 Admit.

68 Admit.
9
69 Admit.

10

70 Admit.

11

71 Admit.

12

72 Admit.

73 Admit.

13

74 Admit.

14 75 Disputed.

Not genuinely disputed.

15 16 17 18

Controverting Statement: This statement is misleading because it isolates facts and takes them out of context and does not address other facts that explain what role, if any, a citizen complaint has on the consideration of whether to conduct a saturation patrol.

Defendants do not genuinely dispute Pls.’ SOF 75, which states, “Lieutenant Sousa and Chief Sands acknowledge that saturation patrols are regularly initiated based on citizen

Defendants dispute the statement, as it is complaints.” The cited

19

used in Plaintiffs’ motion, that any of the deposition testimony of Chief

citizens’ letters or tips cited by the Plaintiffs Sands and Lieutenant Sousa fully

20

in their Motion that actually call for racial supports Pls.’ SOF 75.

21 22 23 24

profiling, or that are fairly perceived as calling for racial profiling or motivated by racial prejudice, ever caused or resulted in Arpaio or the MCSO taking official action such as conducting a saturation patrol. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors:

Defendants’ generalized and selfserving testimony on this issue does not create a genuine factual dispute. See Smith, 682 F.2d at 1064 (“Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular

25

MCSO Deputy Chief Brian Sands makes the course of action because of their decision of where, when, and how to do a desire to discriminate against a

26

saturation patrol. See Deposition of Brian racial minority.”); Villiarimo, 281 Sands dated 12/14/09 at p. 71, lns. 19-21; p. F.3d at 1061 (9th Cir. 2002)

27

79, lns. 23-25, attached as Exhibit 14. There are a multitude of different law

(“[T]his court has refused to find a genuine issue where the only

28

enforcement reasons a saturation patrol is evidence presented is

136

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 137 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

conducted, and conducted in a particular uncorroborated and self-serving

3

area. Id. at p. 71, lns. 9-16. The race or

testimony.” (internal quotation

ethnicity of people, however, plays no role marks and citation omitted)).

4 5 6 7

in Chief Sands’ selection of saturation patrol locations. Id. at p. 182, ln. 24 to p.183, ln. 4. The ethnic constituency in a neighborhood plays no role in selecting locations for saturation patrols. Id. at p. 183, lns. 6-15. Even with an MCSO emphasis on enforcing laws related to illegal

Arpaio himself has publicly stated, “I always have an official reason, so I can win the lawsuits, and then I have my reason.” Arpaio Dep. I, at 261:14-262:14 [Hickey Reply Dec. Ex. 241].

immigration, the MCSO does not focus or The specific written evidence, in

8

target areas believed to contain a high

most cases not directly addressed

percentage of illegal immigrants. Id. at p. by Defendants, shows that

9

94, ln. 22 to p. 95, ln. 10 (“the [illegal]

Defendants in fact planned

immigration problems that we have are so saturation patrols based on

10

widespread throughout Maricopa County communications they received

there [are] very few places you can go [on expressing racial animus and

11

a saturation patrol] where you are not

calling for racial targeting.

12 13 14 15 16 17 18 19

going to encounter an illegal alien. Whether to focus on a group of people standing on a corner because they look a certain way is not good practice and would certainly be easier to just go up and start grabbing people off the street corner because they are day laborers, but it is not a practice or anything that we condone in the sheriff’s office.”) (emphasis added); see also Deposition of Joseph Sousa dated 12/10/09 at p. 96, ln. 25 to p. 97, ln. 11, attached as Exhibit 5 (areas for saturation patrols are not selected because they may have a high concentration of suspected illegal aliens). Sites for saturation patrols are determined

For example, Sheriff Arpaio received a letter stating, “They have the nerve to say we are racially profiling. Please, it is what it is. If you have dark skin, then you have dark skin. Unfortunately, that is the look of the Mexican illegals who are here illegally.” The letter goes on to say, “I’m begging you to come over to 29th Street/Greenway Parkway area and round them all up.” Sheriff Arpaio forwarded the letter on to Chief Sands with a note that said, “Have someone handle this.” The MCSO then did

20

based on a combination of the following types of information or factors:

do saturation patrols in the area near 29th Street and Greenway.

21

 The area’s crime history and statistics. Pls SOF 78-79.

Id. at p. 71, lns. 9-16; p. 139, ln. 7 to Defendants ignore the other

22

p.140, ln. 5; p. 142; lns. 5-25; and p.

undisputed written evidence of

143, lns. 7-16; see also Deposition of direct causal connections between

23

Joseph Sousa dated 12/10/09 at p. 89, racist complaints and calls for

lns. 20 to p. 91, ln. 23, attached as

racial profiling and MCSO

24

Exhibit 5.

saturation patrols, including the

one in which the MCSO detained

25

 Intelligence and data regarding possible Mr. Ortega Melendres.

26 27 28

criminal activity at the possible site Id. at p. 71, lns 9-16; p. 124, ln. 19 to p. 125, ln. 13; p. 133, lns. 7-19; p. 138, ln. 5 to p. 139, ln. 4; p. 139, ln. 7 to p.140, ln. 5; p. 142, lns. 5-25; p. 143, lns. 7-16;

For example, on or about October 3, 2007, MCSO received an email from Debora B., which had been forwarded by John Kross, the Town Manager of Queen Creek.

137

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 138 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

p. 143, ln. 24 to p.144, 15; and p.146, ln. Debora B. complained that “kids

3

9 to p.147, ln. 15.

passing [] the area . . . have seen

Hispanic man take out cell

4

 Requests for assistance in a particular phones and look like they were

area from Arizona Legislators and

taking a picture of the kids.” She

5

information offered in the request. Id. described Hispanic men being

at p. 133, ln. 23 to p. 134, ln. 9.

“silly” and complained that they

6

“see our cars and children pass

 Requests for assistance from city

everyday.” She stated that these

7

officials for a particular area. Id. at p. 71, Hispanic men “are highly

lns. 9-16.

suspected of being illegal

8

immigrants” and that “the

 Information provided by local police

situation” was making “a lot of

9

officers from other law enforcement

people feel uncomfortable.” Pls.’

agencies. Id. at p. 80, ln. 18 to p. 81, ln. SOF 96. Debora B.’s email

10

2.

focuses expressly and repeatedly

on the Hispanic ethnicity of the

11

 Requests for assistance from private

day laborers in Queen Creek.

citizens in the community providing

Hickey Dec. Ex. 34 (cited in Pls.’

12

information about possible criminal

SOF 96) (e.g., “As I was waiting

activity; but such information provided for the light to turn green a

13

by private citizens is independently

Hispanic man who was standing

evaluated and confirmed by the MCSO. on the SW corner with other

14

Id. at 71, lns. 9-16; p. 79, lns.17-22. In Hispanic men came up to my

evaluating private citizen complaints, passengers side window and, for

15

there is an independent investigation of the lack of a better description,

the complaint made to determine its

jeered at me. He then ran back to

16

legitimacy and whether there is any basis another Hispanic man and

to do anything. Id. at p. 82, lns. 5-23) exchanged high fives while both

17

(“Generally speaking, I [Chief Sands] laughed.”)

18 19 20 21

like to know what is going on in the community as a whole relative to crime before we do a saturation patrol.”); See Deposition of Joseph Sousa dated 12/10/09 at p. 86, ln. 3 to p. 88, ln. 11, attached as Exhibit 5 (discussing the investigation of citizen complaints; that if the citizen is racially profiling and not

Sheriff Arpaio thought that this should be “looked into” even though he could not tell if any crime was being committed. Pls.’ SOF 97. In fact, Deborah B’s email does not describe any crime.

describing any criminal activity, the

Nevertheless, the MCSO then

22

complaint is rejected; the efforts MCSO conducted a sweep in Queen

takes to independently evaluate whether Creek on October 4, 2007. Its

23

criminal activity is taking place);

own Press Release stated,

Deposition of Brian Sands dated

“Today, Maricopa County

24

12/14/09 at p. 81, ln. 3 to p. 85, ln. 6, Sheriff’s Joe Arpaio’s Office

attached as Exhibit 14 (providing a

Illegal Immigration Interdiction

25

detailed discussion of the MCSO

Unit Triple I, responding to

rejecting racially motivated tips that

Queen Creek citizen complaints

26

provide no evidence of criminal

regarding day laborers harassing

activity).

school children at a bus stop,

27

arrested 16 more illegal aliens

More specifically as to how the MCSO

under the federal immigration

28 138

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 139 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

handles citizen complaints that may be

laws. Citizens complained that

3

made by persons with racial prejudice, Chief day laborers are shouting at the

Brian Sands testified as follows:

children and photographing them

4 5

“Q. How do you satisfy yourself that a complaint that you are about to act on was not motivated by race or ethnicity?

at the bus stop. Sheriff’s deputies contacted the 16 illegals during traffic investigations.” Hickey Dec. Ex. 10, cited in Pls.’ SOF

6

A. I ignore it, unless there is some type 53. As an internal MCSO email

of crime relative to it that would still lead described the operation: “On

7

to the discovery of that crime, not

10/04/07 HSU conducted a detail

excluding the person or the information

in the town of Queen Creek based

8

source’s information for giving us that

on e-mails from the town council

information. To ignore all information

in reference to the day laborers in

9

would be contrary to good law enforcement. their city. There were four traffic

10 11

Q. So even if you have reason to believe that a complaint may be motivated by racism, you would not discount the complaint solely on that basis?

stops made from UC vehicles relaying that day laborers were picked up from the area of Ocotillo and Ellsworth. Once the pick up vehicle was located by

12

A. If the complaint is racial only in MCSO marked patrol units,

itself, there is no follow-up done on it.

Deputies would establish

13

There is no need to follow up on a

probable cause for a traffic stop.

complaint about someone that is Irish or Once the vehicle was stopped

14

Jewish or ethnically Mexican that lives in a HSU detectives would interview

house with a whole group of other people. I the subjects in the vehicles in

15

mean, there is no need to follow up. That reference to their legal status to

would be – there is no crime involved.

be in the US. Once it was

16 17 18

Q. If you believe a crime may be involved, you might pursue that tip even though you have reason to believe that the tip was also made on some improper consideration of race or ethnicity?

determined that they were in the US illegally, they were taken into custody under Immigration law. A total of sixteen individuals were taken into custody and will be taken to ICE for processing.”

19

A. Keep in mind I am not supporting Hickey Dec. Ex. 39, cited in Pls.’

racial or prejudicial attitudes in the

SOF 98.

20 21 22 23 24 25 26 27 28

community at all when I say this, but sometimes the information sources that we end up using in law enforcement are people that are in involved in – in criminal elements in their community or neighborhood they live in and oftentimes these people give us information. It can be corroborated to solve a murder or human smuggling case, that person may be, in fact, motivated for ulterior motives of his own, and I am just being honest with you in saying that he may be racially prejudiced at the same time and its- it would be hard to disqualify that information and say that the information source doesn’t like certain groups of

Defendants do not offer any evidence to refute this direct, contemporary documentary evidence that a citizen complaint of being made to feel “uncomfortable” about Hispanics who were doing nothing illegal led directly to an operation in Queen Creek designed to apprehend illegal immigrants (as to whom there is no evidence that they were even the ones doing the jeering or laughing) through the use of pretextual traffic stops (i.e., upon hearing that Hispanic day laborers had been picked up,

139

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 140 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

people so we are not going to- we are not “Deputies would establish

3

going to investigate the crime that he very probable cause for a traffic

well be a witness to.”

stop”).

4

Deposition of Brian Sands dated 12/14/09 at The Cave Creek operation

5

p. 82, ln. 24 to p. 84, ln. 12, attached as Exhibit 14 (emphasis added).

(during which Mr. Ortega Melendres was stopped) is

6

Chief Sands further testified:

mentioned in the same MCSO news release that was done for

7

“Q. Are you aware of your office having the Queen Creek saturation received tips relating to illegal immigration patrol. See Pls.’ SOF 53 (citing

8

that have come from persons or members of Hickey Dec. Ex. 10) (“The Queen

groups that have expressed hatred for

Creek operation comes on the

9 10 11 12 13 14 15 16 17 18

illegal immigrants? A. I don’t typically receive all these tips or the communication so it is hard for me to analyze what motivates people that are giving us information. I will say, though, that I have sat in on m eetings over tips that have come in and when there is no need to follow up on something based n the caller’s information and it only attributed—the information is only attributed to somebody’s ethnicity or appearance, we don’t follow up on it. Whether those are racially motivated complaints, I wouldn’t know. But when the information is only such directed towards a group of people or a business or—and just solely on their race or ethnicity, we don’t follow-up on it.” Deposition of Brian Sands dated 12/14/09 at

heels of Sheriff Arpaio’s enforcement efforts in . . . Cave Creek where day laborers sought sanctuary at the Good Shepherd of Hills church.”) The same racial considerations thus underlay the Cave Creek operation as well. See Defs.’ Resp. to Pls.’ SOF 176 (noting that the operation was based on citizen complaints about day laborers). Deputy DiPietro, who stopped the car carrying Mr. Ortega Melendres, was in the Cave Creek area to apprehend people looking for work at the Good Shepherd of the Hills Church. Pls.’ SOF 172. The MCSO stated Defendants’ Motion for Summary Judgment

19

p. 84, ln. 24 to p. 85, ln. 16, attached as Exhibit 14 (emphasis added).

that “When a HSU surveillance unit observed the white truck stop

20

at the church and pick up Mr. Melendres and three other men it

21

radioed MCSO Deputy Louis DiPietro in his patrol car and

22

assigned him to follow the truck (in which Mr. Melendres was a

23

passenger) and to look for probable cause to make a traffic

24

stop of the truck.” Id. at p. 5. MCSO’s investigation in Cave

25

Creek prior to the Ortega Melendres stop had revealed no

26

information pertaining to human smuggling, drop houses, or even

27

illegal immigration. Pls.’ SOF 173 (Hickey Dec. Ex. 139) (“On

28

both days, there was no

140

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 141 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 141

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
information discovered pertaining to forced labor, human smuggling or possible ‘drop houses’.”). The only information came from “an unidentified Hispanic male” who stated that day laborers waited at the church for work. Yet the MCSO went ahead with the Cave Creek operation anyway, apparently based simply on the observation that the people at the church were Hispanic and day laborers. Pls.’ SOF 173 (Hickey Dec. Ex. 139). Although the Cave Creek operation was based on citizen complaints, see Defs.’ Resp. to Pls.’ SOF 176, no written complaints have been produced to Plaintiffs regarding this operation, which suggests that the complaints that led to the Cave Creek operation, unlike Deborah B’s email about Queen Creek, were not preserved. The MCSO conducted another the saturation patrol in Sun City on August 13-14, 2008, after receiving a request from Gail v. that the MCSO “check out Sun City” because people were speaking Spanish at a local McDonald’s. Sheriff Arpaio annotated the letter with instructions to send a thank you letter to Gail v. saying “Will look into it.” He also forwarded Gail v.’s letter to Chief Sands with the notation “for our operation.” That “operation,” of course, was the Sun City saturation patrol. Pls.’ SOF 83-86. Other letters targeting Hispanics led to the MCSO’s two saturation patrols in Mesa during the summer of 2008. Pls.’ SOF 95. Those patrols came after Sheriff Arpaio received a letter, which he forwarded to Chief Sands as “intelligence,” asking that the MCSO “stop in order to

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 142 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 142

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
determine whether these day laborers [in Mesa] are here under legitimate circumstances.” Pls.’ SOF 87. Another letter noted that “the head of Mesa’s “police union” was Hispanic” and that, “This is what you get from Mesa.” The letter called for a “sweep” in Mesa. Chief Sands admits that the letter writer believed that certain people standing on street corners in Mesa were illegal aliens because they were “dark-complected.” Pls.’ SOF 92. To all of this, Sheriff Arpaio responded, in his note to Chief Sands referring to a thank you note to Jack Se, “I will be going into Mesa.” Pls.’ SOF 93. An MCSO news release announcing the first Mesa operation said that Sheriff Arpaio was sending his officers there “[i]n keeping with his promise to the public . . . ..” See Hickey Dec. Ex. 205. Defendants admit that Sheriff Arpaio received these letters, that Sheriff Arpaio sent them to Chief Sands as “intelligence” relevant to the MCSO’s “operations,” that Sheriff Arpaio and Chief Sands decided to “go into” the particular locales mentioned in these letters, and that the “sweeps” called for in these letters did then occur. These letters do not describe crimes, as there is nothing illegal about speaking Spanish or being “dark-complected.” Abstract protestation about the allegedly race neutral decision-making in the MCSO cannot rebut the specific written evidence about these particular incidents. Indeed, Defendants admit that they do not make saturation patrol plans based on comparative analysis of crime or traffic hazards. See Pls.’ SOF 107 and

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 143 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3 76 Admit.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Defendants’ Response thereto.

4 77 Admit.

5 78
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed.

Controverting Statement: Defendants do not dispute that private citizen Gina M. authored a letter dated June 24, 2008 that contained the referenced language, and requested a saturation patrol at the area specific, and that she sent that letter to Arpaio. Defendants, however, dispute that: (1) Plaintiffs have fully and accurately characterized the contents of the letter; (2) that Arpaio supposedly agreed with the racially charged language in Gina M.’s letter; and (3) that Gina M.’s letter had a causal link to a saturation patrol that occurred near the area identified in her letter.

Gina M.’s letter identified gunshots and criminal activity in the area where she requested a saturation patrol. See Deposition of Joseph M. Arpaio dated 11/16/10 at p. 115, ln. 8 to p. 116, ln. 24, attached as Exhibit 15. Chief Brian Sands testified that Gina M.’s letter, while stating her perception that illegal aliens were the cause of crime in the area did state facts indicative of criminal activity and appropriate of independent evaluation by the MCSO See Deposition of Brian Sands dated 11/15/10 at p. 97, ln. 19 to p. 98, ln. 16, attached as Exhibit 18. Chief Sand does not remember if he took any action in response to Gina M.’s letter. Id. at p. 95, lns. 17-19.

As for the racially charged language, when Plaintiffs asked Arpaio whether he agreed with it, Arpaio stated No. Exhibit 15 (Arpaio II Depo) at p. 118, ln. 8 to p. 119, ln. 2.

Finally, as for Plaintiffs’ argument that Gina

M’s letter caused or was a cause of the

MCSO conducting a the requested area of

s2a9tuthraStitorenept/aGtrroelennewaary

Parkway, that argument is inaccurate.

GininthaeMa’rsealeottfe2r 9rethqSuterseteint/gGareseantuwraaytioPnarpkawtraoyl

is dated June 24, 2008. The saturation

143

Not genuinely disputed.
Defendants do not deny that on or about June 24, 2008, Sheriff Arpaio received a letter from Gina M., in which she stated, “They have the nerve to say we are racially profiling. Please, it is what it is. If you have dark skin, then you have dark skin. Unfortunately, that is the look of the Mexican illegals who are here illegally,” and that the letter goes on to say, “I’m begging you to come over to 29th Street/Greenway Parkway area and round them all up.” Defendants’ response admits that “the MCSO conducted . . . saturation patrols later in time [i.e., after the letter] in that area requested by Gina M.” Defendants also admit that “it is possible that the MCSO used Gina M.’s letter in its decisionmaking process about whether to do a saturation patrol in the area.” Defendants citation of “gunshots” and unspecified other “crimes” does not raise any genuine factual dispute. Gina M.’s letter (Hickey Dec. Ex. 23) states, “They fire gunshots in the air and play their loud obnoxious noise they call music which disrupts the LEGAL LAW ABIDING CITIZENS,” and “This is my neighborhood and they have destroyed my peace of mind! They crawl around here all day and night, I’m always hearing gunshots fired from the complex they all live in. I’m sure there is plenty probably [sic] cause to stop them to begin with. PLEASE, PLEASE come

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 144 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

3 4 5 6 7 8 9 10 11 12

patrol that the have possibly

cMovCeSrOedctohnedaurcetaeodfth2a9tthwould

Street/Greenway Parkway was the MCSO

saturation patrol that was centered at Cave

Creek and Bell Road in March, 2008—

nearly four (four) months before Gina M

ever wrote her letter. See Deposition of

Brian Sands dated 11/15/10 at p. 99, lns. 8-

15, attached as Exhibit 18. While the

MCSO conducted other saturation patrols

later in time in that area requested by Gina

M, Chief Sands does not recall whether

Gina M.’s letter was used as source for

MCSO analysis as to whether to conduct

those saturation patrols. Id. at p. 99, ln. 16

to p. 104, ln. 22. At most, it is possible that

the MCSO used Gina M.’s letter in its

decision- making process about whether to

do a saturation patrol in the area. Chief

Sands explained:

over to this area and help us!” Assuming that the gunshots described in Gina M.’s letter were a crime, her letter might well have justified further investigation at the “complex” where the gunshots had been fired. However, Defendants do not present any evidence that the gunshots in that particular complex would justify saturation patrols, which involve stopping cars on the road for traffic and vehicle violations. Such saturation patrols would not have any utility in addressing gunshots regularly fired in an apartment complex. Chief Sands in fact admitted that he does not recall the MCSO dealing with or

13

“Q. If you get a letter like this from a member of the public begging you, or

making contact with anyone over the issue of gunshots being fired

14

begging the sheriff’s office, to come to a in the areas of 29th Street and particular location, would that play a role Greenway Parkway. Sands Dep.

15

in your decision making about where to have a crime saturation patrol?

II at 104:23-105:9 [Defs.’ Resp. to Pls.’ SOF Ex. 18]. The

16 17 18

A. If there are shots being fired out on an apartment complex on a routine basis, it might be something that we’d utilize to do a saturation patrol. Q. So you could have used this letter in

MCSO’s saturation patrols in that area were not aimed at apprehending those who fired gunshots or committed the other unspecified “crimes” at all, but instead were directed at the

19

your decision-making process about where “dark-skinned” people playing

to do a saturation patrol?

the “loud obnoxious” music about

20

A. Oh, certainly. That’s a serious

which Gina M.’s letter complains.

crime. People randomly shooting off guns

21

is and has been a big problem in this

community. We’ve had people murdered

22

by falling bullets. People do get concerned

about that. And that’s why the state, I

23

think, tow years ago, enacted it as a felony

offense.”

24

Id. at p. 104, lns. 3-22 (emphasis added).

25

In addition, Defendants further herein

incorporate by this reference their Response

26

and Controverting Statement as to

Plaintiffs’ Statement of Fact No. 25 at

27

section (B) set forth above.

28 144

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 145 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2
79

Statement Of Fact Disputed.

Not genuinely disputed.

3

Controverting Statement: Defendants

4 5

further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 78 set forth above.

Defendants do not deny that Sheriff Arpaio forwarded Gina M’s letter on to Chief Sands with a note that said, “Have someone

6

handle this,” because, according

to him, he was “building up

7

intelligence on crime areas in the

city,” and that the MCSO did

8

saturation patrols in the area near

29th Street and Greenway.

9

See also Pls.’ Reply to Defs.’

10

Resp. to Pls.’ SOF 78 above.

80 Disputed.

Not genuinely disputed.

11

Controverting Statement. While

12 13 14 15

Defendants do not dispute the cited date or portion of Stella C.’s letter and Arpaio’s receipt of the same, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the racial language in Stella C.’s letter and/or that Stella’s C.’s letter had an causal link to any official MCSO action.

Defendants do not deny that, on or about May 26, 2009, Sheriff Arpaio received a letter from a Stella C., stating, in part, “On this particular day, all of a sudden a large amount of these Mexicans swarmed around my car, and I was so scared and alarmed, and

16

In addition, Defendants further herein

the only alternative I had was to

incorporate by this reference their Response manually direct them away from

17

and Controverting Statement as to

my car.”

18

Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing

19

Objections: Defendants object to document the MCSO’s endorsement of calls Melendres MCSO 074346, Ex. 19 to Arpaio for racial profiling and its

20

Depo. II, as inadmissible hearsay without reference to them in planning any exception (Defendants do not object to saturation patrols.

21

any comments or notes written by Arpaio on the hearsay communication). See Cox v.

Response to Objections:

22

Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants

Defendants’ hearsay objections are not well taken. The letter is

23

further object to the document on the grounds of relevance. The document is

part of Sheriff Arpaio’s communication to Chief Trombi

24

immaterial to whether the Fourteenth

in which Sheriff Arpaio asked

Amendment rights of the named Plaintiffs Chief Trombi to contact Stella C.

25

were violated.

It is both an admission and a business record. See Fed. R.

26

Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio

27

selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s

28

state of mind. The statements

145

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 146 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

12 81 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment. Not genuinely disputed.

13

Controverting Statement. While

14 15 16 17 18

Defendants do not dispute that Arpaio forwarded the May 26, 2009 letter of Stella C. to Chief David Trombi and directed him to keep the letter and contact the author and the letter indicates no criminal activity, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the racial language in Stella C.’s letter and/or that Stella’s C.’s letter had an causal link to any official MCSO action.

Defendants admit that Sheriff Arpaio forwarded the May 26, 2009 Stella C. letter on to Chief Deputy Trombi with a note for him to keep a file on these complaints, and also to have him contact Stella C, and that no crime was actually described in the letter.

19 20 21

In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

22 82
23 24 25 26 27 28

Disputed. Controverting Statement. While Defendants do not dispute the cited date or portion of Bob and Lynette W’s letter, Arpaio’s receipt of the same, and that Arpaio forward the letter to Chief Brian Sands, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the contents of the letter and/or that the letter had any causal link to any official MCSO action. In addition, Defendants further herein
146

Not genuinely disputed.
Defendants admit the contents of the August 8, 2008 letter an “immigrant sweep” in Surprise at Grand and Greenway and that Sheriff Arpaio received the request and forwarded to Chief Sands. See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 147 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

incorporate by this reference their Response the MCSO’s endorsement of calls

3

and Controverting Statement as to

for racial profiling and its

Plaintiffs’ Statement of Fact No. 25 at

reference to them in planning

4

section (B) set forth above.

saturation patrols.

5 6 7 8 9 10 11

Objections: Defendants object to document Melendres MCSO 76087, Ex. 21 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.

Response to Objections: Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s communication to Chief Sands and is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff

Arpaio are not introduced for the

12

truth of the matters stated therein;

in fact, Plaintiffs disagree with

13

many of those statements.

Rather, they provide context for

14

Sheriff Arpaio’s own statements

and show his intent. Thus, these

15

statements are therefore not

hearsay, and do not require a

16

hearsay exception for admission.

See Fed. R. Evid 801(c); Arteaga,

17

117 F.3d at 396 (9th Cir. 1997);

Elekwachi, 1997 WL 174160 (9th

18

Cir. Apr. 2, 1997); Allison, 1982

WL 1560 (D. Or. Jan. 17, 1982).

19

They are directly relevant on their

face to Plaintiffs’ claims under

20

the Fourteenth Amendment.

21 83
22 23 24 25 26 27 28

Disputed. Controverting Statement. While Defendants do not dispute the cited date or portion of Gail V.s letter, and Arpaio’s receipt of the same, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio supposedly agreed with the contents of the letter and/or that the letter had any causal link to any official MCSO action. In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at
147

Not genuinely disputed.
Defendants admit that Sheriff Arpaio received Gail v.’s August 1, 2008 letter complaining about people speaking Spanish at McDonald’s in her area and telling Arpaio that he should “check out Sun City.” See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 148 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

section (B) set forth above.

reference to them in planning

3

Objections: Defendants object to document saturation patrols.

4 5 6 7 8 9

Melendres MCSO 076091, Ex. 11 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.

Response to Objections: Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s communication to Chief Sands telling him that it was information “for our operation” in Sun City, and is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’

10

SOF 24), shows Sheriff Arpaio’s

state of mind. The statements

11

from persons other than Sheriff

Arpaio are not introduced for the

12

truth of the matters stated therein;

in fact, Plaintiffs disagree with

13

many of those statements.

Rather, they provide context for

14

Sheriff Arpaio’s own statements

and show his intent. Thus, these

15

statements are therefore not

hearsay, and do not require a

16

hearsay exception for admission.

See Fed. R. Evid 801(c); Arteaga,

17

117 F.3d at 396 (9th Cir. 1997);

Elekwachi, 1997 WL 174160 (9th

18

Cir. Apr. 2, 1997); Allison, 1982

WL 1560 (D. Or. Jan. 17, 1982).

19

They are directly relevant on their

face to Plaintiffs’ claims under

20

the Fourteenth Amendment.

21 84
22 23 24 25 26 27 28

Disputed. Controverting Certificate: While Defendants do not dispute that the letter contained no evidence of criminal activity and that Arpaio wrote the thank you note with the cited language, they dispute that Arpaio supposedly agreed with the contents of the letter and/or that the letter had any causal link to any official MCSO action. Arpaio, via his secretary, normally writes “thank-you” notes or letters to all people that write to him. See Deposition of Joseph Arpaio dated 11/16/10 at p. 16, ln. 15 to p. 17, ln. 12, attached as Exhibit 15. Arpaio
148

Not genuinely disputed.
Defendants admit that Gail v.’s letter did not describe any criminal activity and that Sheriff Arpaio wrote a note on the letter stating “Letter, thank you for the info. Will look into it.” See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 149 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

forwards the letter to people in his office saturation patrols.

3

when he believes the letter may be of

interest to them. Id. at p. 21, ln. 9 to p. 22,

4

ln. 4. The testimony amply demonstrates

that Arpaio does not agree with, adopt, or

5

endorse everything that a person writes to

him in a letter. Id. at p. 23, lns. 5-23 (“This

6

is their comment, not mine.”); (as to

whether he agrees with a comment, “No, I

7

have no idea what he’s talking about.”); (as

to whether he disagrees with a comment, “I

8

have no comment at all on that [as to

whether he disagreed with a letter’s

9

statement]. Many people write me letter

and make different comments and

10

opinions.”)

11 12 13
85
14 15 16 17 18 19 20 21 22 23

In addition, Defendants further herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above. Disputed. Controverting Statement. While Defendants do not dispute the cited evidence, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio acted solely on requests from private citizens to conduct saturation patrols. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

Not genuinely disputed.
Defendants do not deny that Sheriff Arpaio passed Gail v.’s letter complaining about people speaking Spanish at the McDonald’s in Sun City on to Chief Sands with a handwritten notation “for our operation,” and that Chief Sands testified that he understands that he is expected “to do whatever [he] can about a citizen’s complaint.” See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

24 86 Admit in part and disputed in part.

Not genuinely disputed.

25 26 27

Controverting Statement: While Defendants admit they conducted a saturation patrol in Sun City on August 1314, 2008, they deny that the citizen communications contained within statement nos. 82 and 83 were the cause of such

Defendants admit that the MCSO conducted a saturation patrol in Sun City on August 13 and 14, 2008.

28

patrol and the evidence cited by Plaintiffs See also Pls.’ Reply to Defs.’

149

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 150 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

does not establish such conclusion. The

Resp. to Pls.’ SOF 25, describing

3

evidence shows that Defendants determine the MCSO’s endorsement of calls

where to conduct a saturation patrol on for racial profiling and its

4

race-neutral factors. Defendants herein reference to them in planning

incorporate by this reference their Response saturation patrols.

5

and Controverting Statement as to

Plaintiffs’ Statement of Fact No. 25 at

6

section (B) set forth above.

7 87
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Admit. Objections: Defendants object to document Melendres MCSO 75403-04, Ex. 23 to Arpaio Depo. II, as inadmissible hearsay without any exception (Defendants do not object to any comments or notes written by Arpaio on the hearsay communication). See Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs were violated.

Pls.’ SOF 87 is admitted.
Response to Objections: Defendants’ hearsay objections are not well taken. The letter is part of Sheriff Arpaio’s communication to Chief Sands, to whom he forwarded it, and is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment.

25 88 89
26
27
28

Admit Disputed. Controverting Statement: While Defendants do not dispute this statement as to its accurate description of Chief Brian Sands’ testimony, they dispute that it shows
150

Not genuinely disputed. Defendants do not dispute Chief Sands’ testimony that he cannot

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 151 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

racially discriminatory intent or motive of think of an instance in which the

3

Chief Sands or the MCSO law enforcement MCSO arrested a day laborer who

policies to enforce law relating to illegal

was not Hispanic.

4

immigration.

Defendants’ response confirms

5

MCSO deputies testified that it was their that they conflate day laborers, professional law enforcement experience, Hispanics and illegal immigrants,

6

not merely their unfounded beliefs, that most day laborers or most illegal

and supports Plaintiffs’ view that the MCSO’s practices violate the

7

immigrants in Maricopa County are from Mexico. For example, Deputy Louis

Fourteenth Amendment. Just because most illegal immigrants

8

DiPietro testified that, in his experience,

in Maricopa County are

most day laborers in Maricopa County are Hispanics does not mean it is

9

from Mexico or Central or South America. lawful to target Hispanics on that

See Deposition of Louis DiPietro dated

basis.

10

10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13. Deputy Carlos Rangel, based on

11

his experience, shares this observation. See Deposition of Carlos Rangel dated 10/20/09

12

at p. 93, ln. 24 to p. 94, ln. 1, attached as Exhibit 11. It is the law enforcement

13

experience of others in the MCSO that most illegal immigrants in Maricopa County

14

originate from Mexico or Central or South America. See, e.g., Deposition of Manual

15

Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett

16

Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of Brian

17

Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph

18

Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because

19

of the proximity to the border, I believe it’s a fact that many people arrested here, in the

20

state of Arizona, border area, may come from Latin America or Mexico.”);

21

Deposition of Joseph Arpaio dated 12/16/09 at p. 9, lns. 17-23; p. 219, lns. 1-12,

22

attached as Exhibit 16.

This law enforcement experience by MCSO

23

personnel is neither surprising nor indicative

of racially discriminatory intent, motive, or

24

animus by those persons. It is undisputed

that Arizona is a border state near the

25

Republic of Mexico, Maricopa County is a

major human smuggling corridor, and the

26

objective, race-neutral evidence shows

that “[i]t is well established that illegal

27

immigrants in Arizona and in the United

States as a whole are overwhelmingly

28 151

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 152 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Hispanic. The Pew Hispanic center has

3

estimated that 94 percent of illegal

immigrants in Arizona are from Mexico

4

alone, not including the rest of Latin

America.” See Defendants’ Statement of

5

Facts (Dkt# 413-1) at Ex. 19 (Dr. Camarota

Report) at pg. 14; DSOF (Dkt#413-1) at Ex.

6

20 (Camarota deposition) at p. 122, lns. 13-

16 (foundation for his report); See also

7

Defendants’ Statement of Facts (Dkt#413-1)

at the Report of Ben Click dated January 21,

8

2011, at pg 49, attached thereto as Exhibit

16 (“Major smuggling corridors have

9

been identified that lead from the Mexico

border to Maricopa County and

10

beyond.”); See also March 18, 2011

Deposition of Defense Expert Ben Click at

11

p. 341, ln. 24 to p. 342, ln. 14, attached as

Exhibit 17 to Dkt#413-1 (wherein Mr. Click

12

testified to the foundation for his opinions

and that his opinions in the report were the

13

same he would provide at trial to a

reasonable degree of probability in his field

14

of expertise).

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

15 90
16 17 18 19 20 21

Disputed. Controverting Certificate. The evidence that Plaintiffs cite does not support the statement that Arpaio asked for “police action against the day laborers” based on the “intelligence.”

Not genuinely disputed. The cited testimony and document fully support Pls.’ SOF 90 . See Hickey Dec. Ex. 15, at. 157:1-3 (“I [Arpaio] do send this information to him [Sands] as backup and intelligence so he can decide what action to take.”); Hickey Dec. Ex. 28 (Mike S. letter asking for police to check day laborers and praising MCSO for coming into Mesa).

22 91 Disputed.

Not genuinely disputed.

23 24 25 26 27 28

Controverting Statement. While Defendants do not dispute the cited evidence, they do dispute, as Plaintiffs use this statement in their motion, that Arpaio acted solely on requests from private citizens to conduct saturation patrols. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to

Defendants do not dispute that Sheriff Arpaio received a May 24, 2008 letter from Jack Se., whom Arpaio had corresponded with before, stating that Mesa needs a “sweep . . .terribly,” that Jack Se. noted that the head of Mesa’s police union is Hispanic and commented, “This is what

152

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 153 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Plaintiffs’ Statement of Fact No. 25 at

you get from Mesa,” and that

3

section (B) set forth above.

Jack S. criticized a Hispanic

4 5

Objections: Defendants object to document Melendres MCSO 76195, Ex. 22 to Arpaio Depo. II, as inadmissible hearsay without

officer for refusing to arrest “30+ illegals” because they were just “standing there.”

any exception (Defendants do not object to See also Pls.’ Reply to Defs.’

6

any comments or notes written by Arpaio on Resp. to Pls.’ SOF 25, describing the hearsay communication). See Cox v. the MCSO’s endorsement of calls

7

Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005). Defendants

for racial profiling and its reference to them in planning

8 9

further object to the document on the grounds of relevance. The document is immaterial to whether the Fourteenth Amendment rights of the named Plaintiffs

saturation patrols. Response to Objections: Defendants’ hearsay objections

10

were violated.

are not well taken. The letter is part of Sheriff Arpaio’s

11

statement, sent to Chief Sands, that he “will be going into Mesa,”

12

and is both an admission and a business record. See Fed. R.

13

Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio

14

selected to retain in his file (Pls.’ SOF 24), shows Sheriff Arpaio’s

15

state of mind. The statements from persons other than Sheriff

16

Arpaio are not introduced for the truth of the matters stated therein;

17

in fact, Plaintiffs disagree with many of those statements.

18

Rather, they provide context for Sheriff Arpaio’s own statements

19

and show his intent. Thus, these statements are therefore not

20

hearsay, and do not require a hearsay exception for admission.

21

See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997);

22

Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982

23

WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their

24

face to Plaintiffs’ claims under the Fourteenth Amendment.

25 92 Admit.

26 93
27 28

Admit in part and deny in part. Controverting Statement: While Defendants admit they conducted a saturation patrol in Mesa at the cited time
153

Not genuinely disputed. Defendants do not dispute that, in response to Jack Se.’s letter,

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 154 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

periods, they deny that actual or perceived Arpaio wrote, “I will be going

3

racially prejudiced statement made by third into Mesa” and sent a copy of the

parties were the cause of such patrol and the letter to Chief Sands, with the

4

evidence cited by Plaintiffs does not

intention of drawing Sands’

establish such conclusion. The evidence

attention to Mr. Se.’s concerns.

5 6 7 8

shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

9 94 95
10 11 12 13 14 15 16 17

Admit. Admit in part and deny in part. Controverting Statement: While Defendants admit they conducted a saturation patrol in Mesa at the cited time periods, they deny that actual or perceived racially-prejudiced statements made by third parties were the cause of such patrol and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

Not genuinely disputed. Defendants do not dispute that, on June 26-27, 2008 and July 14, 2008, MCSO conducted largescale saturation patrols in Mesa. They also do not deny that an MCSO news release announcing the first Mesa operation said that Sheriff Arpaio was sending his officers there “[i]n keeping with his promise to the public and to east valley state legislators.” See Hickey Dec. Ex. 205.

18 96 Disputed.

Not genuinely disputed.

19 20 21 22 23 24 25 26 27

Controverting Statement: While Defendants do dispute that the MCSO received a letter dated October 3, 2007 from Debora B. that had been forwarded by the Town Manager of Queen Creek and that Debora B. made the cited statements, they deny that actual or perceived raciallyprejudiced statements made by third parties were the cause of saturation patrols and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

Defendants do not dispute that, on or about October 3, 2007, MCSO received an email from Debora B., which had been forwarded by John Kross, the Town Manager of Queen Creek. Debora B. complained that “kids passing [] the area . . . have seen Hispanic man take out cell phones and look like they were taking a picture of the kids.” She described Hispanic men being “silly” and complained that they “see our cars and children pass everyday.” She stated that these Hispanic men “are highly suspected of being illegal

28

154

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 155 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Objections: Defendants object to

immigrants” and that “the

3

document Melendres MCSO 75244-47, Ex. situation” was making “a lot of

30 to Arpaio Depo. II, as inadmissible

people feel uncomfortable.”

4

hearsay without any exception (Defendants Hickey Dec Ex. 34. Debora B.’s

do not object to any comments or notes

email focuses expressly and

5

written by Arpaio on the hearsay

repeatedly on the Hispanic

communication). See Cox v. Amerigas

ethnicity of the day laborers in

6

Propane, Inc., 2005 U.S. Dist. LEXIS

Queen Creek. Hickey Dec. Ex.

26344 (Ariz. 2005). Defendants further 34 (e.g., “As I was waiting for the

7

object to the document on the grounds of light to turn green a Hispanic man

relevance. The document is immaterial to who was standing on the SW

8

whether the Fourteenth Amendment rights corner with other Hispanic men

of the named Plaintiffs were violated.

came up to my passengers side

9

window and, for the lack of a

better description, jeered at me.

10

He then ran back to another

Hispanic man and exchanged

11

high fives while both laughed.”)

12

Sheriff Arpaio thought that this should be “looked into” even

13

though he could not tell if any crime was being committed. Pls.’

14

SOF 97. In fact, Deborah B’s email does not describe any

15

crime.

Nevertheless, the MCSO then

16

conducted a sweep in Queen

Creek on October 4, 2007. Its

17

own Press Release stated,

“Today, Maricopa County

18

Sheriff’s Joe Arpaio’s Office

Illegal Immigration Interdiction

19

Unit Triple I, responding to

Queen Creek citizen complaints

20

regarding day laborers harassing

school children at a bus stop,

21

arrested 16 more illegal aliens

under the federal immigration

22

laws. Citizens complained that

day laborers are shouting at the

23

children and photographing them

at the bus stop. Sheriff’s deputies

24

contacted the 16 illegals during

traffic investigations.” Hickey

25

Dec. Ex. 10, cited in Pls.’ SOF

53. As an internal MCSO email

26

described the operation: “On

10/04/07 HSU conducted a detail

27

in the town of Queen Creek based

on e-mails from the town council

28 155

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 156 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 156

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
in reference to the day laborers in their city. There were four traffic stops made from UC vehicles relaying that day laborers were picked up from the area of Ocotillo and Ellsworth. Once the pick up vehicle was located by MCSO marked patrol units, Deputies would establish probable cause for a traffic stop. Once the vehicle was stopped HSU detectives would interview the subjects in the vehicles in reference to their legal status to be in the US. Once it was determined that they were in the US illegally, they were taken into custody under Immigration law. A total of sixteen individuals were taken into custody and will be taken to ICE for processing.” Hickey Dec. Ex. 89, cited in Pls.’ SOF 98.. Defendants do not offer any evidence to refute this direct, contemporary documentary evidence that a citizen complaint of being made to feel “uncomfortable” about Hispanics who were doing nothing illegal led directly to an operation in Queen Creek designed to apprehend illegal immigrants (as to whom there is no evidence that they were even the ones doing the jeering or laughing) through the use of pretextual traffic stops (i.e., upon hearing that Hispanic day laborers had been picked up, “Deputies would establish probable cause for a traffic stop”). Response to Objections: Defendants’ hearsay objections are not well taken. The email string is both an admission and a business record. See Fed. R. Evid. 801(d)(2), 803(6). The letter, which Sheriff Arpaio selected to retain in his file (Pls.’

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 157 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

12

13 97 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
SOF 24), shows Sheriff Arpaio’s state of mind. The statements from persons other than Sheriff Arpaio are not introduced for the truth of the matters stated therein; in fact, Plaintiffs disagree with many of those statements. Rather, they provide context for Sheriff Arpaio’s own statements and show his intent. Thus, these statements are therefore not hearsay, and do not require a hearsay exception for admission. See Fed. R. Evid 801(c); Arteaga, 117 F.3d at 396 (9th Cir. 1997); Elekwachi, 1997 WL 174160 (9th Cir. Apr. 2, 1997); Allison, 1982 WL 1560 (D. Or. Jan. 17, 1982). They are directly relevant on their face to Plaintiffs’ claims under the Fourteenth Amendment. Not genuinely disputed.

14

Controverting Statement: While the

15 16 17 18 19

Defendants do not dispute the cited information, it is misleading as used in Plaintiffs’ motion because the evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

Defendants do not dispute that Sheriff Arpaio said he could not tell if any crime had been committed based on Deborah B.’s email, and that he nevertheless said that the message was passed on to his people to “look into further” and that MCSO “would be remiss in our duties not to respond.”.

20 21 22
23 98

Disputed.

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Not genuinely disputed.

24

25 26 27 28

Controverting Statement: While Defendants do not dispute that statement, it is misleading and mischaracterizes the evidence. Emails from town council members are just one consideration in determining whether and where to conduct a saturation patrol. Defendants deny that

Defendants do not genuinely dispute Pls.’ SOF 98, which states that, on October 4, 2007, MCSO conducted a saturation patrol in Queen Creek based on “e-mails from the town council in reference to the day laborers in

157

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 158 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

actual or perceived racially- prejudiced

their city.”

3 4 5 6 7 8

statements made by third parties were the cause of such patrol and the evidence cited by Plaintiffs does not establish such conclusion. The evidence shows that Defendants determine where to conduct a saturation patrol on race-neutral factors. Defendants herein incorporate by this reference their Response and Controverting Statement as to Plaintiffs’ Statement of Fact No. 25 at section (B) set forth above.

The undisputed documentary evidence shows that, on or about October 3, 2007, MCSO received an email from Debora B., which had been forwarded by John Kross, the Town Manager of Queen Creek. Debora B. complained that “kids passing [] the area . . . have seen Hispanic man take out cell phones and look like they were taking a picture of

9

the kids.” She described Hispanic men being “silly” and complained

10

that they “see our cars and children pass everyday.” She

11

stated that these Hispanic men “are highly suspected of being

12

illegal immigrants” and that “the situation” was making “a lot of

13

people feel uncomfortable.” Hickey Dec Ex. 34. Debora B.’s

14

email focuses expressly and repeatedly on the Hispanic

15

ethnicity of the day laborers in Queen Creek. Hickey Dec. Ex.

16

34 (e.g., “As I was waiting for the light to turn green a Hispanic man

17

who was standing on the SW corner with other Hispanic men

18

came up to my passengers side window and, for the lack of a

19

better description, jeered at me. He then ran back to another

20

Hispanic man and exchanged high fives while both laughed.”)

21

Sheriff Arpaio thought that this

should be “looked into” even

22

though he could not tell if any

crime was being committed. Pls.’

23

SOF 97. In fact, Deborah B’s

email does not describe any

24

crime.

25

Nevertheless, the MCSO then conducted a sweep in Queen

26

Creek on October 4, 2007. Its own Press Release stated,

27

“Today, Maricopa County Sheriff’s Joe Arpaio’s Office

28

Illegal Immigration Interdiction

158

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 159 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 159

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Unit Triple I, responding to Queen Creek citizen complaints regarding day laborers harassing school children at a bus stop, arrested 16 more illegal aliens under the federal immigration laws. Citizens complained that day laborers are shouting at the children and photographing them at the bus stop. Sheriff’s deputies contacted the 16 illegals during traffic investigations.” Hickey Dec. Ex. 10, cited in Pls.’ SOF 53. As an internal MCSO email described the operation: “On 10/04/07 HSU conducted a detail in the town of Queen Creek based on e-mails from the town council in reference to the day laborers in their city. There were four traffic stops made from UC vehicles relaying that day laborers were picked up from the area of Ocotillo and Ellsworth. Once the pick up vehicle was located by MCSO marked patrol units, Deputies would establish probable cause for a traffic stop. Once the vehicle was stopped HSU detectives would interview the subjects in the vehicles in reference to their legal status to be in the US. Once it was determined that they were in the US illegally, they were taken into custody under Immigration law. A total of sixteen individuals were taken into custody and will be taken to ICE for processing.” Hickey Dec. Ex. 89, cited Pls.’ SOF 98. Defendants do not offer any evidence to refute this direct, contemporary documentary evidence that a citizen complaint of being made to feel “uncomfortable” about Hispanics who were doing nothing illegal led directly to an operation in Queen Creek designed to apprehend illegal immigrants (as

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 160 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10
99 11 100

Admit. Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
to whom there is no evidence that they were even the ones doing the jeering or laughing) through the use of pretextual traffic stops (i.e., upon hearing that Hispanic day laborers had been picked up, “Deputies would establish probable cause for a traffic stop”). See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.
Not genuinely disputed.

12

Controverting Statement: While

13 14 15 16 17

Defendants do not dispute that statement, it is misleading and mischaracterizes the evidence. Emails from town council members are just one consideration in determining whether and where to conduct a saturation patrol. Defendants refer the Court to their Response to Plaintiffs’ statement No. 25 at section (B), which is expressly incorporated herein by this reference.

Defendants do not dispute that Chief Sands indicated that MCSO has responded to constituents by conducting saturation patrols, and that he stated “We respond to citizen’s complaints on a lot of things. Sometimes we have crime suppressions, sometimes they’re handled in a different way.”

18 19 20
21 101

Disputed.

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols. Not genuinely disputed.

22

Controverting Statement: While

23 24 25

Defendants do not dispute that this statement accurately reflects the opinion of Plaintiffs’ police practices and racial profiling expert Robert Stewart, it lacks foundation, and is misleading and mischaracterizes the evidence.

Defendants say they dispute Pls.’ SOF 101, which states, “It is not generally accepted practice for the head of a law enforcement agency to pass on racially charged materials and that do not

26

Plaintiffs’ police practices and racial profiling expert, Robert Stewart, testified

describe criminal activity to officers tasked with designing

27

that he did not draw the conclusion, based on his analysis, that any saturation patrol

enforcement operations.” The logical consequence of

28

160

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 161 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

was unjustified or unwarranted:.

Defendants’ purporting to

3 4

“Q. Have you formed the opinion that any particular MCSO saturation patrol was unjustified or unwarranted?

“dispute” Pls.’ SOF 101 is that Defendants contend that it is “generally accepted practice for the head of a law enforcement

5

A. Based on crime data?

agency to pass on racially

6

Q. For any reason.

charged materials and that do not describe criminal activity to

A. I did not draw that conclusion.” officers tasked with designing

7 8

See Deposition of Robert Stewart at p. 23, lns. 14-21, attached as Exhibit 17. (emphasis added).

enforcement operations.” Defendants present no evidence for that position. Neither Mr. Stewart nor Mr. Click takes the

9

Defendants police practices expert, Bennie position that is a generally

Click, testified that “[t]he method by which accepted practice for the head of

10

the MCSO chooses target areas for

a law enforcement agency to

saturation patrols is reasonable and is

circulate racially charged material

11

consistent with standard law enforcement that does not describe criminal

practices.” See Defendants’ Statement of activity. Pls.’ SOF 101 is

12

Facts (Dkt#413-1) at the Report of Ben

therefore not genuinely disputed.

13 14 15

Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; See also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

See also Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 25, describing the MCSO’s endorsement of calls for racial profiling and its reference to them in planning saturation patrols.

16

opinions in the report were the same he

would provide at trial to a reasonable degree

17

of probability in his field of expertise).

18 19 20 21 22 23 24 25 26 27
102
28

The materials Arpaio forwards, whether racially charged or perceived as racially charged, are forwarded to executive management at MCSO and not line deputies. The communications that contain actual or perceived racially charged information may also contain information showing knowledge of criminal activity. Where it does so, the MCSO conducts its own analysis to verify such information or otherwise determine if some official action is necessary or appropriate. If the communications contain on racially offensive information, nothing becomes of the communication and it serves no purposes. Defendants refer the Court to their responses to Plaintiffs’ statements nos. 25-48 above, and expressly incorporate the same herein by this reference. Admit.
161

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 162 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

103 Admit

3 104 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Not genuinely disputed.

4

The MCSO’s police practices expert, Mr.

5 6 7 8

Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO’s use of saturation patrols is a long-standing, common, and reasonable tool of law enforcement, and that is an agency policy decision as to what particular problem to address with a saturation patrol. More specifically, Mr. Click testified:

Defendants do not actually dispute Plaintiff’s SOF 104, which states: “It would be consistent with generally accepted practice for saturation patrols to focus on a specific type of criminal activity. Saturation patrols are typically used by law

9

“Saturation patrol operations have long enforcement to impact an

been an accepted strategy used by law

increase in a specific crime or a

10

enforcement agencies to address specific rise in violent crime in a limited crime problems in a particular location. geographical area, such as that

11

They generally are of short duration, nor which would arise from a gang-

more than several days, because the

related turf war. The targeted

12

additional personnel needed for the operation are taken from other

locations are typically developed through objective crime

13

assignments. Historically, saturation patrols have targeted gangs, drugs,

analysis.” Defendants attempt to create a genuine issue of fact

14

alcohol, DUI, and curfew violations. They where there is none by adding are also used to address traffic issues such additional testimony of MCSO’s

15

as high collision locations. The saturation police practices expert, Mr. patrols not only address crime problems, Bennie Click. However, even

16

but also reassure the residents and businesses that their crime concerns are

Mr. Click’s quoted testimony states that “Saturation patrol

17

being addressed. A strong law enforcement operations have long been an

presence also deters crime in the area.

accepted strategy used by law

18

Saturation patrols play an important role enforcement agencies to address in the practice of community policing. It is specific crime problems in a

19

an agency policy decision to use saturation particular location.” (emphasis patrols to address a particular problem. added).

20

21 22 23 24 25

Saturation patrols/crime suppression/task force operations usually involve officers making increased number of lawful traffic stops and street contacts. The goal of these lawful stops and contacts is [to] discover other crime. This can also have a deterrent effect. Lawful stops and contacts is also used to gather intelligence about criminal activity. The specific criminal activity that is

In the saturation patrols conducted by the MCSO since 2007, however, officers have not been given instructions to look for any patterns of criminal conduct or specific criminal suspects, nor has MCSO relied on comparative analysis of crime or traffic hazards to justify a saturation patrol. Instead, the

26

identified as the focus of a saturation patrol operations is any agency policy

saturation patrols conducted by the MCSO focused on illegal

27

decision. This is a common law

immigration and day laborers,

enforcement practice. The Sheriff has the using pretextual traffic stops for

28

authority to designate illegal immigration minor violations in order to

162

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 163 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

an enforcement priority.

investigate the driver and/or

3 4

Arizona’s proximity to the Mexican border results in enforcement issues not faced by non-border states. Major smuggling

passengers for immigration violations. See, Pls’ SOF 104117.

5

corridors have been identified that lead from the Mexico border to Maricopa

Further, Defendants have put forth no evidence the saturation

6

County and beyond. This can result in

patrols were based on specific

different and reasonable law enforcement criminal activities, even including

7

policies in Maricopa County than in other those related to illegal parts of the country. Arizona has specific immigration. The reality is that

8

immigration-related statutes that many other states do not have. These statutes

the MCSO’s saturation patrol operations netted almost no

9

make certain immigration related activities a crime and therefore can

arrests under the state human smuggling statute. See Pls.’ SOF

10

impact agency policies.”

61-73. This is not surprising. The saturation patrols took place

11 12 13

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 4849, attached thereto as Exhibit 16; See also March 18, 2011 Deposition of Defense

in the largely urban areas of Maricopa County, such as downtown Phoenix or Mesa, rather than on highways or known smuggling corridors.

Expert Ben Click at p. 341, ln. 24 to p. 342,

14

ln. 14, attached as Exhibit 17 to Dkt#413-1

(wherein Mr. Click testified to the

15

foundation for his opinions and that his

opinions in the report were the same he

16

would provide at trial to a reasonable degree

of probability in his field of expertise).

17 105 Disputed.

Not genuinely disputed.

18

Controverting Statement. This statement

19

is misleading and takes the testimony of Defendants’ expert Bennie R. Click out of context to suggest that Defendants, namely

Defendants do not dispute that Mr. Click testified as stated.

20

Arpaio, are improperly using saturation

Plaintiffs also refer the Court to

patrols to deal with crime, and problems

their reply to Defendants’

21

associated with illegal immigration.

response above to paragraph No.

Defendants, therefore, refer the Court to

104 and incorporate the same

22

their response above to paragraph No. 104 herein by this reference.

and incorporate the same herein by this

23

reference.

24 106
25 26 27 28

Admit with clarification. MCSO deputies were instructed to look for all violations of the traffic and motor vehicle code. See, e.g., Madrid Depo I at p. 221, lns. 16-23 (traffic stops)(Hickey Dec. Ex. 50); Palmer Depo. I at p. 57, ln. 12 to p. 58, ln. 16 (traffic stops) (Hickey Dec. Ex. 56); Kikes Depo at p. 47, ln. 4 to p. 49, ln. 15
163

Pls’ SOF 106 is Admitted. Defendants do not dispute that “In the saturation patrols conducted by MCSO since 2007, officers have not been given instructions to look for any patterns of criminal conduct or

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 164 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

(traffic stops) (Hickey Dec. Ex. 49).

3

4

5

6

7

8

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
specific criminal suspects.” Defendants claim that they were instructed to look for all violations of the traffic and motor vehicle code does not create any genuine issue of fact. To the extent that Defendants’ statement is intended to be a reference to the so-called “zero tolerance” policy, Plaintiffs have elsewhere addressed those claims in detail. See, Pls’ SOF 119-123.

9 107 Disputed.

Not genuinely disputed.

10 11 12 13

Controverting Statement: While Defendants do not dispute that they did not conduct so-called comparative analysis of crime or traffic hazards to determine a saturation patrol or selection of a site for the patrol, they dispute this statement as used in the motion. The evidence shows that saturation patrols were selected based on a

Defendants do not dispute that they did not conduct comparative analysis of crime or traffic hazards to determine a saturation patrol or selection of a site for the patrol, as stated in Pls’ SOF 107.

14 15 16 17 18

number of race- neutral factors. See Defendants’ Response and Controverting Statement as to Plaintiffs’ Statement of Fact Nos. 25 and 112, and expressly incorporated herein by this reference (MCSO used statistics and crime data). In addition, Plaintiffs’ police practices and racial profiling expert, Robert Stewart, testified that he did not draw the conclusion, based on his analysis, that any saturation

Mr. Stewart did not state that any MCSO saturation patrol was justified or warranted, and was not asked if he had formed any such opinion. See Deposition of Robert Stewart at p. 23, lns. 1421. [Defs.’ Resp. to Pls.’ SOF Ex. 17]

19 20 21

patrol was unjustified or unwarranted:. “Q. Have you formed the opinion that any particular MCSO saturation patrol was unjustified or unwarranted? A. Based on crime data?

Mr. Stewart did determine that the MCSO that it is not generally accepted practice for the head of a law enforcement agency to pass on racially charged materials that do not describe criminal activity

22

Q. For any reason.

to officers tasked with designing enforcement operations. Pls.’

23 24 25

A. I did not draw that conclusion.” See Deposition of Robert Stewart at p. 23, lns. 14-21, attached as Exhibit 17. (emphasis added). Defendants police practices expert, Bennie

SOF 101. Mr. Stewart also testified that saturation patrols typically focus on a spike in a specific type of criminal activity, and that the claim that MCSO’s saturation patrols were aimed at

26

Click, testified that “[t]he method by which general crime suppression is not the MCSO chooses target area for saturation supported by the record. Pls.’

27 28

patrols is reasonable and is consistent with SOF 104, 125.

standard law enforcement practices.” See Defendants’ Statement of Facts (Dkt#413-1)

See also, Plaintiffs’ Reply to

164

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 165 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

at the Report of Ben Click dated January 21, Defendants’ Response and

3

2011, at pg. 47, attached thereto as Exhibit Controverting Statement as to

16; See also March 18, 2011 Deposition of Plaintiffs’ Statement of Fact Nos.

4

Defense Expert Ben Click at p. 341, ln. 24 25 and 112, and expressly

to p. 342, ln. 14, attached as Exhibit 17 to incorporated herein by this

5

Dkt#413-1 (wherein Mr. Click testified to reference.

6

the foundation for his opinions and that his opinions in the report were the same he

Response to Objection:

would provide at trial to a reasonable degree It is relevant as to the factors

7

of probability in his field of expertise).

considered, or in this case not

8 9

Objection: Defendants object to Plaintiffs’ statement because it is irrelevant to the site selection for a saturation patrol.

considered, when determining where to conduct any particular saturation patrol.

108 Admit

10 109 Admit

11 110 Disputed.

Not genuinely disputed.

12 13 14 15 16 17 18 19 20 21

Controverting Statement: This statement is misleading as stated and as used in the motion. The cited testimony does not establish that the cited MCSO deputies understood that “the focus” of saturation patrols was on illegal immigration. Instead, the testimony demonstrates that the cited MCSO deputies understood that “one of the purposes” or one of the focuses of the saturation patrols in which they were involved was illegal immigration. In addition, Plaintiffs’ statement here directly conflicts with their own proffered statement of fact at paragraph 102, above (“In this litigation, some MCSO officers have taken the position that the saturation patrols are designed to address crime generally. Officers were instructed to simply ‘enforce the law’ or ‘enforce the traffic laws.’”).

Contrary to Defendant’s stated position, while some of the cited testimony mentions illegal immigration as a focus of the patrols, other cited testimony does establish at least one MCSO deputy understood that “the focus” of the saturation patrol he was working was on illegal immigration, as stated in Pls.’ SOF 110. Deputy DiPietro testified that he recalled the September 27, 2007 Cave Creek operation as “pretty much about suspected illegal aliens”, which is consistent with the other evidence presented by Plaintiffs with respect to that operation. See,

Defendants’ police practice expert Mr.

e.g., infra, Pls.’ Reply to Defs.’

22

Bennie Click testified that “[i]t is an agency Resp. to Pls.’ SOF 25.

policy decision to use saturation patrols to

23

address a particular problem,” Arpaio “has

the authority to designate illegal

Further, Pls.’ SOF 110 does not

24

immigration an enforcement priority,”

contradict Pls.’ SOF 102. The

“Arizona’s proximity to the Mexican border facts offered by Plaintiffs reveal

25

results in enforcement issues not faced by that while some officers have

non-border states,” and Arizona law “make taken a litigation position that the

26

certain immigration related activities a

saturation patrols are designed to

crime and therefore can impact agency

address crime generally, there is

27

policies.” See Defendants’ Statement of little doubt that the saturation

Facts (Dkt#413-1) at the Report of Ben

patrols were focused on illegal

28

165

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 166 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Click dated January 21, 2011, at pgs. 46 immigration. See Pls.’ SOF 102,

3

and 48-49, attached thereto as Exhibit 16; 111, 125; see also Pls.’ SOF 53-

see also March 18, 2011 Deposition of

55.

4

Defense Expert Ben Click at p. 341, ln. 24

to p. 342, ln. 14, attached as Exhibit 17 to

5

Dkt#413-1 (wherein Mr. Click testified to Finally, Mr. Click’s testimony

the foundation for his opinions and that his regarding whether or not Arpaio

6

opinions in the report were the same he

had the authority to designate

would provide at trial to a reasonable degree illegal immigration as an

7

of probability in his field of expertise).

enforcement priority is not

relevant to the stated fact, and is

8

elsewhere addressed by Plaintiffs

in detail. See Pls.’ Resp. to Defs.’

9

SSOF 27.

10 111 112
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Admit. Disputed. Controverting Statement: MCSO Deputy Chief Brian Sands makes the decision of where, when, and how to do a saturation patrol. See Deposition of Brian Sands dated 12/14/09 at p. 71, lns. 19-21; p. 79, lns. 2325, attached as Exhibit 14. Chief Sands does not select locations for saturation patrols because of the sole factor that there are day-laborers, or so-called day-laborers at a particular location. Id. at p. 183, lns. 16-20. While some saturation patrols involved day laborers, every saturation patrol in an area with day laborers was conducted because there were other factors related to criminal activity which guided Chief Brian Sands’ decision to conduct a particular saturation patrol at a particular location. Id. at p. 183, lns. 21-25; see also Deposition of Manuel Madrid dated 10/27/09 at p. 86, ln. 17 to p. 87, ln. 4, attached as Exhibit 10 (day laborers at site of saturation patrol had been harassing children going to school); Deposition of Joseph Sousa dated 12/10/09 at p. 111, ln. 11 to p. 112, ln. 1, attached as Exhibit 5 (day laborers at site of saturation patrol were being aggressive toward other citizens; day laborers congregating in area were “making catcalls at little girls;” ICE advised MCSO “that day laborers were also being forced to work human smuggling charges off.”); Deposition of Joseph Sousa dated 12/10/09 at p. 94, lns. 20-24, attached as Exhibit 5 (sites are not selected because
166

Not genuinely disputed
While MCSO alleges that saturation patrols targeting day laborers were motivated by complaints about alleged criminal activity associated with day laborers, the record reveals that most “complaints” about day laborers that motivated MCSO’s saturation patrols contain no evidence of any actual crime and were often motivated by ethnic or racial animus. MCSO officers’ self-serving denials about the motivations of these saturation patrols are contradicted by the evidentiary record. Chief Sands’ and Lieutenant Sousa’s selfserving denials made during litigation and without supporting evidence are insufficient to create a genuine issue of material fact. See Villiarimo, 281 F.3d at 1061 (9th Cir. 2002) (“[T]his court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony.” (internal quotation marks and citation omitted)). See also Pls.’ Resp. to Defs’ SSOF 108 (explaining that the Cave Creek saturation patrol was

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 167 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

they have a high concentration of day

not based upon any alleged

3

laborers); Id. at p. 96, ln. 25 to p. 97, ln. 3 criminal activity and that a

(site for saturation patrols also are not

previous investigation of the

4

selected because they may have a high

Church found “no information

concentration of suspected illegal

pertaining to forced labor, human

5

immigrants); see also Defendants’

smuggling[,] possible ‘drop

Statement of Facts (Dkt#413-1) at ¶ 12 (On houses,’” nor did it uncover any

6

September 26, 2007, the MCSO Human

evidence that the day laborers

Smuggling Unit (“HSU”) was in Cave

congregating at the church were

7

Creek, Arizona investigating a particular illegal immigrants).

church building/parking lot in response to

8

citizen complaints that the church or its

grounds may be serving as a possible “drop

9

house” for human smuggling and because

“day laborers” congregating or loitering

10

near the church were stepping into the

traffic lanes of Cave Creek Road and

11

causing traffic problems.).

12 113
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed.

Not genuinely disputed.

Controverting Statement: The cited

MCSO deputies testified that it was their professional law enforcement experience, not merely their unfounded beliefs, that most day laborers or most illegal immigrants in Maricopa County are from

Pls’ SOF 113 simply states that “MCSO officers believed that most day laborers in Maricopa County are Latino or Hispanic.”

Mexico. For example, Deputy Louis

Defendants’ arguments regarding

DiPietro testified that, in his experience, the reasons that certain

most day laborers in Maricopa County are individuals hold those beliefs

from Mexico or Central or South America. does not create a genuine issue of

See Deposition of Louis DiPietro dated

fact. Plaintiffs rely on this

10/21/09 at p. 51, lns. 2-4, attached as

statement to demonstrate that on

Exhibit 13. Deputy Carlos Rangel, based on operations that targeted day

his experience, shares this observation. See laborers, deputies were looking

Deposition of Carlos Rangel dated 10/20/09 for Hispanic men who appeared

at p. 93, ln. 24 to p. 94, ln. 1, attached as to be day laborers.

Exhibit 11. It is the law enforcement experience of others in the MCSO that most illegal immigrants in Maricopa County originate from Mexico or Central or South America. See, e.g., Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the

Regardless of the correlation between race and being a day laborer, racial profiling in immigration enforcement is unlawful in the Ninth Circuit. See Montero-Camargo, 208 F.3d at 1135 (discussing United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and explaining why, “at this point in our nation’s history,” and considering the makeup of the local Hispanic population, “Hispanic appearance is . . . of such little probative value that it may not be considered [] a

167

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 168 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

state of Arizona, border area, may come

relevant [or appropriate] factor”

3

from Latin America or Mexico.”);

in the enforcement of

Deposition of Joseph Arpaio dated 12/16/09 immigration laws).

4

at p. 9, lns. 17-23; p. 219, lns. 1-12, attached

as Exhibit 16.

5

This experience by MCSO personnel is

6

neither surprising nor indicative of racially discriminatory intent, motive, or animus by

7

those persons. It is undisputed that Arizona is a border state near the Republic of

8

Mexico, Maricopa County is a major human smuggling corridor, and the objective, race-

9

neutral evidence shows that “[i]t is well established that illegal immigrants in

10

Arizona and in the United States as a whole are overwhelmingly Hispanic. The Pew

11

Hispanic center has estimated that 94 percent of illegal immigrants in Arizona are

12

from Mexico alone, not including the rest of Latin America.” See Defendants’ Statement

13

of Facts (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF

14

(Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation

15

for his report); see also Defendants’ Statement of Facts (Dkt#413-1) at the

16

Report of Ben Click dated January 21, 2011, at pg 49, attached thereto as Exhibit 16

17

(“Major smuggling corridors have been identified that lead from the Mexico border

18

to Maricopa County and beyond.”); see also March 18, 2011 Deposition of Defense

19

Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

20

(wherein Mr. Click testified to the foundation for his opinions and that his

21

opinions in the report were the same he would provide at trial to a reasonable degree

22

of probability in his field of expertise).

114 Disputed.

Not genuinely disputed.

23

Controverting Statement: Defendants

24 25 26

dispute this statement for the same reasons the dispute statement No. 115 below, and therefore refer the Court to Defendants’ Response to statement No. 115, which is expressly incorporated herein by this reference.

Defendants do not dispute the fact that “The method by which MCSO looks for illegal immigrants on saturation patrols is to conduct pretextual traffic stops for minor violations and

27

then investigate the driver and/or

passengers for possible

28 168

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 169 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
immigration violations,” as stated in Pls’ SOF 114.

4 5 6
115
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs also refer the Court to Plaintiffs’ Reply to Defendants’ Response to statement No. 115, which is expressly incorporated herein by this reference.

Disputed.

Not genuinely disputed.

Controverting Statement. This statement

is misleading as stated and as used in the motion because Plaintiffs suggest that MCSO traffic stops are based on the race or ethnicity of the driver or the occupants of the vehicle. That is not true.

Defendants do not dispute the fact that “MCSO’s primary tactic on saturation patrols was the use of pretextual traffic stops,” as stated in Pls.’ SOF 115. Defendants

The MCSO does not use race as an indicator proffered arguments that race was

or factor to initiate or make vehicle stops. not a factor in those stops entirely

See Deposition of Brett Palmer dated

missed the point. .

10/23/09 at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25 to p. 151, ln. 3, attached as Exhibit 9.

Defendants admit that a focus (if not the focus) of saturation patrols was illegal immigration.

The MCSO makes only lawful traffic stops See Defs.’ Resp. to Pls.’ SOF

based on probable cause or reasonable

110; see also Pls.’ SOF 53-55,

suspicion that a violation of the traffic code 111, 125. It is also the case that

or vehicle code exists. See, e.g.,

the MCSO’s saturation patrol

Defendants’ Statement of Facts (Dkt#413-1) operations netted almost no

at ¶¶ 17, and 107-109 (Deputy DiPietro had arrests under the state human

probable cause to stop the truck in which smuggling statute. See Pls.’ SOF

Plaintiff Melendres was a passenger); at ¶¶ 61-73. This is not surprising.

44-45, 51-52, and 113-116 (Deputy

The saturation patrols took place

Ratcliffe had probable cause to stop the

in the largely urban areas of

Plaintiff Rodriguez truck because it was

Maricopa County, such as

driving on a closed road); and at ¶¶ 117-119 downtown Phoenix or Mesa,

(Deputy Kikes had either probable cause or rather than on highways or known

reasonable suspicion to stop the Plaintiffs smuggling corridors. If the

Meraz and Nieto).

saturation patrols did not involve

Plaintiffs’ use of the term “pre-textual traffic stops” has a negative implication that is not consistent with the law permitting, under Fourth Amendment analysis, the police to make lawful traffic stops even if the subjective intent of the stopping officer is to discover another crime. See Whren v. United States, 517 U.S. 806, 810 (1996) (subjective intentions or motivations of the stopping officer in making the traffic stop is irrelevant under Fourth Amendment analysis); United States v. Robinson, 414 U.S. 218, 221 n.1 (1973) (“a traffic

any significant interdiction of human smuggling activity, it follows that they were looking for undocumented immigrants that live in the community. Because immigration status is generally not based on observable factors, there remains no indicator other than race that deputies could have relied on prior to initiating a stop in order to select who among the traffic violators to stop to investigate potential violations of the immigration law (assuming

169

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 170 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

violation arrest would not be rendered

that deputies believe, as many do,

3

invalid under the Fourth Amendment by the that most illegal immigrants are

fact that it was a mere pretext for a narcotics Mexican or Hispanic).

4

search.”); United States v. Ramirez, 473

Defendants admit that it is easy to

F.3d 1026, 1030-31 (9th Cir. 2007) (pre- find a reason to stop any vehicle

5

textual traffic stops based on probable cause for a traffic violation. See Defs.’

that are also motivated by some other reason Resp. to Pls.’ SOF 116. An

6

do not violate Fourth Amendment); United admission that they were

States v. Willis, 431 F.3d 709, 715 (9th Cir. conducting widespread pretextual

7

2005) (same); Rodriquez v. California

traffic stops for this purpose, see

Highway Patrol, 89 F.Supp.2d 1131, 1139 also Defs.’ Resp. to Pls.’ SOF

8

(N.D. Cal. 2000) (same).

114, then, is an admission that

9

Even Plaintiffs’ police practices/racial profiling expert, Robert L. Stewart admits

they were conducting pretextual traffic stops based on race.

10

that a traffic stop can be made for probable With respect to the testimony of cause even if the stopping police officer has Mr. Click and Mr. Stewart, see

11

some other motivation to stop the motorist. also, Pls’ Reply to Defs’ Resp. to See Deposition of Robert L. Stewart at p. Pls’ SOF 15, 21 and 104; Pls’

12

36, lns. 13-16; p. 115, lns. 4-8; p. 118, lns. Resp. to Defs’ SSOF 24-27

10-14, attached as Exhibit 17.

(discussing much of the same

13

The MCSO’s police practices expert, Mr. testimony reiterated here).

Bennie Click, testified to a reasonably

14

degree of probability in his field of expertise

that MCSO’s use of traffic stops as an

15

element of saturation patrols is a long-

standing, common, and reasonable tool of

16

law enforcement, and that is an agency

policy decision as to what particular

17

problem to address with a saturation patrol.

More specifically, Mr. Click testified:

18

“Saturation patrol operations have long

19

been an accepted strategy used by law enforcement agencies to address specific

20

crime problems

in a particular location. They generally are

21

of short duration, nor more than several

days, because the additional personnel

22

needed for the operation are taken from

other assignments. Historically, saturation

23

patrols have targeted gangs, drugs, alcohol,

DUI, and curfew violations. They are also

24

used to address traffic issues such as high

collision locations. The saturation patrols

25

not only address crime problems, but also

reassure the residents and businesses that

26

their crime concerns are being addressed.

A strong law enforcement presence also

27

deters crime in the area. Saturation patrols

play an important role in the practice of

28 170

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 171 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

community policing. It is an agency policy

3

decision to use saturation patrols to

address a particular problem.

4

Saturation patrols/crime suppression/task

5

force operations usually involve officers making increased number of lawful traffic

6

stops and street contacts. The goal of these lawful stops and contacts is [to] discover

7

other crime. This can also have a deterrent effect. Lawful stops and contacts

8

is also used to gather intelligence about criminal activity.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

9

The specific criminal activity that is

identified as the focus of a saturation patrol

10

operations is any agency policy decision.

This is a common law enforcement

11

practice. The Sheriff has the authority to

designate illegal immigration an

12

enforcement priority.

13

Arizona’s proximity to the Mexican border results in enforcement issues not faced by

14

non-border states. Major smuggling corridors have been identified that lead

15

from the Mexico border to Maricopa County and beyond. This can result in

16

different and reasonable law enforcement policies in Maricopa County than in other

17

parts of the country. Arizona has specific immigration-related statutes that many

18

other states do not have. These statutes make certain immigration related activities

19

a crime and therefore can impact agency policies.”

20 21 22 23 24 25
26 116

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 46 and 4849, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise). Admit.

27 117 Disputed.

Not genuinely disputed.

28

Controverting Statement: While

171

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 172 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Defendants do not dispute that on some

3 4 5 6

saturation patrols undercover units would identify vehicles that were suspected of being engaged in the human smuggling of illegal immigrants, an Arizona crime, they dispute that they were targeting “day laborers” solely because they were “day laborers.”

Plaintiff present no evidence controverting Pls.’ SOF 117, or the evidence presented therein. Plaintiffs further present absolutely no evidence that the vehicles that MCSO deputies stopped on the operations

7

MCSO Deputy Chief Brian Sands makes targeting day laborers that the decision of where, when, and how to do Plaintiffs identified in their SOF

8

a saturation patrol. See Deposition of Brian 117 were (or even might be) Sands dated 12/14/09 at p. 71, lns. 19-21; p. human smuggling loads.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

79, lns. 23-25, attached as Exhibit 14. Chief Sands does not select locations for saturation patrols because of the sole factor that there are day-laborers, or so-called daylaborers at a particular location. Id. at p. 183, lns. 16-20. While some saturation patrols involved day laborers, every saturation patrol in an area with day laborers was conducted because there were other factors related to criminal activity which guided Chief Brian Sands’ decision to conduct a particular saturation patrol at a particular location. Id. at p. 183, lns. 21-25; see also Deposition of Manuel Madrid dated 10/27/09 at p. 86, ln. 17 to p. 87, ln. 4, attached as Exhibit 10 (day laborers at site of saturation patrol had been harassing children going to school); Deposition of Joseph Sousa dated 12/10/09 at p. 111, ln. 11 to p. 112, ln. 1, attached as Exhibit 5 (day laborers at site of saturation patrol were being aggressive toward other citizens; day laborers congregating in area were “making catcalls at little girls;” ICE advised MCSO “that day laborers were also being forced to work human smuggling charges off.”); Deposition of Joseph Sousa dated 12/10/09 at p. 94, lns. 20-24, attached as Exhibit 5 (sites are not selected because they have a high concentration of day laborers); Id. at p. 96, ln. 25 to p. 97, ln. 3 (site for saturation patrols also are not selected because they may have a high concentration of suspected illegal immigrants); see also Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12 (On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular

Defendants’ specific argument with respect to the Cave Creek saturation patrol, that the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems, simply is contradicted by the hard evidence. First, Defendants have elsewhere attempted to argue that Deputy DiPietro developed reason to believe that the passengers may have been in the country unlawfully because they were day laborers. See Defs.’ SOF 18 and Pls.’ Resp. to Defs.’ SOF 18. The fact that they were day laborers (and in MCSO’s eyes, potential undocumented immigrants) is the reason they were stopped. Pls.’ SOF 172. Even Defendants stated, in their Motion for Summary Judgment, that “When a HSU surveillance unit observed the white truck stop at the church and pick up Mr. Melendres and three other men it radioed MCSO Deputy Louis DiPietro in his patrol car and

172

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 173 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

church building/parking lot in response to assigned him to follow the truck

3

citizen complaints that the church or its

(in which Mr. Melendres was a

grounds may be serving as a possible “drop passenger) and to look for

4

house” for human smuggling and because probable cause to make a traffic

“day laborers” congregating or loitering

stop of the truck.” Defs.’ MSJ at

5

near the church were stepping into the

p. 5. MCSO’s investigation in

traffic lanes of Cave Creek Road and

Cave Creek prior to the operation

6

causing traffic problems.).

had revealed no information

7 8 9 10 11 12 13

Several MCSO deputies testified that it was their professional law enforcement experience, that most day laborers or most illegal immigrants in Maricopa County are from Mexico. For example, Deputy Louis DiPietro testified that, in his experience, most day laborers in Maricopa County are from Mexico or Central or South America. See Deposition of Louis DiPietro dated 10/21/09 at p. 51, lns. 2-4, attached as Exhibit 13. Deputy Carlos Rangel, based on his experience, shares this observation. See Deposition of Carlos Rangel dated 10/20/09 at p. 93, ln. 24 to p. 94, ln. 1, attached as

pertaining to human smuggling, drop houses, or even illegal immigration. Pls.’ SOF 173 (Hickey Dec. Ex. 139) (“On both days, there was no information discovered pertaining to forced labor, human smuggling or possible ‘drop houses’.”). Yet, the MCSO went ahead with the Cave Creek operation anyway, based simply on the observation that the people at the church were Hispanic and day laborers. Pls.’ SOF 173 (Hickey Dec. Ex. 139).

14 15 16 17 18 19 20 21

Exhibit 11. It is the law enforcement

experience of others in the MCSO that most illegal immigrants in Maricopa County originate from Mexico or Central or South America. See, e.g., Deposition of Manual Madrid dated 10/27/09 at p. 189, lns. 18-21, attached as Exhibit 10; Deposition of Brett Palmer dated 10/23/09 at p. 30, lns. 2-16, attached as Exhibit 9; Deposition of Brian Sands dated 12/14/09 at p. 94, lns. 3-6, attached as Exhibit 14; Deposition of Joseph Arpaio dated 11/16/10 at p. 81, lns 6-18, attached as Exhibit 15 (“In Arizona, because of the proximity to the border, I believe it’s a fact that many people arrested here, in the

Chief Sands’ generalized and self-serving testimony to the contrary are not sufficient to create a genuine factual dispute. See Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982) (“Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.”).

state of Arizona, border area, may come

22

from Latin America or Mexico.”); Deposition of Joseph Arpaio dated 12/16/09

23

at p. 9, lns. 17-23; p. 219, lns. 1-12, attached as Exhibit 16.

24

This experience by MCSO personnel is not

indicative of racially discriminatory intent,

25

motive, or animus by those persons. It is

undisputed that Arizona is a border state

26

near the Republic of Mexico, Maricopa

County is a major human smuggling

27

corridor, and the objective, race-neutral

evidence shows that “[i]t is well established

28 173

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 174 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

that illegal immigrants in Arizona and in the

3

United States as a whole are

overwhelmingly Hispanic. The Pew

4

Hispanic Center has estimated that 94

percent of illegal immigrants in Arizona

5

are from Mexico alone, not including the

rest of Latin America.” See Defendants’

6

Statement of Facts (Dkt# 413-1) at Ex. 19

(Dr. Camarota Report) at pg. 14; DSOF

7

(Dkt#413-1) at Ex. 20 (Camarota

deposition) at p. 122, lns. 13-16 (foundation

8

for his report); see also Defendants’

Statement of Facts (Dkt#413-1) at the

9

Report of Ben Click dated January 21, 2011,

at pg 49, attached thereto as Exhibit 16

10

(“Major smuggling corridors have been

identified that lead from the Mexico border

11

to Maricopa County and beyond.”); see

also March 18, 2011 Deposition of Defense

12

Expert Ben Click at p. 341, ln. 24 to p. 342,

ln. 14, attached as Exhibit 17 to Dkt#413-1

13

(wherein Mr. Click testified to the

foundation for his opinions and that his

14

opinions in the report were the same he

would provide at trial to a reasonable degree

15

of probability in his field of

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

16
118 17 119

expertise). Admit. Admit.

18 120 Disputed.

Not genuinely disputed.

19 20 21 22 23 24 25 26

Controverting statement: While

Defendants do not dispute that Chief Brian Sands testified that “it is difficult to have a so-called zero tolerance policy on traffic stops,” Plaintiffs’ statement as used in the motion is misleading and takes Chief Sands’ testimony out of context. Chief Sands did not testify that the zero tolerance policy was not in effect or used during traffic stops, he was merely testifying to the realities in Maricopa County that it was difficult to apply the policy to each and every traffic violation given the traffic volume in Maricopa County and the volume of violations experienced by deputies.

Defendants do not even attempt to address the testimony of Lt. Sousa that the zero tolerance policy does not require deputies to stop every vehicle. Sousa Dep. I at 147:17-148:4 [Hickey Dec. Ex. 88]. They include only a misleading parenthetical to another part of Lt. Sousa’s testimony, where he says that vehicles violating the traffic code “can be stopped,” not that they “will be stopped.” Sousa Dep. I at 144:22-25 [Defs.’ Resp. to

In proper context, Chief Sands testified that Pls.’ SOF Ex. 5].

27 28

because there is so much traffic, “[t]he zero tolerance [as to traffic stops] is not a hard

Defendants acknowledge that Chief Brian Sands testified that

174

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 175 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

and fast rule that you will make every traffic “it is difficult to have a so-called

3

violator that you see. You may only have zero tolerance policy on traffic

the opportunity to stop one of three at the stops.” Chief Sands went on to

4

same given time. So in itself, it is difficult say that the goal was to make a

to have a so-called zero tolerance policy on lot of traffic stops, but he did not

5

traffic stops.” See Deposition of Brian

discuss any type of zero-tolerance

Sands dated 12/14/09 at p. 123, lns. 9-17, policy with respect to traffic stops

6

attached as 14; see also p. 123, ln. 18 to p. that would eliminate the

124, ln. 18 (questions that immediately

possibility of racial profiling.

7 8

follow address that the goal is to stop as many vehicles as possible). Plaintiffs’ citation to the testimony of

Plaintiffs point to Deputy Armendariz’s testimony in order to demonstrate the impossibility

9

MCSO Deputy Ramon Armendariz also is of having a zero-tolerance policy

taken wholly out of context. Plaintiffs

with respect to traffic stops that

10

never questioned Deputy Armendariz about would remove all officer the zero tolerance policy during saturation discretion. See, e.g., Armendariz

11

patrols. In fact, when Plaintiffs questioned Dep. I 29:21-30-10 (“I can’t pull

Deputy Armendariz about his discretion

two vehicles over at once . . . .”)

12

used during traffic stops, the line of questioning was not related to saturation

[Hickey Dec. Ex. 1]. Deputy Armendariz confirmed that his

13

patrols or his later membership in the

practices did not change after

Human Smuggling Unit, but to his every- joining HSU, and that he would

14

day traffic patrol operations during his prior make the same number of traffic assignment to the MCSO Special Assistance stops on a “special operation,”

15

Unit (“SAU”) for Maricopa County District. such as a saturation patrol. See deposition of Ramon Armendariz dated Armendariz Dep. I at 29:2-7

16

11/24/09 at p. 26, ln. 13 to p. 30, ln. 10, attached as Exhibit 21.

[Hickey Dec. Ex. 1]. The additional testimony of Sgts.

17

There was a zero tolerance policy for

Madrid and Palmer is clearly

traffic stops during saturation patrols: contradicted by that of Chief

18

i.e., a deputy that observed a moving

Sands and Lt. Sousa, and appear

violation or equipment code violation would to be iterations of a zero-tolerance

19

be required to stop the vehicle. See

policy adopted in name only for

Deposition of Brett Palmer dated 10/23/09 purposes of deflecting allegations

20

at p.56, ln. 2 to p. 58, ln. 16, attached as

of racial profiling. MCSO

Exhibit 9 (zero tolerance policy on

conducted no monitoring to see if

21

saturation patrols adopted to try to stop

deputies were in fact applying the

every vehicle with a violation and write

so-called zero-tolerance policy.

22

tickets to all to avoid charges of racial

See Pls.’ SOF 123. Their

profiling); see also p. 94, ln. 20 to p. 95, ln. statements are therefore

23

1 (zero tolerance policy for any traffic or insufficient to create any genuine

vehicle violations); p. 98, ln. 18 to p. 99, ln. issue of fact.

24

17 (the zero tolerance for arrests made and

the zero tolerance policy for traffic

25

violators); see also Deposition of Manuel

Madrid dated 10/27/09 at p. 125, ln. 12 to p.

26

127, ln. 7, attached as Exhibit 10 (on large

scale saturation patrols, there was a zero

27

tolerance policy to pull over and cite all

infractions); p. 130, lns. 18-23 (same); see

28 175

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 176 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

also Deposition of Joseph Sousa dated

3

12/10/09 at p. 144, lns. 22-25 (on zero

tolerance operation, any vehicle that is

4

observed to violate the vehicle or traffic

code that can be stopped will be stopped).

5

Defense police practices expert Bennie

6

Click testified:

“In order to reduce the potential of racial

7

profiling during saturation patrol

operations, supervisors reasonably and

8

appropriately instituted a zero tolerance

policy requiring all violators be stopped.

9

This is a reasonable practice. Zero

tolerance removed the deputies’ discretion

10

to pick and choose who they stopped.”

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

11

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click

12

dated January 21, 2011, at pg 46, attached thereto as Exhibit 16; see also March 18,

13

2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14,

14

attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the

15

foundation for his opinions and that his opinions in the report were the same he

16

would provide at trial to a reasonable degree of probability in his field of expertise).

17 121 Disputed.

Not genuinely disputed

18 19 20 21 22 23 24 25

Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in instituting a zero tolerance policy in an effort to reduce the potential for racial profiling during saturation patrols. Mr. Click testified: “In order to reduce the potential of racial profiling during saturation patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be stopped. This is a reasonable practice. Zero tolerance removed the deputies’ discretion

Defendants do not actually dispute Plaintiffs’ SOF 121, which states that “‘zero tolerance’ does not eliminate officer discretion in traffic stops and would not prevent racial profiling.” Further, MCSO testimony establishes that the agency did not in fact have a zero-tolerance policy with respect to stops. Pls.’ SOF 120 and replies to Defendants’ Responses and Objections thereto.

26

to pick and chose who they stopped.

Finally, the MCSO conducted no

Sergeant [Manuel] Madrid

monitoring to see if deputies were

27 28

reasonably instituted a policy in the HSU [Human Smuggling Unit] that all

in fact applying the so-called zero-tolerance policy. See Pls.’

176

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 177 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

passengers in vehicles that had been

SOF 123 and replies to

3

stopped would be contacted. He stated that Defendants’ Responses and

this was done to avoid the appearance that Objections thereto. Under such

4

deputies could pick and chose whom they circumstances, racial profiling

contacted.”

would not be prevented and

5 6 7

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 46 attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben

would in fact become harder to detect. Pls.’ SOF 122 and replies to Defendants’ Responses and Objections thereto. It is therefore irrelevant whether

8

Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

Mr. Click believes MCSO’s adoption of a zero tolerance

9

(wherein Mr. Click testified to the foundation for his opinions and that his

policy in an effort to “avoid the appearance” of racial profiling

10

opinions in the report were the same he

was reasonable.

would provide at trial to a reasonable degree

11

of probability in his field of expertise).

122 Disputed.

Not genuinely disputed.

12

Controverting Statement: The MCSO’s

13 14 15 16

police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in instituting a zero tolerance policy in an effort to reduce the potential for racial profiling during saturation patrols. Mr. Click testified:

Defendants do not actually dispute Plaintiffs’ SOF 122, which states that “A ‘zero tolerance’ policy combined with a lack of any follow-up to determine whether officers are in fact applying the policy would not prevent racial profiling. It

17

“In order to reduce the potential of racial would actually make it harder for

profiling during saturation patrol

supervisors to detect it because

18

operations, supervisors reasonably and

more officers would be making

appropriately instituted a zero tolerance traffic stops for minor violations .

19

policy requiring all violators be stopped. . . .”

20 21 22

This is a reasonable practice. Zero tolerance removed the deputies’ discretion to pick and chose who they stopped. Sergeant [Manuel] Madrid reasonably instituted a policy in the HSU [Human Smuggling Unit] that all passengers in

Further, MCSO testimony establishes that the agency did not in fact have a zero-tolerance policy with respect to stops. Pls.’ SOF 120.

vehicles that had been stopped would be

23 24

contacted. He stated that this was done to avoid the appearance that deputies could pick and chose whom they contacted.”

It is therefore irrelevant whether Mr. Click believes MCSO’s adoption of a zero tolerance

25

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click

policy in an effort to “avoid the appearance” of racial profiling

26

dated January 21, 2011, at pg. 46 attached was reasonable. thereto as Exhibit 16; see also March 18,

27

2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14,

Further, Mr. Click did not attempt

28

attached as Exhibit 17 to Dkt#413-1

to assess whether MCSO’s failure

177

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 178 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

(wherein Mr. Click testified to the

to collect any race or ethnicity

3

foundation for his opinions and that his

data on the individuals stopped

opinions in the report were the same he

(and destruction of the little

4

would provide at trial to a reasonable degree information that is recorded about

of probability in his field of expertise).

citizen contacts, Pls.’ SOF 156,

5 6 7 8 9

In addition, the MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in not collecting data about the ethnicity of persons stopped or contacted by the MCSO. Mr. Click testified:

162) fell below generally accepted practice, in light of the high risk of racial profiling created by MCSO. In such a context, the failure to collect any data on the race of individuals stopped is unreasonable. See Stewart Dec. ¶¶ 5-6, 37-38 [Dkt. 423].

10 11 12 13 14 15 16

“The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling effect on law enforcement activity, putting the communities’ safety at great risk. Not collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best.

For example, data from one saturation patrol showed that all but one of the motorists arrested were Hispanic. But Sgt. Madrid and Lt. Sousa both dismissed the figures, saying it was not a concern for them. Pls.’ SOF 160. Chief Sands acknowledged that 90 percent of arrests made during a smaller saturation patrol in Fountain Hills were of Hispanic individuals, even though the area was predominantly non-Hispanic. Pls.’ SOF 161.

17

These include such as community

Even in the face of such

demographics, officer experience level,

disparities, MCSO feels no need

18

officer training, officer performance history, to collect data about stops.

officer work ethic, location assigned,

MCSO does not even collect data

19

traffic/pedestrian volume, different duties, to ensure that the policies it

call volume and the nature of investigations supposedly put in place to deflect

20

officer can be involved in.

allegations of racial profiling

21 22 23 24 25 26

Mandated data collection is suspect when used to determine the race or ethnicity of persons officer stopped. In many instances, a person’s race or ethnicity is not obvious. Race may be easier to determine because of kin color, however, ethnicity is less apparent. Many people have surnames that are not indicative of their ethnicity. A number of ethnic groups have similar physical characteristics. Most countries have citizens of various races and ethnicities and country of origin may be

(such as the zero-tolerance policy) are in fact being carried forth by officers. Such resistance to documentation of law enforcement activity is suggestive of an effort to conceal racial profiling and implicitly allow it to continue. See Chavez v. United States, No. 01-000245, 2010 WL 3810629, at *4 (D. Ariz. June 21, 2010).

27

misleading. Even self-identification is problematic because of the increasing

28

number of persons with mixed racial and

178

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 179 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

ethnic backgrounds. Officers

3

misidentifying a person’s race or ethnicity

can be controversial in itself and could

4

create a perception of a racially or

ethnically insensitive department.”

5

See Defendants’ Statement of Facts

6

(Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 45-46

7

attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense

8

Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

9

(wherein Mr. Click testified to the foundation for his opinions and that his

10

opinions in the report were the same he would provide at trial to a reasonable degree

11

of probability in his field of expertise).

123 Disputed.

Not genuinely disputed.

12

Controverting Statement: While

13 14 15 16 17 18 19 20 21

Defendants do not dispute that they did not perform a data analysis to ensure that the zero tolerance was being applied, they dispute that they did nothing to ensure that its saturation patrols were conducted professionally and lawfully. The MCSO conducts a debriefing after each operation to identify any issues that need to be addressed in future operations. See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 47, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

Defendants do not dispute Pls.’ SOF 123, which states that “MCSO did not conduct monitoring or data analysis to ensure that the zero tolerance policy was being applied equally, or at all.” Defendants’ statement of a debriefing after each operation is insufficient to create any genuine dispute of fact. They do not claim that the zerotolerance policy is discussed at debriefings, or that a discussion of the zero-tolerance policy at a debriefing is sufficient to ensure that it was being applied.

opinions in the report were the same he

Plaintiffs have elsewhere pointed

22

would provide at trial to a reasonable degree to portions of the record that of probability in his field of expertise). The establish that no meaningful

23

nature of the debriefing and what is included in an after-action report is

debriefings occurred. See Pls.’ SOF 163.

24

ultimately a decision made by the Sheriff or his designee. Id.

25 124 Admit in part and disputed in part.

Not genuinely disputed.

26 27

Controverting Statement: Defendants do not deny this statement as it relates to regular operations but dispute it as to traffic enforcement techniques during special

Defendants “controverting statement” confirms that they actually admit Plaintiffs’ SOF.

28

179

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 180 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

operations such as saturation patrols.

3 125 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Not genuinely disputed.

4

Controverting Statement: While

5 6 7

Defendants do not dispute that the cited statement contains the opinions of Plaintiffs’ law enforcement expert Robert Taylor, this statement is disputed as used in Plaintiffs’ motion. The duties of the MCSO Human Smuggling

Defendants do not genuinely dispute Mr. Stewart’s opinion that “MCSO’s objective was clearly to interdict illegal immigrants.” In fact, their own expert agrees. Pls.’ SOF 111.

8 9 10 11

Unit during saturation patrols is to go out and enforce all traffic laws and, in the course of enforcing all traffic laws, any criminal offenders are taken into custody and booked. See Deposition of Joseph Sousa dated 12/10/09 at p. 25, lns. 20-24, attached as Exhibit 5.

The saturation patrols conducted by the MCSO relied on pretextual traffic stops for minor violations of the traffic or vehicle code in order to investigate the driver and/or passengers for immigration violations. See Pls.’

The finding of illegal immigrants during SOF 114-117; see also Pls.’

12

saturation patrols is a secondary result of the Reply to Defs.’ Resp. to Pls.’

patrol. Id. at p. 38, lns. 6-20; see also p. 39, SOF 115. Finding illegal

13

lns. 5-11.

immigrants during saturation

14 15

“When we have a crime suppression operation, we – our intent is to go out and saturate the area that we are targeting and the effect is to arrest as many violators of

patrols was not a secondary result of those patrols, but the primary motivation for the stops. Defendants’ claim that the

16

the law as you can. With the [illegal]

saturation patrols were directed at

immigration problem as large as it is in our generalized crime simply does

17

community, the probability seems to be

not comport with the norm for

quite high that you are going to encounter saturation patrols within the law

18

people that are here illegally as you arrest enforcement community and for

people.” See Deposition of Brian Sands

MCSO saturation patrols prior to

19

dated 12/14/09 at p. 86, ln. 21 to p. 87, ln. 6, 2007, and serve as evidence that

attached as Exhibit 14.

“improper purposes are playing a

20

role.” Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429

21

U.S. 252, 267 (1977).

22

23 126
24 25 26 27 28

Disputed. Controverting Statement: The cited section does not pertain to motor vehicle stops during saturation patrols involving a 287(g) certified officer. The authority cited by Plaintiffs makes the distinction clear between questioning conducted by a 287(g) certified MCSO deputy and a non-certified deputy.
180

Not genuinely disputed.
Defendants do not actually dispute Pls.’ SOF 126, which sets forth MCSO’s general practice to “only investigate passengers where there is reasonable suspicion of criminal activity.” MCSO departed from this normal

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 181 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

During saturation patrols, to avoid charges practice on saturation patrols and

3

of selective enforcement, MCSO deputies immigration operations. This

would ask all passengers for identification. serves as evidence that “improper

4

See Deposition of Bennie Click at p. 228, ln. purposes are playing a role.”

4 to p. 229, ln. 17, attached as Exhibit 20. Arlington Heights, 429 U.S. at

5 6 7 8 9 10 11

This was a reasonable and proper law enforcement practice. See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 48, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

267 (1977). Because MCSO considers the lack of identification documents by a person (even a passenger, who is not required to carry identification) to be grounds for asking about a person’s immigration status, Pls.’ SOF 182, it is apparent that MCSO instituted the practice of asking passengers for identification in an effort to increase the opportunities for immigration screenings.

12 13 14 15 16

In addition, Mr. Alonzo Pena, the Special Agent in Charge for ICE Phoenix testified that it was completely proper for MCSO deputies to make traffic stops of motorists under Arizona law and call for a 287(g) certified deputy if the deputy that made the traffic stop had reasonable suspicion that someone in the stopped vehicle might be unlawfully present in the country. See Deposition Alonzo Pena at p. 167, ln. 1 to p.

Defendants’ references to 287(g) authority miss the point. When deputies make the initial contact with passengers on saturation patrols and immigration operations, they have neither reasonable suspicion of a crime nor reasonable suspicion of an immigration violation.

17

168, ln. 22, attached as Ex. 1.

Mr. Pena further testified that he

18 19 20 21 22

Finally, Jason Kidd, the ICE Assistant Agent in Charge Phoenix, testified that Arpaio had the authority under the ICEMCO Memorandum of Agreement to do pure immigration enforcement. Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 159, lns. 13-20 (the MOA “does not limit the type of enforcement”), attached as Exhibit 2.

was aware of such actions only when the MCSO officer “is not exceeding the amount of . . . time that he could have that person detained.” Pena Dep. 97:6-16 [Hickey Opp’n Dec. Ex. 225], and when the MCSO officer has “the legal basis to detain that person on his own state charges.” Pena Dep. 98:7-11 [Hickey

Both federal and state officials with wide Opp’n Dec. Ex. 225].

23 24 25 26 27 28

discretion to ask persons about immigration status. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questing does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of

Further, Mr. Kidd also testified that he spoke with MCSO’s Lt. Joseph Sousa about whether MCSO saturation patrol operations were “within the scope of the MOA.” Kidd Dep. 33:1634:24 [Hickey Opp’n Dec. Ex. 219]. Mr. Kidd also testified that there “some questions” about the arrest of Mr. Ortega Melendres.

181

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 182 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

birth, or immigration status.”).

3

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
See Kidd Dep. 121:16-122:15 [Hickey Opp’n Dec. Ex. 219].

4

Furthermore, Mr. Kidd testified that it “was not ICE’s job” to

5

ensure that racial motivations did not cause MCSO saturation patrol

6

stops. Kidd Dep. 153:4-18 [Hickey Opp’n Dec. Ex. 219].

7 127 Disputed.

Not genuinely disputed.

8 9

Controverting Statement: While Defendants do not dispute this statement, it is misleading and taken out of context as used in Plaintiffs’ motion. The Court is

Defendants do not dispute this statement.

10

referred to Defendants’ response to

The Court is referred to Plaintiffs’

Plaintiffs’ statement No. 126, immediately Reply to Defendants’ response to

11

above, which is expressly incorporated contained herein by this reference.

Plaintiffs’ statement No. 126, immediately above, which is

12

expressly incorporated contained herein by this reference.

13 128 Disputed.

Not genuinely disputed.

14 15 16 17 18 19 20 21 22 23 24 25 26
27 129

Controverting Statement: The cited testimony of Lt. Joe Sousa of the Human Smuggling Unit is misleading and taken out of context. While Lt. Sousa testified that MCSO deputies have wide discretion to question passengers on immigration violations, this testimony was, in proper context, in reference to MCSO 287(g) certified deputies. See Deposition of Joseph Sousa dated 12/10/09 at p. 74, ln. 25 to p. 79, ln. 2, attached as Exhibit 5 (making clear that Sousa is discussing the discretion of 287(g) certified deputies). The law also provides both federal and state officials have wide discretion to ask persons about immigration status. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questing does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”). Disputed.

Defendants do not actually dispute this fact. They do not contest (and even admit) that MCSO officers are given wide discretion to question passengers” on immigration enforcement operations, such as saturation patrols. Pls.’ SOF 128. This is consistent with a desire to increase the opportunities for immigration screenings. Not genuinely disputed.

28 182

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 183 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Controverting Statement: While

3 4 5 6

Defendants do not dispute that Arpaio and defense expert Bennie Click did not identify a specific MCSO written policy limited only to the prohibition of racial profiling, this statement as used in the motion is misleading and taken out of context.

Plaintiffs’ SOF 129 states that MCSO witnesses could not identify an agency-wide written policy prohibiting racial profiling. Defendants’ response does not cite testimony identifying such a

• The MCSO has a policy prohibiting policy.

7 8

racial profiling. See Deposition of Brian Sands dated 12/14/09 at p. 194, lns. 14-17, attached as Exhibit 14.

Chief Sands’ testimony does not identify a specific, agency-wide written policy prohibiting racial

• The MCSO instructs each of its

profiling. The testimony in

9

deputies that are to participate in a question is, “Q. The MCSO,

saturation patrol during the pre-

does it have a policy prohibiting

10

saturation patrol briefing that they are racial profiling? A. Yes.”

11 12

not to racially profile any person during the up-coming saturation patrol that day. Id. at p. 194, lns. 1821; see also p. 195, lns. 2-5.

No agency-wide written policy prohibiting racial profiling has been produced in this case. See Pls.’ SOF 130.

13 14 15 16

•

Each MCSO deputy has undergone education and training about the improper and unlawful use of race in law enforcement, i.e., racial profiling, while at the police academy at the start of their law enforcement careers. Id. at p. 194, ln. 22 to p. 195, ln. 1.

To the extent that some of MCSO’s informational bulletins or unit-wide policies included a prohibition on racial profiling, they did not define what conduct was prohibited.

When the deputy graduates from the Further, MCSO’s saturation

17

police academy and joins the MCSO patrol instructions only prohibited for active duty, he or she is taught profiling based solely on race in

18

about the MCSO policy and

the decision about whether or not

prohibition against racial profiling. to initiate an immigration

19 20 21

Id.

investigation, Pls.’ SOF 132, and

•

Each MCSO deputy that underwent ICE education and training to become 287(g) certified to enforce federal immigration law learned about the law enforcement prohibition against

MCSO officers admittedly used race as a factor in determining whether individuals are illegally present in the United States. Pls.’ SOF 135-36.

22

racial profiling. Id. at p. 195, lns. 6- In these respects, MCSO fell

10.

below generally accepted

23

• Defendants’ expert Bennie Click

practice. Pls.’ SOF 143.

24

testified: “The MCSO maintains comprehensive and detailed policies and

Defendants’ contentions about training are addressed elsewhere.

25

procedures that all personnel are required to See Pls.’ Resp. to Defs.’ SSOF have a working knowledge of. A number 92.

26

of MCSO policies prohibit racial profiling. The MCSO policies are

27

reasonable and conform to nationally recognized standards.” See Defendants’

28

Statement of Facts (Dkt#413-1) at the

183

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 184 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Report of Ben Click dated January 21, 2011,

3

at pg. 44, attached thereto as Exhibit 16;

see also March 18, 2011 Deposition of

4

Defense Expert Ben Click at p. 341, ln. 24

to p. 342, ln. 14, attached as Exhibit 17 to

5

Dkt#413-1 (wherein Mr. Click testified to

the foundation for his opinions and that his

6

opinions in the report were the same he

would provide at trial to a reasonable degree

7

of probability in his field of expertise).

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

8 130
9 10 11 12 13

Disputed.

Not genuinely disputed.

Controverting Statement: While

Defendants do not dispute that these specific policies do not contain a dedicated policy against racial profiling, this statement as used in the motion is misleading and taken out of context. Defendants refer the Court to their response to Plaintiffs’ statement No. 129, above, and expressly

Plaintiffs’ SOF 130 simply states the fact the identified policies do not prohibit racial profiling. Defendants’ response does nothing to contradict that statement.

incorporate the same herein by this

reference.

14 131 132
15 16 17 18 19 20 21 22 23 24 25 26 27 28

Admit. Disputed. Controverting Statement: While the Defendants do not dispute the fact that not all of the early MCSO Operations Plans for saturation patrols contained a specific prohibition reminding MCSO deputies of the prohibition against racial profiling, and that not all the deputies participating in a given saturation patrol received a copy of the Operations Plan, the Defendants dispute the statement that the MCSO’s prohibition and policy against racial profiling was ever confusing to any of its deputies or that the operation plan was not read to the deputies or not understood. As stated by defense police practices expert Bennie Click: “Every MCSO deputy and supervisor deposed understood, without equivocation, that racial profiling is wrong, a serious crime and could result in the loss of their jobs. This understanding by all personnel is a strong motivator not to racially profile any person.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached
184

Not genuinely disputed.
Defendants’ only issue with Plaintiffs’ SOF 132 is the claim that MCSO’s saturation patrol plans were not confusing. However, MCSO’s saturation patrol instructions only prohibited profiling based solely on race in the decision about whether or not to initiate an immigration investigation. Pls.’ SOF 132. Defendants’ response does not address the fact that MCSO permits deputies to request a 287(g) officer based in part on race. That deputies testified that racial profiling was “wrong” does not show that they understood MCSO’s policy on racial profiling. However, the deputies admittedly used race as a factor in determining whether individuals are illegally present in the United

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 185 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

thereto as Exhibit 16; see also March 18, States. Pls.’ SOF 135-36

3

2011 Deposition of Defense Expert Ben

Click at p. 341, ln. 24 to p. 342, ln. 14,

4

attached as Exhibit 17 to Dkt#413-1

(wherein Mr. Click testified to the

5

foundation for his opinions and that his

opinions in the report were the same he

6

would provide at trial to a reasonable degree

of probability in his field of expertise).

7

Although every deputy may not have

8

received a copy of the plan, “the operations plans were read to each participant and/or

9

they received a copy.” Id. at 47 (click Report). The “Operations Plans were

10

reasonable and met the standard of care. There is no evidence that there was

11

confusion over the objective of the operations, personnel assignments or the

12

specific duties to be performed.” Id.

In addition, Defendants further herein

13

incorporate by this reference their Response

and Controverting Statement as to

14

Plaintiffs’ Statement of Fact No. 25 as

section (A) set forth above.

15 133 Admit.

16 134 Disputed.

Not genuinely disputed.

17 18 19 20

Controverting Statement: Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE

Plaintiffs’ SOF 134 simply quotes the Department of Homeland Security’s description of the civil rights training in the 287(g) program. Defendants’ response does not dispute the quotation.

21

SAC Phoenix) at p. 28, ln. 231, ln. 21 to p. Defendants’ response further does

235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5,

not dispute the substance of

22

attached as Ex. 1; see also Deposition of statement either. Mr. Pena does Jason Kidd (ICE Assistant SAC Phoenix) at not specify how much of the total

23

p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.

five-weeks of training is devoted to racial profiling.

24

Objections: The document ORT1292 is ORT 1292 is admissible

inadmissible hearsay that does not qualify evidence. It is a report of the

25

for an exception.

Department of Homeland

Security Office of Inspector

26

General. See Pls.’ SOF 134

[Hickey Dec. Ex. 211]. It is not

27

hearsay pursuant to Fed. R. Evid.

807(8), “Public Records and

28

185

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 186 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3 135 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Reports.” Not genuinely disputed.

4

Controverting Statement: While

5 6

Defendants do not dispute the accuracy of the statement, the statement is misleading and taken out of context as it is used in the Plaintiffs’ motion.

Plaintiffs’ SOF 135 describes testimony from Sergeants Palmer and Madrid that they believe race or ethnicity may be relied upon in

7

There are a number of ICE-approved articulable “indicators” that a local law

deciding whether to investigate alienage. Defendants’ response

8 9 10 11 12 13 14

enforcement officer that is 287(g) certified is trained by ICE to look for when determining whether a person may be in the United States unlawfully. One of the ICEapproved indicators is that person’s race or ethnicity, including Mexican ancestry. See Deposition of Brett Palmer dated 10/23/09 at p. 19, ln. 1 to p. 20, ln. 7, attached as Exhibit 9. ICE approves of the use of race as one indicator among several in the exercise of 287(g) authority in the determination of whether someone may be in the United States unlawfully. See Deposition of ICE former Special

does not dispute this testimony. The legal proposition cited by Defendants is not responsive to Plaintiffs’ SOF 135. It also conflicts with Ninth Circuit law, which prohibits officers from relying on race in deciding to investigate alienage when operating in communities with substantial Latino populations. Montero-Camargo, 208 F.3d at 1132. Further, Defendants’ novel

15

Agent in Charge, Phoenix, Mr. Alonzo Pena, at p. 54, lns. 16-22, attached as

argument that they do not rely on race to initiate vehicle stops

16

Exhibit 1 (“[Race] could be used, but, again, (versus after a stop has been it couldn’t—it is not to be used solely. It is made) is without merit. Racial

17

never to be used just as a—as an individual profiling that commences after a

factor.”); see also Deposition of Brett

stop is no more permissible than

18

Palmer dated 10/23/09 at p. 25, lns. 9-18 attached as Exhibit 9 (“That is part of the

making an initial stop based on race. Montero-Camargo, 208

19

287(g) training that is part of our SOP,

F.3d at 1134-36.

yes.”); Exhibit 9 at p. 151, lns. 4-9 (“MCSO

20

287(g) officers can consider race as one relevant factor with others to have

21

reasonable suspicion that human smuggling may be occurring.”); see also United States

22

v. Vandyck-Aleman, 201 Fed. Appx. 215, 218, 2006 U.S. App. LEXIS 24245 *9 (5th

23

Cir. 2006), cert. denied, 549 U.S. 1188 (2007) (“Although ethnicity generally may

24

play no role in the enforcement of criminal law of this country, enforcement of the

25

immigration laws demands that the officials focus on individuals most likely

26

to violate those laws. In the poultryproducing region of Scott County,

27

Mississippi, as the agent testified without contradiction, the population of illegal

28

aliens is predominately Hispanic, not

186

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 187 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

(non-Hispanic) white.”).

3

Although ICE approves of the use of race as

4

one indicator, among several other indicators, as a basis to form reasonable

5

suspicion of unlawful status, the MCSO does not use race as an indicator or factor to

6

make vehicle stops under Arizona law. See Deposition of Brett Palmer dated 10/23/09

7

at p. 19, ln. 1 to p. 20, ln. 7; p. 145, lns. 1225; p. 150, ln. 25 to p. 151, ln. 3, attached as

8

Exhibit 9.

Deputies Palmer and Madrid, who were

9

both at the time, 287(g) certified by ICE

correctly stated permissible and ICE

10

approved indicators of possible unlawful

presence in the United States.

11 136 Disputed.

Not genuinely disputed.

12

Controverting Statement: While

13 14 15 16 17 18 19 20 21

Defendants do not dispute that an ICEapproved indicator for a 287(g) certified MCSO deputy to determine unlawful presence in the United States is a person’s race, this statement as used in the motion is misleading and taken out of context because: (a) Plaintiffs suggest that racial appearance is the sole indicator used by MCSO 287(g) certified deputies in investigating immigration violations; and (b) Plaintiffs suggest that MCSO non287(g) certified deputies are using race as an indicator for immigration investigations when they did not perform such investigations. Defendants refer the Court to their response to Plaintiffs’ statement of fact No. 135, immediately above, and expressly incorporate that response herein

Plaintiffs’ SOF 136 states that MCSO officers have explicitly relied on apparent Hispanic descent in immigration investigations, as evidenced by officer reports. Defendants’ response does not dispute this fact or the reports on which the fact is based. Plaintiffs did not suggest that race was the only factor relied on by MCSO deputies in those investigations, or make any claims about non-287(g) certified deputies (as compared to 287(g) officers, who are still required to comply with federal constitutional law).

by reference.

Further, racial profiling that

22

commences after a stop is no

more permissible than making an

23

initial stop based on race.

Montero-Camargo, 208 F.3d at

24

1134-36.

25

26 137
27
28

Disputed. Controverting Statement: While Defendants do not dispute that an ICE-
187

Not genuinely disputed. Plaintiffs’ SOF 137 states that

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 188 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

approved indicator for a 287(g) certified Sergeant Palmer testified that

3

MCSO deputy to determine unlawful

“additional bases for

presence in the United States is a person’s investigation” of alienage include

4

language speaking ability (i.e., the suspect whether a person speaks only

only speaks Spanish and cannot speak

Spanish, whether a person

5

English), this statement as used in the

appears to have just come from

motion is misleading and taken out of

Mexico, and whether a person is

6

context because: (a) Plaintiffs suggest that in “an illegal alien locale.”

Spanish speaking is the sole indicator used Defendants’ response does not

7

by MCSO 287(g) certified deputies in

dispute this testimony. Plaintiffs

investigating immigration violations; and did not suggest that only speaking

8

(b) Plaintiffs suggest that MCSO non-

Spanish was being relied on as

287(g) certified deputies are using Spanish the only factor in immigration

9

speaking as an indicator for immigration investigations, or make any

investigations when they did not perform claims about non-287(g) certified

10

such investigations.

deputies (as compared to 287(g)

11 12 13 14 15 16 17 18 19

There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for in determining whether a person may be in the United States unlawfully. Cf. INS v. Delgado, 466 U.S. 210, 212 (1984) (immigration officers could question an individual although they lacked reasonable suspicion that the individual was an illegal alien); Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[M]ere police questing does not constitute a seizure…. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”). One such ICE approved indicator is that the person does not speak the English language. See

officers, who are still required to comply with federal constitutional law). Moreover, simply speaking Spanish does not support reasonable suspicion of an immigration violation. See Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 539-40 (6th Cir. 2002) (cautioning that placing any criminal significance on the fact that a person speaks Spanish can be a pretext for discrimination due to the “close connection between the Spanish language and a specific ethnic community”).

20

Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as

21

Exhibit 10; see Deposition of Ramon Armendariz at p. 44, lns. 1-4, attached as

22

Exhibit 8; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5,

23

attached as Exhibit 11.

138 Admit with clarification.

Not genuinely disputed.

24

Sgt. Manuel Madrid was a 287(g) certified

25 26 27 28

deputy. The ICE training on racial profiling was not insignificant. Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the

Plaintiffs’ SOF 138 states that Sergeant Madrid could not remember what his academy racial profiling training covered, and that the only other racial profiling training he received was

188

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 189 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

civil rights of people. See Deposition of as part of the 287(g) program.

3

Alonzo Pena (former ICE SAC Phoenix) at Defendants’ response does not

p. 28, ln. 231, ln. 21 to p. 235, ln. 1; p. 243, dispute this testimony.

4 5 6

ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of Jason Kidd (ICE Assistant SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6, attached as Exhibit 2.

Defendants’ response that “The ICE training on racial profiling was not insignificant” is unresponsive to Plaintiffs’ SOF 138 and unsupported by the cited

7

testimony, which relates to the length of the entire course. See

8

Pls.’ Reply SOF 134.

139 Admit with clarification.

Not genuinely disputed.

9

Deputy Matthew Ratcliffe was a 287(g)

10 11 12 13 14

certified deputy. The ICE training on racial profiling was not insignificant. Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p.

Plaintiffs’ SOF 139 states that Deputy Ratcliffe only received racial profiling training in police academy and the 287(g) program. Defendants’ response does not dispute that this was the only training Deputy Ratcliffe received. Defendants’ response that “The

15

235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of

ICE training on racial profiling was not insignificant” is

16

Jason Kidd (ICE Assistant SAC Phoenix) at unresponsive to Plaintiffs’ SOF

p. 23, ln. 6 to p. 24, ln. 6, attached as

139 and unsupported by the cited

17

Exhibit 2.

testimony, which relates to the length of the entire course. See

18

Pls.’ Reply SOF 134.

140 Admit with clarification.

Not genuinely disputed.

19

Deputy Ramon Armendariz was a 287(g)

20 21 22 23 24

certified deputy. The ICE training on racial profiling was not insignificant. Former ICE Special Agent in Charge, Phoenix, Mr. Alonzo Pena testified that ICE 287(g) certification program provides a five-week curriculum to attendees that specifically includes training on the subjects of racial profiling and the civil rights of people. See Deposition of Alonzo Pena (former ICE SAC Phoenix) at p. 28, ln. 231, ln. 21 to p.

Plaintiffs’ SOF 140 states that Deputy Armendariz received a “short and sweet” training on racial profiling, and could not recall any other racial profiling training. Defendants’ response does not dispute that this was the only training Deputy Armendariz received.

25

235, ln. 1; p. 243, ln. 24 to p. 245, ln. 5, attached as Ex. 1; see also Deposition of

Defendants’ response that “The ICE training on racial profiling

26

Jason Kidd (ICE Assistant SAC Phoenix) at was not insignificant” is

p. 23, ln. 6 to p. 24, ln. 6, attached as

unresponsive to Plaintiffs’ SOF

27

Exhibit 2.

140, and unsupported by the cited testimony, which relates to the

28

length of the entire course. See

189

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 190 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3 141 Admit.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Pls.’ Reply SOF 134.

4 142
5 6
143
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
144
28

Admit. Objections: Defendants object to the term “sensitivity” as undefined, vague, and ambiguous. Disputed. Controverting Statement: While Defendants do not dispute that this is the opinion of Plaintiffs’ police practices/racial profiling expert Robert Stewart, it is disputed by Defendants’ expert Bennie Click. Mr. Click testified: “The MCSO maintains comprehensive and detailed policies and procedures that all personnel are required to have a working knowledge of. A number of MCSO policies prohibit racial profiling. The MCSO policies are reasonable and conform to nationally recognized standards.” See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).
Disputed.

Defendants admit Plaintiffs’ SOF 142 as it pertain to the lack of ongoing training on racial profiling. Not genuinely disputed.
Plaintiffs’ SOF 143 states that MCSO’s failure to have a clear, agency-wide policy prohibiting racial profiling (that includes a definition of racial profiling) does not comply with generally accepted police practices. Defendants’ response does not address that specific failure and Mr. Click’s opinion concerns only the reasonableness of certain informational bulletins and unitwide policies that included a prohibition on racial profiling. None of those is agency-wide. See Pls.’ SOF 129-30. Nor did they define what conduct was prohibited. See Pls.’ SOF 131. Simple statements prohibiting racial profiling are insufficient. Stewart Decl. ¶ 42 [Dkt. No. 423] Consequently, there is no genuine dispute of fact as to Plaintiffs’ SOF 143. Defining what conduct was prohibited would have been particularly important given that MCSO’s saturation patrol instructions only prohibited profiling based solely on race in the decision about whether or not to initiate an immigration investigation, Pls.’ SOF 132, and MCSO officers admittedly used race as a factor in determining whether individuals are illegally present in the United States. Pls.’ SOF 135-36. Not genuinely disputed.

190

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 191 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Controverting Statement: While

3 4 5

Defendants do not dispute that the cited statement is the opinion held by Plaintiffs’ police practices/racial profiling expert Robert Stewart, it ignores the evidence. “The MCSO provides academy training to

Plaintiffs’ SOF 144 states that the training MCSO officers received was inadequate and did not prepare them for the complexities of immigration enforcement

6

deputies emphasizing that racial profiling is through traffic stops away from unacceptable conduct. The deputies that the border. Defendants adduce

7

were 287(g) received additional training from ICE personnel. This training is

no evidence of the content of the training that officers received, to

8

reinforced at each saturation patrol

show why it adequately prepared

operation briefing as it is contained in the MCSO deputies. Their response

9

operations plan. The effectiveness of

refers only to “how well the

training is not measured by how recently the deputies conduct and

10

training was done or how frequently it is presented, but measured by how well the

performance reflect . . . the training” as the test for adequacy.

11

deputies conduct and performance reflect Yet even measured against that the performance objectives of the training. standard, MCSO’s training is

12

Mr. Kidd [of ICE] stated that during ICE inadequate. MCSO officers training for 287(g) certification, there is a admittedly used race as a factor in

13

block of instruction that discusses racial profiling and that it is prohibited.”

determining whether individuals are illegally present in the United

14 15 16 17

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

States. Pls.’ SOF 135-36. Officers could not even recall the content of their racial profiling training. See Pls.’ SOF 138-41. Thus, Defendants’ response raises no genuine issue of fact as Pls.’ SOF 144.

(wherein Mr. Click testified to the

18

foundation for his opinions and that his

opinions in the report were the same he

19

would provide at trial to a reasonable degree

of probability in his field of expertise).

20

“Mr. Pena, the Special Agent in Charge of

21

the Phoenix ICE Office, and Mr. Jim Pendergraph, the ICE Executive Director of

22

State and Local Coordination, indicated, from their observations, the MCSO did

23

nothing but good police work.”

Id. at p. 45.

24 145 Admit in part and disputed in part.

Not genuinely disputed.

25

Controverting Statement: While

26 27 28

Defendants do not dispute this statement, the statement is misleading as used in Plaintiffs’ motion because as soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph

Plaintiffs’ SOF 145 states that an MCSO officer used his email account to circulate a racially offensive image of a “Mexifornia” driver’s license.

191

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 192 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Sousa, learned of these types of

Defendants’ response does not

3

communications he became “livid” and

dispute that this occurred.

4 5

immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.

There is no record evidence that Sousa “immediately stopped all such emails.” Defendants cite Sousa’s testimony regarding an

6

The Defendants dispute that the referenced email he sent on March 11, 2009,

email resulted in any MCSO deputy or

requesting that posse members be

7

employing having racially discriminatory instructed not to forward emails intent or motive against the named Plaintiffs such as one that Sousa had

8

specifically, or Latinos in general. There is received about “Operation no evidence provided by the Plaintiffs, or at Wetback.” Pls.’ SOF 151,

9

all, that would support such a causal connection.

Hickey Dec. Ex. 92. The “Mexifornia” email was sent by

10

an MCSO officer, and was not the subject of Sousa’s request, as it

11

was sent a year earlier. See id.

Plaintiffs do not argue that the

12

“Mexifornia” email resulted “in

any MCSO deputy or employ[ee]

13

having racially discriminatory

intent,” as Defendants state, but

14

that the circulation of the email is

probative of the discriminatory

15

attitudes of MCSO officers and

the agency’s tolerance of such

16

attitudes and failure to exercise

supervisory oversight. See Pls.’

17

MSJ 8:3-11; Pls.’ SOF 154.

18 146

Admit with clarification and disputed in part.

Not genuinely disputed.

19 20 21 22 23

Controverting Statement: While Defendants do not dispute the statement that two (2) HSU deputies circulated the emails, the statement is misleading as used in Plaintiffs’ motion because as soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See

Plaintiffs’ SOF 146 states that HSU officers and others distributed “Mexican Word of the Day” emails making fun of Mexican accents, which Chief Sands acknowledged were offensive. Defendants’ response does not dispute that this occurred.

24

Deposition of Joseph Sousa dated 10/22/10 There is no record evidence that

at p. 90, ln. 19 to p. 91, ln. 21, attached as Sousa “immediately stopped all

25

Exhibit 19.

such emails.” Defendants cite

26 27 28

The Defendants dispute that the referenced email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is

Sousa’s testimony regarding an email he sent on March 11, 2009, requesting that posse members be instructed not to forward emails such as one that Sousa had

192

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 193 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

no evidence provided by the Plaintiffs, or at received about “Operation

3

all, that would support such a causal

Wetback.” Pls.’ SOF 151,

connection.

Hickey Dec. Ex. 92. The

4

“Mexican Word of the Day”

emails were sent by MCSO

5

officers, and were not the subject

of Sousa’s request. See id.

6

Plaintiffs do not argue that the

7

“Mexican Word of the Day” emails resulted “in any MCSO

8

deputy or employ[ee] having racially discriminatory intent,” as

9

Defendants state, but that the circulation of the email is

10

probative of the discriminatory attitudes of MCSO officers and

11

the agency’s tolerance of such attitudes and failure to exercise

12

supervisory oversight. See Pls.’ MSJ 8:3-11; Pls.’ SOF 154.

13 147 Admit in part and disputed in part.

Not genuinely disputed.

14 15 16 17 18 19

Controverting Statement: While Defendants do not dispute this statement, they do dispute the phrase “regularly.” The cited evidence does not support the use of the phrase. This statement also is misleading as used in Plaintiffs’ motion because as soon as the person with day-today responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See Deposition of Joseph

Plaintiffs’ SOF 147 cites a dozen examples of racially and ethnically offensive emails circulated by HSU officers in the period relevant to this suit. Defendants’ response does not dispute that these emails were circulated or that they are offensive. Further examples of similar

20

Sousa dated 10/22/10 at p. 90, ln. 19 to p. emails circulated by MCSO

91, ln. 21, attached as Exhibit 19.

officers (including HSU officers)

21

The Defendants further dispute that his email resulted in any MCSO deputy or

are discussed in Pls.’ SOF 145, 146, and 148.

22

employing having racially discriminatory There is no record evidence that

intent or motive against the named Plaintiffs Sousa “immediately stopped all

23

specifically, or Latinos in general. There is such emails.” Defendants cite

no evidence provided by the Plaintiffs, or at Sousa’s testimony regarding an

24

all, that would support such a causal

email he sent on March 11, 2009,

connection.

requesting that posse members be

25

instructed not to forward emails

such as one that Sousa had

26

received about “Operation

Wetback.” Pls.’ SOF 151,

27

Hickey Dec. Ex. 92. The emails

cited in Plaintiffs’ SOF 147 were

28

193

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 194 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

circulated by MCSO officers, and

3

were not the subject of Sousa’s

request. See id.

4

Plaintiffs do not argue that the

5

these emails resulted “in any MCSO deputy or employ[ee]

6

having racially discriminatory intent,” as Defendants state, but

7

that the circulation of the email is probative of the discriminatory

8

attitudes of MCSO officers and the agency’s tolerance of such

9

attitudes and failure to exercise supervisory oversight. See Pls.’

10

MSJ 8:3-11; Pls.’ SOF 154.

148 Admit in part and disputed in part.

Not genuinely disputed.

11

Controverting Statement: While

12 13 14 15 16 17 18

Defendants do not dispute this statement, they do dispute the phrase “regularly.” The cited evidence does not support the use of the phrase. This statement also is misleading as used in Plaintiffs’ motion because as soon as the person with day-today responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of these types of communications he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19.

Defendants “dispute the phrase ‘regularly’.” However, the word “regularly” does not appear in Plaintiffs’ SOF 148. To the extent Defendants complain about the use of the word “regularly” in Pls.’ SOF 147, Plaintiffs’ cited a dozen examples of racially and ethnically offensive emails circulated by HSU officers in the period relevant to this suit. Further examples of similar emails circulated by MCSO

The Defendants further dispute that his

officers (including HSU officers)

19

email resulted in any MCSO deputy or

are discussed in Pls.’ SOF 145,

employing having racially discriminatory 146, and 148.

20 21 22

intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.

There is no record evidence that Sousa “immediately stopped all such emails.” Defendants cite Sousa’s testimony regarding an email he sent on March 11, 2009,

23

requesting that posse members be instructed not to forward emails

24

such as one that Sousa had received about “Operation

25

Wetback.” Pls.’ SOF 151, Hickey Dec. Ex. 92. The “Indian

26

Yoga” email was circulated by an MCSO officer (HSU Sergeant),

27

and was not the subject of Sousa’s request. See id.

28 194

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 195 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Plaintiffs do not argue that the “Indian Yoga” email resulted “in any MCSO deputy or employ[ee] having racially discriminatory intent,” as Defendants state, but that the circulation of the email is probative of the discriminatory attitudes of MCSO officers and the agency’s tolerance of such attitudes and failure to exercise supervisory oversight. See Pls.’ MSJ 8:3-11; Pls.’ SOF 154.

9 149
10 11 12 13 14 15 16 17 18 19 20 21 22

Disputed. Controverting Statement: While defendants do not dispute that MCSO Deputy Carlos Rangel received an offensive email, this statement is unsupported by the authority cited by the Plaintiffs, or any at all. While Deputy Rangel is the 287(g) certified deputy that interacted with named Plaintiff Melendres, the following deputies involved with the traffic stops of the named Plaintiffs in this case did not send or receive offensive or allegedly offense emails or communications: Deputy Louis DiPietro; Deputy Matthew Ratcliffe; Deputy Douglas Beeks; and Michael Kikes. The Defendants further dispute this statement to the extent it suggests, as used in Plaintiffs’ motion, that the referenced emails resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general. There is no evidence provided by the Plaintiffs, or at all, that would support such a causal connection.

Not genuinely disputed.
Plaintiffs’ SOF 149 states that deputies involved in the events at issue in this litigation distributed racially offensive emails. Defendants do not actually dispute this fact, but rather argue that the cited evidence does not indicate that every one on the deputies involved in stops of the named Plaintiffs distributed inappropriate emails. However, the absence of an email in Defendants’ production does not establish that a particular deputy did not send or receive such communications. In fact, Defendants failed to preserve many emails. Further, Defendants’ admits that Deputy Rangel received an offensive email. Deputy Rangel also distributed offensive material using his email. See Pls.’ SOF 147.

23

Further, Deputy Ross (cited in Pls.’ SOF 149) participated in the

24

saturation patrol in which Mr. Ortega Melendres was stopped.

25

Deputy Voeltz participates in saturation patrols.

26

Plaintiffs do not argue that the

referenced emails resulted “in

27

any MCSO deputy or employ[ee]

having racially discriminatory

28

195

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 196 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
intent,” as Defendants state, but that the circulation of the email is probative of the discriminatory attitudes of MCSO officers and the agency’s tolerance of such attitudes and failure to exercise supervisory oversight. See Pls.’ MSJ 8:3-11; Pls.’ SOF 154.

7 150
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Disputed.

Not genuinely disputed.

Controverting Statement: The authority

cited by the Plaintiffs does not stand for the proposition stated. Moreover, Sgt. Brett Palmer forwarded only a document attributed to the Los Angeles Times that apparently had exaggerated statistics about crime committed by illegal immigrants.

Defendants do not dispute that racially charged and offensive emails were circulated by HSU supervisors Sergeant Palmer, acting Sergeant Brockman, and Sergeant Baranyos. The

In addition, Defendants further herein

testimony cited in SOF 150

incorporate by this reference their Response confirms that supervisors

and Controverting Statement as to

circulated some of the cited

Plaintiffs’ Statement of Fact No. 49 set forth documents.

above.

In addition to the fabricated

The Defendants further dispute that any

statistics, Sergeant Palmer

email resulted in any MCSO deputy or

forwarded an image entitled

employing having racially discriminatory “Mexican Yoga,” which featured

intent or motive against the named Plaintiffs an intoxicated Hispanic man

specifically, or Latinos in general. There is passed out backwards in a chair.

no evidence provided by the Plaintiffs, or at See Pls.’ SOF 150, Hickey Dec.

all, that would support such a causal

Ex. 105.

connection.

Plaintiffs do not argue that the

referenced emails resulted “in

any MCSO deputy or employ[ee]

having racially discriminatory

intent,” as Defendants state, but

that the circulation of the email is

probative of the discriminatory

attitudes of MCSO officers and

the agency’s tolerance of such

attitudes and failure to exercise

supervisory oversight. See Pls.’

MSJ 8:3-11; Pls.’ SOF 154. If

HSU supervisors (who also

served as supervisors on

saturation patrols) were

circulating such emails using

their county email accounts, it

follows that they would not be

critical of racial stereotyping by

their deputies.

28 196

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 197 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

151 Disputed.

Not genuinely disputed.

3

Controverting Statement: While the

4 5 6 7 8 9 10

Defendants do not dispute the fact that one (1) volunteer posse member sent an email praising the 1950’s federal program known as “Operation Wetback,” there is no evidence that this single volunteer was involved in any saturation patrol in any capacity, or that he was involved in any manner with any of the traffic stops of the named Plaintiffs, or that this email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general.

Defendants’ do not dispute the record evidence cited in Plaintiffs’ SOF 151. As that evidence shows, one of the “Operation Wetback” emails was sent by posse member Jim Van Allen. Pls.’ SOF 151 & Hickey Dec. Ex. 92. Jim Van Allen assisted HSU Sergeant Brett Palmer’s unit “[a]nytime my unit goes out and works a roadway.” Palmer Dep. II, at 16:20-17:9 [Hickey Dec. Ex. 61].

11 12 13 14

In addition, Lt. Joseph Sousa testified that the single volunteer posse member’s email was unacceptable and inappropriate in the MCSO. See Deposition of Joseph Sousa dated 10/22/10 at p. 87, ln. 19 to p. 88, ln. 17, attached as Exhibit 19. The email from the posse member was an “isolated incident” to Lt. Sousa’s knowledge. Id.

There is no record evidence of any disciplinary action being taken as a result of the “Operation Wetback” emails, or any other racially offensive emails circulated at MCSO. Jim Van Allen remained an active posse member as of late 2010. Palmer

15

Dep. II, at 16:20-17:9 [Hickey Dec. Ex. 61].

16

Another “Operation Wetback”

emails was sent to MCSO from

17

outside email addresses. See Pls.’

SOF 151, Hickey Dec. Ex. 111

18

(from “Frosty T.”). This email

was sent after Lieutenant Sousa

19

requested that the posse be

instructed not to send such emails

20

to MCSO. Pls.’ SOF 151, Hickey

Dec. Ex. 111 (sent January 8,

21

2010).

22

Plaintiffs do not argue that the “Operation Wetback” emails

23

resulted “in any MCSO deputy or employ[ee] having racially

24

discriminatory intent,” as Defendants state, but that the

25

circulation of the email is probative of the discriminatory

26

attitudes of MCSO officers and the agency’s tolerance of such

27

attitudes and failure to exercise supervisory oversight. See Pls.’

28 197

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 198 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3 152 Admit in part and disputed in part.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
MSJ 8:3-11; Pls.’ SOF 154. Not genuinely disputed.

4 5 6 7 8
153
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Controverting Statement: While Defendants do not dispute that Arpaio could not state whether the circulation of the Mexifornia license email violated a policy of his department, he testified that it was in poor taste. See Deposition of Joseph Arpaio dated 11/16/10 at p. 217, lns. 3-13, attached as Exhibit 15. Disputed. Controverting Statement: While the Defendants do not dispute the statement that the described emails are racially derogatory, unacceptable, and should be dealt with as soon as they are discovered, this statement is misleading as used in Plaintiffs’ motion because as soon as the person with day-today responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned of the same he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as Exhibit 19. The Defendants further dispute that his email resulted in any MCSO deputy or employing having racially discriminatory intent or motive against the named Plaintiffs specifically, or Latinos in general.
198

Defendants’ “controverting statement” does not dispute Plaintiffs’ SOF 152, which simply asserts that Sheriff Arpaio’s could not state whether the “Mexifornia” license email violated MCSO policy. Not genuinely disputed.
Plaintiffs’ SOF 153 reports the testimony of Defendants’ police practices expert Ben Click. Defendants do not dispute this testimony. There is no evidence that Lieutenant Sousa “immediately stopped all such emails” upon learning that an email about “Operation Wetback” had been sent to MCSO by a posse member. When Sousa learned of the email, he wrote, “we might want to advise the posses to stop forwarding the attached to county emails.” Pls.’ SOF 151, Hickey Dec. Ex. 92 (emphasis added). However, months after Sousa’s request, another “Operation Wetback” email was sent to the MCSO. Pls.’ SOF 151, Hickey Dec. Ex. 111. There is no record evidence of any disciplinary action being taken as a result of the “Operation Wetback” emails, or any other racially offensive emails circulated at MCSO. The sender of the original email remained an active posse member. Sousa Dep. II, at 92:5-7 [Hickey Dec. 19]; Palmer Dep. II, at 16:20-17:9 [Hickey Dec. 61]. Further, Lieutenant Sousa’s admonition was not directed at

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 199 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

8

9

10

11

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
MCSO officers, who continued to circulate such offensive emails with the full awareness (and sometimes participation) of HSU supervisors. Finally, Plaintiffs do not argue that the “Operation Wetback” emails resulted “in any MCSO deputy or employ[ee] having racially discriminatory intent,” as Defendants state, but that the circulation of the email is probative of the discriminatory attitudes of MCSO officers and the agency’s tolerance of such attitudes and failure to exercise supervisory oversight. See Pls.’ MSJ 8:3-11; Pls.’ SOF 154.

12 154 Disputed.

Not genuinely disputed.

13 14 15 16

Controverting Statement: While Defendants do not dispute that the cited statement is the opinion expressed by Plaintiffs’ police practices and racial profiling expert Robert Stewart, they dispute the following as used in the motion: (a) that MCSO supervisors, when they learned of the offensive and inappropriate

Plaintiffs’ SOF 154 reports the conclusion of police practices expert Robert Stewart. Defendants’ response does not dispute this testimony. As stated in Plaintiffs’ replies

17

email communication, allegedly did not

regarding SOF 152, 153, and 154,

immediately put an end to their circulation; there is no evidence that

18

and (b) that anyone other than Mr. Stewart Lieutenant Sousa “immediately was left with the impression that the MCSO put an end” to the circulation of

19

accepted racial stereotyping as policy, practice, or custom.

“Operation Wetback” emails or other racially offensive emails.

20 21 22 23

As soon as the person with day-to-day responsibilities for the Human Smuggling Unit, Lt. Joseph Sousa, learned about an inappropriate email he became “livid” and immediately stopped all such emails. See Deposition of Joseph Sousa dated 10/22/10 at p. 90, ln. 19 to p. 91, ln. 21, attached as

Months after Sousa requested that posse be instructed to stop forwarding the emails, another “Operation Wetback” email was sent to MCSO from an outside email address. Pls.’ SOF 151, Hickey Dec. Ex. 111.

Exhibit 19.

There is no record evidence of

24 25 26

Arpaio testified that a fake “Mexifornia license” was in poor taste. See Deposition of Joseph Arpaio dated 11/16/10 at p. 217, lns. 3-13, attached as Exhibit 15.

any disciplinary action being taken as a result of the “Operation Wetback” emails, or any other racially offensive emails circulated at MCSO. The posse

member who sent the original

27

“Operation Wetback” email

remained an active member.

28

199

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 200 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6

7

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Sousa Dep. II, at 92:5-7 [Hickey Dec. 19]; Palmer Dep. II, at 16:20-17:9 [Hickey Dec. 61]. Further, Lieutenant Sousa’s admonition was not directed at MCSO officers, who continued to circulate such offensive emails with the full awareness (and sometimes participation) of HSU supervisors.

8

9 155
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Defendants submit this statement is misleading as cited and as used in the motion. The standard of care does not require the collection of race data on law enforcement traffic stops or encounters. Controverting Statement: The MCSO’s police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in not collecting data about the ethnicity of persons stopped or contacted by the MCSO. Mr. Click testified: “The racial profiling issue pivots on the question of whether collecting information on each police contact/encounter will determine if racial profiling exists. Many agencies do not collect such data because they feel the information will be misinterpreted and have a chilling effect on law enforcement activity, putting the communities’ safety at great risk. Not collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best. These include such as community demographics, officer experience level, officer training, officer performance history, officer work ethic, location assigned, traffic/pedestrian volume, different duties, call volume and the nature of investigations officer can be involved in. Mandated data collection is suspect when
200

Not genuinely disputed.
Plaintiffs’ SOF 155 simply states that MCSO does not have a system for analyzing the race or ethnicity of individuals stopped, in order to determine whether racial profiling is occurring. Defendants’ response does not dispute that no such system exists. Further, Mr. Click did not attempt to assess whether MCSO’s failure to collect any race or ethnicity data on the individuals stopped (and destruction of the little information that is recorded about citizen contacts, Pls.’ SOF 156, 162) fell below generally accepted practices, in light of the heightened risk of racial profiling created by MCSO. In such a context, the failure to collect any data on the race of individuals stopped is unreasonable. See Stewart Decl. ¶¶ 5-6, 37-38 [Dkt. No. 423]. For example, data from one saturation patrol showed that all but one of the motorists arrested were Hispanic. But Sgt. Madrid and Lt. Sousa both dismissed the figures, saying it was not a concern for them. Pls.’ SOF 160. Chief Sands acknowledged that 90 percent of arrests made during a smaller saturation patrol in

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 201 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

used to determine the race or ethnicity of Fountain Hills were of Hispanic

3

persons officer stopped. In many instances, individuals, even though the area

a person’s race or ethnicity is not obvious. was predominantly non-Hispanic.

4

Race may be easier to determine because of Pls.’ SOF 161.

5 6 7 8 9 10 11 12

kin color, however, ethnicity is less apparent. Many people have surnames that are not indicative of their ethnicity. A number of ethnic groups have similar physical characteristics. Most countries have citizens of various races and ethnicities and country of origin may be misleading. Even self-identification is problematic because of the increasing number of persons with mixed racial and ethnic backgrounds. Officers misidentifying a person’s race or ethnicity can be controversial in itself and could create a perception of a racially or ethnically insensitive department.” See Defendants’ Statement of Facts

Even in the face of such disparities, MCSO feels no need to collect data about stops. MCSO does not even collect data to ensure that the policies it supposedly put in place to deflect allegations of racial profiling (such as the zero-tolerance policy) are in fact being carried forth by officers. Pls.’ SOF 12223. Such resistance to documentation of law enforcement activity is suggestive of an effort to conceal racial profiling and implicitly allow it to continue. See Chaves, No. 01-

13

(Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 45-46

000245, 2010 WL 3810629, at *4 (D. Ariz. June 21, 2010).

14

attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense

15

Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1

16

(wherein Mr. Click testified to the foundation for his opinions and that his

17

opinions in the report were the same he would provide at trial to a reasonable degree

18

of probability in his field of expertise).

156 Admit in part and disputed in part.

Not genuinely disputed.

19

Controverting Statement: Defendants do

20 21 22 23 24 25

not dispute that MCSO deputies do not record all encounters with citizens. The cited authority does not stand for the proposition that “MCSO deputies,” to the extent they do record their encounters with citizens, that they do so on pads of paper and then destroy the same at the end of their tour of duty. The cited testimony is from a single deputy, Ramon Armendariz, about his personal practice of discarding notes at the end of shift.

Plaintiffs’ SOF 156 reports that MCSO deputies do not record all citizen contacts, and that they destroy any records at the end of their shift. Defendants’ response provides no information to the contrary. In addition to Deputy Armendariz, Deputy DiPietro testified to destroying notes of encounters with citizens. See DiPietro Dep. 57:3-58:6 [Hickey

Dec. Ex. 44].

26 157 Admit.

27 158 Admit.

28 201

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 202 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

159 Disputed.

Not genuinely disputed.

3

Controverting Statement: While the

4 5 6 7 8

Defendants do not dispute the fact that the MCSO Operations Plans do not detail the specific roles for supervisors working during the saturation patrol, the defendants dispute that the suggestion as made in Plaintiffs’ motion and supported by this statement that supervision was inappropriate or that there was confusion. The “Operations Plans were reasonable and met

Plaintiffs’ SOF states that saturation patrol “operations plans” do not describe a specific role for supervisors. Defendants’ response admits that no such descriptions exist in the operations plans.

the standard of care. There is no evidence As for Defendants’ additional

9

that there was confusion over the objective assertions about the level of of the operations, personnel assignments supervision that MCSO officers

10

or the specific duties to be performed.” See Defendants’ Statement of Facts

received, see Pls.’ Resp. to Defs.’ SSOF 93.

11

(Dkt#413-1) at the Report of Ben Click

dated January 21, 2011, at pg. 44, attached

12

thereto as Exhibit 16; see also March 18,

2011 Deposition of Defense Expert Ben

13

Click at p. 341, ln. 24 to p. 342, ln. 14,

attached as Exhibit 17 to Dkt#413-1

14

(wherein Mr. Click testified to the

foundation for his opinions and that his

15

opinions in the report were the same he

would provide at trial to a reasonable degree

16

of probability in his field of expertise). In

addition, the “level of supervision required

17

generally depends on a deputies’ training,

experience and past performance. There is

18

no evidence that any deputy lacked

supervision.” Id. at p. 44.

19 160 Admit.

20 161 Disputed.

Not genuinely disputed.

21 22 23 24

Controverting Statement: This statement is misleading as used in the motion because it does not disclose the volume of arrests during the Fountain Hills saturation patrol, or the fact that one of the arrestees had a felony arrest warrant out on him with an ICE detainer.

Plaintiffs’ SOF 161 reports the testimony of Chief Sands, who acknowledged that 90 percent of arrestees during an saturation patrol in Fountain Hills appeared to be Hispanic, although the area

Chief Brian Sands testified that there were was predominantly non-Hispanic.

25

only ten (10) arrests in Fountain Hills

Defendants’ response does not

during a saturation patrol, and that nine (9) dispute the testimony about the

26

of those ten arrestees appeared to have

race of arrestees or the

Latino surnames. See Deposition of Brian demographics of the community.

27 28

Sands dated 12/14/09 at p. 132, lns. 5-7, attached as Exhibit 14.

Defendants’ contention that “MCSO could not have had a

202

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 203 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Plaintiffs also did not disclose that one of racially discriminatory intent” in

3

the persons with a Latino appearing

arresting a person with an

surname was arrested due to a felony

outstanding warrant is mistaken,

4

warrant with an ICE detainer on him. See and further demonstrates their

Melendres MCSO 14434, Ex. 8 to Sand

narrow view of racial profiling.

5

Depo. I (Hickey Dec. Ex. 77). The MCSO The individual could have been

could not have had racially discriminatory profiled in the deputy’s decision

6

intent or motive in arresting this person

to make the initial stop, and then

given the outstanding arrest warrant.

discovered to have an outstanding

7

warrant. See Pls.’ SOF 161,

Hickey Dec. Ex. 77.

8 162 Admit in part and disputed in part.

Not genuinely disputed.

9

Controverting Statement: Defendants do

10 11 12

not dispute that, during saturation patrols, individual deputies provide from their individual stat sheets only quantitative data to their supervisors and that such data is compiled into master data sheets. The remaining statement is argument, and Defendants incorporate herein their

Plaintiffs’ SOF states that MCSO deputies provided only total tallies and arrest data are provided to supervisors. Defendants’ response does not dispute this.

13

Responses contained in DKT# 235 and 283. The fact that MCSO regularly

destroyed individual officer stat

14

sheets after each saturation patrol

operation is not Plaintiffs’

15

“argument,” but is a finding of

the Court supported by record

16

evidence. Specifically, the Court

found that Defendants destroyed

17

individual stat sheets for all

operations conducted until

18

November 2009, with one

exception. Order, Feb. 12, 2010,

19

at 10:12-21.

20 163
21 22 23 24 25 26 27 28

Disputed. Controverting Statement: The MCSO conducts after-action de- briefing after saturation patrols. See Deposition of Joseph Sousa dated 12/10/09 at p. 24, lns. 9-20, attached as Exhibit 5 (“Q. After these sweeps occur, do you have debriefing meetings with others? A. Yes, we do….”). “The MCSO conducts a debriefing after each operation to identify any issues that need to be addressed in future operations. The nature of the debriefing and what is included in an after-action report is ultimately a decision made by the Sheriff or his designee.”
203

Not genuinely disputed. Defendants’ cited testimony is contradicted by the testimony of their own witnesses, Sergeant Madrid and Deputy Beeks. Thus, if debriefings occurred at all, the “others” that Lieutenant Sousa reports having them with could not have been his subordinates. See Madrid Dep. at 129:15-17 (“Q. Was there any kind of debriefing to talk about, you know, what could be done better next time? A. On saturation patrols? No.” (emphasis added).)

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 204 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

See Defendants’ Statement of Facts

[Hickey Dec. Ex. 50].

3

(Dkt#413-1) at the Report of Ben Click

dated January 21, 2011, at pg. 47, attached

4

thereto as Exhibit 16; see also March 18,

2011 Deposition of Defense Expert Ben

5

Click at p. 341, ln. 24 to p. 342, ln. 14,

attached as Exhibit 17 to Dkt#413-1

6

(wherein Mr. Click testified to the

foundation for his opinions and that his

7

opinions in the report were the same he

would provide at trial to a reasonable degree

8

of probability in his field of expertise).

9 164
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
165
25 26 27 28

Disputed. Controverting Statement: The Plaintiffs’ citation to pages 56-59 do not support their statement. While Defendants do not dispute this statement as an accurate citation to one of the points addressed by Lt. Sousa, this statement as used by Plaintiffs is misleading and incomplete. Lt. Sousa concluded that racial profiling was not a concern based on the following factors: (a) the training and education of the deputies; (b) the supervision of the deputies by himself and his sergeants during saturation patrols; and (c) his knowledge and familiarity with the deputies under his command and the resulting trust that he had in those deputies. See Deposition of Joseph Sousa dated 12/10/09 at p. 136, ln. 22 to p. 137, lm. 3 (training); p. 29, lns. 11-23 (supervision); and p. 135, lns. 13-17 (knowledge and familiarity with his staff), attached as Exhibit 5.
Disputed. Controverting Statement: While Defendants do not dispute that Arpaio testified that there is not a need for specific “regular” training on the subject matter of racial profiling, the statement is misleading as used in the Plaintiffs’ motion and is taken
204

Not genuinely disputed.
Plaintiffs’ SOF 164 states that Lieutenant Sousa testified that racial profiling was “not a concern” because he “trusts” his deputies. Defendants’ response does not dispute this testimony. The testimony in question is: “[Sousa:] I do not think -- I know for a fact that the deputies are not racial profiling. I believe they are not racial profiling. It’s a nonissue. It’s not a concern for me. Q. When you say that you know that for a fact, what is that based on apart from your briefing? A. Because I trust my people, I know my people, and no one is going to risk their career and their livelihood to make an arrest.” Sousa Dep. I at 136:1017 [Hickey Dec. Ex. 88]. Plaintiffs have elsewhere addressed the inadequate training and supervision that MCSO officers receive. See Pls.’ Reply to Defs.’ Resp.’ to Pls.’ SOF 144; Pls.’ Resp. to Defs.’ SSOF 93. Not genuinely disputed.
Plaintiffs’ SOF 165 describes Sheriff Arpaio’s testimony. The testimony in question is: “Q. Do you think it would be a good idea

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 205 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

out of context. The section cited by

to create a regular training

3

Plaintiffs shows that Arpaio explained the program designed to reduce the

reasons why he believed there was little risk risk of racial profiling in illegal

4

of racial profiling occurring at the time of immigration operations or other

his deposition (he was not addressing the aspects of law enforcement? MR.

5

previous question about the need for racial CASEY: Objection to Form.

profiling training that already was asked and THE WITNESS. Well, I - we do

6

answered at p. 41, lns. 12-19). Arpaio

not racial profile, why would I do

testified: “I have confidence in my staff and a training program? Q. BY MR.

7

they know how to supervise our deputies BODNEY. You don’t think there

and our detention officers, so I rely on their is even a risk of racial profiling

8

expertise and management abilities.” See occurring today? A. Once again,

Deposition of Joseph Arpaio dated 12/16/09 I have confidence in my staff and

9

at p. 41, lns. 20-25, attached as Exhibit 16. they know how to supervise our

10

The evidence also shows that MCSO deputies receive training on racial profiling:

deputies . . . .” Arpaio Dep. I at 41:12-25 [Hickey Dec. Ex. 4].

11

“The MCSO provides academy training to deputies emphasizing that racial profiling is

Defendants do not dispute this testimony.

12

unacceptable conduct. The deputies that Plaintiffs have elsewhere

were 287(g) received additional training addressed the inadequacies of the

13

from ICE personnel. This training is

training that MCSO officers

reinforced at each saturation patrol

receive on racial profiling. See

14

operation briefing as it is contained in the Pls.’ Reply to Defs.’ Resp.’ to

operations plan. The effectiveness of

Pls.’ SOF 144.

15

training is not measured by how recently the

training was done or how frequently it is

16

presented, but measured by how well the

deputies conduct and performance reflect

17

the performance objectives of the training.

Mr. Kidd [of ICE] stated that during ICE

18

training for 287(g) certification, there is a

block of instruction that discusses racial

19

profiling and that it is prohibited.”

20

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click

21

dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18,

22

2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14,

23

attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the

24

foundation for his opinions and that his opinions in the report were the same he

25

would provide at trial to a reasonable degree of probability in his field of expertise).

26 166 Admit in part and disputed in part.

Not genuinely disputed.

27 28

Controverting Statement: Defendants do

not dispute the cited section regarding former Chief Deputy David Hendershott,

Defendants’ admit that command

205

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 206 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Chief Brian Sands, and Lt. Joseph Sousa staff could not recall MCSO

3

testifying to their memory that they are

disciplining an officer for racial

unaware of the MCSO needing to discipline profiling.

4 5 6

a deputy for racial profiling. Defendants, however, dispute the description of Arpaio’s testimony because it is taken out of context and misleading as used in the motion. The question and answer exchange on the

Additionally, Plaintiffs’ SOF 166 states that Arpaio testified that he would not be bothered if he were a victim of racial profiling. Defendants do not dispute this

7 8

pertinent subject related to whether Arpaio would personally view himself as being harmed by racial profiling in a traffic stop:

contention. Defendants’ self-serving assurances that the MCSO does

“Q. If you’re stopped on the road

not racially profile are

9

because you’ve been racially profiled, but insufficient to create a dispute of

you actually haven’t committed a crime,

fact and have been elsewhere

10

would you think that you’ve been harmed? addressed in detail. See Pls.’

11

A. Me, personally? Q. Yes.

Resp. to Defs.’ SSOF 49-56.

A. It would not bother me.”

12

See Deposition of Joseph Arpaio dated

13

11/16/10 at p. 284, ln. 25 to p. 285, ln. 7, attached as Exhibit 15 (emphasis added).

14

The Defendants further dispute that

Arpaio’s personal view as to whether he

15

would be “harmed” by being racially

profiled does not mean that either he or any

16

of his employees believe it is acceptable to

racial profile. Arpaio testified that racial

17

profiling is morally wrong. See Deposition

of Joseph Arpaio dated 12/16/09 at p. 113,

18

lns. 10-11; 115, lns. 2-17, attached as

Exhibit 16; see also Arpaio Deposition

19

dated 11/16/10 at p. 77, lns. 22-23, attached

as Exhibit 15. Arpaio further testified that

20

the MCSO does not racially profile. Id. at

p. 113, ln. 21 to p. 114, ln. 10 (“Well, all I

21

can say, we don’t do that. We don’t stop

people by their appearance.”).

22

Chief Sands testified that racial profiling is

23

morally wrong. See Deposition of Brian Sands dated 12/14/09 at p. 147, ln. 20 to p.

24

148, ln. 5, attached as Exhibit 14. Chief Sands further understands that racial

25

profiling is illegal. See Deposition of Brian Sands dated 11/15/10 at p. 92, ln. 24 to p.

26

93, ln. 1, attached as Exhibit 14.

MCSO Lieutenant Joseph Sousa, the head

27

of MCSO’s Human Smuggling Unit

(“HSU”), and one of the top planners for

28 206

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 207 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

executing and supervising saturation

3

patrols, testified that racial profiling is

prohibited by MCSO policy, is illegal, and

4

HSU members do not racially profile. See

Deposition of Joseph Sousa dated 12/10/09

5

at p.135, ln. 24 to p. 136, ln. 17, attached as

Exhibit 5; see also Sousa Deposition dated

6

10/22/10 at p. 30, lns. 14-17, attached as

Exhibit 19.

7

HSU Sergeant Manuel Madrid, one of two

8

supervising sergeants for the unit, and a Latino himself, testified that racial profiling

9

is illegal, that race or ethnicity can never be used in making a traffic stop, and that the

10

HSU members he supervises do not racially profile. See Deposition of Manuel Madrid

11

dated 10/27/09 at p. 20, lns. 14-23; p. 195, lns. 15-17l, and p. 202, 18-22, attached as

12

Exhibit 10.

HSU Sergeant Brett Palmer, the remaining

13

supervisory sergeant for the unit, testified

that racial profiling is wrong and illegal, and

14

that the HSU members he supervises do not

racially profile. See Deposition of Brett

15

Palmer dated 10/23/09 at p. 36, lns 10-25; p.

135, lns. 5-25; p. 139, ln. 21 to p. 140, ln

16

18; p. 145, lns. 12-25; and p. 153, lns. 13-

15, attached as Exhibit 9.

17

Louis DiPietro, the deputy that made the

18

traffic stop on Plaintiff Melendres, knows and understands that racial profiling is

19

illegal. See Deposition of Louis DiPietro dated 10/21/09 at p. 87, lns. 17-19, attached

20

as Exhibit 13. Race was not a factor in Deputy DiPietro’s finding that he had

21

probable cause to stop the truck in which Plaintiff Melendres was a passenger. See

22

Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 125-126

23

Matthew Ratcliffe, the deputy that made the

traffic stop on the Rodriguez Plaintiffs

24

knows and understands that racial profiling

is illegal and wrong. See Deposition of

25

Matthew Ratcliffe dated 10/15/09 at p. 115,

lns.18-25, attached as Exhibit 6. Race was

26

not a factor in Deputy Ratcliffe’s finding

that he had probable cause to stop the truck

27

in which the Rodriguez Plaintiffs were

driving or occupying. See Defendants

28 207

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 208 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Statement of Facts (Dkt# 413-1) at ¶¶ 132-

3

135.

4

Michael Kikes, the deputy that made the traffic stop on the Plaintiffs Meraz and

5

Nieto knows and understands that racial profiling is illegal and wrong. See

6

Deposition of Michael Kikes dated 02/15/10 at p. 46, lns. 14-17, p. 108, lns. 9-15,

7

attached as Exhibit 7. Race was not a factor in Deputy Kikes’ finding that he had

8

probable cause to stop the truck in which Plaintiffs Meraz and Nieto were driving or

9

occupying. See Defendants Statement of Facts (Dkt# 413-1) at ¶¶ 85-86.

10

Former ICE Special Agent in Charge,

Phoenix, Mr. Alonzo Pena testified that ICE

11

287(g) certification program provides a

five-week curriculum to attendees that

12

specifically includes training on the subjects

of racial profiling and the civil rights of

13

people. See Deposition of Alonzo Pena

(former ICE SAC Phoenix) at p. 28, ln. 231,

14

ln. 21 to p. 235, ln. 1; p. 243, ln. 24 to p.

245, ln. 5, attached as Ex. 1; see also

15

Deposition of Jason Kidd (ICE Assistant

SAC Phoenix) at p. 23, ln. 6 to p. 24, ln. 6,

16

attached as Exhibit 2.

17

The MCSO has a policy prohibiting racial profiling. See Deposition of Brian Sands

18

dated 12/14/09 at p. 194, lns. 14-17, attached as Exhibit 14. The MCSO

19

instructs each of its deputies that are to participate in a saturation patrol during the

20

pre-saturation patrol briefing that they are not to racially profile any person during the

21

up-coming saturation patrol that day. Id. at p. 194, lns. 18-21; see also p. 195, lns. 2-5.

22

Each MCSO deputy has undergone

education and training about the improper

23

and unlawful use of race in law

enforcement, i.e., racial profiling, while at

24

the police academy at the start of their law

enforcement careers. Id. at p. 194, ln. 22 to

25

p. 195, ln. 1. When the deputy graduates

from the police academy and joins the

26

MCSO for active duty, he or she is taught

about the MCSO policy and prohibition

27

again racial profiling. Id.

28

Finally, the Defendants further dispute that

208

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 209 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Arpaio’s personal view as to whether he

3

would be “harmed” by being racially

profiled does not mean that either he or any

4

of his employees believe it is acceptable to

racial profile or that he or any MCSO

5

deputy or employee had racially

discriminatory intent or motive against the

6

named Plaintiffs specifically, or Latinos in

general.

7 167 Disputed.

Not genuinely disputed.

8

Controverting Statement: The MCSO’s

9 10 11

police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately in its documentation of saturation patrols. Mr. Click testified:

Plaintiffs’ SOF 167 states that for MCSO not to record the race of individuals during traffic stops falls outside generally accepted police practices. Police practices expert Mr. Robert Stewart noted

12

“The racial profiling issue pivots on the

that MCSO had created a

question of whether collecting information heightened risk of racial profiling

13

on each police contact/encounter will

by focusing on non-violent

determine if racial profiling exists. Many immigration offenders. See

14

agencies do not collect such data because Stewart Decl. ¶ 5-6, 37-38 [Dkt.

they feel the information will be

No. 423]. In this context, it is

15

misinterpreted and have a chilling effect on generally accepted that an agency

law enforcement activity, putting the

should document the race of

16 17 18 19 20 21 22

communities’ safety at great risk. Not

individuals stopped. Id.

collective this data [as opined by Plaintiffs’ expert Mr. Stewart] does not fall below the standard of care. The collection of data is a policy decision for each agency. There are numerous factors that may any evaluation of this data difficult at best. These include such as community demographics, officer experience level, officer training, officer performance history, officer work ethic, location assigned, traffic/pedestrian volume, different duties, call volume and the nature of investigations

Mr. Click did not attempt to assess whether MCSO’s failure to collect any race or ethnicity data on the individuals stopped (and destruction of the little information that is recorded about citizen contacts, Pls.’ SOF 156, 162), fell below generally accepted practices, in light of the heightened risk of racial profiling created by MCSO.

officer can be involved in.”

23

See Defendants’ Statement of Facts

(Dkt#413-1) at the Report of Ben Click

24

dated January 21, 2011, at pgs. 45-46

attached thereto as Exhibit 16; see also

25

March 18, 2011 Deposition of Defense

Expert Ben Click at p. 341, ln. 24 to p. 342,

26

ln. 14, attached as Exhibit 17 to Dkt#413-1

(wherein Mr. Click testified to the

27

foundation for his opinions and that his

opinions in the report were the same he

28

209

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 210 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

would provide at trial to a reasonable degree

3

of probability in his field of expertise).

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4 168
5 6 7 8 9 10 11 12 13 14 15 16 17

Disputed.

Not genuinely disputed.

Controverting Statement: The MCSO’s

police practices expert, Mr. Bennie Click, testified to a reasonable degree of probability in his field of expertise that that MCSO acted reasonably and appropriately to prepare for, conduct, monitor, and supervise its saturation patrols. See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pgs. 43-48 attached thereto as Exhibit 16 (containing his bullet points of miscellaneous opinions in response to the opinions of Plaintiffs’ police practices/racial profiling expert Robert Stewart, including but not limited to Mr. Click’s opinion that “there is no evidence that any deputy [during an saturation patrol] lacked

Plaintiffs’ SOF 168 states that MCSO’s “failure to actively monitor officers’ activities” during saturation patrols fails to conform to generally accepted practices. Active monitoring is appropriate where an agency has created a heightened risk of racial profiling, just as MCSO has done. See Stewart Decl. ¶¶ 37, 55-56 [Dkt. No. 423]. Defendants’ response (1) does not address the issue of broadened discretion, and (2) does not address the heightened risk of racial profiling.

appropriate supervision” (bullet point at p. Plaintiffs have elsewhere

44)); see also March 18, 2011 Deposition of addressed the myriad supervision

Defense Expert Ben Click at p. 341, ln. 24 failures of the MCSO. See Pls.’

to p. 342, ln. 14, attached as Exhibit 17 to Resp. to Defs.’ SSOF 93.

Dkt#413-1 (wherein Mr. Click testified to

the foundation for his opinions and that his

opinions in the report were the same he

would provide at trial to a reasonable degree

of probability in his field of expertise).

18 169
19 20 21 22 23 24 25 26 27 28

Disputed. Controverting Statement: This statement is misleading. HSU Sergeant Brett Palmer, a supervisory sergeant for HSU, testified that racial profiling is wrong and illegal, and that the HSU members he supervises do not racially profile. See Deposition of Brett Palmer dated 10/23/09 at p. 36, lns 10-25; p. 135, lns. 5-25; p. 139, ln. 21 to p. 140, ln 18; p. 145, lns. 12-25; and p. 153, lns. 13-15, attached as Exhibit 9. As stated by defense police practices expert Bennie Click: “Every MCSO deputy and supervisor deposed understood, without equivocation, that racial profiling is wrong, a serious crime and could result in the loss of their jobs. This understanding by all personnel is a strong motivator not to racially profile

Not genuinely disputed.
Plaintiffs’ SOF 169 relays the opinion of Defendants’ own police practices expert, Mr. Ben Click, about Sergeant Palmer’s attitude about supervision as stated in Palmer’s deposition. Defendants’ response does not dispute that Mr. Click offered this opinion. Defendants reference to Mr. Click’s testimony about MCSO officers understanding that racial profiling is wrong does not address Plaintiffs’ point about supervision. Mr. Click stated that he did not agree with Sergeant Palmer’s approach, and stated

210

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 211 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

any person.”

that the “key to controlling officer

3 4 5 6 7

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg. 44, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his

behavior” -- as “demonstrated for 100 years” is good supervision. Click Dep. at 128:18-23 [Hickey Dec. Ex. 40]. In fact, he found Sergeant Palmer’s testimony to reflect practice that was “[not] generally acceptable.” Click Dep. at 130:20-23 [Hickey Dec. Ex. 40].

8

opinions in the report were the same he would provide at trial to a reasonable degree

9

of probability in his field of expertise).

In addition, Defendants further herein

10

incorporate by this reference their Response

and Controverting Statement as to

11

Plaintiffs’ Statement of Fact No. 25 as

section (A) set forth above.

12 170 Disputed.

Not genuinely disputed.

13

Controverting Statement: While

14 15 16

Defendants do not dispute the statements that ICE personnel did attend all saturation patrols or personally observe all traffic stops, the statement is misleading as used in the Plaintiffs’ motion and omits the following material controverting facts:

Defendants do not actually dispute Plaintiffs’ proffered fact. Instead, Defendants offer additional facts. This is not proper, and does not create any genuine dispute.

17

ICE Special Agent in Charge Alonzo Pena The additional facts that

• While Mr. Alonzo Pena was ICE

Defendants offer in their response

18

SAC in Phoenix, he never had an

are, verbatim, facts that they have

occasion to report an MCSO 287(g) previously filed with the court as

19

certified deputy for racial profiling. “Supplemental ICE Statements of

See September 30, 2010 Deposition Fact” in support of their motion.

20

of Alonzo Rafael Pena at p. 60, lns. Plaintiffs have responded in detail

7-10, attached as Exhibit 1.

to each of the facts already. See

21 22

•

While Mr. Pena was ICE SAC in Phoenix, he never had to confront the

Pls.’ Resp. to Defs.’ SOF at pp. 66-73 [Dkt. No. 456].

Maricopa County Sheriff’s Office In short, the ICE officials

23

with an allegation that any of its

confirmed that did not believe it

deputies may have been engaged in was their job to ensure that race

24

racial profiling. Id. at p. 60, lns. 11- did not motivate MCSO’s traffic

13.

stops. Kidd Dep.153:4-18

25 26 27 28

• While Mr. Pena was ICE SAC in Phoenix, he never reported to ICE headquarters in Washington, D.C. that any deputy from the Maricopa County Sheriff’s Office may have been engaged in racial profiling. Id.

[Hickey Opp’n Dec. Ex. 219]; Pena Dep. 206:18-207:3 [Hickey Opp’n Dec. Ex. 225]. Mr. Pena testified that he “did not know one way or the other” the motivation of any MCSO officers during traffic stops. Pena Dep.

211

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 212 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

at p. 60, lns. 14-18.

186:11-14 [Hickey Opp’n Dec.

3 4 5 6

•

While Mr. Pena was ICE SAC in Phoenix, he did not have concern about, or voice a complaint to anyone about, the fact that the MCSO was identifying suspected illegal aliens during traffic stops. Id. at p. 93, ln. 21 to p. 94, ln. 21.

Ex. 225]. Indeed, Mr. Pena “never went into the field” to observe MCSO officers’ actions. Pena Dep. 137:9-20 [Hickey Opp’n Dec. Ex. 225]. Mr. Kidd explicitly denied supervising MCSO saturation patrols, and testified that he believed that

7

• While Mr. Pena was ICE SAC in

MCSO saturation patrols were

Phoenix, he was aware that MCSO based on “state crime, not

8

non-287(g) certified officers that had 287(g).” Kidd Dep. 27:7-15;

made lawful traffic stops and had

34:18-24 [Hickey Opp’n Dec. Ex.

9

reasonable suspicion that someone in 219].

the vehicle may be in the country

10

unlawfully were calling for assistance

of MCSO 287(g) certified officers.

11

Id. at p. 96, ln. 23 to p. 98, ln. 20.

12

• During the 2008 ICE audit of the 287(g) field program between ICE

13

and the MCSO, the United States Attorney’s Office responsible for

14

immigration issues had no complaint about the MCSO’s 287(g) program or

15

the MCSO’s compliance with the Memorandum of Agreement between

16

ICE and the MCSO. Id. at p. 122, ln. 11 to p. 123, ln. 10.

17

• Mr. Pena testified that the MCSO did

not violate the Memorandum of

18

Agreement in any manner except on

one occasion in regards to providing

19

the public with information and/or

publicity. Id. at p. 156, ln. 25, to p.

20

157, ln. 10.

21

• At no time did Mr. Pena ever write to Sheriff Arpaio or the MCSO any

22

letter or email providing them with a warning or admonition about the

23

MCSO’s use of 287(g) authority. Id. at p. 157, lns. 12-19, attached as

24

Exhibit 1

ICE Assistant Special Agent in Charge

25

Jason Kidd

26

• Mr. Jason Douglas Kidd is an ICE employee and served in 2006-09 in

27

Phoenix, Arizona either as an ICE Group Supervisor, or an ICE

28

Assistant Special Agent in Charge, or

212

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 213 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

as an ICE Acting Deputy Special

3

Agent in Charge for the Phoenix ICE

office. See October 1, 2010

4

Deposition of Jason Douglas Kidd at

p. 11, lns. 10 to p. 12, ln. 2, attached

5

as Exhibit 2.

6

• Mr. Kidd worked closely with MCSO personnel in the 287(g) program and

7

the implementation of it under the ICE-MCSO Memorandum of

8

Agreement. Id. at p. 19, lns. 4-9.

• The MCSO advised Mr. Kidd when it

9

was planning on conducting a

saturation patrol that might

10

encompass the MCSO’s 287(g)

authority. Id. at p. 20, ln. 18 to p. 21,

11

ln. 14. Mr. Kidd also received from

the MCSO in advance the MCSO

12

Operations Plans for certain

saturation patrols. Id. at p. 34, ln. 18

13

to p. 35, ln. 11. Mr. Kidd also

received from the MCSO post-

14

saturation patrol Shift Summaries.

Id. at p. 36, ln. 7 to p. 37, ln. 11.

15

• Mr. Kidd is familiar with the

16

MCSO’s use of saturation patrols. Id. at p. 25, lns. 6-12. Mr. Kidd attended

17

some MCSO saturation patrols and stationed himself at the MCSO

18

command center. Id. at p. 26, lns. 314. Mr. Kidd attended some of the

19

saturation patrols as an ICE observer. Id. at p. 27, lns. 13-15.

20

• Mr. Kidd never expressed to the

MCSO any criticism of its use of

21

saturation patrols. Id. at p. 31, lns. 2-

8.

22

• Mr. Kidd was knowledgeable or

23

aware of the fact that the MCSO saturation patrols were using

24

violations of the Arizona motor vehicle equipment and moving codes

25

to make traffic stops of persons. Id. at p. 33, lns. 4-8. Mr. Kidd was

26

further knowledgeable or aware of the fact that during MCSO conducted

27

traffic stops MCSO deputies were encountering people in the United

28

States unlawfully. Id. at p. 33, lns. 9-

213

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 214 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

14. Mr. Kidd never expressed in

3

writing, or verbally, to the MCSO

any concerns about the MCSO using

4

traffic stops and during those stops

identifying people in the country

5

unlawfully. Id. at p. 33, ln. 16 to p.

34, ln. 17.

6

• ICE was responsible for supervising

7

MCSO 287(g) deputies when they exercised their 287(g) authority. Id.

8

at p. 38, lns. 16-19.

• Mr. Kidd never expressed any

9

concern to the MCSO that MCSO

287(g) certified officers were racially

10

profiling Latinos. Id. at p. 42, 15-21.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

11 12 13
171
14 15 16 17 18 19 20 21 22 23 24 25
172
26 27 28

• Mr. Kidd has no knowledge that any MCSO 287(g) deputy ever used race as a basis for making a traffic stop or in using their 287(g) authority. Id. at p. 43, lns. 6-18.
Admit with clarification. While Deputy DiPietro considered the operation a saturation patrol, it is not the type of “saturation patrol” complained of by the Plaintiffs’ in their First Amended Complaint. Plaintiffs complain of saturation patrols where MCSO deputies make wide spread traffic stop violations based on any vehicle for any probable cause or reasonable suspicion, not specific isolation of a vehicle leaving a specific location under law enforcement surveillance. At the Good Sheppard of the Hills Church, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. Disputed. Controverting Statement: On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church
214

Not genuinely disputed. Defendants do not actually dispute Plaintiffs’ proffered fact. Plaintiffs never limited the definition of saturation patrols to operations with “wide spread” traffic stops. The tactics employed by MCSO on the saturation patrol where Mr. Ortega Melendres was stopped mirror those on other saturation patrols. Pls.’ SOF 114-15, 117. Defendants’ “clarification” therefore does not create any genuine dispute.
Not genuinely disputed. Defendants do not actually dispute Plaintiffs’ proffered fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 215 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

building/parking lot in response to citizen (supported by MCSO’s own

3

complaints that the church or its grounds News Release and the testimony

may be serving as a possible “drop house” of Deputy DiPietro) that the

4

for human smuggling and because “day

purpose of MCSO’s operation at

laborers” congregating or loitering near the Good Shepherd of the Hills

5

church were stepping into the traffic lanes Church that day was to apprehend

of Cave Creek Road and causing traffic

potential illegal immigrants.

6 7 8 9 10 11

problems. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. Id.

Further, Plaintiffs have responded in detail to Defendants’ asserted justifications for the operation. See Pls.’ Resp. to Defs.’ SOF 12. MCSO’s own internal correspondence confirms that an undercover investigation of the church conducted prior to the operation revealed “no information pertaining to forced labor, human smuggling[, or]

12

possible ‘drop houses’”. Melendres MCSO 014686

13

[Hickey Dec. Ex. 139]. Nor did the operation target individuals

14

stepping out into the traffic lanes. See Pls.’ SOF 175, 177 (Deputy

15

DiPietro pulled over the vehicle in which Mr. Ortega Melendres

16

was riding one-and-a-half miles from the church).

17 173 Disputed.

Not genuinely disputed.

18 19 20 21 22 23 24

Controverting Statement: On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church

Defendants’ response does not create any genuine dispute of fact. The MCSO testimony on which Defendants rely was not based on any personal knowledge of the complaints received, was internally consistent, and cannot overcome MCSO’s own internal correspondence proving Plaintiffs’ proffered fact. See Pls.’ Resp. to Defs.’ SOF 12.

25

and its property, and conducted a narrow traffic patrol that related exclusively to

26

stopping for probable cause following traffic violations only those vehicles that

27

were observed to have picked up people congregating at the church property and that

28 215

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 216 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

had left the property. Id.

3 174 Admit.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4 175 Disputed.

Not genuinely disputed.

5 6 7 8 9 10 11 12 13 14 15 16 17
18 176

Controverting Statement: On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave Creek, Arizona investigating a particular church building/parking lot in response to citizen complaints that the church or its grounds may be serving as a possible “drop house” for human smuggling and because “day laborers” congregating or loitering near the church were stepping into the traffic lanes of Cave Creek Road and causing traffic problems. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 12. As such, the HSU conducted surveillance on the church and its property, and conducted a narrow traffic patrol that related exclusively to stopping for probable cause following traffic violations only those vehicles that were observed to have picked up people congregating at the church property and that had left the property. Id. Disputed.

Defendants do not actually dispute Plaintiffs’ proffered fact that the operation did not address any traffic issues created by day laborers. The MCSO testimony on which Defendants rely was not based on any personal knowledge of the complaints received and was internally consistent. See Pls.’ Resp. to Defs.’ SOF 12. It does not explain how the MCSO’s operation could have been targeted at day laborers stepping out into the traffic lanes if the pickup location was in a parking lot away from the road and Mr. Ortega Melendres (who was pulled over with other day laborers one-and-a-half miles from the church) was never alleged to have created any traffic hazard. See Pls.’ SOF 175, 177. Defendants’ response therefore does not create any genuine dispute of fact. Not genuinely disputed.

19

Deputy DiPietro had no reason to believe

20 21 22

that any passengers of the truck had committed any violation of Arizona criminal law. However, he had reason to believe that the truck’s passengers may have been in the United States unlawfully. On September 26, 2007, the MCSO Human Smuggling Unit (“HSU”) was in Cave

Defendants’ response does not create any genuine dispute of fact. Plaintiffs have responded in detail to Defendants’ asserted justifications for the operation. See Pls.’ Resp. to Defs.’ SOF 12.

23

Creek, Arizona investigating a particular More importantly however, these

church building/parking lot in response to do not establish that there was

24

citizen complaints that the church or its

any reasonable suspicion or

grounds may be serving as a possible “drop probable cause that the truck’s

25

house” for human smuggling and because passengers were in the United

“day laborers” congregating or loitering

States unlawfully. MCSO’s

26

near the church were stepping into the

undercover investigation

traffic lanes of Cave Creek Road and

conducted prior to the operation

27

causing traffic problems. See Defendants’ did not uncover any evidence that

Statement of Facts (Dkt#413-1) at ¶ 12. As the day laborers congregating at

28

216

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 217 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

such, the HSU conducted surveillance on the church were illegal

3

the church and its property, and conducted a immigrants. Melendres MCSO

narrow traffic patrol that related exclusively 014686 [Hickey Dec. Ex. 139].

4

to stopping for probable cause following Regardless of the demographics

traffic violations only those vehicles that of illegal immigration, appearing

5

were observed to have picked up people

to be part of a Hispanic work

congregating at the church property and that crew does not give rise to any

6

had left the property. Id. Mr. Melendres reasonable suspicion that a person

and the other persons were picked up by the is an undocumented immigrant.

7

driver of the white colored truck at the

See United States v. Manzo-

church that was under HSU surveillance. Jurado, 457 F.3d 928, 937-38

8

Id. at ¶ 15.

(9th Cir. 2006). Nor do they

9 10

The fact that Deputy DiPietro suspected the truck’s occupants of being in the country unlawfully based on the HSU surveillance, is immaterial to the probable cause for the

justify racial profiling. See Montero-Camargo, 208 F.3d 1132 & n. 22. Contrary to Defendants’

11

traffic stop under Fourth Amendment

contention, the fact that Deputy

analysis. Whren v. United States, 517 U.S. DiPietro did not have reasonable

12

806, 810 (1996) (addressing Fourth Amendment analysis only).

suspicion the Mr. Ortega Melendres had committed any

13 14 15 16

Likewise, Deputy DiPietro’s reasonable suspicion that the truck’s occupants might be in the country unlawfully based on the HSU surveillance does not support the conclusion that he stopped the truck due to racially discriminatory intent or motive under Fourteenth Amendment analysis. Deputy Louis DiPietro testified that, in his

violation of the law is material because MCSO then detained him longer than it took to deal with the traffic violation of the driver so Mr. Ortega Melendres’ immigration status could be checked. See Pls.’ SOF 179; Pls.’ Resp. to Defs.’ SOF 23.

17

experience, most day laborers in Maricopa

County are from Mexico or Central or South

18

America. See Deposition of Louis DiPietro

dated 10/21/09 at p. 51, lns. 2-4, attached as

19

Exhibit 13. Deputy Carlos Rangel, based on

his experience, shares this observation. See

20

Deposition of Carlos Rangel dated 10/20/09

at p. 93, ln. 24 to p. 94, ln. 1, attached as

21

Exhibit 11. It is the law enforcement

experience of others in the MCSO that most

22

illegal immigrants in Maricopa County

originate from Mexico or Central or South

23

America. See, e.g., Deposition of Manual

Madrid dated 10/27/09 at p. 189, lns. 18-21,

24

attached as Exhibit 10; Deposition of Brett

Palmer dated 10/23/09 at p. 30, lns. 2-16,

25

attached as Exhibit 9; Deposition of Brian

Sands dated 12/14/09 at p. 94, lns. 3-6,

26

attached as Exhibit 14; Deposition of Joseph

Arpaio dated 11/16/10 at p. 81, lns 6-18,

27

attached as Exhibit 15 (“In Arizona, because

of the proximity to the border, I believe it’s

28 217

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 218 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

a fact that many people arrested here, in the

3

state of Arizona, border area, may come

from Latin America or Mexico.”);

4

Deposition of Joseph Arpaio dated 12/16/09

at p. 9, lns. 17-23; p. 219, lns. 1-12, attached

5

as Exhibit 16.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

6

The law enforcement experience of the MCSO that most of the illegal immigrants

7

in Maricopa County come from Mexico is supported by the objective, race-neutral

8

facts. “It is well established that illegal immigrants in Arizona and in the United

9

States as a whole are overwhelmingly Hispanic. The Pew Hispanic Center has

10

estimated that 94 percent of illegal immigrants in Arizona are from Mexico

11

alone, not including the rest of Latin America.” Defendants’ Statement of Facts

12

(Dkt#413-1) at Ex. 19 (Dr. Camarota Report) at pg. 14; DSOF (Dkt#413-1) at

13

Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).

14 177 Admit.

15 178 179
16 17 18 19 20 21 22 23 24 25 26 27 28

Admit. Disputed. Controverting Statement: Defendants dispute the timing of events as suggested by Plaintiffs. Deputy DiPietro contacted the Melendres truck’s driver, and based on information provided by the driver, formed reasonable suspicion that the truck’s occupants may have been in the country unlawfully. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 18. Deputy DiPietro, therefore, called on his radio for a 287(g) MCSO deputy to assist at the stop to investigate the truck’s occupants. Id. at ¶ 19. MCSO Deputy Carlos Rangel arrived at the traffic stop within one minute of receiving the call for a 287(g) deputy. Id. at ¶ 20. Deputy Rangel questioned the truck’s passengers while Deputy DiPietro was simultaneously questioning the driver of the truck. Id. at ¶ 23. The total amount of time Deputy Rangel spent questioning the truck’s passengers was fifteen (15) minutes. Id. at ¶ 34. In addition, Mr. Alonzo Pena, the
218

Not genuinely disputed.
Defendants’ response does not create any genuine dispute of fact. First, appearing to be part of a Hispanic work crew does not give rise to any reasonable suspicion that a person is an undocumented immigrant. See Manzo-Jurado, 457 F.3d at 93738 (9th Cir. 2006). Deputy DiPietro therefore had no reason to ask for a 287(g) deputy to respond in the first place. Second, while Deputy DiPietro may have still been speaking with the driver when Deputy Rangel arrived, Deputy DiPietro clearly testified that the officers who came to the scene “took over” the stop and that the driver “was free to leave” at that time. Pls.’ Resp. to Defs.’ SOF 23. Further, a CAD report reveals that the stop

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 219 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Special Agent in Charge for ICE Phoenix, did not least 15 minutes, but

3

testified that it was completely proper for approximately 21 minutes. See

MCSO deputies to make traffic stops of

Pls.’ Resp. to Defs.’ SOF 34.

4

motorists under Arizona law and call for a

287(g) certified deputy if the deputy that

5

made the traffic stop had reasonable

suspicion that someone in the stopped

6

vehicle might be unlawfully present in the

country. See Deposition Alonzo Pena at p.

7

167, ln. 1 to p. 168, ln. 22, attached as Ex. 1.

8 180
9 10 11 12 13 14 15

Admit. Objections: This statement is irrelevant to any issues relating to whether Plaintiff Melendres’ rights under the Fourteenth Amendment were violation and, therefore, is a fact immaterial to the Court’s resolution of Plaintiffs’ Motion.

Pls.’ SOF 180 is admitted.
Defendants’ objection is without merit because Plaintiffs’ proffered fact is relevant. The fact that Deputy DiPietro made a nearly identical traffic stop on the operation, turning over the Latino passengers for an immigration investigation and letting the white driver go is probative to the question of whether Defendants are engaged in a pattern of racial profiling.

16 181
17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverting Statement: There was no prolonged detention of Plaintiff Melendres at the scene of the traffic stop. Deputy Rangel questioned the truck’s passengers while Deputy DiPietro was simultaneously questioning the driver of the truck. See Defendants’ Statement of Facts (Dkt#413-1) at ¶ 23. The total amount of time Deputy Rangel spent questioning the truck’s passengers was fifteen (15) minutes. Id. at ¶ 34 see also Muehler v. Mena, 544 U.S. 93, 101 (2005) (“mere police questioning [regarding identification] does not constitute a seizure unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is required to justify questioning that does not prolong the stop.”); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (holding that officers did not need reasonable suspicion to ask questions of an individual or to ask to examine the individual’s identification); United States v.
219

Not genuinely disputed.
Defendants’ response does not create any genuine dispute of fact, because it does not demonstrate that the stop was not prolonged. While Deputy DiPietro may have still been speaking with the driver when Deputy Rangel arrived, Deputy DiPietro clearly testified that the officers who came to the scene “took over” the stop and that the driver “was free to leave” at that time. Pls.’ Resp. to Defs.’ SOF 23. When Deputy Rangel arrived, Deputy DiPietro had already run the driver’s information. Id. A CAD report reveals that the stop did not least 15 minutes, but approximately 21 minutes. See Pls.’ Resp. to Defs.’ SOF 34. Deputy DiPietro had

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 220 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Turvin, 517 F.3d 1097, 1100-1104 (9th Cir. already decided not to cite the

3

2008) (reasonable suspicion is not required white driver; he would not have

to ask questions unrelated to purpose of an needed 21 minutes to warn him

4

initially lawful stop); United States v.

not to speed.

Mendez, 476 F.3d 1077, 1080 (9th Cir.

5

2007) (Muehler applies equally to traffic

stops); United States v. Soriano-Jarquin,

6

492 F.3d 495, 500-501 (4th Cir. 2007)

(“request for identification from passengers

7

falls within purview of a lawful traffic

stop….”).

8 182 Disputed.

Not genuinely disputed.

9

Controverting Statement: This statement

10 11 12 13

is misleading as it is written and used in Plaintiffs’ Motion. The lack of identification documents is merely one ICEapproved indicator that 287(g) certified deputies may use to develop reasonable suspicion in order to investigate whether a particular person is in the United States lawfully.

Defendants’ do not actually dispute Plaintiffs’ proffered fact that the MCSO considers the lack of identification documents (including by passengers) to be grounds for investigating a person’s immigration status.

14 15 16 17

There are a number of ICE-approved articulable “indicators” that a local law enforcement officer that is 287(g) certified is trained by ICE to look for when developing reasonable suspicion that a person may be in the United States unlawfully. One ICE-approved indicator is that the person is unable to offer the

Instead, Defendants offer additional facts. This is not proper, and does not create any genuine dispute. Plaintiffs have elsewhere responded to Defendants’ additional facts in detail. See Pls.’ Resp. to Defs.’ SSOF 38-42.

18

investigating deputy any identification, such as a driver’s license or identification

19

card, issued either by the United States government or by any of the fifty states. See

20

Deposition of Manuel Madrid dated 10/27/09 at p. 31, lns. 10-18, attached as

21

Exhibit 10; see Deposition of Carlos Rangel dated 10/20/09 at p.21, ln. 3 to p. 22, ln. 5,

22

attached as Exhibit 11.

Another ICE-approved indicator is that the

23

person does not speak the English

language. See Deposition of Manuel

24

Madrid dated 10/27/09 at p. 31, lns. 10-18,

attached as Exhibit 10; see Deposition of

25

Ramon Armendariz at p. 44, lns. 1-4,

attached as Exhibit 8; see Deposition of

26

Carlos Rangel dated 10/20/09 at p.21, ln. 3

to p. 22, ln. 5, attached as Exhibit 11.

27

Another ICE-approved indicator is that the

28

person does not possess valid documents.

220

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 221 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

See Deposition of ICE former Special Agent

3

in Charge, Phoenix, Mr. Alonzo Pena, at p.

53, ln. 10 to p. 54, ln. 25, attached as

4

Exhibit 1.

5

Another number of ICE-approved indicators are: (a) an overcrowded vehicle; (b) none

6

of the occupants have luggage or only small items of property easily transported; (c) the

7

people in the vehicle are unrelated or do not know each other; (d) whether the

8

people in the vehicle are dressed in a disheveled manner; (e) pungent body

9

odor of the people in the vehicle; (f) the vehicle is a known human smuggling

10

corridor. See Deposition of Carlos Rangel dated 10/20/09 at p.95, ln. 12 to p. 96, ln. 12

11

attached as Exhibit 11; See Deposition of Manuel Madrid dated 10/27/09 at p. 38, ln.

12

9 to p. 39, ln. 4, attached as Exhibit 10; see Deposition of Brett Palmer dated 11/09/10

13

at p. 38, ln. 21 to p. 39, ln. 14, attached as Exhibit 12.

14

Finally, another ICE-approved indicator is

that person’s race or ethnicity, including

15

Mexican ancestry. See Deposition of Brett

Palmer dated 10/23/09 at p. 19, ln. 1 to p.

16

20, ln. 7, attached as Exhibit 9. ICE

approves of the use of race as one

17

indicator among several in the exercise of

287(g) authority in the determination of

18

whether someone may be in the United

States unlawfully. See Deposition of ICE

19

former Special Agent in Charge, Phoenix,

Mr. Alonzo Pena, at p. 54, lns. 16-22,

20

attached as Exhibit 1 (“[Race] could be

used, but, again, it couldn’t—it is not to be

21

used solely. It is never to be used just as

a—as an individual factor.”); see also

22

Deposition of Brett Palmer dated 10/23/09

at p. 25, lns. 9-18 attached as Exhibit 9

23

(“That is part of the 287(g) training that is

part of our SOP, yes.”); Exhibit 9 at p. 151,

24

lns. 4-9 (“MCSO 287(g) officers can

consider race as one relevant factor with

25

others to have reasonable suspicion that

human smuggling may be occurring.”

26

Although ICE approves of the use of race as

27

one indicator, among several other indicators, as a basis to form reasonable

28

suspicion of unlawful status, the MCSO

221

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 222 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

does not use race as an indicator or factor

3

to make vehicle stops. See Deposition of

Brett Palmer dated 10/23/09 at p. 19, ln. 1 to

4

p. 20, ln. 7; p. 145, lns. 12-25; p. 150, ln. 25

to p. 151, ln. 3, attached as Exhibit 9.

5 183 Admit.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

6 184 Disputed.

Not genuinely disputed.

7 8

Controverting Statement: This statement

is misleading as it is written and used in Plaintiffs’ Motion.

Defendants’ response does not create any genuine dispute of

Plaintiff Melendres told Deputy Carlos

fact. In their original statement of

9

Rangel that he had lawfully entered the

fact, Plaintiffs recognized that the

United States through a legitimate port of parties differ on whether Mr.

10

entry, had obtained an I-94 Form, but did Ortega Melendres said he was

not have the I-94 Form with him at the

working or whether he produced

11

moment. See Defendants’ SOF (Dkt#413- his I-94. See Pls.’ Resp. to Defs.’

1) at ¶ 30. Plaintiff Melendres also told

SOF 31-32. Plaintiffs did not rely

12

Deputy Rangel that he was working while on facts that were genuinely

on his tourist visa, which made him out-of- disputed.

13 14 15 16

compliance with the law. Id. at ¶ 27. Based on Mr. Melendres not having his I-94 Form on him at the time and his statement that he was working, Deputy Rangel detained Mr. Melendres with handcuffs and directed that he be delivered to ICE for handling and/or verification of status. Id. at ¶ ¶ 3233.

Plaintiffs’ proffered fact is that Mr. Ortega Melendres told Deputy Rangel that he had permission to be in the country and that ICE agreed with him and released him, offering a ride home.

17 18 19 20 21 22 23

ICE eventually released Mr. Melendres from detention. The ICE agent that determined Mr. Melendres’ status told Deputy Rangel that ICE released Mr. Melendres because it concluded that there was insufficient evidence that Mr. Melendres was actually working during his visit to the United States, and because he had an I-94 Form issued to him, even though he was “out-of-status” at the time of the traffic stop (i.e., not having the I-94 Form on him when questioned by Deputy Rangel). Id. at ¶ 37.

There is no genuine dispute that ICE determined that Mr. Ortega Melendres’ detention by MCSO “was not justified.” Pls.’ Resp. to Defs.’ SOF 31-32; see also Pls.’ Resp. to Defs. SOF 37. ICE found that Mr. Ortega Melendres “had his documents in order” and that there was a “lack of evidence” that Mr. Ortega Melendres was working. Pls.’ Resp. to Defs.’ SOF 31-32.

24 185 Disputed.

Not genuinely disputed.

25 26

Controverted Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion.

Defendants do not actually dispute Plaintiffs’ proffered fact.

The total amount of time Deputy Carlos

In fact, Defendants suggest that

27

Rangel spent questioning the truck’s

Mr. Ortega Melendres may have

passengers, including Plaintiff Melendres, been detained for a total of 8 to 9

28

222

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 223 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

was fifteen (15) minutes at the scene. See hours (2 hours at the MCSO

3

Defendants’ SOF (Dkt#413-1) at ¶ 34. All substation, and 6 to 7 hours at

of the truck’s passengers were detained. Id. ICE).

4 5 6 7 8

at ¶ 35. The passengers/detainees were taken to an MCSO substation and held for roughly two hours, and then the MCSO transported them to ICE’s Detention and Removal Office near Central Avenue and McDowell Road where Mr. Melendres waited in federal detention for six to seven hours for federal officials. Id. at ¶ 36.

There is nothing misleading about Plaintiffs’ proffered fact, which simply estimated the total amount of time Mr. Ortega Melendres spent in custody (whether by MCSO or ICE) as a result of Deputy Rangel’s decision to arrest him.

186 Admit.

9 187 Admit.

10 188
11 12 13 14

Admit with clarification in part and disputed in part.

Not genuinely disputed.

Controverted Statement: Deputy Ratcliffe denies asking Mr. Rodriguez for his Social Security card. See Defendants’ SOF (Dkt#413-1) at ¶ 49. Indeed, Deputy Ratcliffe never asks any driver for his Social Security card. Id.

Defendants do not actually dispute Plaintiffs’ proffered fact, which is that the Rodriguezes testified that Deputy Ratcliffe asked Mr. Rodriguez for his Social Security card.

15 189
16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed Controverted Statement: While Defendants acknowledge that Plaintiff David Rodriquez testified to this point, this point is disputed by deputy Ratcliff. After obtaining Mr. Rodriguez’ identification, Deputy Ratcliffe asked him why he was driving his truck on the closed Bartlett Dam Road. See Defendants’ SOF (Dkt#413-1) at ¶ 50. Mr. Rodriguez stated that “he had driven around the [road closed] sign and was taking the kids down to the lake.” Id. (Mr. Rodriguez admits that he saw a “Road Damaged” sign but drove past it. Id. at ¶ 51. He denied ever seeing a “Road Closed” sign. Id. ) In addition, Defendants refer the Court to their Controverting Statement below in response to paragraph 198 wherein they provide the undisputed evidence that Deputy Ratcliffe had probable cause to stop the Rodriguez vehicle and that he had no racially discriminatory intent or motive in do so. Objections: Relevance. Whether
223

Not genuinely disputed.
Defendants’ response does not create a genuine issue of material fact. Defendants assert that Deputy Ratcliffe’s testimony establishes that the Rodriguezes told him they deliberately ignored the “Road Closed” sign. But Deputy Ratcliff’s testimony does not even state that Mr. Rodriguez says he saw the “Road Closed” sign. Mr. Rodriguez informed Deputy Ratcliffe that they had been off-roading and did not see the sign. David Rodriguez Dep. at 11:20-25, 13:13-17 [Hickey Dec. Ex. 74]. In other words, they must have left the road before the “Road Closed” sign, thus going “around” it. Mr. Rodriguez specifically noted that he did not “drive around any barricades in the road.” David

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 224 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Mr. Rodriguez saw the sign or not is

3

immaterial as to whether the Plaintiffs’

Fourteenth Amendment Rights were

4

violated.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Rodriguez Dep. at 17:15-17 [Hickey Opp’n Dec. Ex. 229]. Plaintiffs do not disagree that Deputy Ratcliffe had probable cause to initially pull them over. They disagree, however, with his post-stop treatment of the Rodriguezes, including his decision to cite them even after learning that Mr. Rodriguez had not seen the “Road Closed” sign and even though non-Hispanic motorists were all being let go, and to ask Mr. Rodriguez for his Social Security information even though non-Hispanic motorists were not asked for this information. Pls.’ SOF 188, 19093, 198; Jessica Rodriguez Dep. 15:23-16:3 [Hickey Opp’n Dec. Ex. 230]. Further, Defendants’ relevance objection is without merit. Deputy Ratcliffe’s decision to proceed with issuing a citation notwithstanding his training and MCSO policy to the contrary, Pls.’ SOF 190-91, is certainly probative of whether the Rodriguezes were subject to discriminatory treatment.

19

20 190
21 22 23 24 25 26 27 28

Disputed and Defendants object to this statement of fact purposes of summary judgment motion practice. It is inadmissible. The Court should strike this statement of fact. Controverted Statement: While Defendants do not dispute that this statement is contained in the AZ Post Model Lesson Plan: Traffic Citations 4 2, the evidence shows that during large scale saturation patrols the MCSO instituted a “zero tolerance” policy where every traffic violator observed would be pulled over, to the extent they could be pulled over, and given a citation. There was a zero tolerance

Not genuinely disputed.
Defendants do not actually dispute Plaintiffs’ proffered fact. Defendants contend that the training that officers receive about issuing warnings in lieu of citations was suspended during large-scale saturation patrols. Plaintiffs do not contend that the Rodriguezes were stopped during a saturation patrol, though they were stopped by a deputy that had been involved in at least for

224

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 225 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

policy for traffic stops during saturation

saturation patrols. See Pls.’ Resp.

3

patrols, i.e., a deputy that observed a

to Defs.’ SOF 43. Further,

moving violation or equipment code

Defendants’ assertion that a zero-

4

violation would be required to stop the

tolerance policy was in effect

vehicle. See Deposition of Brett Palmer

with respect to issuing citations is

5

dated 10/23/09 at p. 56, ln. 2 to p. 58, ln. 16, belied by the fact that all of the

attached as Exhibit 9 (zero tolerance policy non-Hispanic motorists driving

6

on saturation patrols adopted to try to stop on the same stretch of the closed

every vehicle with a violation and write

road did not receive citations.

7

tickets to all to avoid charges of racial

Pls.’ SOF 192, 198.

8

profiling); see also p. 94, ln. 20 to p. 95, ln. 1 (zero tolerance policy for any traffic or vehicle violations); p. 98, ln. 18 to p. 99, ln.

Defendants’ evidentiary objections are also without merit.

9

17 (the zero tolerance for arrests made and (A) Plaintiffs’ proffered fact is

the zero tolerance policy for traffic

relevant. The fact that Deputy

10

violators); see also Deposition of Manuel Ratcliffe proceeded to issue Mr.

Madrid dated 10/27/09 at p. 125, ln. 12 to p. Rodriguez a citation even though

11

127, ln. 7, attached as Exhibit 10 (on large it went against his training,

scale saturation patrols, there was a zero combined with the fact that the

12

tolerance policy to pull over and cite all

other, non-Hispanic drivers were

infractions); p. 130, lns. 18-23 (same); see not being cited, is certainly

13

also Deposition of Joseph Sousa dated

probative of whether the

12/10/09 at p. 144, lns. 22-25 (on zero

Rodriguezes were subject to

14

tolerance operation, any vehicle that is

discriminatory treatment.

15

observed to violate the vehicle or traffic code that can be stopped will be stopped).

(B) The AZ POST Model Lesson Plan is not hearsay.

16

Defense police practices expert Bennie Click testified:

First, the portion that Plaintiffs are relying on does not contain a

17 18 19 20 21

“In order to reduce the potential of racial profiling during saturation patrol operations, supervisors reasonably and appropriately instituted a zero tolerance policy requiring all violators be stopped. This is a reasonable practice. Zero tolerance removed the deputies’ discretion to pick and choose who they stopped.”

“statement” within the meaning of the hearsay rule. See Fed. R. Evid. 801 (a). Second, the Lesson Plan is a business/public record setting forth the content of the training that MCSO deputies receive from AZPOST and therefore falls within an exception to the hearsay rule. See Fed. R. Evid. 803(6), (8).

22 23 24 25 26 27

See Defendants’ Statement of Facts (Dkt#413-1) at the Report of Ben Click dated January 21, 2011, at pg 46, attached thereto as Exhibit 16; see also March 18, 2011 Deposition of Defense Expert Ben Click at p. 341, ln. 24 to p. 342, ln. 14, attached as Exhibit 17 to Dkt#413-1 (wherein Mr. Click testified to the foundation for his opinions and that his opinions in the report were the same he would provide at trial to a reasonable degree of probability in his field of expertise).

(C) Defendants’ own representations provide foundation for the AZ POST Model Lesson Plan. Documents produced by a party in response to a discovery request are deemed authenticated by virtue of the production. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996); 31 Federal Practice & Procedure: Evidence § 7105 at 39

28 225

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 226 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Objections:

(“Authentication can also be

3 4 5

(A) Relevance: This statement of fact is irrelevant to whether the named Plaintiffs have suffered a constitutional injury and whether there is a zero tolerance in effect during a given saturation patrol.

accomplished through judicial admissions such as ... production of items in response to ... [a] discovery request.”). Defendants produced the AZ POST Model Lesson Plan to Plaintiffs in

6

(B) Hearsay: Defendants object to the use response to Plaintiffs’ request for

of the AZPOST Model Lesson Plan: Traffic “documents relating to MCSO’s .

7

Citations 4 2 on the grounds that it is

. . training pertaining to traffic

hearsay of a third party and no exception stops . . . .” Defs.’ Resp. to Pls.’

8

allows it admissibility into evidence.

First Req. for Production No. 5 at

9 10 11 12 13

(C) Foundation: There is no foundation established for the AZPOST Model Lesson Plan: Traffic Citations 4 2. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”).

9 (listing Arizona Peace Officer Standards and Training Board 585-Hour Basic Curriculum Model Lesson Plan re Traffic Citations 4.2 (Melendres MCSO 015180-201)) [Hickey Reply Dec. Ex. 243, Hickey Dec. Ex. 149]. They do not disclaim that statement now, nor do they articulate any reason to doubt the

authenticity of the document.

14

The document should be

admitted.

15 191 Admit.

16 192 Disputed.

Not genuinely disputed.

17 18

Controverted Statement: This statement is misleading as it is written and used in Plaintiffs’ Motion.

Defendants do not actually dispute Plaintiffs’ proffered fact

Upon receipt of the citation, Mr. or Mrs. that other vehicles stopped by

19

Rodriguez then told Deputy Ratcliff that Deputy Ratcliff’s partner, Deputy

he/she did not see any other drivers on the Multz, did not citations. Those

20

closed road receiving citations. See

motorists were not Hispanic.

Defendants’ SOF (Dkt#413-1) at ¶ 54. The David Rodriguez Dep. at 25:5-

21

race of those drivers was not specified. Id. 26:8 [Hickey Dec. Ex. 74], 41:1-8

Deputy Ratcliffe responded by telling Mr. [Hickey Opp’n Dec. Ex. 229];

22

and Mrs. Rodriguez that he was only

Jessica Rodriguez Dep. at 34:5-

dealing with them and not dealing with

35:8 [Hickey Dec. Ex. 75]. Other

23

other drivers at that time. Id. It was at this than the vehicle that was allowed

time that Mrs. Rodriguez accused Deputy to drive through to the marina to

24

Ratcliffe of “selective enforcement” in

attend to a boat, the other drivers,

issuing the traffic citation to her husband. like the Rodriguezes, were

25

Id. at ¶ 55. Mrs. Rodriguez became

driving on the road for recreation

“argumentative” with Deputy Ratcliffe. Id. or other reasons. David

26 27

Deputy Ratcliffe did not recall the race of the other drivers he referred to the Tonto National Forest Ranger, and he actually

Rodriguez Dep. at 25:5-26:8 [Hickey Dec. Ex. 74]. Further, the Rodriguezes pointed

28

observed the Forest Ranger give citations to out to Deputy Ratcliffe that other

226

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 227 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

those other drivers regardless of their race. vehicles were not receiving

3

Id. at ¶ 138.

citations before they Deputy

4 5 6 7 8 9

Another MCSO officer working Lake Patrol with Deputy Ratcliffe, Deputy Maltz, had on the same day allowed other motorists (of unknown races) to drive on the closed Bartlett Dam Road in order to go to the lake to repair either their recreational vehicles or boats that had been damaged in the storm. Id. at ¶ 139. Deputy Maltz was responsible for deciding whether to cite or warn those drivers, not Deputy Ratcliffe. Id. Deputy Ratcliffe has known Deputy Maltz for 2.5 years and does not believe that Deputy

Ratcliffe actually issued the citation. They were asking to be given a warning and to be treated like the other motorists. David Rodriguez Dep. at 12:8-13:33 [Hickey Dec. Ex. 74]; Jessica Rodriguez Dep. at 14:24-15:11 [Hickey Dec. Ex. 75]. The portions of the record that Defendants cite don’t say anything to the contrary. Defendants’ additional assertions

10

Maltz’ decision to allow other people to use about the Tonto National Forest Bartlett Dam Road to repair their property Ranger and Deputy Multz do not

11

without the issuance of a traffic citation was create any genuine dispute, and based in any way on racial considerations. Plaintiffs have elsewhere

12

Id. at ¶ 140.

responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 138,

13

140.

193 Disputed.

Not genuinely disputed.

14

Controverted Statement: This statement

15

is misleading as it is written and used in Plaintiffs’ Motion.

Defendants do not actually dispute Plaintiffs’ proffered fact,

16

Deputy Ratcliffe stopped the truck and

which is that Deputy Ratcliffe

asked Mr. Rodriquez for his driver’s

asked Mr. Rodriguez for his

17

license, vehicle registration, and proof of Social Security information

insurance documents. See Defendants’ SOF multiple times, even after

18

(Dkt#413-1) at ¶ 47. He also asked Mr.

Plaintiffs asked him why they

Rodriquez for his Social Security number needed to provide it, and even

19

so he could complete the MCSO citation after Deputy Ratcliffe had

form which includes a space for recording obtained valid identification from

20

such information. Id. at ¶ 48. Mr. and Mrs. Mr. Rodriguez. David Rodriguez

Rodriguez asked Deputy Ratcliffe why he Dep. at 13:13-14:20 [Hickey

21

asked for David’s Social Security number. Opp’n Dec. Ex. 229]. Mr.

Id. at ¶ 52. Deputy Ratcliffe explained that Rodriguez finally provided

22

it was for identification purposes only and Deputy Ratcliffe with his Social

to fill in the blanks on the MCSO citation Security number so that he could

23

form. Id. There is no evidence of

leave. Id.

24 25

badgering by Deputy Ratcliffe for the social security number, including in the sections cited by Plaintiff. After completing the traffic stop, Deputy

Defendants’ additional assertions about why Deputy Ratcliffe followed the Rodriguez truck do not create any genuine dispute of

26

Ratcliffe drove behind the Rodriguez’ truck fact, and Plaintiffs have

as it left the area. He was behind the

elsewhere responded to them in

27

Rodriquez truck for roughly two miles, not detail. See Pls.’ Resp. to Defs.’

to escort them out, or to harass or

SOF 59.

28

intimidate them, but in order for Deputy

227

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 228 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Ratcliffe to reach the location where he

3

could take a picture of the “Road Closed”

sign. Id. at ¶ 59. “Due to the argumentative

4

nature of the passenger in the vehicle [Mrs.

Rodriguez], [Deputy Ratcliffe] wanted to

5

take photographs of the ‘Road Closed’ sign

and the ‘Road Closed Ahead’ signs for later

6

defense in court.” Id. Mr. Rodriguez later

pled responsible to the citation. Id.

7 194 Disputed.

Not genuinely disputed.

8

Controverted Statement: This statement

9 10 11 12 13

is misleading because it suggests, as used in Plaintiffs’ Motion, that Deputy Ratcliffe asked Plaintiff David Rodriguez for his identification after issuing the actual traffic citation to Mr. Rodriguez. That is not accurate. Deputy Ratcliffe asked Plaintiff David Rodriguez for his identification before filling out 111 the citation and before giving the citation to him. Deputy Ratcliffe stopped the truck and

Defendants’ belief about Plaintiffs’ proffered fact is mistaken. Plaintiffs stated only that Deputy Ratcliffe had already obtained valid identification from Mr. Rodriguez by the time he returned to the vehicle to complete the citation (and ask again for Mr. Rodriguez’s Social Security information).

14

asked Mr. Rodriquez for his driver’s license, vehicle registration, and proof of

Defendants therefore do not actually dispute Plaintiffs’

15 16 17 18 19 20 21

insurance documents. See Defendants’ SOF (Dkt#413-1) at ¶ 47. He also asked Mr. Rodriquez for his Social Security number so he could complete the MCSO citation form, which includes a space for recording such information. Id. at ¶ 48. After obtaining Mr. Rodriguez’ identification, Deputy Ratcliffe asked him why he was driving his truck on the closed Bartlett Dam Road. Id. at ¶ 50. Mr. Rodriguez stated that “he had driven around the [road closed] sign and was taking the kids down to the lake.” Id. Mr. and Mrs. Rodriguez asked Deputy Ratcliffe why he asked for David’s Social

proffered fact. Defendants’ remaining assertions do not create any genuine dispute of fact, and their representation of the sequence of events is misleading. Deputy Ratcliffe was not asked to discuss the events that unfolded in sequential order. Plaintiffs have also elsewhere responded to these assertions in detail. See Pls.’ Resp. to Defs.’ SOF 47-48, 50, 52-53, 55, 56.

22

Security number. Id. at ¶ 52. Deputy Ratcliffe explained that it was for

23

identification purposes only and to fill in the blanks on the MCSO citation form. Id.

24

Deputy Ratcliffe performed via radio a records check on the Rodriguez’ truck and

25

then issued a citation to Mr. Rodriguez for failure to obey a traffic control device (i.e.,

26

the “Road Closed” sign). Id. at ¶ 53. He determined that a citation was appropriate in

27

his discretion

because of the safety risk inherent in driving

28

228

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 229 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

on the closed road. Id. Upon receipt of the

3

citation, Mr. Rodriguez asked Deputy

Ratcliffe what possible affect such a citation

4

would have on his commercial driver’s

license, and either Mr. or Mrs. Rodriguez

5

then told Deputy Ratcliff that he/she did not

see any other drivers on the closed road

6

receiving citations. Id. at 54. Deputy

Ratcliffe responded by telling Mr. and Mrs.

7

Rodriguez that he was only dealing with

them and not dealing with other drivers at

8

that time. Id. It was at this time that

Mrs. Rodriguez accused Deputy Ratcliffe of

9

“selective enforcement” in issuing the

traffic citation to her husband. Id. at ¶ 55.

10

Mrs. Rodriguez became “argumentative”

with Deputy Ratcliffe. Id. According to

11

Deputy Ratcliffe, neither Mr. nor Mrs.

Rodriguez ever told him that they had not

12

seen the “Road Closed” sign, or that they

were off-road driving and must have missed

13

seeing the sign. Id. at 56.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

14 195
15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverted Statement: The Plaintiffs’ cited portion of the record does not support the statement that “Officers regularly leave this block blank.” The remaining part of the statement is misleading because it suggests that an MCSO deputy cannot ask for other forms of identification. The cited policy Melendres MCSO 14926-28 (MCSO Policy & Procedure Contacts and Citation Issuance at p. 14927) does not limit what a deputy in the field can ask for in terms of identification. An MCSO deputy can ask a driver or person for another other form of identification to try to determine who the person is in terms of identity. See Deposition of Joe Sousa dated 12/10/99 at p. 230, lns. 18-22, attached as Exhibit 5; Deposition of Ramon Armedariz dated 11/08/10 at p. 30, lns. 819, attached as Exhibit 8. If an MCSO deputy asks a person for their social security number and the driver or person refuses it, the deputy must accept that refusal. See Deposition of Joe Sousa dated 12/10/99 at p. 228, ln. 22 to p. 229, ln.
229

Not genuinely disputed.
Defendants’ response does not create a genuine issue of fact. Defendants acknowledge that MCSO policy does not instruct officers to ask for additional forms of identification if the driver provides a valid drivers’ license, and that the rationale for requesting any additional information, such as Social Security information, would be for deputies to “try to determine who the person is.” In this case, there was no question about who Mr. Rodriguez was. In fact, Deputy Ratcliffe was already in possession of Mr. Rodriguez’s valid drivers’ license when he asked for the Social Security information a second time. Pls.’ SOF 194; Pls.’ Resp. to Defs.’ SOF 48. Due to a typographical error, the portions of the record that Plaintiffs rely on in support of the

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 230 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

6; p. 257, ln. 24 to p. 258, ln. 12, attached as contention that “Officers

3

Exhibit 5; Deposition of Matthew Ratcliffe regularly leave [the Social

dated 10/15/09 at p. 98, lns. 1-5, attached as Security] block blank” appears at

4

Exhibit 6; Deposition of Michael Kikes

the beginning of the list of

dated 02/15/10 at p. 125, ln. 14 to p. 126, ln. supporting evidence for Pls.’ SOF

5

10, attached as Exhibit 7

196—Melendres MCSO 16857,

16918, 37088, 30625 [Hickey

6

Dec. Exs. 153, 157].

7 196
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverted Statement: While the statement that the traffic citation form has a block called “Military Status” is not disputed, the cited portion of the record does not contain testimony that supports the statement that “Deputy Ratcliffe did not insist on this information.” Objections: (A) Relevance. The cited MCSO form is immaterial to Plaintiffs’ Fourteenth Amendment Claim. The fact that some MCSO deputies may record “Military Status” on a traffic citation does not mean that a deputy that did not do so (i.e., Deputy Matthew Ratcliffe in the traffic stop involving the Rodriguez Plaintiffs) acted unreasonably or was deficient in his law enforcement practice or acted with racial animus or intent. (B) Hearsay and Foundation. Defendants further object to the documents on the grounds of hearsay, and lack of foundation. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (explaining that a plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on the plaintiff’s subjective belief that the challenged action was [wrong].”); August v. Office Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992) (“Mere allegations or conjecture supported in the record, are insufficient to raise a genuine issue of material fact.”); cf. Moore Drug Co. v. Shaneman, 461 P.2d 95, 98
230

Not genuinely disputed.
Defendants’ response does not create a genuine issue of fact. There is nothing in the record that suggests that Deputy Ratcliffe ever asked Mr. Rodriguez for his military status. Defendants’ evidentiary objections are also without merit. (A) Plaintiffs’ proffered fact is relevant. Deputy DiPietro’s justification for insisting on Mr. Rodriguez’s Social Security information was because it appears as a block on the traffic citation. See, e.g., Defs.’ SOF 52. The fact that a block labeled “Military Status” also appears on the citation, and was ignored, is probative of Deputy DiPietro’s potential immigration enforcement rationale for requesting the Social Security information. (B) The documents Plaintiffs rely on are not hearsay and have foundation. The copies of traffic citations that Plaintiffs rely on are not hearsay. They do not contain a “statement” within the meaning of the hearsay rule and are not being offered for the truth of anything written on them. See Fed. R. Evid. 801 (a). Second, the citations are business/public records setting forth the type of information MCSO collects on traffic citations and therefore fall within an exception to the hearsay rule. See Fed. R. Evid. 803(6),

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 231 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

(Ariz. App. 1969) (“mere suspicion,

3

innuendo, insinuation, and speculation are

not substitutes for evidence.”)

4

5

6

7

8

9

10

11

12

13

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
(8). Next, because the citations were produced to Plaintiffs in response to a discovery request, they are deemed authenticated by virtue of the production and need no separate foundation. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996); 31 Federal Practice & Procedure: Evidence § 7105 at 39 (“Authentication can also be accomplished through judicial admissions such as ... production of items in response to ... [a] discovery request.”). Finally, Defendants did confirm that this is the form of MCSO traffic citations. See Ratcliffe Dep. at 97:1-13 (discussing Melendres MCSO 4) [Hickey Dec. Ex. 71].

14 197
15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed. Controverted Statement: Deputy Ratcliffe did not recall the race of the other drivers he referred to the Tonto National Forest Ranger. See Defendants’ SOF (Dkt#413-1) at ¶ 138. Deputy Ratcliffe actually observed the Forest Ranger give citations to those other drivers regardless of their race. Id. Another MCSO officer working Lake Patrol with Deputy Ratcliffe, Deputy Maltz, had on the same day allowed other motorists (of unknown races) to drive on the closed Bartlett Dam Road in order to go to the lake to repair either their recreational vehicles or boats that had been damaged in the storm. Id. at ¶ 139. Deputy Maltz was responsible for deciding whether to cite or warn those drivers, not Deputy Ratcliffe. Id. Deputy Ratcliffe has known Deputy Maltz for 2.5 years and does not believe that Deputy Maltz’ decision to allow other people to use Bartlett Dam Road to repair their property without the issuance of a traffic citation was based in any way on racial considerations. Id. at ¶ 140. Again, however, that was a decision of
231

Not genuinely disputed.
Defendants do not actually dispute Plaintiffs’ proffered fact that Deputy Ratcliffe did not cite four other vehicles he had stopped for driving on Bartlett Dam Road that day, and instead turned them over to a Tonto National Forest officer. Defendants’ additional assertions do not create any genuine issue of fact, and Plaintiffs have elsewhere responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 139-140.

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 232 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Deputy Maltz, not Deputy Ratcliffe and

3

cannot, therefore, serve as a basis for Mr.

Stewart’s opinion as to Deputy Ratcliffe’s

4

alleged racially discriminatory motive.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

5 198
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed and Defendants object to this statement of fact for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this statement of fact. The support for the dispute and objections are as follows: Controverted Statement: Deputy Ratcliffe had probable cause to stop the Rodriguez truck because it was driving on a closed road. See Defendants’ SOF (Dkt#413-1) at ¶¶ 44-45, and 51-52. Knowingly or unknowingly disobeying a traffic control sign is a violation of Arizona law. A.R.S. § 28-644. Mrs. Rodriguez admits there was probable cause to stop her vehicle. See Defendants’ SOF (Dkt#413-1) at ¶ 112. Mrs. Rodriguez is not even critical of the actual traffic stop. Id. at ¶ 113. Defense expert Mr. Bennie Click testified that Deputy Ratcliffe had probable cause to stop the Rodriguez truck. Id. at ¶ 114. The opinion of Plaintiffs’ own police practices/racial profiling expert, Mr. Robert Stewart, is in accord:

Not genuinely disputed.
Defendants’ response fails to create any genuine issue of fact. First, Plaintiffs do not disagree that Deputy Ratcliffe had probable cause to initially pull them over. They disagree, however, with his post-stop treatment of the Rodriguezes, including his decision to cite them even after learning that Mr. Rodriguez had not seen the “Road Closed” sign and even though non-Hispanic motorists were all being let go, and to ask Mr. Rodriguez for his Social Security information even though nonHispanic motorists were not asked for this information. Pls.’ SOF 188-93; Jessica Rodriguez Dep. 15:23-16:3 [Hickey Opp’n Dec. Ex. 230].

Q. Based on all the evidence you’ve

Defendants’ additional assertions

reviewed, did Deputy Ratcliffe have do not create a genuine dispute of

probable cause to stop the Rodriguez fact and Plaintiffs have elsewhere

vehicle on the road?

responded to them in detail. See

A. Yes.

Pls.’ Resp. to Defs.’ SOF 133135.

Id. at ¶ 115 (emphasis added). Moreover, the factual testimony from Mr. and Mrs. Rodriquez as to whether they ever saw the

Further, Defendants’ evidentiary objections are without merit.

“Road Closed” sign is immaterial. Their (A) Plaintiffs’ proffered fact is

own liability expert, Mr. Stewart, testified relevant. Deputy Ratcliffe’s

that Deputy Ratcliffe had probable cause to decision to proceed with issuing a

stop the Rodriguez truck even if Mr.

citation, even though others were

Rodriguez did not see the “Road Closed” not cited and notwithstanding his

sign. Id. at ¶ 116. Mrs. Rodriguez admits training and MCSO policy to the

that Deputy Ratcliffe was not acting with contrary, Pls.’ SOF 190-91, is

racially discriminatory intent or motive:

certainly probative of whether the

Q. Do you believe that Deputy Ratcliffe was intentionally trying to deprive you of

Rodriguezes were subject to discriminatory treatment.

your constitutional rights?

(B) Plaintiffs’ proffered fact is

not based on hearsay. In

232

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 233 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

A. No.

addition to speaking with the

3

Id. at ¶ 133 (emphasis added).

motorists as they were driving out of the area, the Rodriguezes also

4

Defense expert Mr. Click testified that there personally observed that the

is no direct or circumstantial evidence that motorists were not cited. David

5

Deputy Ratcliffe racially profiled or

Rodriguez Dep. at 25:5-26:8

otherwise acted with racially discriminatory [Hickey Dec. Ex. 74], 41:1-8

6

intent or motive toward Mr. and Mrs.

[Hickey Opp’n Dec. Ex. 229];

Rodriguez. Id. at ¶ 134. Plaintiffs’ expert, Jessica Rodriguez Dep. at 34:5-

7

Mr. Stewart, has no opinion as to whether 35:8 [Hickey Dec. Ex. 75].

Deputy Ratcliffe had racially discriminatory Second, the other motorists’

8

intent or motive in stopping the Rodriguez statements fall within an

vehicle:

exception to the hearsay rule

9 10

Q. Is it your opinion that Deputy Ratcliffe had discriminatory intent or motive in stopping the Rodriguez vehicle?

because they were “present sense impressions” made immediately after they were stopped. Fed. R. Evid. 803(1). As for Defendants’

11

A. Don’t know.

assertion that they did not have

12

Id. at ¶ 135 (emphasis added).

the ability to cross-examine these individuals, Plaintiffs did in fact

Objections:

disclose the names and contact

13 14

(A) Relevance: This statement of fact is irrelevant to whether the named Plaintiffs have suffered a constitutional injury.

information for at least two of them. See David Rodriguez’s Verified Supp. Resp. to Def. Arpaio’s First Set of Interrogs.

15

(B) Hearsay: Defendants object to the

No. 3 (identifying Andrew

Plaintiffs’ recitation of what unknown

Yahraus and Blaine Woodruff as

16

persons allegedly told them on the grounds two of the drivers) [Hickey Opp’n

that such statements are hearsay without any Dec. Ex. 237].

17 18 19 20 21 22 23

exception allowing their admissibility into evidence. There are no names, addresses, or contact information for the persons that the Plaintiffs supposedly talked to and the Defendants have no ability to cross examine these third parties as to what, if anything, they told the Plaintiffs. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-examination at trial or in a pre-trial deposition, affidavit of third party is hearsay). (C) Foundation. There is no foundation

(C) Plaintiffs’ proffered fact has foundation. The Rodriguezes were able to personally observe the motorists who were also stopped and not cited when they were on Bartlett Dam Road. They pulled over and spoke to those same people on the way out of the area. See David Rodriguez Dep. at 25:5-25 [Hickey Dec. Ex. 74]; Jessica Rodriguez Dep. at 15:23-16:3 [Hickey Dec. Ex. 75].

24

that any of the persons that Plaintiffs allegedly spoke to were stopped by MCSO

25

Deputy Matthew Ratcliffe, the deputy who actually stopped the Rodriquez Plaintiffs.

26 199 Admit with clarification.

Not genuinely disputed.

27 28

The MCSO’s investigation into the Rodriguez Plaintiffs’ traffic stop/citation concluded that Deputy Matthew Ratcliffe

Defendants do not dispute

233

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 234 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

acted in accordance with MCSO policy and Plaintiffs’ proffered fact. Their

3

that there was “no basis for the accusation “clarification” does not create any

of racial profiling.” Document Melendres genuine issue of fact.

4

MCSO 000001-03 at p. 02 (Hickey Dec. Ex.

118) (handwritten conclusion of MCSO

5

lieutenant). In addition, during the

investigation Plaintiff Jessica Rodriguez

6

“apologized [to the MCSO] for throwing

out the ‘Race Card”, but felt they did not

7

deserve a citation. Id. (text of type written

document) (emphasis added).

8 200 Disputed

Not genuinely disputed.

9 10 11 12 13 14 15 16 17
201 18 202

Controverting Statement: This statement of fact is misleading as written. While it is true that the MCSO was conducting a saturation patrol on the referenced date, the Meraz and Nieto Plaintiffs were not pulled over in a traffic stop as part of that saturation patrol. The traffic stop of Ms. Meraz and Mr. Nieto, while occurring when a saturation patrol was simultaneously ongoing in the area, was unrelated to that saturation patrol. See Defendants’ SOF (Dkt#413-1) at ¶¶ 64-88.
Admit. Disputed

Defendants concede that

Plaintiffs were stopped on a

saturation patrol day. Plaintiffs

were also stopped in the area

where a saturation patrol was

taking place, and by officers

working See Pls.’

tShSaOt sFa1t0ur2a6t7io.n

patrol.

Defendants do not present any

evidence to the contrary and refer

only to their general version of

events as presented in their

Statement of Facts in support of

Defendants’ Motion for Partial

Summary Judgment.

Not genuinely disputed.

19

Controverting Statement: This statement

20 21 22

is misleading as written. As Deputy Ramon Armendariz was handling two arrestees, momentarily a dark colored vehicle (driven by Plaintiff Nieto and occupied by his sister, Plaintiff Meraz) pulled into the convenience mart/gas station and parked directly behind Deputy Armendariz’ patrol car. See

Defendants do not actually dispute Plaintiffs’ proffered fact, which is that they pulled into a parking spot with Spanish music playing and were ordered to leave by Deputy Armendariz.

23

Defendants’ SOF (Dkt#413-1) at ¶ 68.

Defendants’ response regarding

Deputy Armendariz was standing in front of things that Ms. Meraz apparently

24

his patrol car handling the detained

said does not create any genuine

passenger of the car he stopped. Id. The dispute of fact. In their original

25

dark colored vehicle was playing load

statement of fact, Plaintiffs

26 10 Pls.’ [] Supplemetnal Fact in Opp’n to Defs.’ Mot. for Summ. J., Dkt. No. 456 27 (hereinafter “Pls.’ SSOF”).

28 234

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 235 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

music, the passenger side windows were recognized that the parties differ

3

down, and Deputy Armendariz could see a on whether and what Ms. Meraz

female passenger (later known to be Ms. yelled at Deputy Armendariz.

4

Meraz) and a male driver (later known to be See Pls.’ Resp. to Defs.’ SOF 70-

Mr. Nieto). Id. at ¶ 69. The female

74. Further, Defendants’

5

passenger started yelling repeatedly in

response regarding where

Spanish out her window at Deputy

Plaintiffs pulled in also does not

6

Armendariz’ detainee sitting on the bumper create any genuine dispute of fact.

of the patrol car, “no diga nada,’ ‘no diga Plaintiffs recognized that the

7

nada,’ … which means don’t – ‘don’t say parties differ in their accounts of

anything,’ ‘don’t say anything’; ‘pida un how far away Plaintiffs were

8

abogado,’ ‘pida un abogado,’ which means from Deputy Armendariz. See

….‘ask for a lawyer,’ ‘ask for a lawyer.’” Pls.’ Resp. to Defs.’ SOF 68.

9

Id. at ¶ 70.

Plaintiffs did not rely on facts that

10

At first, Deputy Armendariz tried to ignore were genuinely disputed. the yelling, but the female passenger in the Defendants’ additional assertions

11

dark colored vehicle kept yelling and he began to fear for his safety. Id. at ¶ 71.

do not create any genuine issue of fact, as they do not justify

12

Deputy Armendariz, therefore, ordered the sending officers to pursue driver of the vehicle to leave his vicinity Plaintiffs after they had left the

13

and to stay out of the way. Id. In response scene, and Plaintiffs have

to Deputy Armendariz’ command, the

elsewhere responded to them in

14

female passenger yelled several times that detail. See Pls.’ Resp. to Defs.’

‘we’re not going anywhere!” Id. at 72.

SOF 75-76, 78-80, 82-83; see

15

Deputy Armendariz again ordered that they also Pls.’ SOF 206 (Deputy

leave. Id. at ¶ 73. The dark vehicle,

Armendariz later relayed to

16

however, would not leave. Then the female backup officers that Plaintiffs had

passenger started yelling at Deputy

committed “no crime”).

17

Armendariz, “fucking Sheriff Joe, fucking Nazi,” and “you guys don't have a right

18

to do this.” Id. at ¶ 74.

Deputy Armendariz was worried about his

19

safety and the safety of the two men he had

in custody. Id. at ¶ 75. Because the vehicle

20

with the yelling passenger would not leave,

Deputy Armendariz called on his radio for

21

back-up. Id. at ¶ 76.

22

Despite Deputy Armendariz’ repeated commands for them to leave, the male in the

23

dark colored vehicle then opened his door and started to get out. Id. at ¶ 78. Deputy

24

Armendariz believed that the male was going to get out of the car to “try to kick my

25

ass.” Id. The vehicle occupants appeared very “angry” and were acting “very

26

threatening.” Id. at 79. “[T]heir actions towards [Deputy Armendariz] were as if it

27

was personal towards [him].” Id.

Deputy Armendariz testified as to his state

28 235

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 236 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

of mind when he saw the male in the vehicle

3

open his door and start to get out:

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4

I had other responsibilities that I was taking care of. I had two people that I

5

was in -- that I had in custody that I was responsible for. I didn’t know if he [Mr.

6

Nieto] was going to come out with a gun. I didn’t know if he was going to come

7

out with a knife. Am I going to have to - am I going to have to defend myself

8

while protecting my suspect that I have in custody? You know, is this going to

9

turn into -- is he going to get out with a knife? Am I going to have to shoot him?

10

Is he going to come out with a gun? Am I going to have to spray -- you know,

11

pepper spray to get him away from me? I mean, just the array of, you know,

12

“what-ifs.” That situation could have gone bad, really bad, really quick.

13

Id. at 80.

14

Seeing this, Deputy Armendariz grew more worried, in fact he was afraid, and ordered

15

the man to stay in his car or he would be arrested for disorderly conduct. Id. at ¶ 82.

16

In short, the occupants of the vehicle (Ms. Meraz and Mr. Nieto) made “a big scene” at

17

the convenience mart/gas station. Id. at ¶ 83.

18

Finally, the vehicle’s occupants complied

with Deputy Armendariz’ command and left

19

the scene while yelling profanities at him.

20 203
21 22 23

Admit with clarification Plaintiffs’ statement of fact is misleading because it ignores the actions, conduct, and time delay of the Plaintiffs in leaving the property. Defendants refer the Court to the Controverting Statement of Facts contained in response to paragraph no. 202 above.

Pls.’ SOF 203 is admitted.

24 204
25 26 27 28

Disputed Controverting Statement: Deputy Ramon Armendariz identified the vehicle to MCSO motorcycle Deputy Michael Kikes and then pointed Deputy Kikes in the general direction of the departed vehicle. Deputy Beeks, in a patrol car, followed Deputy Kikes. (Plaintiffs’ Statement of Fact at
236

Not genuinely disputed. Defendants do not dispute Plaintiffs’ proffered statement, which is that Deputy Armendariz reported that he gave Deputy Kikes a description of the vehicle and its occupants. As Plaintiffs’

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 237 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Kikes deposition at 71, ln. 15 to p. 73, ln. recognized, MCSO testimony on

3

14). Due to the Meraz- Nieto vehicle’s

this subject is internally

window tinting, Deputy Kikes could not see inconsistent.

4 5

the race, sex, or other characteristics of the vehicle’s occupants. See Defendants’ SOF (Dkt#413-1) at ¶ 86.

Defendants’ additional assertions about Mr. Stewart’s supposed testimony do not create any

6

Additionally, Plaintiffs’ police

genuine issue of fact, and

practices/racial profiling expert, Mr. Robert Plaintiffs have elsewhere

7

Stewart, admittedly has no evidence of

responded to them in detail. See

racially discriminatory intent or motive by Pls.’ Resp. to Defs.’ SOF 141,

8

Deputy Ramon Armendariz. See Defendants’ SOF (Dkt#413-1) at ¶ 141.

143-44.

9

According to Mr. Stewart, there is no evidence that Deputy Michael Kikes had

10

racially discriminatory intent or motive in making the traffic stop of the Meraz-Nieto

11

vehicle. Id. at ¶ 143. Finally, Mr. Stewart testified that there is no evidence that Ms.

12

Meraz and Mr. Nieto were racially profiled in either the traffic stop or during their

13

subsequent treatment by the MCSO deputies. Id. at ¶ 144.

14 205 Disputed

Not genuinely disputed.

15 16 17 18 19 20 21 22 23 24 25 26
206
27 28

Controverting Statement: This statement of fact is misleading as written by the Plaintiffs. MCSO Deputy Douglas Beeks heard Deputy Ramon Armendariz’ radio call for back-up and described Deputy Armendariz’ voice as sounding “excited” and “agitated”. See Defendants’ SOF (Dkt#413-1) at ¶ 77. Deputy Beeks also recalls hearing words used by Deputy Armendariz that led Deputy Beeks to believe in good faith that “a vehicle had tried to run over or hit Deputy Armendariz as it left the area” and that a crime may have been committed. Id. Accordingly, Deputy Beeks was concerned for the safety of Deputy Armendariz. Id. In addition, the cited section of Deputy Beeks deposition does not state that “he could see that deputy Armendariz was unharmed.” On the other hand, Deputy Beeks testified that Deputy Armendariz told him that “he was okay” p. 120, lns. 9-10. Disputed Controverting Statement: This statement of fact is misleading as written by the
237

Defendants do not dispute Plaintiffs’ proffered statement, which is that when Deputy Beeks arrived at the gas station, he could see Deputy Armendariz was unharmed. Hearing from Deputy Armendariz that “he was okay” is substantively the same learning that he was unharmed. Defendants’ assertions about what Deputy Beeks heard on the radio are immaterial and do not create any genuine issue of fact, and Plaintiffs have elsewhere responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 77.
Not genuinely disputed.

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 238 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Plaintiffs.

Defendants do not dispute

3 4 5 6 7 8

Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came back clear. See Defendants’ SOF (Dkt#4131) at ¶ 95. Deputy Beeks then contacted Deputy Armendariz to determine what had actually occurred between him and the vehicle’s occupants. Id. at ¶ 96. Following that communication, Mr. Nieto was released without being charged with either a traffic violation (i.e., failure to stop when directed)

Plaintiffs’ proffered statement that Deputy Armendariz confirmed (once he was contacted by the backup officers at the scene) that “no crime” had been committed by Mr. Nieto and Ms. Meraz and that there was “no probable cause” to arrest them. Kikes Dep. at 86:6-24 [Hickey Dec. Ex. 49].

or for obstructing Deputy Armendariz. Id.

9

at ¶ 97

207 Disputed

Not genuinely disputed.

10

Controverting Statement: Deputy

11 12 13 14 15 16 17 18 19

Michael Kikes heard Deputy Ramon Armendariz’ radio call for assistance and believed, based on the pitch of Deputy Armendariz’ voice, that something was wrong at the time of Deputy Armendariz’ call. See Defendants’ SOF (Dkt#413-1) at ¶ 77. Deputy Kikes, therefore, believed in good-faith that he had probable cause to stop the dark colored vehicle (driven by Plaintiff Nieto and occupied by his sister, Plaintiff Meraz) because he believed there was an emergency situation of some type involving Deputy Armendariz. Id. at ¶ 85. Due to the vehicle’s window tinting, Deputy Kikes could not see the race, sex, or other characteristics of the vehicle’s occupants. Id. at ¶ 86.

Defendants’ response does not create any genuine dispute of fact. At the time that he stopped Mr. Nieto and Ms. Meraz, Deputy Kikes was already aware that Deputy Armendariz was unharmed, having seen him at the gas station. Further, a recording of the radio traffic for the incident reveals that Deputy Armendariz’s voice was not “excited” or “agitated.” Pls.’ Resp. to Defs.’ SOF 77. Deputy Kikes’ speculation about some emergency situation, of which he admittedly knew nothing about, could not constitute probable

While Defendants acknowledge that

cause to stop Plaintiffs’ vehicle.

20

Plaintiff Nieto testified that he pulled into See Pls.’ Resp. to Defs.’ SOF 85.

21 22 23 24 25

his family’s auto shop because it was “just south of their location,” Nieto’s refusal to obey Deputy Kikes’ traffic command was a law enforcement concern. Deputy Kikes testified that the driver of the vehicle (i.e., Mr. Nieto) would not stop in response to Deputy Kikes’ signals (in itself a violation of the traffic law), and that Nieto drove another 300 feet until he turned left into an auto shop instead of pulling over on the right side of the public roadway as required

Defendants’ additional assertions about the reasonableness of Deputy Kikes’ stop (and his concern that Mr. Nieto did not immediately pull over) do not create any genuine issue of fact, and Plaintiffs have elsewhere responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 87-88, 118-19.

26

by law. Id. at ¶ 87. Deputy Kikes was

concerned about the driver’s (Nieto’s)

27

behavior, where he parked, and what that

behavior meant. Id. at ¶ 88.

28 238

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 239 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Additionally, defense expert Mr. Bennie

3

Click testified that Deputy Kikes had

reasonable suspicion to stop the Meraz-

4

Nieto vehicle. See Defendants’ SOF

(Dkt#413-1) at ¶ 118. Plaintiffs’ expert Mr.

5

Stewart agrees that Deputy Kikes had

reasonable suspicion under the

6

circumstances that allowed him to properly

stop the Meraz-Nieto vehicle. Id. at ¶ 119.

7 208 Disputed

Not genuinely disputed.

8

Controverting Statement: This statement

9 10

of fact is misleading as written by the Plaintiffs. Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. See

Defendants do not actually dispute Plaintiffs’ proffered fact that Plaintiffs called 911.

Defendants’ SOF (Dkt#413-1) at ¶ Id. at ¶ Instead, they make additional

11

89. He also refused to roll down his

assertions that do not create any

window to speak with Deputy Michael

genuine issue of fact, and to

12

Kikes. Id. at ¶ 90. He claims that he was which Plaintiffs have elsewhere

calling 911 to report harassment by the

responded in detail. See Pls.’

13

MCSO.

Resp. to Defs.’ SOF 89-90.

14 209
15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed Controverting Statement: This statement of fact is misleading as written by the Plaintiffs. Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. See Defendants’ SOF (Dkt#413-1) at ¶ Id. at ¶ 89. He also refused to roll down his window to speak with Deputy Michael Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Douglas Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene, saw the driver acting very “belligerent”, “non-compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks thought that the driver might drive his vehicle forward or backward; therefore, Deputy Beeks pulled his handgun to his side for safety purposes. Id. at ¶ 92. There is no testimony other than from the Plaintiffs Nieto and Meraz that other deputies had their guns drawn and there is no testimony that any MCSO deputy ever “pointed [their gun] at [Plaintiffs].” The Plaintiffs’ cited authority from MCSO
239

Not genuinely disputed.
Defendants are mistaken that the cited portion of the testimony does not support Plaintiffs’ proffered fact as written. Deputy Beeks simply testified that he “drew [his] weapon”. Beeks Dep. at 103:21-104:23 [Hickey Dec. Ex. 38]. Mr. Nieto and Ms. Meraz testified that guns were pointed at them. Defendants’ additional assertions do not create any genuine issue of fact, and Plaintiffs have elsewhere responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 89-92.

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 240 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

deputy Beeks does not support this

3

statement of fact as written.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4 210
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Disputed Controverting Statement: This statement of fact is misleading as written by the Plaintiffs. The driver of the vehicle (i.e., Mr. Nieto) would not stop in response to Deputy Michael Kikes’ signals (in itself a violation of the traffic law), and he drove another 300 feet until he turned left into an auto shop instead of pulling over on the right side of the public roadway as required by law. See Defendants’ SOF (Dkt#413-1) at ¶ 87. Deputy Kikes was concerned about the driver’s behavior, where he parked, and what that behavior meant. Id. at ¶ 88. Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto) refused to exit his vehicle. Id. at ¶ 89. He also refused to roll down his window to speak with Deputy Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene, saw the driver acting very “belligerent”, “non-compliant”, and “almost hostile in nature” toward Deputy Kikes, and Deputy Beeks thought that the driver might drive his vehicle forward or backward; therefore, Deputy Beeks pulled his handgun to his side for safety purposes. Id. at ¶ 92.

Not genuinely disputed.
Defendants do not actually dispute Plaintiffs’ proffered fact that Deputy Kikes opened the driver’s side door and pulled Mr. Nieto out; in fact, they admit it. See Defs.’ SOF 93. Further, they do not dispute Mr. Nieto’s testimony that he was lifted off the ground and thrown against the vehicle. Defendants’ additional assertions purportedly justifying their behavior do not create any genuine issue of fact, and Plaintiffs have elsewhere responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 87-92, 94-97, 120.

20

Finally, Deputy Kikes opened the vehicle’s

door, grabbed the driver, and removed him

21

from the vehicle where he then handcuffed

him. Id. at ¶ 93. Deputy Kikes moved the

22

driver to the rear of the vehicle away from

the angry mechanics and obtained his

23

driver’s license information. Id. at ¶ 94.

24

Deputy Kikes conducted a radio check on the driver’s status (Mr. Nieto’s) and it came

25

back clear. Id. at ¶ 95. Deputy Beeks then contacted Deputy Armendariz to determine

26

what had actually occurred between him and the vehicle’s occupants. Id. at ¶ 96.

27

Following that communication, Mr. Nieto was released without being charged with

28

either a traffic violation (i.e., failure to stop

240

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 241 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

when directed) or for obstructing Deputy

3

Armendariz. Id. at ¶ 97.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

4 5 6 7 8
211
9 10 11 12 13 14 15 16
212
17 18 19 20 21

Additionally, Deputy Kikes’ post-traffic stop treatment of Mr. Nieto (i.e., removing him from the vehicle and handcuffing him) was not unreasonable. Plaintiffs’ police practice/racial profiling expert Mr. Robert Stewart testified that Deputy Kikes acted “reasonably” in his post-stop conduct and treatment of Mr. Nieto. See Defendants’ SOF (Dkt#413-1) at ¶ 120. Disputed Controverting Statement: Plaintiff Nieto pulled his vehicle into an auto repair shop. At this time, two unknown men in mechanic’s clothing immediately came out from the auto repair shop and were “angry”, “yelling” and “cursing” at Deputy Michael Kikes. See Defendants’ SOF (Dkt#413-1) at ¶ 91. While Plaintiff Nieto and Meraz testified that these unknown men were family members and supposedly identified Nieto and Meraz to the MCSO deputies as United State citizens, the Plaintiff citation to Kikes deposition at p. 79, lns. 11-15 does not support this statement of fact. Admit with clarification. Deputy Kikes’ post-traffic stop treatment of Mr. Nieto (i.e., removing him from the vehicle and handcuffing him) was not unreasonable. Plaintiffs’ police practice/racial profiling expert Mr. Robert Stewart testified that Deputy Kikes acted “reasonably” in his post-stop conduct and treatment of Mr. Nieto. See Defendants’ SOF (Dkt#413-1) at ¶ 120.

Not genuinely disputed.
Defendants do not actually dispute Plaintiffs’ proffered fact, and acknowledge that Mr. Nieto and Mr. Meraz’s testimony establishes it. Defendants’ additional assertion purportedly justifying their behavior does not create any genuine issue of fact, and Plaintiffs have elsewhere responded to it in detail. See Pls.’ Resp. to Defs.’ SOF 91. Pls.’ SOF 212 is admitted.
Defendants’ additional assertion does not create any genuine issue of fact, and Plaintiffs have elsewhere responded to it in detail. See Pls.’ Resp. to Defs.’ SOF 120.

22 213 Disputed

Not genuinely disputed.

23 24

Controverting Statement: This statement

of fact is misleading as written by the Plaintiffs.

Defendants do not actually dispute Plaintiffs’ proffered fact

The driver of the vehicle (i.e., Mr. Nieto) that Mr. Nieto was handcuffed

25

would not stop in response to Deputy

and his identification run, and that

Michael Kikes’ signals (in itself a violation the identification came back with

26

of the traffic law), and he drove another 300 no problems.

27 28

feet until he turned left into an auto shop instead of pulling over on the right side of the public roadway as required by law. See

Defendants’ additional assertions do not create any genuine issue of fact, and Plaintiffs have

241

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 242 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

Defendants’ SOF (Dkt#413-1) at ¶ ¶ 87.

3

Deputy Kikes was concerned about the

driver’s behavior, where he parked, and

4

what that behavior meant. Id. at ¶ 88.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
elsewhere responded to them in detail. See Pls.’ Resp. to Defs.’ SOF 87-97.

5

Once the Nieto-Meraz vehicle pulled into the auto repair shop, the driver (Mr. Nieto)

6

refused to exit his vehicle. Id. at ¶ 89. He also refused to roll down his window to

7

speak with Deputy Kikes. Id. at ¶ 90. At this time, two unknown men in mechanic’s

8

clothing immediately came out from the auto repair shop and were “angry”,

9

“yelling” and “cursing” at Deputy Kikes. Id. at ¶ 91. Deputy Beeks, now at the scene,

10

saw the driver acting very “belligerent”, “non-compliant”, and “almost hostile in

11

nature” toward Deputy Kikes, and Deputy Beeks thought that the driver might drive

12

his vehicle forward or backward; therefore, Deputy Beeks pulled his handgun to his side

13

for safety purposes. Id. at ¶ 92.

Finally, Deputy Kikes opened the vehicle’s

14

door, grabbed the driver, and removed him

from the vehicle where he then handcuffed

15

him. Id. at ¶ 93. Deputy Kikes moved the

driver to the rear of the vehicle away from

16

the angry mechanics and obtained his

driver’s license information. Id. at ¶ 94.

17

Deputy Kikes conducted a radio check on

18

the driver’s status (Mr. Nieto’s) and it came back clear. Id. at ¶ 95. Deputy Beeks then

19

contacted Deputy Armendariz to determine what had actually occurred between him

20

and the vehicle’s occupants. Id. at ¶ 96. Following that communication, Mr. Nieto

21

was released without being charged with either a traffic violation (i.e., failure to stop

22

when directed) or for obstructing Deputy Armendariz. Id. at ¶ 97

23 214

Not genuinely disputed.

24

Disputed

Controverting Statement: While

Defendants do not actually

25

Defendants acknowledge that Plaintiff Nieto dispute Plaintiffs’ proffered fact

testified that he supposedly called the

that Mr. Nieto tried to file a

26

MCSO to lodge a complaint, Nieto’s

complaint, but was unsuccessful.

truthfulness is in question. Plaintiff Nieto is

27

a three- time convicted felon who spent 3.5

years in prison for domestic violence and The fact that Mr. Nieto did not

28 242

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 243 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

was released from prison only one month write a complaint to the MCSO or

3

earlier in February 2008. Defendants’ SOF other agencies is irrelevant,

(Dkt#413-1) at ¶ 81. In addition, Nieto

particularly as he never received a

4

never wrote a written complaint about the call back from anyone at MCSO

MCSO’s alleged conduct and send it to

to take the complaint. His filing

5

anyone. See Deposition of Manuel Nieto, Jr. of this lawsuit is a complaint.

at p. 31, lns. 9-14, attached as Exhibit 4.

6

After everything he alleges he experienced,

Nieto still did not write a complaint to the

7

MCSO, the City of Phoenix Police

Department, or the FBI. Id. at p. 32, lns. 9-

8

20.

9 215
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is, in whole or in part, inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows: Objections: (A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” HodgersDurgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course be limited to the inadequacy that produced the injury in fact that the [named] plaintiff has established. This is no less true with respect to class actions than with respect to other suits.”; see also at p. 357 “That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”’); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995) (“The nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation” to the named plaintiffs; not by
243

Not genuinely disputed.
Defendants do not dispute this fact, but merely raise evidentiary objections. Defendants’ objections are without merit: (A) The Declaration is Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401. Further, while Mr. Urteaga’s stop does not eliminate the requirement that the named Plaintiffs have standing, it is nonetheless relevant to the issue. See Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir.2001) (“When a named plaintiff asserts injuries that have been inflicted upon a class of plaintiffs, [a court] may consider those injuries in the context of the harm asserted by the class as a whole, to determine whether a credible threat that the named plaintiff's injury will recur has been established.”). Moreover, this evidence tends to show that the harm suffered by the named Plaintiffs was not an isolated incident, but part of a

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 244 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

reference to what other non parties claim) widespread “pattern” of racial

3

(citation and internal quotation marks

discrimination. See LaDuke v.

omitted); Huss v. Spokane County, 2007 Nelson, 62 F.2d 1318, 1324-25

4

U.S. Dist. LEXIS 27667 (E.D. Wash. 2007) (9th Cir. 1985). The fact that

(alleged injury by unnamed class members other individuals in Maricopa

5

irrelevant to determination of named

County have been stopped and

plaintiffs’ claims.

detained on the basis of race by

6 7 8 9 10 11

In addition, the Urteaga declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle or at the

Defendants tends to make it more probable that the named Plaintiffs suffered a similar harm. Fed. R. Evid. 401; Obrey v. Johnson, 400 F.3d 691, 697-98 (9th Cir. 2005) (abuse of discretion to exclude “commonplace” evidence that persons other than the plaintiff had suffered similar discrimination at hands of defendants).

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

specifically mentioned saturation patrol. It is undisputed that the traffic stop of Plaintiffs Jessica and David Rodriguez did not occur during a saturation patrol. DSOF (Dkt# 413-1) at ¶¶ 42-43. The traffic stop of Plaintiffs Meraz and Nieto, while occurring when a saturation patrol was ongoing nearby, did not occur as a result of a saturation patrol. DSOF (Dkt# 413-1) at ¶¶ 64-88. Finally, the traffic stop of Plaintiff Melendres technically could be considered as part of an MCSO saturation patrol, and was considered as such by Deputy DiPietro, but the operation was actually a small HSU detail targeting only specific vehicles that had picked up persons from a suspected human smuggling drop house/day laborer location, and did not involve the MCSO making general traffic stops of any vehicles other than those that had visited the church property and picked-up passengers and where probable cause was found to stop those particular vehicles. DSOF (Dkt# 4131) at ¶ 12. Even if Melendres stop occurred during a saturation patrol, that stop was not during the declarant’s saturation patrol. The declarant represents that his stop occurred on January 2, 2009. The traffic stop of Plaintiff Melendres occurred on September 26, 2007. DSOF (Dkt# 413-1) at ¶ 12. The traffic stop of the Rodriguez Plaintiffs occurred on December 2, 2007.

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice, despite bearing hearsay. Fed. R. Evid. 802 advisory’s committee’s note (“affidavits in summary judgment proceedings” excepted from hearsay rule). Affidavits or declarations from third-parties and others are admissible in summary judgment practice so long as they are based on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4); see, e.g., Taylor v. List, 880 F.2d 1040, 1046 (9th Cir. 1989) (considering thirdparty affidavits in reviewing a summary judgment decision). The Urteaga declaration meets all the requirements of Rule 56. Defendants are incorrect that they “lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the

244

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 245 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Id. at ¶ 40. The traffic stop of Plaintiff

numbers of depositions permitted

3

Meraz and Nieto occurred on March 28,

in this case.” Mr. Urteaga’s

2009. Id. at ¶ 63.

identity and declaration were

4 5

The declaration is irrelevant, and Court should not consider this declaration for this reason.

timely and properly disclosed to Defendants, who thus had an opportunity to take his deposition. See Plaintiffs’ Sixth

6

(B) Hearsay. While the use of affidavits is Supplemental Disclosure

permissible in summary judgment practice, Statement (Feb. 5, 2010) [Hickey

7

this declaration is of a third party and is

Reply Dec. Ex. 245]. Defendants

hearsay because it is being offered for the did not even use the all of the 15

8

truth of the matter contained therein, and depositions allotted to them. See

there is no exception to the hearsay rule that Case Management Order [Dkt.

9

would allow its admission into evidence. No. 201]. In any event,

Defendants also lack the ability to

Defendants could have sought

10

effectively cross examine this witness on leave from the court if they

the matter set forth in the declaration and wished to take the deposition of

11

given the limitations in the numbers of

Plaintiffs’ properly disclosed

depositions permitted in this case, could not witness. Defendants chose not to

12

cross-examine the declarant in deposition. do so.

13 14 15 16 17 18

Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo crossexamination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by name or serial number any of the deputies he supposedly encountered, there is no meaningful way that Defendants could identify the deputies and obtain their knowledge about what occurred with the declarant, if anything.

While Mr. Urteaga’s contains an additional level of hearsay in that it recounts statements from the MCSO officer that stopped him, these statements are admissible evidence. First, Plaintiffs do not offer the MCSO’s Deputy’s statements (“Can I see your driver’s license?” “Where are you from?” “Can you prove it?”) for the truth of the matter asserted. Rather, their statements are used

19

The declaration also contains another

to show the intent of the MCSO

layer of hearsay in that it purports to relate deputy and the events that

20

the statement of an unknown MCSO deputy occurred during Mr. Urteaga’s and it does not constitute an admission in stop. Fed. R. Evid. 801(c).

21

this case. See Horta v. Sullivan, 4 F.3d 2, 8 Second, the statements were (1st Cir. 1993) (“hearsay within hearsay” is made by Defendant MCSO’s

22

“inadmissible at trial to establish the truth of “agent or servant concerning a

the reported facts.”) The unknown and

matter within the scope of the

23

unidentified deputy is not a defendant to this action and the fact that he is an

agency or employment,” and is therefore not hearsay as an

24

employee of the MCSO does not equate to admission by party-opponent. his statements amounting to admissions by a Fed. R. Evid. 801(d)(2)(D)

25

party opponent. The Court should not consider this declaration for this reason.

(emphasis added). (C) Mr. Urteaga’s Declaration

26

(C) Lack of Foundation and Speculation. is Based on Personal

Declarant’s first statement at ¶ 10 (“I

Knowledge. Mr. Urteaga’s

27

believe that the first MCSO deputy was

testimony at ¶ 10 that “I believe

trying to intimidate me by asking me for that the first MCSO Deputy was

28 245

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 246 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

proof of my citizenship.”) is inadmissible trying to intimidate me by asking

3

speculation and conjecture. Cox v. Amerigas me for proof of citizenship. I

Propane, Inc., 2005 U.S. Dist. LEXIS

believe I was pulled over solely

4

26344 (Ariz. 2005) (“Evidence a party relies because I was Latino” has proper

upon with respect to a summary judgment foundation and is not speculation.

5

motion must have an appropriate foundation Mr. Urteaga was a witness to the

and must be supported… by admissible

incident, and testified to his belief

6

evidence”); Cornwell v. Electra Cen. Credit based on his personal knowledge.

Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. Fed. R. Evid. 602; Fed. R. Civ. P.

7

2006) (explaining that a plaintiff may not 56(c)(4). Nor was Mr. Urteaga’s

defeat a defendant’s motion for summary belief based on speculation.

8

judgment “by relying solely on the

Rather, Mr. Urteaga explained the

plaintiff’s subjective belief that the

specific reasons—such as being

9

challenged action was [wrong].”); August v. asked to “prove” his citizenship

Office Unlimited, Inc., 981 F.2d 576, 580 despite providing a valid drivers’

10

(1st Cir. 1992) (“Mere allegations or

license—that led him to believe

conjecture supported in the record, are

that he was racially profiled. His

11

insufficient to raise a genuine issue of

statement is thus admissible

material fact.”); cf. Moore Drug Co. v.

evidence. See Coral Const. Co. v.

12

Shaneman, 461 P.2d 95, 98 (Ariz. App.

King County, 941 F.2d 910, 918

1969) (“mere suspicion, innuendo,

(9th Cir. 1991) (considering

13

insinuation, and speculation are not

affidavit that “I believe the

substitutes for evidence.”)

refusal of prime contractors,

14 15 16 17

Declarant’s final statement at ¶ 10 (“I believe that I was pulled over solely because I am Latino.”) lacks the foundation to support this conclusion and is inadmissible speculation and conjecture. Cox, 2005 U.S. Dist. LEXIS 26344; Cornwell, 439 F.3d

developers and architects to award contracts to my business for private sector work is due to discrimination against minority persons” as evidence of discrimination).

at1028-29 n.6; August, 981 F.2d at 580;

18

Shaneman, 461 P.2d at 98”).

216 Disputed and Defendants object to the Not genuinely disputed.

19

use of this particular declaration for

purposes of summary judgment motion

20

practice. It is, in whole or in part,

Defendants do not dispute this

inadmissible. The Court should strike this fact, but merely raise evidentiary

21

declaration and statement of fact. The

objections. Defendants’

support for the dispute and objections are as objections are without merit:

22

follows:

(A) The Declaration is

23 24 25 26 27 28

Objections: (A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also

Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at

246

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 247 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Lewis v. Casey, 518 U.S. 343, 357 (1996); 861; LaDuke, 62 F. 2d at 1324-

3

Missouri v. Jenkins, 515 U.S. 70, 88, 89

25. The fact that other

(1995); Huss v. Spokane County, 2007 U.S. individuals in Maricopa County

4

Dist. LEXIS 27667 (E.D. Wash. 2007).

have been stopped and detained

5 6 7

In addition, the Magos declaration is irrelevant to the issue of whether the MCSO’s traffic stops violated each of the named Plaintiffs’ rights to equal treatment under the 14th Amendment. Rule 401,

on the basis of race by Defendants tends to make it more probable that the named Plaintiffs suffered a similar harm. Obrey, 400 F.3d at 697-98.

Federal Rules of Evidence. The information (B) Affidavits are Admissible in

8

contained in the declaration does not make Summary Judgment Practice. it more or less probable that the rights of the Under Rule 56 of the Federal

9

named Plaintiffs were violated, and none of Rules of Civil Procedure, the Plaintiffs were present in the declarant’s affidavits are admissible in

10 11 12 13

vehicle. (B) Hearsay. While the use of affidavits is permissible in summary judgment practice, this declaration is of a third party and is hearsay because it is being offered for the truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence.

summary judgment practice, despite bearing hearsay. Fed. R. Evid. 802 advisory’s committee’s note; see, e.g., Taylor, 880 F.2d at 1046 (third party affidavit). Mr. Magos’s declaration meets all the requirements of Rule 56. See Fed. R. Civ. P. 56(c)(4).

14

Defendants also lack the ability to

Defendants are incorrect that they

effectively cross-examine this witness on “lack the ability to effectively

15

the matter set forth in the declaration and cross examine this witness on the

given the limitations in the numbers of

matter set forth in the declaration

16

depositions permitted in this case, could not and given the limitations in the

cross-examine the declarant in deposition. numbers of depositions permitted

17

Murphy v. Yavapai County, 2006 U.S. Dist. in this case.” Mr. Magos’s

LEXIS 63732 at 14-16 (D. Ariz. 2006) (if identity and declaration were

18

affiant is not available to undergo cross-

timely and properly disclosed to

examination at trial or in a pre-trial

Defendants, who thus had an

19

deposition, affidavit of third party is

opportunity to take his deposition.

hearsay).

See Plaintiffs’ Sixth

20 21 22 23 24 25 26

The declaration also contains another layer of hearsay in that it purports to relate the statement of an MCSO deputy (“Don’t go thinking this is racial profiling”) and it does not constitute an admission in this case, and what “my daughter’s boyfriend” did or did not do and the MCSO’s response. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not

Supplemental Disclosure Statement (Feb. 5, 2010) [Hickey Reply Dec. Ex. 245]. Defendants did not even use the all of the 15 depositions allotted to them. See Case Management Order [Dkt. No. 201]. In any event, Defendants could have sought leave from the court if it wished to take the deposition of Plaintiffs’ properly disclosed witness. Defendants chose not to do so.

27

equate to his statements amounting to

While the declaration contains an

admissions by a party opponent. The Court additional level of hearsay in that

28

should not consider this declaration for this it recounts statements from the

247

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 248 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

reason.

MCSO officer that stopped Mr.

3 4 5 6 7 8 9 10 11 12 13

(C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 17 (“I believe that we were stopped and harassed because of the color of our skin.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005) (“Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported… by admissible evidence”); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (explaining that a plaintiff may not defeat a defendant’s motion for summary judgment “by relying solely on the plaintiff’s subjective belief that the challenged action was [wrong].”); August v. Office Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992) (“Mere allegations or conjecture supported in the record, are insufficient to raise a genuine issue of

Magos, these statements are admissible evidence. First, Plaintiffs do not offer the MCSO’s Deputy’s statements (“I want both of your IDs” “Don’t go thinking this is racial profiling”) for the truth of the matter asserted. Rather, their statements are used to show the intent of the MCSO deputy and the events that occurred during Mr. Magos’s stop. Fed. R. Evid. 801(c). Second, the statements were made by Defendant MCSO’s “agent or servant concerning a matter within the scope of the agency or employment,” and is therefore an admission by partyopponent. Fed. R. Evid. 801(d)(2)(D). (C) Mr. Magos’s Declaration is

14

material fact.”); cf. Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App.

Based on Personal Knowledge. Mr. Magos’s testimony at ¶ 17

15

1969) (“mere suspicion, innuendo, insinuation, and speculation are not

that “I believe that we were stopped and harassed because of

16

substitutes for evidence.”)

the color of our skin” has proper foundation and is not speculation.

17

Mr. Magos was a witness to the incident, and testified to his belief

18

based on his personal knowledge. Fed. R. Evid. 602; Fed. R. Civ. P.

19

56(c)(4). Nor was this belief based on speculation. Rather, Mr.

20

Magos explained the specific reasons—such as the officer’s

21

sudden U-turn after observing Mr. Magos’ appearance—that led

22

him to believe that he was racially profiled. His statement is thus

23

admissible evidence. See Coral Const. Co., 941 F.2d at 918.

24 217
25 26 27

Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:

Not genuinely disputed. Defendants do not dispute this fact, but merely raise evidentiary objections. Defendants’ objections are without merit:

28

(A) The Declaration is

248

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 249 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Objections:

Relevant. This declaration is

3 4 5 6 7 8 9 10

(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” HodgersDurgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).

relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at 861; See LaDuke, 62 F. 2d at 1324-25. The fact that other individuals in Maricopa County have been stopped and detained on the basis of race by

In addition, the Garcia declaration is

Defendants tends to make it more

11

irrelevant to the issue of whether the

probable that the named Plaintiffs

MCSO’s traffic stops violated each of the suffered a similar harm. Obrey,

12

named Plaintiffs’ rights to equal treatment 400 F.3d at 697-98.

13 14 15 16

under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle on the occasions identified in the declaration.

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice, despite bearing hearsay. Fed. R. Evid. 802 advisory’s committee’s

17

(B) Hearsay. While the use of affidavits is note; see, e.g., Taylor, 880 F.2d at permissible in summary judgment practice, 1046 (third party affidavit). Mr.

18

this declaration is of a third party and is

Garcia’s declaration meets all the

hearsay because it is being offered for the requirements of Rule 56. Fed. R.

19 20 21 22 23 24 25 26 27 28

truth of the matter contained therein, and there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo crossexamination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by specific date or time, or location, or the name or serial number any of the deputies he supposedly encountered, there is no meaningful way that Defendants

Civ. P. 56(c)(4). Defendants are incorrect that they “lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case.” Mr. Garcia’s identity and declaration were timely and properly disclosed to Defendants, who thus had an opportunity to take his deposition. See Plaintiffs’ Sixth Supplemental Disclosure Statement (Feb. 5, 2010) [Hickey Reply Decl. 245]. Defendants did not even use the all of the 15 depositions allotted to them. See

249

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 250 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

could identify the deputies and obtain their Case Management Order [Dkt.

3

knowledge about what occurred with the No. 201]. In any event,

declarant, if anything.

Defendants could have sought

4 5 6

The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8

leave from the court if it wished to take the deposition of Plaintiffs’ properly disclosed witness. Defendants chose not to do so.

7

(1st Cir. 1993) (“hearsay within hearsay” is While Mr. Garcia’s declaration “inadmissible at trial to establish the truth of contains an additional level of

8

the reported facts.”) The unknown and unidentified deputy is not a defendant to

hearsay in that it recounts statements from the MCSO

9

this action and the fact that he is an

officer that stopped him, these

employee of the MCSO does not equate to statements are admissible

10

his statements amounting to admissions by a evidence. The MCSO’s Deputy’s

party opponent. The Court should not

statement (that Mr. Garcia was

11 12 13 14 15 16

consider this declaration for this reason. (C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 10 (“We believe that we were stopped each time because we are Hispanic, and not because of anything we had done wrong.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimited, Inc., 981 F.2d 576, 580

stopped because he looked “suspicious”) was made by Defendant MCSO’s “agent or servant concerning a matter within the scope of the agency or employment,” and is therefore an admission by party-opponent. Fed. R. Evid. 801(d)(2)(D). Moreover, the statement has an proper not-for-truth purpose in that it shows the MCSO Deputy’s intent.

17

(1st Cir. 1992); Moore Drug Co. v.

(C) Mr. Garcia’s Declaration is

Shaneman, 461 P.2d 95, 98 (Ariz. App.

Based on Personal Knowledge.

18

1969).

Mr. Garcia’s testimony at ¶ 10

that “We believe that we were

19

stopped each time because we are

Hispanic, and not because of

20

anything we had done wrong” has

proper foundation and is not

21

speculation. Mr. Garcia was a

witness to the incidents he

22

described, and testified to his

belief based on his personal

23

knowledge. Fed. R. Evid. 602;

Fed. R. Civ. P. 56(c)(4). Nor was

24

Mr. Garcia’s belief based on

speculation. Rather, Mr. Garcia

25

explained the specific reasons—

such as being stopped four times

26

for trivial or no cause—that led

him to believe that he was racially

27

profiled. His statement is thus

admissible evidence. See Coral

28 250

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 251 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Const. Co., 941 F.2d at 918.

3 218 Disputed and Defendants object to the Not genuinely disputed.

4

use of this particular declaration for purposes of summary judgment motion

5

practice. It is inadmissible. The Court

Defendants do not dispute this

should strike this declaration and statement fact, but merely raise evidentiary

6

of fact. The support for the dispute and objections are as follows:

objections. Defendants’ objections are without merit:

7

Objections:

(A) The Declaration is

8 9 10 11 12 13 14

(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).

Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at 861; LaDuke, 62 F. 2d at 132425. The fact that other individuals in Maricopa County have been stopped and detained

15

In addition, the Villaman declaration is

on the basis of race by

irrelevant to the issue of whether the

Defendants tends to make it more

16

MCSO’s traffic stops violated each of the probable that the named Plaintiffs

named Plaintiffs’ rights to equal treatment suffered a similar harm. Obrey,

17

under the Fourteenth Amendment. Rule

400 F.3d at 697-98.

18 19 20

401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice,

21

(B) Hearsay. While the use of affidavits is despite bearing hearsay. Fed. R. permissible in summary judgment practice, Evid. 802 advisory’s committee’s

22

this declaration is of a third party and is

note; see, e.g., Taylor, 880 F.2d at

hearsay because it is being offered for the 1046 (third party affidavit). Mr.

23

truth of the matter contained therein, and Villaman’s declaration meets all there is no exception to the hearsay rule that the requirements of Rule 56. See

24 25 26 27 28

would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if

Fed. R. Civ. P. 56(c)(4). Defendants are incorrect that they “lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case.” Mr. Villaman’s

251

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 252 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

affiant is not available to undergo cross-

identity and declaration were

3

examination at trial or in a pre-trial

timely and properly disclosed to

deposition, affidavit of third party is

Defendants, who thus had an

4

hearsay).

opportunity to take his deposition.

5 6 7 8 9 10 11

The declaration also contains another layer of hearsay in that it purports to relate the statements of three MCSO deputies and those statements do not constitute admissions in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputies are not defendants to this action and the fact that they are employees of the MCSO does not equate to their purported statements amounting to admissions by a party opponent. The Court should not consider this declaration for this

See Plaintiffs’ Fifth Supplemental Disclosure Statement (Jan. 20, 2010) [Hickey Reply Dec. Ex. 244]. Defendants did not even use the all of the 15 depositions allotted to them. See Case Management Order [Dkt. No. 201]. In any event, Defendants could have sought leave from the court if they wished to take the deposition of Plaintiffs’ properly disclosed witness. Defendants chose not to do so. While Mr. Villaman’s declaration

12 13 14 15 16 17 18 19

reason. (C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 19 (“I believe that I was stopped not because I had done anything wrong, but because of the color of my skin.”) is inadmissible speculation and conjecture, and lacks foundation. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App. 1969)

contains an additional level of hearsay in that it recounts statements from the MCSO officer that stopped him, these statements are admissible evidence. The statements (Deputy Templeton “told me I was under arrest”) were made by Defendant MCSO’s “agent or servant concerning a matter within the scope of the agency or employment,” and is therefore an admission by party-opponent. Fed. R. Evid. 801(d)(2)(D). In addition, this statement has independent significance (as

20

communicating to a reasonable person that an arrest occurred)

21

and is offered to show the events that occurred during Mr.

22

Villaman’s stop, regardless of the truth of the matter asserted. Fed.

23

R. Evid. 801(c).

(C) Mr. Villaman’s Declaration

24

is Based on Personal

Knowledge. Mr. Villaman’s

25

testimony at ¶ 10 that “I believe

that the first MCSO Deputy was

26

trying to intimidate me by asking

me for proof of citizenship. I

27

believe I was pulled over solely

because I was Latino” has proper

28 252

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 253 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

foundation and is not speculation.

3

Mr. Villaman was a witness to the

incident, and testified to his belief

4

based on his personal knowledge.

Fed. R. Evid. 602; Fed. R. Civ. P.

5

56(c)(4). Nor was Mr.

Villaman’s belief based on

6

speculation. Rather, Mr.

Villaman explained the specific

7

reasons—such as being arrested

for no cause—that led him to

8

believe that he was racially

profiled. His statement is thus

9

admissible evidence. See Coral

Const. Co., 941 F.2d at 918.

10 219 Disputed and Defendants object to the Not genuinely disputed.

11

use of this particular declaration for purposes of summary judgment motion

12

practice. It is inadmissible. The Court Defendants do not dispute this should strike this declaration and statement fact, but merely raise evidentiary

13

of fact. The support for the dispute and objections are as follows:

objections. Defendants’ objections are without merit:

14

Objections:

(A) The Declaration is

15 16 17 18 19 20 21

(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” HodgersDurgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).

Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at 861; LaDuke, 62 F. 2d at 132425. The fact that other individuals in Maricopa County have been stopped and detained

22

In addition, the Cosio declaration is

on the basis of race by

irrelevant to the issue of whether the

Defendants tends to make it more

23

MCSO’s traffic stops violated each of the probable that the named Plaintiffs

named Plaintiffs’ rights to equal treatment suffered a similar harm. Obrey,

24

under the Fourteenth Amendment. Rule

400 F.3d at 697-98.

25 26 27

401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice,

28

(B) Hearsay. The declaration contains

despite bearing hearsay. Fed. R.

253

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 254 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

hearsay in that it purports to relate the

Evid. 802 advisory’s committee’s

3

statements of an MCSO deputy and it does note; see, e.g., Taylor, 880 F.2d at

not constitute an admission in this case. See 1046 (third party declaration).

4

Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) Mr. Cosio’s declaration meets all

(“hearsay within hearsay” is “inadmissible the requirements of Rule 56. Fed.

5

at trial to establish the truth of the reported R. Civ. P. 56(c)(4);

6 7 8

facts.”) The deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.

While Mr. Cosio’s declaration contains an additional level of hearsay in that it recounts statements from the MCSO officers that detained him, these statements are admissible

9

(C) Lack of Foundation and Speculation. evidence. First, these statements

Declarant’s first statement at ¶ 14 (“I

were made by Defendant

10

believe that I was targeted for investigation MCSO’s “agent or servant

based on the color of my skin.”) is

concerning a matter within the

11

inadmissible speculation and conjecture. scope of the agency or Cox v. Amerigas Propane, Inc., 2005 U.S. employment,” and is therefore an

12

Dist. LEXIS 26344 (Ariz. 2005); Cornwell admission by party-opponent.

v. Electra Cen. Credit Union, 439 F.3d

Fed. R. Evid. 801(d)(2)(D).

13

1018, 1028-29 n.6 (9th Cir. 2006); August v. Moreover, Plaintiffs do not offer Office Unlimited, Inc., 981 F.2d 576, 580 the MCSO Deputies’ statements

14

(1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App.

(“Fuck yeah, tow that shit” “He doesn’t count because he’s

15

1969) (“mere suspicion, innuendo, insinuation, and speculation are not

American” “You know what’s funny? I’m arresting you”) for the

16

substitutes for evidence.”).

truth of the matter asserted. Rather, their statements are used

17

to show the discriminatory intent of the MCSO deputies and the

18

events that occurred during Mr. Cosio’s stop. Fed. R. Evid.

19

801(c).

(C) Mr. Cosio’s Declaration is

20

Based on Personal Knowledge.

Mr. Cosio’s testimony at ¶ 14 (“I

21

believe that I was targeted for

investigation based on the color

22

of my skin.”) has proper

foundation and is not speculation.

23

Mr. Cosio was a witness to the

incident, and testified to his belief

24

based on his personal knowledge.

Fed. R. Evid. 602; Fed. R. Civ. P.

25

56(c)(4). Nor was Mr. Cosio’s

belief based on speculation.

26

Rather, Mr. Cosio explained the

specific reasons—such as being

27

treated rudely and stopped

without cause—that led him to

28 254

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 255 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
believe that he was racially profiled. His statement is thus admissible evidence. See Coral Const. Co., 941 F.2d at 918.

5 220
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:

Not genuinely disputed. Defendants do not dispute this fact, but merely raise evidentiary objections. Defendants’ objections are without merit:

Objections:

(A) The Declaration is

(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.” HodgersDurgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007)..

Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at 861; LaDuke, 62 F. 2d at 132425. The fact that other individuals in Maricopa County have been stopped and detained

In addition, the Escamilla declaration is

on the basis of race by

irrelevant to the issue of whether the

Defendants tends to make it more

MCSO’s traffic stops violated each of the probable that the named Plaintiffs

named Plaintiffs’ rights to equal treatment suffered a similar harm. Obrey,

under the 14th Amendment. Rule 401,

400 F.3d at 697-98.

Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice,

(B) Hearsay. While the use of affidavits is despite bearing hearsay. Fed. R.

permissible in summary judgment practice, Evid. 802 advisory’s committee’s

this declaration is of a third party and is

note; see, e.g., Taylor, 880 F.2d at

hearsay because it is being offered for the 1046 (third party affidavit). Ms.

truth of the matter contained therein, and Escamilla’s declaration meets all

there is no exception to the hearsay rule that the requirements of Rule 56. Fed.

would allow its admission into evidence. R. Civ. P. 56(c)(4).

Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not

Defendants are incorrect that they “lack the ability to effectively cross examine this witness on the matter set forth in the declaration

255

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 256 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

cross-examine the declarant in deposition. and given the limitations in the

3

Murphy v. Yavapai County, 2006 U.S. Dist. numbers of depositions permitted

LEXIS 63732 at 14-16 (D. Ariz. 2006) (if in this case.” Ms. Escamilla’s

4

affiant is not available to undergo cross-

identity and declaration were

examination at trial or in a pre-trial

timely and properly disclosed to

5

deposition, affidavit of third party is

Defendants, who thus had an

hearsay).

opportunity to take his deposition.

6 7 8 9 10 11 12 13

The declaration also contains another layer of hearsay in that it purports to relate the statements of an MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of the reported facts.”) The deputy is not a defendant to this action and the fact that he is an employee of the MCSO does not equate to his statements amounting to admissions by a party opponent. The Court should not consider this declaration for this reason.

See Plaintiffs’ Eighth Supplemental Disclosure Statement (Feb. 19, 2010) [Hickey Reply Dec. Ex. 246]. Defendants did not even use the all of the 15 depositions allotted to them. See Case Management Order [Dkt. No. 201]. In any event, Defendants could have sought leave from the court if they wished to take the deposition of Plaintiffs’ properly disclosed witness. Defendants chose not to do so. While Ms. Escamilla’s

14

declaration contains an additional level of hearsay in that it recounts

15

a statement from the MCSO officer that stopped her, this

16

statement is admissible. The statement (“I can be an asshole if

17

you’re going to be a bitch”) was made by Defendant MCSO’s

18

“agent or servant concerning a matter within the scope of the

19

agency or employment,” and is therefore an admission by party-

20

opponent. Fed. R. Evid. 801(d)(2)(D). Moreover,

21

Plaintiffs do not offer the MCSO’s Deputy’s statements for

22

the truth of the matter asserted, but show the discriminatory intent

23

of the MCSO deputy. Fed. R. Evid. 801(c).

24 221
25 26 27

Disputed and Defendants object to the use of this particular declaration for purposes of summary judgment motion practice. It is inadmissible. The Court should strike this declaration and statement of fact. The support for the dispute and objections are as follows:

Not genuinely disputed. Defendants do not dispute this fact, but merely raise evidentiary objections. Defendants’ objections are without merit:

28

(A) The Declaration is

256

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 257 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

Objections:

Relevant. This declaration is

3 4 5 6 7 8 9 10

(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” HodgersDurgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995; Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007).

relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at 861; LaDuke, 62 F. 2d at 132425. The fact that other individuals in Maricopa County have been stopped and detained on the basis of race by

In addition, the Smith declaration is

Defendants tends to make it more

11

irrelevant to the issue of whether the

probable that the named Plaintiffs

MCSO’s traffic stops violated each of the suffered a similar harm. Obrey,

12

named Plaintiffs’ rights to equal treatment 400 F.3d at 697-98.

13 14 15 16

under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle. (B) Hearsay. While the use of affidavits is

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice, despite bearing hearsay. Fed. R. Evid. 802 advisory’s committee’s

17

permissible in summary judgment practice, note; see, e.g., Taylor, 880 F.2d

this declaration is of a third party and is

at1046 (third party affidavit).

18

hearsay because it is being offered for the The Smith declaration meets all truth of the matter contained therein, and the requirements of Rule 56. Fed.

19 20 21 22 23 24 25 26 27 28

there is no exception to the hearsay rule that would allow its admission into evidence. Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo crossexamination at trial or in a pre-trial deposition, affidavit of third party is hearsay). Also, because the declarant does not identify by name or serial number the deputy supposedly encountered, there is no meaningful way that Defendants could identify the deputies and obtain their knowledge about what occurred with the

R. Civ. P. 56(c)(4);. Defendants are incorrect that they “lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case.” Mr. Smith’s identity and declaration were timely and properly disclosed to Defendants, who thus had an opportunity to take his deposition. See Plaintiffs’ Fifth Supplemental Disclosure Statement (Jan. 20, 2010) [Hickey Reply Dec. Ex. 244]. Defendants did not even use the all of the 15 depositions allotted to them. See Case

257

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 258 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

declarant, if any thing.

Management Order [Dkt. No.

3 4 5 6

The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of

201]. In any event, Defendants could have sought leave from the court if they wished to take the deposition of Plaintiffs’ properly disclosed witness. Defendants chose not to do so. While Mr. Smith’s declaration

7

the reported facts.”) The unknown and unidentified deputy is not a defendant to

does not contain an additional level of hearsay, but merely

8

this action and the fact that he is an

recounts the facts of the incident

employee of the MCSO does not equate to (the MCSO Deputy “asked me if I

9

his statements amounting to admissions by a had any warrants,” etc.) as

party opponent. The Court should not

personally observed by Mr.

10 11 12 13 14 15

consider this declaration for this reason. (C) Lack of Foundation and Speculation. Declarant’s statement at ¶ 9 (“I believe that we were pulled over not because I was speeding, but because of [his family member’s] Hispanic appearance.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimited, Inc., 981 F.2d 576, 580

Smith. These statements are used to show the events that occurred during Mr. Smith’s stop, not for the truth of the matter asserted. Fed. R. Evid. 801(c). Moreover, the statements were made by Defendant MCSO’s “agent or servant concerning a matter within the scope of the agency or employment,” and is therefore an admission by party-opponent. Fed. R. Evid. 801(d)(2)(D).

16

(1st Cir. 1992); Moore Drug Co. v.

(C) Mr. Smith’s Declaration is

Shaneman, 461 P.2d 95, 98 (Ariz. App.

Based on Personal Knowledge.

17

1969).

Mr. Smith’s testimony at ¶ 9 that

“I believe that we were pulled

18

over not because I was speeding,

but because of [my family’s]

19

Hispanic appearance.” has proper

foundation and is not speculation.

20

Mr. Smith was a witness to the

incident, and testified to his belief

21

based on his personal knowledge.

Fed. R. Evid. 602; Fed. R. Civ. P.

22

56(c)(4). Nor was Mr. Smith’s

belief based on speculation.

23

Rather, Mr. Smith explained the

specific reasons—such as being

24

pulled over for speeding even

though other cars were passing

25

him—that led him to believe that

he was racially profiled. His

26

statement is thus admissible

evidence. See Coral Const. Co.,

27

941 F.2d at 918.

28 258

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 259 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

222 Disputed and Defendants object to the Not genuinely disputed.

3

use of this particular declaration for

purposes of summary judgment motion

4

practice. It is inadmissible. The Court

Defendants do not dispute this

should strike this declaration and statement fact, but merely raise evidentiary

5

of fact. The support for the dispute and

objections. Defendants’

objections are as follows:

objections are without merit:

6

Objections:

(A) The Declaration is

7 8 9 10 11 12 13 14

(A) Relevance: This declaration is irrelevant to whether the named Plaintiffs have suffered a constitutional injury. “Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question of whether the named plaintiffs are entitled to the injunctive relief they seek.” HodgersDurgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007) In addition, the Solis declaration is

Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with discriminatory intent. Fed. R. Evid. 401; Armstrong, 275 F.3d at 861; LaDuke, 62 F. 2d at 132425. The fact that other individuals in Maricopa County have been stopped and detained on the basis of race by

15

irrelevant to the issue of whether the

Defendants tends to make it more

MCSO’s traffic stops violated each of the probable that the named Plaintiffs

16

named Plaintiffs’ rights to equal treatment suffered a similar harm. Obrey,

under the Fourteenth Amendment. Rule

400 F.3d at 697-98.

17 18 19

401, Federal Rules of Evidence. The information contained in the declaration does not make it more or less probable that the rights of the named Plaintiffs were violated, and none of the Plaintiffs were present in the declarant’s vehicle.

(B) Affidavits are Admissible in Summary Judgment Practice. Under Rule 56 of the Federal Rules of Civil Procedure, affidavits are admissible in summary judgment practice,

20

(B) Hearsay. While the use of affidavits is despite bearing hearsay. Fed. R.

permissible in summary judgment practice, Evid. 802 advisory’s committee’s

21

this declaration is of a third party and is

note see, e.g., Taylor, 880 F.2d at

hearsay because it is being offered for the 1046 (third party affidavit). Ms.

22

truth of the matter contained therein, and Solis’s declaration meets all the

there is no exception to the hearsay rule that requirements of Rule 56. Fed. R.

23

would allow its admission into evidence. Civ. P. 56(c)(4).

24 25 26 27 28

Defendants also lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case, could not cross-examine the declarant in deposition. Murphy v. Yavapai County, 2006 U.S. Dist. LEXIS 63732 at 14-16 (D. Ariz. 2006) (if affiant is not available to undergo cross-

Defendants are incorrect that they “lack the ability to effectively cross examine this witness on the matter set forth in the declaration and given the limitations in the numbers of depositions permitted in this case.” Ms. Solis’s identity and declaration were timely and properly disclosed to Defendants,

259

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 260 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

examination at trial or in a pre-trial

who thus had an opportunity to

3

deposition, affidavit of third party is

take his deposition. See

hearsay). Also, because the declarant does Plaintiffs’ Ninth Supplemental

4

not identify by name or serial number any Disclosure Statement (Feb. 26,

of the deputies she supposedly encountered, 2010) [Hickey Reply Dec. Ex.

5

there is no meaningful way that Defendants 247]. Defendants did not even

could identify the deputies and obtain their use the all of the 15 depositions

6

knowledge about what occurred with the allotted to them. See Case

declarant, if any thing.

Management Order [Dkt. No.

7 8 9 10

The declaration also contains another layer of hearsay in that it purports to relate the statement of an unknown MCSO deputy and it does not constitute an admission in this case. See Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (“hearsay within hearsay” is “inadmissible at trial to establish the truth of

201]. In any event, Defendants could have sought leave from the court if they wished to take the deposition of Plaintiffs’ properly disclosed witness. Defendants chose not to do so. While Ms. Solis’s declaration

11

the reported facts.”) The unknown and unidentified deputy is not a defendant to

contains an additional level of hearsay in that it recounts

12

this action and the fact that he is an

statements from the MCSO

employee of the MCSO does not equate to officer that stopped her (“Don’t

13

his statements amounting to admissions by a you have eyes?” “he asked me for

party opponent. The Court should not

my ID”) these statements are

14 15 16 17 18 19 20

consider this declaration for this reason. (C) Lack of Foundation and Speculation. Declarant’s first statement at ¶ 10 (“I believe that the deputy treated us rudely and asked Jaime about his legal status because of his Hispanic ethnicity and that of our sons.”) is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006); August v. Office Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App.

admissible evidence. First, the statements were made by Defendant MCSO’s “agent or servant concerning a matter within the scope of the agency or employment,” and is therefore an admission by party-opponent. Fed. R. Evid. 801(d)(2)(D). Moreover, Plaintiffs do not offer the MCS statements for the truth of the matter asserted, but the intent of the MCSO deputy and the events that occurred during the stop. Fed. R. Evid. 801(c).

21

1969).

(C) Ms. Solis’s Declaration is

Based on Personal Knowledge.

22

Ms. Solis’s testimony at ¶ 10 that

“I believe that the deputy treated

23

us rudely and asked Jaime about

his legal status because of his

24

Hispanic ethnicity and that of our

sons” has proper foundation and

25

is not speculation. Ms. Solis was

a witness to the incident, and

26

testified to his belief based on her

personal knowledge. Fed. R.

27

Evid. 602; Fed. R. Civ. P.

56(c)(4). Nor was Ms. Solis’s

28 260

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 261 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

belief based on speculation.

3

Rather, Ms. Solis explained the

specific reasons—such as being

4

as her Hispanic children being

asked for ID—that led her to

5

believe that she was racially

profiled. Her statement is thus

6

admissible evidence. See Coral

Const. Co., 941 F.2d at 918.

7 223 Disputed and Defendants object to the Not genuinely disputed.

8

use of this particular declaration for purposes of summary judgment motion

9

practice. It is inadmissible. The Court

Defendants do not dispute this

should strike this declaration and statement fact, but merely raise evidentiary

10

of fact. The support for the dispute and objections are as follows:

objections. Defendants’ objections are without merit:

11

Objections:

(A) The Declaration is

12 13 14 15

(A) Relevance: This traffic stop occurred during the execution of an MCSO search warrant at a business called Handyman Maintenance, Inc. and is the subject of a separate lawsuit by the Moras for money damages. See Mora v. Arpaio, United States District Court for the District of Arizona, No. CV 09-01719-PHX-DGC

Relevant. This declaration is relevant to a number of issues in this case as tending to show that: (1) Defendants have engaged in a pattern and practice of racial profiling; (2) Defendants’ pattern and practice has had a discriminatory effect; and (3) Defendants have acted with

16

This declaration is irrelevant to whether the discriminatory intent. Fed. R.

named Plaintiffs have suffered a

Evid. 401; Armstrong, 275 F.3d at

17

constitutional injury. “Any injury unnamed 861; LaDuke, 62 F. 2d at 1324-

members of this proposed class may have 25. The fact that other

18

suffered is simply irrelevant to the question individuals in Maricopa County

of whether the named plaintiffs are entitled have been stopped and detained

19

to the injunctive relief they seek.” Hodgers- on the basis of race by

Durgin v. De La Vina, 199 F.3d 1037, 1045 Defendants tends to make it more

20

(9th Cir. 1999); see also Lewis v. Casey, probable that the named Plaintiffs

518 U.S. 343, 357 (1996); Missouri v.

suffered a similar harm. Obrey,

21

Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. 400 F.3d at 697-98.

22

Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007)

(B) Mr. Mora’s Declaration is Based on Personal Knowledge.

23

In addition, the Mora declaration is irrelevant to the issue of whether the

Mr. Urteaga’s testimony at ¶ 12 that “I believe that we were

24

MCSO’s traffic stops violated each of the pulled over solely because we are named Plaintiffs’ rights to equal treatment Latino” has proper foundation

25

under the Fourteenth Amendment. Rule 401, Federal Rules of Evidence. The

and is not speculation. Mr. Mora was a witness to the incident, and

26

information contained in the declaration

testified to his belief based on his

does not make it more or less probable that personal knowledge. Fed. R.

27

the rights of the named Plaintiffs were violated, and none of the Plaintiffs were

Evid. 602; Fed. R. Civ. P. 56(c)(4). Nor was Mr. Mora’s

28

belief based on speculation.

261

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 262 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

present in the declarant’s vehicle.

Rather, Mr. Mora explained the

3 4 5 6

(B) Lack of Foundation and Speculation. Declarant’s final statement at ¶ 10 (“I believe that we were pulled over solely because we are Latino) lacks foundation for this statement and is inadmissible speculation and conjecture. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist.

specific reasons—such as being as to mocked and detained without cause—that led him to believe that he was racially profiled. His statement is thus admissible evidence. See Coral Const. Co., 941 F.2d at 918.

7

LEXIS 26344 (Ariz. 2005); Cornwell v. Electra Cen. Credit Union, 439 F.3d 1018,

8

1028-29 n.6 (9th Cir. 2006); August v. Office Unlimited, Inc., 981 F.2d 576, 580

9

(1st Cir. 1992); Moore Drug Co. v. Shaneman, 461 P.2d 95, 98 (Ariz. App.

10

1969).

224 Admit in part and disputed in part.

Admitted in part and not

11

Controverting Statement: While

genuinely disputed.

12 13 14 15 16 17 18 19 20

Defendants admit that SOMOS America is a

membership organization that includes individual and organization members, and that it has used resources to oppose Arpaio’s law enforcement policies, they deny there is any admissible evidence that some members of the organization have been stopped by the MCSO. The evidence supplied in Defendants’ Statement of Facts (“DSOF”) (Dkt# 413-1) at ¶¶ 150-152 demonstrates that there is no evidence supporting this statement. In addition, the testimony cited by Plaintiffs from the deposition of Lydia Guzman, a Rule 30(b)(6) representative of SOMOS America does not contain admissible evidence (for lack of personal knowledge and foundation) upon which the Court can rely upon to support this

Defendants are incorrect that there is “no admissible evidence that some members of [Somos America] have been stopped by the MCSO. Ms. Guzman testified that many Somos America members have been subject to MCSO traffic stops, and that she personally attended and observed MCSO activity during many saturation patrols, and has personally witnessed racial profiling. See Pls. Resp. to Defs.’ SOF 152, Dkt. No. 456 (listing stops of Somos America members).

21 22

statement made by Plaintiffs.

Moreover, at least two members

Objections:

of Somos America have provided declarations regarding their traffic

(A) Relevance: The statement that “[s]ome stops, one of whom was stopped

23

members of Somos America have been

twice. Pls.’ SSOF 258, 269

stopped by MCSO” is irrelevant to whether (citing declarations of Andrew

24

the named Plaintiffs have suffered a

Sanchez and Adolofo Maldonado,

constitutional injury. “Any injury unnamed Dkt. No. 457).

25 26

members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to

Defendants objections to this evidence lack merit:

the injunctive relief they seek.” Hodgers- (A) Ms. Guzman’s testimony

27

Durgin v. De La Vina, 199 F.3d 1037, 1045 and the declarations of Somos (9th Cir. 1999); see also Lewis v. Casey, America member are relevant.

28

518 U.S. 343, 357 (1996) (“The remedy

Somos America is a named

262

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 263 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

must of course be limited to the inadequacy Plaintiff, and the stops of its

3

that produced the injury in fact that the

members are thus direct evidence

[named] plaintiff has established. This is that (1) the Plaintiffs have

4

no less true with respect to class actions

standing; (2) Defendants have

than with respect to other suits.”; see also at engaged in a pattern and practice

5

p. 357 “That a suit may be a class action . . of racial profiling; (3)

. adds nothing to the question of standing, Defendants’ pattern and practice

6

for even named plaintiffs who represent a has had a discriminatory effect;

class “must allege and show that they

and (4) Defendants have acted

7

personally have been injured, not that with discriminatory intent. Fed.

injury has been suffered by other,

R. Evid. 401; Armstrong, 275

8

unidentified members of the class to

F.3d at 861; LaDuke, 62 F. 2d at

which they belong and which they

1324-25.

9 10 11 12 13 14 15

purport to represent.”’); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995) (“The nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation” to the named plaintiffs; not by reference to what other non parties claim) (citation and internal quotation marks omitted); Huss v. Spokane County, 2007 U.S. Dist. LEXIS 27667 (E.D. Wash. 2007) (alleged injury by unnamed class members irrelevant to determination of named plaintiffs’ claims. In addition, the statement that the Somos

Somos America’s diversion of resources in response to MCSO’s actions is relevant because this fact demonstrates that Somos America has organizational standing. An organization “may satisfy the Article III requirement of injury in fact if it can demonstrate: (1) frustration of its organizational mission; and (2) diversion of its resources to combat the particular [] discrimination in question.” Smith

16

America “organization has also had to divert resources in responses to MCSO’s

v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004);

17

actions” is irrelevant to whether the named Havens Realty Corp. v. Coleman,

Plaintiffs have suffered a constitutional

455 U.S. 363, 379 (1982).

18

injury.

225 Admit.

19 226 Admit.

20 227 Admit.

21 228 229
22 230

Admit. Admit. Admit.

23 231 Admit.

24 232 233
25 26 27 28

Admit.
Admitted in part and disputed in part.
Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that he conducted an analysis of the MCSO’s CAD database for possible racial and ethnic patterns and differences, with a focus on the alleged impact of the MCSO’s
263

Admitted in part and not genuinely disputed. Defendants’ response does not create any genuine dispute of fact. Defendants’ concerns about Dr.

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 264 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

saturation patrol operations on Hispanic

Taylor’s study are without merit:

3

individuals.

(A) Dr. Taylor’s Results are

4

Objections and Controverting Statement: Directly Relevant to the stops of

(A) Relevance. Dr. Taylor’s opinion

the Plaintiffs.

5

regarding the impact of the MCSO’s

Dr. Taylor’s study is relevant,

saturation patrol operations on Hispanic

direct evidence of the

6

individuals is irrelevant under Rule 401, discriminatory effect of

Federal Rules of Evidence. “Any injury

Defendants’ actions. Indeed, it is

7

unnamed members of this proposed class well-recognized that statistical

may have suffered is simply irrelevant to the evidence may be used to prove

8

question of whether the named plaintiffs are discriminatory effect. See, e.g.,

entitled to the injunctive relief they seek.” Bradley v. United States, 299

9 10 11

Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also Lewis v. Casey, 518 U.S. 343, 357 (1996); Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); Huss v. Spokane County, 2007 U.S.

F.3d 197, 206 & n.11 (3d Cir. 2002); Chavez v. Ill. State Police, 251 F.3d 612, 637-45; State v. Soto, 734 A.2d 350, 360-61 (N.J. Super. Ct. 1996).

12 13 14

Dist. LEXIS 27667 (E.D. Wash. 2007). Dr. Taylor’s data, and opinion, do not make it more or less probable that the named individual Plaintiffs in this case were the subject of racially discriminatory intent or

Further, contrary to the Defendants’ argument, the majority of named Plaintiffs were stopped during an MCSO saturation patrol:

motive by any MCSO deputy that made the 1) Mr. Ortega Melendres was

15

traffic stop on them, or that interacted with stopped during a saturation patrol;

them, nor do they show that these Plaintiffs an MCSO officer who oversaw

16

were discriminatorily impacted by the

the operation expressly labeled it

MCSO saturation patrols.

as such. Defs.’ MSJ at 25; Defs.’

17 18

It is undisputed that the traffic stop of Plaintiffs Jessica and David Rodriguez did not occur during a saturation patrol. DSOF

SOF 12 (citing Madrid Dep. at 47:19-48:3). 2) Ms. Meraz and Mr. Nieto were

19

(Dkt# 413-1) at ¶¶ 42-43. Dr. Taylor’s saturation patrol opinions, therefore, are

stopped on a day in which a saturation patrol occurred, Pls.’

20

irrelevant to the determination of whether SOF 200, in the area where the

the Rodriguez Plaintiffs’ Fourteenth

saturation patrol took place, and

21

Amendment rights were violated. The traffic stop of Plaintiffs Meraz and

by officers working that saturation patrol. Pls.’ SSOF 267.

22

Nieto, while occurring when a saturation 3) Although the stop of the

patrol was on-going nearby, did not occur as Rodriguezes did not occur during

23

a result of a saturation patrol. DSOF (Dkt# a saturation patrol, the stop was

413-1) at ¶¶ 64-88. Dr. Taylor’s saturation made by Deputy Ratcliffe, who

24

patrol opinions, therefore, are irrelevant to had worked on a number of

the determination of whether the Plaintiffs saturation patrol operations. Pls.’

25

Meraz and Nieto’s Fourteenth Amendment Resp. to Defs.’ SOF 43. In

rights were violated.

addition to his finding about

26 27 28

The traffic stop of Plaintiff Melendres technically could be considered as part of an MCSO saturation patrol, and was considered as such by Deputy DiPietro, but

saturation patrol days, Dr. Taylor also found was that officers who had ever been involved in a saturation patrol were more likely

264

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 265 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

the operation was actually a small HSU

to stop Hispanics even on

3

detail targeting only specific vehicles that nonsaturation patrol days. Pls.’

had picked up persons from a suspected

SSOF 264. Thus Dr. Taylor’s

4

human smuggling drop house/day laborer study has direct relevance to the

location, and did not involve the MCSO

stop of the Rodriguezes.

5 6 7 8

making general traffic stops of any vehicles other than those that had visited the church property and picked up passengers and where probable cause was found to stop those particular vehicles. DSOF (Dkt# 4131) at ¶ 12. Plaintiff Somos America’s Rule 30(b)(6)

In addition, Dr. Taylor found that MCSO traffic stops that involved an Hispanic individual lasted 21% to 25% longer than stops of nonHispanics. Pls.’ SOF 248-49. This finding includes all MCSO stops—those occurring on a

9

representative, Ms. Lydia Guzman, has never experienced a traffic stop by the

saturation patrol as well as those that did not.

10 11 12 13 14 15 16

MCSO. DSOF (Dkt# 413-1) at ¶ 150. Somos America is a non-profit advocacy organization, with no paid staff, no membership dues, and any person or entity that attends its monthly meetings may consider itself a member of Somos America. Id. at ¶ 151. It has only 35 members such as Latino American Citizens, No More Deaths, MECHHA, and various labor unions, and there is no admissible evidence that any Somos America member -- or employee of a member organization -- has been subject to an MCSO traffic stop. Id. at ¶ 152.

Moreover, Dr. Taylor’s study of the impact of MCSO saturation patrol operations has implications that extend to the MCSO’s immigration enforcement operations generally. Certainly the disparities found in largescale saturation patrol operations are highly relevant and probative of the MCSO’s activities on smaller scale saturation patrol operations. More generally, the disparities found in saturation

The evidence further shows each of the

patrol operations—which have an

17

Plaintiffs was stopped for, and based on, overt focus on apprehending

probable cause or reasonable suspicion.

illegal immigrants—have great

18

DSOF (Dkt# 413-1) at ¶¶ 17, 108, and 109 relevance to the MCSO’s other

(Melendres); Id. at ¶¶ 44-45, and 112-116 immigration enforcement

19

(Rodriguez); Id at ¶¶ 85 and 117-119

operations, including routine

(Meraz and Nieto).

traffic stops that appear to be

20 21 22

The evidence further shows that the factor of race or ethnicity had no role, and was not a factor or consideration, in any of MCSO’s decisions to make the traffic stops of the Plaintiffs. DSOF (Dkt# 413-1) at ¶¶ 125,

motivated by a desire to investigate Hispanic motorists’ immigration status (like that of the Rodriguezes). Plaintiffs’ statistical evidence

23

126, 128, 129, and 131 (Melendres); Id at ¶¶ shows a pattern of discriminatory 132-136 (Rodriguez); and at ¶¶ 86, and 141- conduct, which (in combination

24 25

145 (Meraz and Nieto). In other words, the MCSO stopped each of the Plaintiffs’ vehicles because of the characteristics of the vehicle, not the racial

with Plaintiffs’ other evidence) shows that the Plaintiffs were subject to police action on the basis of race. Fed. R. Evid. 401.

26

or ethnic characteristics of the occupants of (B) Dr. Taylor’s report is

the vehicle.

reliable evidence of

27

Finally, because the Plaintiffs were not

discriminatory effect.

28

involved in saturation patrol traffic stops, Dr. Taylor’s study of

265

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 266 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

the opinion of Dr. Taylor’s that arguably discriminatory effect is reliable

3

would be relevant to any issue related to under Fed. R. Evid. 702 and

these named Plaintiffs is Dr. Taylor’s

Daubert v. Merrell Dow

4

opinions about the MCSO overall traffic Pharmaceutical, Inc., 509 U.S.

stops and the Hispanic percentage of the 579, 589 (1993).

5 6 7 8 9

same. Dr. Taylor conducted a statistical analysis of all the MCSO traffic stops conducted from January 1, 2007 to October 31, 2009 and concluded that Latinos in Maricopa County are stopped by MCSO personnel in roughly the same proportion to their share of Maricopa County’s population. DSOF (Dkt# 413-1) at ¶ 122. Defense expert statistician Steve Camarota,

Defendants attempt to cast doubt upon Dr. Taylor’s study by quoting technical statistical terms out-of-context fails. As Dr. Taylor has explained, a “quasiexperimental” design simply means that the study compares stop activity of MCSO officers working on saturation patrols to

10 11 12 13 14 15 16 17 18 19 20 21

Ph.D., opines: [My] findings show that the Hispanic share of those stopped by the MCSO deputies is roughly equal to their proportion of the county and the state’s overall population. About one-third of stops are of individuals with a Hispanic last name, which closely matches their share of the county and state populations. Analysis at the subcounty level also tends to show stops in proportion to local population shares…. Equally important, despite a significant increase in concern over illegal immigration in recent years in the county and state, there was no increase in the Hispanic share of those stopped by MCSO between 2005 and 2009. Overall, the surname analysis shows Hispanics are being stopped at a rate that reflects their share of the population.
DSOF (Dkt# 413-1) at ¶ 123.

other MCSO officers, as opposed to a random assignment of officers to saturation patrols by the researcher. See Taylor Dep. 48:12-21 [Hickey Opp’n Dec. Ex. 234]. Dr. Taylor is an expert in quantitative criminology studies, and he testified that his design was of the “best scientific quality” given the purposes of his study and superior to a study with randomly assigned control groups. See Taylor Dep. 49:2450:24 (“Unless those conditions [such a cooperative agency] are satisfied, it's quite possible that the costs in the adverse consequences of random assignment might outweigh the benefits and, thereby, produce a study of inferior quality to the study produced here. . . . My testimony today is that a randomized control trial in this

22 23 24 25 26

(B) Foundation. Dr. Taylor’s opinion regarding the impact of the MCSO’s saturation patrol operations on Hispanic individuals lacks foundation and reliability to be properly admissible and/or considered for purposes of summary judgment motion practice. Under Rule 702, Federal Rules of Evidence, in order for expert testimony to be admissible, it must assist the trier of fact to understand the evidence or determine a

context would have produced a superior study only if it was the case that several conditions were true, and those conditions are not true in this case. Therefore, my current study is of the best scientific quality in the available - given the available circumstances.”) [Hickey Opp’n Dec. Ex. 234]

27

fact in issue. Dr. Taylor’s saturation patrol Similarly, Defendants’ argument

opinions lack foundation and reliability, and that Dr. Taylor’s study is merely

28 266

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 267 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

are not relevant to the issues regarding the “inferences” flatly misstates his

3

traffic stops of the named Plaintiffs.

testimony. Dr. Taylor stated that

Daubert v. Merrell Dow Pharmaceutical, his study used “statistical

4

Inc., 509 U.S. 579, 589 (1993); Kumho Tire inference testing [to] support a

Co. v. Carmichael, 526 U.S. 137, 141

conclusion about the data

5

(1999) (applying the general principals in pattern.” See Pls.’ Resp. to Defs.

Daubert to all expert opinion testimony). SOF 122 (quoting Taylor Dep.

6 7 8 9 10 11 12 13

Dr. Taylor’s saturation patrol opinions lack sufficient foundation and are unreliable because the process in which he reached them, according to him, was “quasiexperimental” in nature. DSOF (Dkt# 4131) at ¶ 124. His “quasi-experimental” study does not result in definitive findings or conclusions, only “inferences.” Id. California ex rel. Brown v. Safeway, Inc., 615 F.3d 1171, 1181 n.4 (9th Cir. 2010) (“An expert’s opinions that are without factual basis and are based on speculation or conjecture are inadmissible at trial and are inappropriate material for consideration on a motion for summary judgment.”)

48:2-21); see also Taylor Initial Report at 7 (“My major conclusions with regard to MCSO’s traffic stops [are] . . . .) (emphasis added) [Dkt. No. 424 Ex. B]. Defendants have produced no evidence to contradict Dr. Taylor’s expert testimony other than their misleading use of statistical terminology. Dr. Taylor’s experience and qualifications in quantitative studies of criminal justice speak for themselves. See Taylor C.V. [Dkt. No. 424 Ex. A].

14 15 16 17 18 19 20 21 22 23 24 25 26

Dr. Taylor’s saturation patrol “quasiexperimental” opinions lack sufficient foundation and are unreliable because: (1) he failed to exclude in his underlying analysis those patrols that included a human smuggling interdiction component, or otherwise exclude human smuggling load vehicles found containing multiple illegal immigrants as occupants, which skews his saturation patrol results; (2) he failed to exclude in his underlying analysis duplicate records in the MCSO Computer Aided Dispatch database, which skews his saturation patrol results; (3) he improperly excluded from his analysis thousands of other cases that should have been included in the analysis, which artificially inflates his saturation patrol results (he admits that he excluded 18% of all MCSO traffic stops per year because they did not “align” with Plaintiffs’ case theory or Plaintiffs’ “concerns”); and (4) he failed to account for any socio-economic variables that affected his saturation patrol model. DSOF (Dkt# 413-1) at ¶ 124.

Defendants raise four specific concerns about Dr. Taylor’s study, none of which have any merit. First, Defendants’ claim that Dr. Taylor should have ignored traffic stops with “a human smuggling component.” Defendants do not explain why Dr. Taylor should have excluded such incidents, nor would such an exclusion make any sense as this case concerns the MCSO’s discriminatory enforcement of immigration laws. (In any event, human smuggling arrests were a small part of saturation patrols. See Pls.’ SOF 61-73.) Second, Dr. Taylor did not “fail to exclude duplicate records”; in fact, Dr. Taylor specifically excluded duplicate records. See Taylor Rebuttal Report at 4-5, 11-13 [Dkt. No. 424, Ex. C]. Third, Dr. Taylor also properly excluded MCSO incidents that were not

27

Defense expert Steven Camarota, Ph.D.

described as “traffic stops” or

opines that “CAD data is very complex and “traffic violations” because these

28

difficult to use. Moreover it was not

incidents (e.g., “tow truck

267

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 268 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

designed for analysis of this kind [referring request,” “vehicle accident

3

to Dr. Taylor’s saturation patrol “quasi-

w/injuries,” “injured/sick

experimental” analysis]. DSOF (Dkt# 413- person”) are non-discretionary

4

1) at Ex. 19 at p. 22 (Dr. Camarota Report); police actions unrelated to the

DSOF (Dkt#413-1) at Ex. 20 (Camarota

pretextual traffic stops at issue in

5

deposition) at p. 122, lns. 13-16 (foundation this case. See Taylor Rebuttal

for his report).

Report at 10-11 [Dkt. No. 424,

6 7 8 9

Dr. Camarota further testified at length regarding his professional dispute with, and concerns about, Dr. Taylor’s failure to include socio economic variables in his analysis. See Deposition of Steven Camarota, Ph.D. at p. 221, ln. 21 to p. 223, ln. 23, attached as Exhibit 3.

Ex. C]. Fourth, Defendants’ fault Dr. Taylor for not including socio-economic variables in his model, overlooking that (1) Defendants’ own expert did not include such variables, (2) MSCO’s CAD database does not record socioeconomic variables,

10

Dr. Camarota explained in great detail the and (3) the existing data does not

specific problems with Dr. Taylor’s “quasi- support the hypothesis that

11

experimental” saturation patrol analysis that socioeconomics variables affected

his opinions are based on and show that

the stop rates of Hispanics. See

12

Dr. Taylor’s opinions on the subject are

Taylor Rebuttal Report at 36-37

inherently unreliable in the field of

[Dkt. No. 424, Ex. C].

13 14 15 16 17 18

quantitative analysis. These specific problems center on Dr. Taylor’s data preparation, misunderstanding of the data, misuse of the data, and failure to factor that saturation patrols often focus on human smuggling. DSOF (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pgs. 20-32; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report).

Dr. Camarota did testify that the CAD data is difficult to use. However, he acknowledged that researchers can “gain some insight into what is happening” by examining the CAD database for evidence of ethnic disparities. See Camarota Dep. at 315:14-23 (“[I]t’s appropriate to use [the CAD data] for purposes of determining whether or not there

19

are patterns of ethnic disparity in the behavior of the MCSO.

20

Would you agree with that? A. We can certainly try to gain

21

insight into what is happening by looking at this data, warts and all.

22

I think -- I think we can get some insight into what's happening.”).

23

[Hickey Dec. Ex. 39]. Indeed, Dr. Camarota performed his own

24

study of the CAD database.

Dr. Camarota nowhere testified

25

that Dr. Taylor’s study was

unreliable. His report did identify

26

certain purported problems,

mostly concerning technical

27

issues of data preparation. Dr.

Taylor addressed these issues at

28 268

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 269 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

3

4

5

6 234 Admit.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
length in his rebuttal report, and found that none of these purported “problems” in any way affected his results and conclusions. See Taylor Rebuttal Report at 4-37 [Dkt. No. 424, Ex. C].

7 235
8 9 10 11 12 13 14
236
15 16 17 18 19 20

Admitted in party and disputed in part. Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that he tried to ensure the robustness of his “quasi-experimental” analysis. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.
Admitted in party and disputed in part. Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that this was part of his “quasiexperimental” analysis. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Admitted in part and not genuinely disputed.
Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra. Plaintiffs note that Defendants’ statistical expert, Dr. Camarota, employed the same surname methodology described in this SOF. Pls.’ SOF 252 Admitted in part and not genuinely disputed.
Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

21 237
22 23 24 25 26

Admitted in party and disputed in part. Defendants admit only that Plaintiffs’ statistical expert, Ralph Taylor, Ph.D., asserts that this was part of his “quasiexperimental” analysis. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Admitted in part and not genuinely disputed. Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

27 238
28

Admitted in party and disputed in part.
Defendants admit only that Plaintiffs’
269

Admitted in part and not genuinely disputed.

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 270 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

statistical expert, Ralph Taylor, Ph.D.,

3 4

asserts that this was part of his “quasiexperimental” analysis. Defendants incorporate herein by this

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact.

5

reference their Controverting Statement and See Pls.’ Reply to Defs.’ Resp. to Objections set forth in response to PSOF Pls.’ SOF 233, supra.

6

No. 233 above, and this reference is offered in support of it dispute to this statement of

7

fact.

239 Disputed.

Not genuinely disputed.

8

Defendants incorporate herein by this

9 10 11

reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

12 240
13 14 15

Disputed. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Not genuinely disputed. Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

16 241 Disputed.

Not genuinely disputed.

17 18 19
20 242

Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra. Not genuinely disputed.

21 22 23 24
243
25 26 27 28

Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of
270

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra. Not genuinely disputed.
Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 271 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

fact.

3 244 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Pls.’ SOF 233, supra. Not genuinely disputed.

4 5 6 7
245
8 9 10 11

Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.
Disputed. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra. Not genuinely disputed.
Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

12 246
13 14 15

Disputed. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Not genuinely disputed. Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

16 247 Disputed.

Not genuinely disputed.

17 18 19
20 248

Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra. Not genuinely disputed.

21 22 23 24
249
25 26 27 28

Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed. Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of
271

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra. Not genuinely disputed.
Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 272 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

2

Statement Of Fact

fact.

3 250 Disputed.

Plaintiffs’ Reply Showing no Genuine Dispute of Fact
Pls.’ SOF 233, supra. Not genuinely disputed.

4 5 6 7
251
8 9 10 11 12 13 14 15 16 17 18 19 20
252
21 22 23 24 25

Defendants incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Dr. Taylor’s study is reliable and Defendants’ response does not create a genuine dispute of fact. See Pls.’ Reply to Defs.’ Resp. to Pls.’ SOF 233, supra.

Disputed.

Not genuinely disputed.

Controverting Statement: The Center for

Immigration Studies is a 501(c)(3) think tank organization that does not lobby and, therefore, does not “advocate” on immigration as asserted by the Plaintiffs. See Deposition of Steven Camarota, Ph.D.

Defendants’ response does not dispute the actual fact asserted, and admits the fact in material part.

at p. 87, ln. 5 to p. 88, ln. 23; p. 92, lns. 15- As Defendants’ acknowledge, Dr.

20, attached as Exhibit 3. The Center for Camarota testified that it was “a

Immigration Studies has “a lot of diversity fair characterization to say that

[in its] view within our organization.” Id. at we [at the Center for Immigration

p. 87, lns. 13-14. Its overall view regarding Studies] believe in the more

immigration is as follows: “I would say that moderate pace of immigration,

it is a fair characterization to say that we you know, would make sense for

believe in the more moderate pace of

the country. Q. []That means

immigration, you know, would make sense lower numbers of people entering

for the country.” Id. at p. 88, lns. 2-5 That the country? A. Right.”

means “lower numbers of people entering Camarota Dep. at 88:2-9 [Hickey

the country” and “some changes maybe in Dec. Ex. 39]. Plaintiffs initial

selection criteria [of people to enter the

fact specifically stated that the

country] to more skills-based.” Id. at p. 88, Center for Immigration Studies is

lns. 6-9. Dr. Camarota does not favor

a “think tank,” not a lobbying

immigration quotas based on country of

organization, so Defendants’

origin. Id. at p. 89, ln. 24 to p. 90, ln. 1.

protestation on this point not

warranted.

Disputed.

Not genuinely disputed.

Controverting Statement: While it is not disputed that Dr. Camarota used the MCSO CAD data and U.S. Census data to prepare his opinions, the citations listed by Plaintiffs do support this statement of fact.

Defendants do actually not dispute this statement of fact. The cited portions of the record do support the initial statement, but for additional support, see also Camarota Report at 1-9 [Defs.’ SOF Ex. 19]

26 253 Disputed.

Not genuinely disputed.

27 28

Controverting Statement and Objection:

Plaintiffs mischaracterize Dr. Camarota’s opinion by omitting the context in which it

Defendants do not actually

272

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 273 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

was offered. In proper context Dr.

dispute this fact, but instead seek

3

Camarota opines then, when trying to use to provide more “context.”

4 5 6 7 8 9 10 11 12 13

the type of “quasi-experimental” analysis used by Dr. Taylor and given the fact that Dr. Taylor does not factor into his analysis those saturation patrols wherein the HSU written Operations Plan has listed a specific component to also identify human smuggling via load vehicles, there is a difference in stop rates of Hispanics between saturation patrol days and nonsaturation patrols days. DSOF (Dkt# 413-1) at Ex. 19 (Dr. Camarota Report) at pg. 31; DSOF (Dkt#413-1) at Ex. 20 (Camarota deposition) at p. 122, lns. 13-16 (foundation for his report). But, Dr. Camarota opines that the difference is 4.8% (and only on those saturation patrols with a human smuggling component), and therefore the increase is due to MCSO HSU looking for human smuggling via load vehicles. Id. Dr. Camarota further testified at length

As Defendants’ response makes clear, there is no dispute that, when Dr. Camarota looks at MCSO stop activity on saturation patrol days, he, like Dr. Taylor, found that Hispanics were stopped at higher rates as compared to non-saturation patrol days. Camarota Report at 31 [Defs.’ SOF Ex. 19] (“days on which a [saturation patrol] operation was underway do show a Hispanic share that is 4.8 percentage points higher.”). Dr. Camarota testified that difference should be “expected” because saturation patrols are “aimed at immigration.” Camarota Dep. 237:14-238:3 (“Q. You think that because saturation patrols are

14

regarding his professional dispute with, and aimed at illegal immigration that concerns about, Dr. Taylor’s determination it would be expected that the rate

15

that Hispanics were being stopped on

of Hispanics being stopped during

saturation patrol day in higher percentages the saturation patrols would be

16

than on non-saturation patrol days. See

higher? A. If they're successful.”)

Deposition of Steven Camarota, Ph.D. at p. [Hickey Opp’n Dec. Ex. 217].

17

122, ln. 14 to p. 125, ln. 5, attached as Exhibit 3.

18 19 20
21 254

Defendants also incorporate herein by this reference their Controverting Statement and Objections set forth in response to PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact. Disputed.

Not genuinely disputed.

22

Controverting Statement and Objection:

23 24 25 26 27 28

Plaintiffs mischaracterizes Dr. Camarota’s opinion. Dr. Camarota testified that it only “would be a possibility” that Hispanics were being targeted if they were being stopped at rates higher than their share of the population. See Deposition of Steven Camarota, Ph.D. at p. 116, lns. 1-6, attached as Exhibit 3. He explained: “Again, there are lots of other intervening variables. And if you don’t have them, then you better be very cautious about any kind of conclusion

Defendants do not actually dispute this fact. Plaintiffs original fact stated only that “Dr. Camarota admitted that higher stop rates for Hispanics can indicate that Hispanics are being targeted.” Pls.’ SOF 254 (emphasis added). Plaintiffs never claimed that targeting was the only possibility. Defendants protestations are an unnecessary

273

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 274 of 276

1

Pls.’ SOF

Defendants’ Response, Rule 56(c)(2) Objections, And Controverting

Plaintiffs’ Reply Showing no Genuine Dispute of Fact

2

Statement Of Fact

that you might draw….” Id. at p. 116 at lns. attempt to create a dispute of fact

3

6-9.

where none exists.

4

If Hispanics are being stopped at a rate higher than their share of the population,

5

that fact alone would not be statistically definitive evidence that Hispanics were

6

being targeted. See Deposition of Steven Camarota, Ph.D. at p. 114, lns. 19-25,

7

attached as Exhibit 3.

Defendants also incorporate herein by this

8

reference their Controverting Statement and

Objections set forth in response to PSOF

9

No. 233 above, and this reference is offered

in support of it dispute to this statement of

10

fact.

11 255
12 13 14 15 16 17 18 19 20 21 22 23 24

Disputed. Controverting Statement and Objection: Plaintiffs’ cited testimony does not support the statement. On the other hand, Dr. Camarota testified that excluding the problems with Dr. Taylor’s methodology, the traffic stop time length differences between Hispanics and non-Hispanic “doesn’t seem meaningful to me. The omitted or the lack in variables [by Dr. Taylor, such as English language speaking ability, education level, and understanding of the traffic and motor vehicle code regarding maintaining vehicles and driving practices] explain what are relatively modest differences [in length of traffic stops under Dr. Taylor’s analysis.]” See Deposition of Steven Camarota, Ph.D. at p. 139, ln. 6 to p. 141, ln. 7, attached as Exhibit 3. Defendants also incorporate herein by this reference their Controverting Statement and Objections set forth in response too PSOF No. 233 above, and this reference is offered in support of it dispute to this statement of fact.

Not genuinely disputed.
Defendants are incorrect that the cited testimony does not support Plaintiffs’ SOF 255, which reads “Dr. Camarota did not deny that the disparity in MCSO’s stop lengths, i.e., that stops involving Hispanics last longer than other stops, existed.” Dr. Camarota testified as follows: “Q. You agree that those differences in time do exist; is that correct? . . . A. I do not deny that there are some differences in times -- that there are differences in times.” Q. Those differences in time could result, in part, from the fact that officers may have longer interactions and ask more questions of those who are Hispanic, correct? . . . THE WITNESS: It could be the result of many things. . . .”

25

Camarota Dep. 140:14-141:3 [Hickey Dec. Ex. 39].

26 256 Admit.

27

28 274

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 275 of 276

1

2

RESPECTFULLY SUBMITTED this 23rd day of June, 2011.

3

By /s/ Stanley Young

4

Stanley Young

5

Attorneys for Plaintiffs

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 275

Case 2:07-cv-02513-GMS Document 467 Filed 06/23/11 Page 276 of 276

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 23rd day of June, 2011 I caused the attached document

3 to be electronically transmitted to the Cler k’s Office using the CM/ECF System for

4 filing and transmittal of a Notice of El ectronic Filing to the following CM/ECF

5 Registrants:

6

7

Thomas P. Liddy liddyt@mcao.maricopa.gov

8

Maria R. Brandon

9

brandon@mcao.maricopa.gov

10

Timothy P. Casey timcasey@azbarristers.com’

11

Attorneys for Defendant Sheriff Joseph Arpaio and the

12

Maricopa County Sherriff’s Office

13
/s/ Stanley Young

14

Stanley Young

15

16

17

18

19

20

21

22

23

24

25

26

27

28 276

 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Jesus Ortega Melendres et al., )

)

10

Plaintiffs,

)

)

11 vs.

)

)

12

)

Joseph M. Arpaio, in his individual )

13 capacity as Sheriff of Maricopa County, )

Arizona, et al.,

)

14

)

Defendants.

)

15

)

)

16

No. CV-07-2513-PHX-GMS ORDER

17

The Court held a status conference in this m atter to discuss issues implicating the

18 Court’s obligations under 28 U.S.C. § 455(a) (2006) and Canon 3C(1)(d)(iii)of the Code of

19 Conduct for United States Judge s as informed by Advisory Opinion No. 58 of the United

20 States Committee on Codes of Conduct. For the reasons discussed below, the Court

21 determines that it may hear this case, and the case may proceed to trial.

22

BACKGROUND

23

This lawsuit was filed on December 12, 2007 on behalf of Manuel de Jesus Ortega

24 Melendres and others. (Doc. 1). The case was originally before the Honorable Mary H.

25 Murguia. (Id.). On July 15, 2009, Judge Murguia issued an order granting Defendants’

26 Motion to Recuse. (Doc. 138). Describing the issue as “a close call,” Judge Murguia found

27 that a reasonable person could question her impartiality because her identical twin sister was

28 the president and CEO of an organization that had published disparaging material about one

1 party, and therefore Judge Murguia recused herself. The case was subsequently assigned to

2 this Court. (Doc. 144). This Court conducted various proceedings and issued various orders

3 incident to the processing of the case, including orders granting Plaintiffs’ m otions for

4 sanctions regarding discovery issues. (Docs. 227, 290).

5

On June 17, 2010, after some discovery sanctions were ordered but before specific

6 award values were calculated, and before a determination was made as to whether other

7 sanctions were appropriate, Plaintiffs’ attorneys fromthe law firmof Steptoe & Johnson LLP

8 (the “Steptoe Attorneys”) withdrew fromthe case with the Court’s permission, and attorneys

9 from the Redwood Shores, California office of Covington & Burling LLP (the “Covington

10 Attorneys”) were substituted for them (Doc. 313). As is set forth in greater detail in its

11 previous order the Court’s brother-in-law, Keith Teel, is a partner in the Washington, D.C.

12 office of Covington & Burling (Doc. 537). The Court thus considered at that time whether

13 it should recuse itself.

14

Federal statutory law requires that “[a]ny justice judge, or magistrate of the United

15 States shall disqualify himself [or herself]in any proceeding in which his [or heri]mpartiality

16 might reasonably be questioned.” 28 U.S.C. § 455(a) (2006). The Code of Conduct for

17 United States judges similarly requires a judge to disqualify him self or herself when “the

18 judge’s impartiality might reasonably be questioned.” Code of Conduct for United State s

19 Judges, Canon 3C(1). The Code further specifies that a judge’s ipmartiality might reasonably

20 be questioned when the spouse of a person re lated to the judge is “known by the judge to

21 have an interest that could be substantially affected by the outcome of the proceeding.” Id.,

22 Canon 3C(1)(d)(iii). The commentaries to the canons note that “[t]he fact that a lawyer in a

23 proceeding is affiliated with a law firm with which a relative of the judge is affiliated does

24 not itself disqualify the judge.” Id., Commentary to Canon 3C(1)(d)(iii). But, thecommentary

25 offers no further guidance defining what constitutes an interest substantially affected by the

26 outcome of the proceeding.

27

The Court at the time researched what it believed to be the relevant decisional law

28 under § 455 and som e opinions filed by sta te judicial ethics advisory com mittees that

- 2 -

1 construed identical or similar ethical provisions for judges. In its research, the Court did not

2 locate or consider Advisory Opinion No. 58 of the United States Com mittee on Codes of

3 Conduct. The advisory opinions of the state courts reviewed by the Court that interpreted

4 identical provisions in state codes of conduct generally determined that there was no per se

5 rule with respect to when a relative of the judge affiliated with a law firmappearing before

6 him or her would have an “interest that couldbe substantially affected by the outcome of the

7 proceeding,” such that the judge’s recusal would be required. Rather, the state advisory

8 committees generally opined that such determinations be made on a case-by-case basis after

9 the court considered various factors. These factors generally included: whether the relative

10 was a partner in the firm , the size of the fi rm, whether the relative would receive a bonus

11 from the case, the size of the com munity, the nature of the fee being sought, and the

12 administrative burdens of recusal. See, e.g., Colo. Supreme Court Judicial Ethics Advisory

13 Board, Op. 2005-02 (June 3, 2005), Ill. Judicial Ethics Comm., op. 94-18 (Aug. 25, 1994)

14 Tenn. Judicial Ethics comm., Op. 04-01 (Feb. 17, 2004), Wash. Ethics Advisory Comm. Op.

15 88-12 (Aug. 30, 1988).

16

As set forth in greater detail in its previous order (Doc. 537), the Court considered that

17 its brother-in-law was a partner in the Washington D.C. office of Covington & Burling

18 engaged in a different practice area than Plaintiffs’ attorneys. The Court also considered that

19 Covington & Burling was an international firmwith multiple offices, over 200 partners and

20 hundreds of other attorneys who were either associates or of counsel to the firm. The Court

21 also considered the nature of Covington & Burling’s representation of the Plaintiff class, the

22 nature of the injunctive relief which was the sole relief sought by the class, the statutory

23 prerequisites on Covington & Burling’s ability toseek reasonable reimbursement for thetime

24 and costs its lawyers expended in representing the Plaintiffs, and the speculative and small

25 nature of any benefit that its brother-in-law could conceivably receive as a result of any

26 possible fee award to the firm. The Court also considered the administrative burden on the

27 Court in light of the national firms that had been willing to assume Plaintiff’s representation,

28 and the possible resulting recusals. After having considered these factors, the Court

- 3 -

1 concluded that “a reasonable person with knowledge of all the facts,” Pesnell v. Arsenault,

2 543 F.3d 1038, 1043 (9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450,

3 1454 (9th Cir. 1997)) would not believe that theCourt’s brother-in-law had an interest in the

4 proceeding that could be substantially affected by its outcome. Thus, the Court continued to

5 hear the case.

6

Nevertheless, when Plaintiff’s counsel recently advised the Court upon learning of

7 Mr. Teel’s relation, that Mr. Teel was unaware of the proceeding, and would receive no

8 distribution from it, the Court again reviewed the question. When it did, it located Advisory

9 Opinion No. 58 by the United States Com mittee on Codes of Conduct (June 2009). The

10 Court noticed a status conference on the m atter and requested the parties “to be ready to

11 discuss the extent, if any, to which Advisory Opinion No. 58 issued by the United States

12 Committee on Codes of Conduct in June of 2009, affects this Court’s obligations under 28

13 U.S.C. § 455(a) (2006).”

14

At the hearing on June 29th, all parties argued that recusal in this matter was neither

15 mandated nor appropriate. All parties agreed that Advisory Opinion 58 was predicated on the

16 conclusion that “an equity partner in a la w firm generally has ‘an interest that could be

17 substantially affected by the outcome of the proceeding.’” United States Comm. on Codes

18 of Conduct. Op. 58 (June 2009) (em phasis added). All parties further agree that such a

19 presumption would not be appropriately applied consistent with the applicable Canon when

20 no interest of a re lative of the Court may be substantially affected. All parties agreed that

21 pursuant to the facts here, Mr. Teel’s interest would not be substantially affected by the

22 outcome of the proceeding, and that therefore no reasonable objective observer could

23 conclude that the judge would be impartial or biased based on his relationship to Mr. Teel.

24

ANALYSIS

25 1. Canon 3C(1)(d)(iii), Its Commentary and Advisory Opinion No. 58

26

In determining its ethical obligations, the Court is obliged to follow the text of the

27 Canons that m ake up the Code of Conduct for United States Judges. There is official

28 commentary that accompanies the Canons. That commentary specifies that “the Canons are

- 4 -

1 rules of reason, they should be applied consistently . . . in the context of relevant

2 circumstances.” Code of Conduct for United States Judges, Commentary to Canon 1. As a

3 further interpretive aid, “[t]he judicial conference has authorized its Committee on Codes of

4 Conduct to render advisory opinions about this Code only when requested by a judge to

5 whom this Code applies.” Id., Introduction.

6

In those instances in which an advisory opinion requested by an individual judge in

7 one case would contradict, or exceed, the text ofthe Canon as applied to the facts of another,

8 the Court is obliged, in determining what is ethically appropriate, to follow the text of the

9 Canon rather than the contradictory advice contained in the advisory opinion. Further, the

10 official commentary is entitled to precedence over a contrary advisory opinion in interpreting

11 a Court’s ethical obligation in a given circum stance. This is especially the case when

12 extending the obligation to recuse beyond that contem plated by the Canons them selves

13 would cause the Court to violate its existing obligations under the Canons to “hear and

14 decide matters assigned, unless disqualified.” Id. Canon 3(A)(2); see also Clemens v. U.S.

15 Dist. Court for the Central Dist. of California, 428 F.3d 1175, 1179 (9th Cir. 2005) (holding

16 that a judge has “as strong a duty to sit when there is no legitimate reason to recuse as he

17 does to recuse when the law and the facts require”).

18

Of course, even though an opinion of the United States Com mission on Codes of

19 Conduct is advisory in nature, it should be considered carefully. Advisory Opinion 58, issued

20 in June of 2009, which is in many relevant respects similar to its predecessors, “advises that

21 if the relative . . . is an equity partner in a law firm that represents a party, the judge must

22 recuse,” because it “concludes that an equity partner in a law firmgenerally has ‘an interest

23 that could be substantially affected by the outcome of the proceeding’ in all cases where the

24 law firm represents a party before the court.” United States Com. on Codes of Conduct. Op.

25 58 (June 2009). It further notes that if a judge’s relative is an equity partner of a firm

26 appearing before him, “the remittal procedures of Canon 3D are not available,” and that

27 “[r]ecusal is required.” Id.

28

- 5 -

1

While such a cautious approach may have value as a prophylactic rule, to the extent

2 that this advisory opinion is interpreted or attme pts to create a per se rule of recusal whenever

3 a Court has a firm appearing before it in whic h a relative or the spouse of a relative is an

4 equity partner, the opinion would extend the rule beyond the text of the Canon or the official

5 commentary to it. The advisory opinion itself esems to recognize as much. To the extent that

6 it states that an equity partner’s interest “generally,” rather than “always” could be affected

7 by the outcome of the proceeding, it implicitly recognizes that there are some circumstances

8 in which an equity partner’s interest in a law firm will or may not be substantially affected

9 by the outcome of a proceeding before a judge. If the facts involve a circumstance in which

10 the equity partner’s interest would not be substantially affected by the outcom e of the

11 proceeding, then Canon 3C(1)(d)(iii) provides no basis for the Court’s recusal. In such

12 circumstances, the Advisory Opinion’s per se rule is contrary to the Code of Conduct and the

13 commentaries thereto which m ake clear that “[t] he fact that a lawyer in a proceeding is

14 affiliated with a law firm with which a relativ e of the judge is affilia ted does not of itself

15 disqualify the judge.” Com mentary to Canon 3C(1)(d)(iii), Code of Conduc t for United

16 States Judges.

17

The Canon requires recusal when an interest is substantial, and “whether an interest

18 is substantial is necessar ily a fact sensitive inquiry.” In re Mercedes-Benz Antitrust

19 Litigation, 226 F. Supp. 2d 552, 555 (D. N. J. 2002). Other courts ha

ve previously

20 recognized, as this Court did in its original analysis, that “[i]t would simply be unrealistic to

21 assume, . . . that partners in today’s law firm s invariably ‘have an interest that could be

22 substantially affected by the outcome of’ any case in which any other partner is involved.’”

23 Pashaian v. Eccelston Props., Inc., 88 F.3d 77, 83 (2d Cir. 1996) (emphasis in original). All

24 parties to this case, being made familiar with the facts and the previous determinations of this

25 Court, have made clear their position that Mr. Teel has no interest that can be substantially

26 affected by the outcome of these proceedings. Plaintiffs are not seeking dam ages, but the

27 court “in its discretion, m ay allow the prev ailing party, other than the United States, a

28 reasonable attorney’s fee.” 42 U.S.C. § 1988(b) (2006). The award of such a fee is both

- 6 -

1 speculative and very small as it might apply to augment the salary of an equity partner in

2 Covington & Burling. The outcome of the proceeding therefore would not substantially affect

3 an interest of Mr. Teel even if he were not walled off from any participation in, or benefit

4 from, this case.

5

Nevertheless, even should Plaintiffs prevail, and even should the Court thereafter

6 exercise its discretion to award fees, Mr. Teel will not receive any financial benefit due to

7 the further steps subsequently taken by Covington & Burling to screen him from this case.

8 And, as this Court set forth in its previous order, the Court cannot identify any other interest

9 that Mr. Teel has that would be substantially affected by the outcome of these proceedings.1

10 None of the parties, after having been fully apprised of the facts, have identified such a n

11 interest. As such, while the Court acknowledges that “an equity partner in a law firm

12 generally has ‘an interest that could be substantially affected by the outcom e of the

13 proceeding,’” in the facts particular to this case, Mr. Teel’s interest cannot be so affected.

14 United States Comm. on Codes of Conduct. Op. 58 (June 2009) (emphasis added). In such

15 circumstances, the Court has an obligation to follow the language of the Canons thesmelves,

16 not merely the per se rule of the advisory opinion. Because the Court has “as strong a duty

17 to sit when there is no legitimate reason to recuse as he does to recuse when the law and the

18 facts require,” recusal would not m erely be unwarranted, it would itself violate that duty.

19 Clemens, 428 F.3d at 1179. To the extent that the Advisory Opinion’s per se rule attempts

20 to extend the preclusive effect of Canon 3C(1)(d)(iii) beyond its actual terms, the Court will

21 abide by the Code in determining its ethical responsibilities.

22

23

1 The Court has considered the impact this case may have on Covington & Burling’s

24 reputation, and therefore the reputation on thatfirm’s partners, whether they are involved in the case or not. Although the case is a significant one, it is significant principally in Arizona,

25 where Covington & Burling does not have an office. To the extent that there is som e

26

attention to the case nationwide, the Court concludes, like the district court iPnashaian, that the impact of a single case is “not of th e significance to either add or detract from its

27 reputation . . . even in the nation or perhaps the world.”Pashaian, 88 F.3d at 84. Mr. Teel’s

reputation at Covington & Burling, where he practices in a different area and a different city 28 than Plaintiffs’ attorneys, will not be “substantially affected” by the outcome of this case.

- 7 -

1 2. 28 U.S.C. § 455

2

Advisory Opinion No. 58 acknowledges that it does not serve to interpret 28 U.S.C.

3 § 455. But, as the Committee also notes, Canon 3C of the Code closely tracks the language

4 of § 455, and the Committee is authorized to provide advice regarding the application of the

5 Code. Id.

6

Federal circuit courts have twice had the opportunity to interpret the predecessor of

7 Advisory Opinion 58 in the context of the recusal statute. In 1980, the Fifth Circuit adopted

8 the per se rule of the Advisory Opinion, holdingthat “when a partner in a law firmis related

9 to a judge within the third degree, that partner will always be ‘known by the judge to have

10 an interest that could be substantially affected by the outcome’ of a proceeding involving the

11 partner’s firm.” Postashnick v. Port City Constr. Co., 609 F.2d 1101, 1113 (5th Cir. 1980)

12 (quoting 28 U.S.C. § 455(b)(5)(iii)) (em phasis in original). In Potashnick, three factors

13 weighed in favor of recusal: “(1) the judge wsaso connected with [plaintiff’s]law firmHand,

14 Arendall, Bedsole, Greaves & Johnston (Hand, Arendall) and with [plaintiff’s] chief trial

15 counsel . . . that his im partiality might reasonably be questioned; (2) the judge was being

16 personally represented in other m atters by Hand, Arendall and by [ plaintiff’s chief trial

17 counsel]; and (3) the judge’s father was a partner in Hand, Arendall.”Potashnick, 609 F.2d

18 at 1106. The Circuit declined to find that the judge’s actual rulings demonstrated any bias in

19 favor of the plaintiff, who was represented bythe judge’s personal lawyer, working at a mid-

20 sized Mobile law firm in which the judge’s father was a senior partner, but concluded that

21 a per se rule “will serve to promote public confidence in the integrity and impartiality of the

22 judiciary in general and of the participating judge in particular.” Potashnick, 609 F.2d at

23 1114.

24

The rise of national law firms led the Second Circuit to reconsider the appropriateness

25 of the Advisory Opinion’s per se rule sixteen years later. Considering whether recusal was

26 required when a judge’s brother-in-law was an equity partner in a 200-lawyer national firm

27 but had played no role in the case before the judge, the Second Circuit found that relying on

28 a predecessor to Advisory Opinion 58 in the recusal context was “dubious because the

- 8 -

1 advisory opinion is a nonbinding interpretation of a different rule.” Pashaian v. Eccelston

2 Props., Inc., 88 F.3d 77, 84 (2d Cir. 1996). In Pashaian, the Second Circuit wrote that “[i]t

3 would simply be unrealistic to assume, with Potashnick, that partners in today’s law firms

4 invariably ‘have an interest that could besubstantially affected by the outcome of’ any case

5 in which any other partner is involved.’”Id. at 83 (emphasis in original). The Second Circuit

6 approved of the district court’s “reasonable conclusions” that the interest one partner in an

7 international law firm with gr oss revenues in excess of $100 m illion could not be

8 “substantially affected” by the outcome of any particular case. Id. at 84.

9

Although district courts in the Fifth Circuit continue to follow the per se rule of the

10 advisory opinion and Potashnick, at least one “has noted that it some serious problems with

11 the advisory opinion and with the appellate court interpretations.” Southwest Louisiana

12 Healthcare System v. MBIA Ins., 2006 WL 724809, at *3 (Mar. 14, 2006). In that case, the

13 court noted that associates and partners alike see som e benefit from the firm ’s success:

14 partners in the form of their equity interest and associates in the formof bonuses, which are

15 “determined by the amount of profits realized by the total practice of the firm.” Id. The court

16 decided that the proper inquiry was whether the individual actually had a substantial interest

17 in the proceeding at hand, and found that the individual in question (the judge’s father, who

18 was of counsel to the firm before the judge) “has been com pletely insulated from any

19 participation whatsoever in this case” and that he “will receive no funds on the profits of [the

20 client],” rendering recusal unwarranted. Id. at 4. A district court in New Jersey has likewise

21 held that relevant precedents “teach that section 455(b)(5)(iii) cannot be applied as aper se

22 bar to firms whose partners are related to the judiciary.” In re Mercedes-Benz Antitrust

23 Litigation, 226 F. Supp. 2d 552, 555 (D. N. J. 2002). “Whether an interest is substantial is

24 necessarily a fact sensitive inquiry, and it cannot fairly be answe red by a mechanical ‘no

25 partners’ application of section 455(b)(5)(iii).” Id. at 555–56..

26

Under the particular circumstances of this case, for the reasons previously set forth,

27 no “reasonable person with knowledge of all the facts would conclude that the judge’s

28 impartiality might reasonably be questioned.” Clemens, 428 F.3d at 1178 (quoting

- 9 -

1 Herrington v. Cty. of Sonoma, 834 F.2d 1488, 1502 (9th Cir. 1987)). In this case, even more

2 than in Pashaian, the relative in question is a partner at a large international law firm, who

3 has played and will play no role in this matter. Mr. Teel’s relationship to this matter is also

4 more remote than the brother-in-law’s was inPashaian, because Mr. Teel has been excluded

5 from any financial gain that may accrue to Plaintiffs in this suit, substantial or otherwise. All

6 parties to this suit have acknowledged that thePashaian precedent arising from the Second

7 Circuit is the appropriate precedent to follow and urge this Court not to recuse. Recusal under

8 28 U.S.C. § 455(a) is therefore not warranted. The Court finally notes that the decision on

9 whether to recuse is here made in circumstances that greatly favor resolution of this lawsuit:

10 the case was filed four and one-half years ago, plaintiffs are represented by their third set of

11 attorneys, and one federal judge has already recused herself. Therefore,

12

IT IS ORDERED affirming that the trial will proceed onJuly 19, 2012 at 8:30 a.m.,

13 as scheduled.

14

Dated this 3rd of July, 2012.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 10 -

 </s> Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 1 of 142

1 WO

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6 Manuel de Jesus Ortega Melendres, on
7 behalf of him self and all others similarly 8 situated; et al.

9

Plaintiffs,

10 v.

11

Joseph M. Arpaio, i n his indi vidual and official capacity as Sheriff of Maricopa

12 County, AZ; et al.

13

Defendants.

No. PHX-CV-07-02513-GMS FINDINGS OF FACT AND CONCLUSIONS OF LAW

14

At issue in this lawsuit are: 1) the cu rrent policies and practices of the Maricopa

15 County Sheriff’s Office (“MCSO”) by which it investigates and/or detains persons whom

16 it cannot c harge with a state crim e but w hom it believes to be in the c ountry without

17 authorization, and 2) the ope rations the MCSO claims a right to use in enforcing

18 immigration-related state criminal and civil laws, such as the Arizona Human Smuggling

19 Statute, Ariz. Rev. Stat. (“A.R.S.”) § 13-2 319 (Supp. 2010), and the Arizona Employer

20 Sanctions Law, A.R.S. § 23-211 et seq. (Supp. 2010). According to the position of t he

21 MCSO at trial, it claims the rig ht to use th e same type of saturation patrol s to enforce

22 state laws that it used during the time that it had authority delegated from the federal

23 government to enforce civil violations of federal immigration law.

24

During the time relevant to this la

wsuit, the Im migration and Custom s

25 Enforcement Office of the Department of Homeland Security (“ICE”) delegated authority

26 to enforce federal imm igration law to a maxim um of 160 MC SO deputies pursua nt to

27 Section 287(g) of the Immigra tion and Nationality Act, 8 U. S.C. § 1357(g) (“the 287(g)

28 program”). In the 287(g) training that ICE provided, and in other policies and procedures

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 2 of 142

1 promulgated by the MCSO, MCSO deputies were instructed that they could consider race 2 or “Mexican ancestry”1 as one factor am ong others in making law enforcement decisions

3 during immigration enforcement operations without violating the legal requirements

4 pertaining to racial bias in policing. Purs uant to its 287( g) authority, the MCS O used

5 various types of sa turation patrols desc ribed below in c onducting immigration

6 enforcement. During those pa trols, especially the large- scale saturation patrols, th e

7 MCSO attempted to leverage its 287( g) authority by staffing such operations wit h

8 deputies that both were and were not 287(g) certified.

9

ICE has since revoke d the MC SO’s 287(g) authority. In response, the MCSO

10 trained all of its officers on im migration law, instructed them that they had the authority

11 to enforce it, and promulgated a new “LEAR” policy. The MCSO continues to follow its

12 LEAR policy, which requires MC SO deputies to detain persons believed to be in the

13 country without authorization but whom they cannot arrest on state charges. Such persons

14 are either delivered directly to ICE by the MCSO or detained until the MCSO receives a

15 response from ICE as to how to deal w ith them. Until December 2011, the MCSO

16 operated under the erroneous assumption that being an unauthorized alien in this countr y

17 established a criminal violation of federal immigration law which the MCSO was entitled

18 to enforce without 287(g) au thorization. However, in the absence of additional facts,

19 being within the country withou t authorization is not, in an d of itself, a federal criminal

20 offense. The LEAR policy, however, remains in force.

21

Pursuant to this policy and the MCSO’s enforcement of state law that incorporates

22 immigration elements, the MCSO continues to investigate the identity and immigration

23

24

1 Historically, there is no separate racial designation for persons of Hispanic or Latino ancestry. Nevertheless, to the extent that such persons are separately classified for

25 purposes of distinctions in their treatment by the government, courts have applied the

26

strict scrutiny analysis that is reserved for racial distinctions. Johnson v. California, 543 U.S. 499, 502 (2005); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205, 227

27 (1995); U.S. v. Ochoa–Ochoa, 114 Fed. App’x 295, 296 (9th Cir. 2004).

28

- 2 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 3 of 142

1 status of persons it encounters in certain s ituations. In undertaking such investigations,

2 MCSO deputies continue to appl y the indicators of unlawful presence (including use of

3 race as one amongst other factors) they received in the 287(g) training from ICE. Further,

4 in enforcing immigration-related state laws, the MCSO either continues to use, or asserts

5 the right to continue to use, the same type of saturation patrols that it used when it had

6 full 287(g) authority. Those saturation patrols all involved using traffic stops as a pretext

7 to detect those occupants of autom obiles who m ay be i n this country without

8 authorization. The MCSO assert s that ICE’s termination of its 287(g) authority does not

9 affect its ability to conduct such operations because a person’s immigration status is

10 relevant to determining whether the Ariz ona state crim e of hum an smuggling—or

11 possibly the violation of other state laws related to immigration—are occurring.

12

Plaintiffs challenge these policies and pr actices. The Court certified a Plaintiff

13 class of “[a]ll Latino persons wh o, since January 2007, have be en or will be in the future

14 stopped, detained, questioned or searched by MCSO agents while driving or sitting in a

15 vehicle on a public roadway or parking area in Maricopa County Arizona.” Ortega-

16 Melendres v. Arpaio, 836 F. Supp. 2d 959, 992 (D. Ariz. 2011) (internal quotation marks

17 omitted). The issues in this lawsuit are: (1 ) whether, and to what extent, the Fourth

18 Amendment permits the MCSO to question, investigate, and/or detain Latino occupant s

19 of motor vehicles it suspects of being in th e country without authorization when it has no

20 basis to bring state charges against such pe rsons; (2) whether the MC SO uses race as a

21 factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race

22 as a factor in forming either reasonable susp icion or probable cause to detain a person for

23 being present without authoriza tion; (3) whether the MCS O uses race as a factor, and if

24 so, to what extent it is perm issible under th e equal protection clause of the Fourteenth

25 Amendment to use race as a factor in making law enfor cement decisions that affect

26 Latino occupants of motor vehicles in Maricopa County; (4) whether the MCSO prolongs

27 traffic stops to investigate the status of vehicle occupants beyond the tim e permitted by

28 the Fourth Am endment; and ( 5) whether being in t his country w ithout authorization

- 3 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 4 of 142

1 provides sufficient reasonable suspicion or probable cause under the Fourt h Amendment

2 that a person is viola ting or conspiring t o violate Ari zona law related to immigration

3 status.

4

As is set forth below, in light of IC E’s cancellation of the MCS O’s 287(g)

5 authority, the MCSO has no authority to detain pe ople based only on reasonabl e

6 suspicion, or probable cause, without more, that such persons are in this country without

7 authorization. The MCSO lost authority to enforce the ci vil administrative aspects of

8 federal immigration law upon revocation of its 287(g) authority. And, in the absence of

9 additional facts that would provide reason able suspicion that a person committed a

10 federal criminal offense either in entering or staying in this country, it is not a violation of

11 federal criminal law to be in this country without authorization in and of itself. Thus, the

12 MCSO’s LEAR policy that requires a deputy (1) to detain persons she or he believes only

13 to be in the country without authorization, (2) to contact MCSO supervisors, and the n (3)

14 to await contact with ICE pending a determ ination how to proceed, results in an

15 unreasonable seizure under the Fourth Amendment to the Constitution.

16

Further, in determining whom it will detain and/or investigate, both with respect to

17 its LEAR policy, and in its enforcement of immigration-related state law, the MCSO

18 continues to take into account a suspect’s Latino identity as one factor in evaluating those

19 persons whom it encounters. In Maricopa County, as the MCS O acknowledged and

20 stipulated prior to trial, Latino ancestry is not a factor on which it c an rely in a rriving at

21 reasonable suspicion or form ing probable caus e that a person is in the United States

22 without authorization. Thus, to the extent it uses race as a factor in arriving at reasonabl e

23 suspicion or forming probable cause to stop or investigate persons of Latino ancestry for

24 being in the country without authorization, it violates the Fourth Amendment. In addition,

25 it violates the Plaintiff class’s right to e qual protection under the Fourteenth Amendment

26 to the Constitution and Title VI of the Civil Rights Act of 1964.

27

Moreover, at least some MCSO officers , as a matter of practice, investigate the

28 identities of all occupants of a vehicle when a stop is made , even without individualized

- 4 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 5 of 142

1 reasonable suspicion. Furt her, MCSO policy an d practice allow its officers to consider

2 the race of a vehicle’s occupants in determin ing whether they have reasonable suspicion

3 to investigate the occupants fo r violations of state laws re lated to immigration, or to

4 enforce the LEAR policy. In some instances these policies result in prolonging the traffic

5 stop beyond the time necessary to resolve the issue that initia lly justified the stop. When

6 the deputies have no adequate reasonable susp icion that the individual occupa nts of a

7 vehicle are engaging in criminal conduct to justify prolonging the stop to investigate the

8 existence of such a crime, th e extension of the stop vi olates the Fourth Amendment’s

9 prohibition against unreasonable seizures.

10

Finally, the knowledge that a person is in the country withou t authorization does

11 not, without m ore, provide sufficient reasonable suspicion that a person has vi olated

12 Arizona criminal laws relating to immigrat ion, such as the Arizona H uman Smuggling

13 Act, to jus tify a Terry stop for pur poses of investigativ e detention. To the extent the

14 MCSO is authorized to investigate violati ons of the Arizona Em ployer Sanctions law,

15 that law does not provide crim inal sanctions against either em ployers or em ployees. A

16 statute that provides only civil sanctions is not a sufficient basis on whic h the MCSO can

17 arrest or conduct Terry stops of either employers or employees.

18

For the reasons set forth above, Plaintiffs are entitled to injunctive relief to protect

19 them from usurpation of ri ghts guaranteed under the United States Constitution.

20 Therefore, in the absence of fu rther facts that would gi ve rise to reasonable suspicion or

21 probable cause that a violation of either fede ral criminal law or a pplicable state law is

22 occurring, the MCSO is enjoined from (1) enforcing its LEAR policy, (2) using Hispanic

23 ancestry or race as any factor in making law enforcement decisions pertaining to whether

24 a person is authorized to be in the country, an d (3) unconstitutionally lengthening stops.

25 The evidence introduced at trial establishes th at, in the past, the M CSO has aggressively

26 protected its right to engage i n immigration and immigration–related enforcement

27 operations even w hen it had no accurate legal basis for do ing so. Such policies have

28 apparently resulted in the violation of this court’s own preliminary injunction entered in

- 5 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 6 of 142

1 this action in December 2011. The Court w ill therefore, upon further consideration and

2 after consultation with the parties, order additional steps that may be necessary to

3 effectuate the merited relief.

4

FINDINGS OF FACT

5 I. General Background

6

A. Maricopa County

7

According to the trial evidence, approximately 31.8% of the residents of Maricopa

8 County are Hispanic or Latino.2 (Tr. at 157: 21–158:4.)3 As even the testimony of

9 Defendant’s expert de monstrated, the consider able majority of t hose residents are legal 10 residents of Maricopa County and of the United States.4 (Id. at 1301:14.) Due to the large

11

2 Cf. United States Census, St ate & Co unty QuickFacts, Maricopa County,

12 Arizona, http://quickfacts.census.gov/qfd/states/04/04013.html (last visited May 21,

13

2013) (reporting 30. 0% of the population as of Hispan ic or Latino origin). The Defendant’s expert placed the Hispanic population at 30.2% fo r the relevant period. Ex .

14 402 at 3. Throughout this litigation, both parties have used the term “Hisp anic” and

15

“Latino” interchangeably. A recent study by th e Pew Hispanic Center found that “a new nationwide survey of Hi spanic adults finds that these terms [“Hispanic” and “Latino”]

16 still haven’t been fully embrac ed by Hispanics themselves.” Paul Taylor et al., Pew

Hispanic Center, When Labels Don’t Fit: Hispan ics and their Views of Identity 2 (2012). 17 The Court will principally use the term Hi spanic because most of the testimony a nd

18 evidence presented at the trial on this matter used the term Hi spanic rather than Latino. Still, where the evidence principally uses th e term “Latino,” the Court will likewise use
19 “Latino.” Both words are used interchangeably in this Order.

20

3 “Tr.” refers to the continually paginated trial transcript.

21

22

4 At trial, Defendants’ expert Dr. Steven Camarota noted that his estimate as to the percentage of the Arizona popul ation not le gally present within the United States had

23 been cited by the United States Supreme Court in Arizona v. United States, ___ U.S. ___,

24

___, 132 S. Ct. 2492, 2500 (2012). In that study Dr. Camarota concluded that 8.9% of the population of the state of Arizona was made up of unaut horized immigrants. See

25 Camarota & Va ughan, Center for im migration Studies, Immigration and Crime :

Assessing a Conflicted Situation 16 (2009) . During his tr ial testimony, Dr. Cam arota 26 testified that he assumed that his state-wi de estimate woul d also appl y to Maricopa

27 County. His trial testimony was cons istent with the figure cited in Arizona as he noted that he assumed that approximately one in three Hispanic residents of Maricopa C ounty
28

- 6 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 7 of 142

1 number of authorized resident s of Maricopa County w ho are Latino, t he fact that

2 someone is Latino in Maricopa County does not present a likelihood that such a person is

3 here without authorization.

4

Nevertheless, it is also true that the overwhelming majority of t he unauthorized

5 aliens in Maricopa County are Hispanic. As Defendant’s expert report notes, the Pew

6 Hispanic Center estimates that 94% of ille gal immigrants in Arizona are from Mexico 7 alone.5 (Ex. 402 at 14.)

8

As trial testimony further demonstrated, MCSO officers believe that unaut horized

9 aliens are Mexicans , Hispanics, or Lati nos. (Tr. at 359:11–14, 991:23–992:4.) As

10 Defendants acknowledged at the summary judgment stage and in their post-trial briefing ,

11 many MCSO officers—as well as Sheriff Arpaio —testified at their depositions that most

12 of the una uthorized immigrants they ha ve observed in Maricopa County are originally 13 from Mexico or Central or South America.6 (Doc. 453 at 150, 151 ¶¶ 28–30, 36.)

14

B. The MCSO

15

The MCSO is a law enforcement agency operating wit hin the c onfines of

16 Maricopa County. (Doc. 530 at 4 ¶ 1 .) It employs over 800 deputies. ( Id. ¶ 17.) Sheriff

17 Joseph Arpaio serves as the he ad of the M CSO and has fina l authority over all of the

18 was here without authorizatio n. (Tr. at 1301:9–11.) In Arizona, however, the Suprem e
19 Court also cited a study of the Pew Hispanic Center that determined that 6% of the state’s
20 population was unauthorized. 132 S. Ct. at 2500. Nevert heless, if Dr. Camarota’s testimony is applied, and one assumes that virtually all of the unauthorized residents in
21 the state are of Latino ancestry, about 73% of the Latino residents of Maricopa County
22 are legal residents of the Unite d States. If the Pew Hispanic Center’s estimates are applied, and the same assumptions are m ade, about 81% of the Latino residents of
23 Maricopa County are legal residents. In e ither case, a great majority of the Latino
24 residents of Maricopa County are authorized to be in the United States.

25

5 “Ex.” denotes the number of the exhibit admitted at trial.

26

6 “Doc.” denotes the num ber at which the document can be found on the C ourt’s

27 docket.

28

- 7 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 8 of 142

1 agency’s decisions. (Id. ¶ 18.) He sets the overall direction and policy for the MCSO. The

2 MCSO is composed of multiple bureaus, including the de tention bureau, the patrol

3 bureau, and the patrol resources bureau. (Id. ¶ 19.)

4

The Sheriff of Maricopa County is elected, thus the Sheriff has to be responsive to

5 his constituents if he desires to remain in office. In the words of the MCSO’s Chief of

6 Enforcement Brian Sands, Sherif f Arpaio is a political person, who receives significant

7 popular support for his policies. (Tr. at 808:14–809:12.) A chief eleme nt of Sheriff

8 Arpaio’s popular support is his prior itization of im migration enforcement. ( Id.) The

9 MCSO receives federal fundi ng and federal financial assistance. (Doc. 530 at 4 ¶¶ 173–

10 74.)

11

C. Prioritization of Immigration Enforcement and the ICE Memorandum

12

In 2006, the MCSO crea ted a specialized unit—th e Human Smuggling Unit

13 (“HSU”)—to enforce a 2005 human smuggling law, A.R.S. § 13-2319 (2007). (Doc. 530

14 at 4 ¶¶ 27–28.) The HSU is a division within the patrol resources bureau and makes up a

15 part of the larger Illegal Immigration Inte rdiction Unit (the “Triple I” or “III”). ( Id. ¶¶

16 27–29.) The HSU unit consisted of just tw o deputies when it was created in April of

17 2006. (Id. ¶ 44.)

18

In 2006, the Sheriff decided to make im migration enforcement a priority for the

19 MCSO. In early 20 07, the M CSO and I CE entered i nto a Mem orandum of Agreem ent

20 (“MOA”) pursuant to which MCSO could enforce federal immigration law under certain

21 circumstances. (Id. ¶ 40.) After the MO A was signed, the HS U grew. By September of

22 2007 it consisted of two sergean ts, 12 deputies, and four detention officers, all under the

23 leadership of a lieutenant. ( Id. ¶ 44.) In Septem ber 2007, Lieutenant S ousa assumed

24 command of the HSU. (Tr. at 988:13–14.) He remained in charge of the unit and later the

25 Division including the unit, until April 1, 2012. (Tr. at 98 8:12–23.) He reported to Chief

26 David Trombi, who is the commander of the Patrol Resources Bureau. (Doc. 530 at 1, ¶

27 33.) Chief Trombi reported to Chie f of Enforcement Brian Sands. ( Id. ¶ 31.) For most of

28 the period relevant to this lawsuit, Ch ief Sands reported to Deputy Chief David

- 8 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 9 of 142

1 Hendershott, who reported directly to Sheriff Arpaio. (Id. ¶¶ 21, 23.)

2

Sergeant Madrid was one of the two supe rvising sergeants fro m the founding of

3 HSU until he was transferred in February 2011. (Id. at 1131:19–25.) Sergeant Palmer was

4 the other HSU supervising ser geant. He join ed the HSU in April of 2008, apparently

5 succeeding Sergeant Ryan Baranyos. He remained as a supervising sergeant until May of

6 2012. (Id. at 661:20–21.) According to the testimony of Sgts. Madrid and Palmer, each of

7 them supervised their own squad of deputies and also cross-supervised the other’s squad.

8 (Id. at 663:23–25.)

9

The MOA permitted up to 160 qualified MCSO officers to enforce administrative

10 aspects of federal imm igration law under t he 287(g) program.7 (Ex. 290.) It required

11 MCSO deputies that were to be certified fo r field operations to complete a five-week

12 training program. (Id.) Witnesses who took the training program testified that the topic of

13 race in making decisions related to immigra tion enforcement covered an hour or two of

14 the five-week course. (Tr. at 948:8–20, 1387:23–1388:7.)

15

All or virtually all of the deputies assigned to the HSU became 287(g)-trained and

16 certified. A num ber of other MCS O deputies did as well. The M CSO generically

17 designated all non-H SU officers who were ce rtified under 287(g) as members of the

18 Community Action Team or “CAT.” Accordin g to an MCSO policy memo “CAT refers

19 to all 287g trained deputies who are not as signed to HSU.” (Ex. 90 at MCSO 001887–

20 88.) Members of the HSU, CAT and MCSO detention officers who were 287(g) certified

21 constituted the Triple I Strike Team. (Id.)

22

Nevertheless, according to I CE Special Agent Alonzo Pena, under the M OA,

23 287(g) certified officers could not use their federal enforcement authority to stop persons

24 or vehicles based only on a suspicion t hat the driver or a passenger was not legall y

25

26

7 The 160 m aximum persons included both deputies trained for field enforcement and the MCSO pers onnel who worked “s olely in a correctional facility or ICE detention

27 facility.” (Ex. 290.)

28

- 9 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 10 of 142

1 present in the United States. (Tr. at 1811 :15–16, 1854:8–11, 18 56:15–23.) Rather, the

2 287(g) power was appropriately used as adj unct authority when Sheriff’s deputies made

3 an otherwise legitimate stop to en force provisions of state law. ( Id.) Special Agent Pen a

4 further testified that he “would definitely be concerned if traffic stops were being used as

5 pretext” to investigate immigration violations. (Id. at 1859:17–22.)

6

Still, nothing in the text of the MOA prohibits the MCSO from making pre-textual

7 traffic stops in order to investigate the immigr ation status of the dr iver of a ve hicle. The

8 MCSO Triple I Strike Team Protocols, however, did specify that before inve stigating a

9 person’s immigration status, a 287(g)-trained deputy “must have proba ble cause or

10 reasonable suspicion” to stop a person f or violation of “state cr iminal law and civil

11 statutes.” (Ex. 92 at MCSO 001888.) As the testi mony at tr ial also established, MCSO

12 deputies are generally able, in a short am ount of time, to establish a basis to stop any

13 vehicle that they wish for some form of Arizona traffic violation. (Tr. at 1541: 8–11

14 (Armendariz: “You could not go dow n the st reet without seeing a m oving violation.”),

15 1579:20–23 (“Armendariz: [I]t’s not very difficult to find a tr affic violation when you’re

16 looking for one.”); see also Doc. 530 at ¶ 86 (“Deput y Rangel testified that it is possible

17 to develop pr obable cause to st op just about any ve hicle after following it for t wo

18 minutes.”).)

19

The necessity of having a state law basi s for the stop prior to engaging in

20 immigration enforcement did not appear in MCSO news releases. At the February 2007

21 press conference announcing the partnership between MCSO and ICE, Sher iff Arpaio

22 described the MCSO’s enforcement authority in the presence of ICE officials as

23 unconstrained by t he requirement that MC SO first have a basis to pursue state law

24 violations. He stated: “Actually, . . . , ours is an operation, whether it’s the state law or

25 the federal, to go after illegals, not the crime first, that they happen to be illegals. My

26 program, my philosophy is a pure program. Yo u go after illegals. I’m not afraid to say

27 that. And you go after them and you lock them up.” (Tr. at 332:19–25; Ex. 410d.)

28 / / /

- 10 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 11 of 142

1

Upon completion of t he first 287(g) trai ning course for deputies in March 2007,

2 Sheriff Arpaio described the duti es of CAT cer tified patrol deputies in a news release as

3 “arresting suspects even s olely for the crim e of being an illegal alien, if they are

4 discovered during the normal course of the depu ties’ duties.” (Ex. 184.) In July 2007, in

5 describing the MCSO as “quickly becomi ng a full-fledged anti-illegal immigration

6 agency” he also announced th at MCSO had created a dedi cated hotline fo r citizens to

7 “use to report illegal aliens” to the MCSO. (E x. 328.) In this same news release, the

8 Sheriff further announced a policy that w hen his de puties stopped any vehicle for

9 suspicion of hum an smuggling, the im migration status of all of the occupants of t he

10 vehicle would be investigated. (Id.)

11

D. MCSO’s Immigration Enforcement Operations

12

In approximately Jul y of 2007, at th e same ti me it impleme nted its ill egal

13 immigrant hotline, the MCSO also announced that the HSU would begin conducting

14 “saturation patrols,” in which MCSO o fficers would conduct traffi c enforcement

15 operations with the purpose of de tecting unauthorized aliens during the cours e of normal

16 traffic stops. (Tr. at 1136:7–9.) There were se veral different types of traffic saturation

17 patrols, including day labor ope rations, small-scale saturati on patrols, and l arge-scale

18 saturation patrols. HSU deputies sometimes recruited other de puties and MCS O posse

19 members to assist in day labor and small-sc ale saturation patrol s. Other de puties were

20 always a part of large-scale saturation patr ols. There is no evidence that all deputies

21 participating in such patrols from other units were 287(g) certified. All of these saturation

22 patrols were supervised by the HSU command structure, and HSU deputies conducted, or

23 at least participated in, all of the saturation patrols at issue in this lawsuit.

24

1. Day Labor Operations

25

In a typical day labor operation, undercover HSU officers woul d station

26 themselves at locations wher e Latino day la borers assembled and identify ve hicles that

27 would pick up such day laborers. Once a vehicle was identified, the undercover officers

28 notified patrol units that were waiting in the area. ( Id. at 242:7–23; Exs. 123, 126, 129,

- 11 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 12 of 142

1 131.) The patrol units located the vehicle, fo llowed it, and “establ ish[ed] probable cause

2 for a traffic stop.” ( Id.) Once the MCSO deputy had stopped the vehicle, H SU deputies

3 would proceed to the scene to investigate the immigration status of any passe ngers. (Tr.

4 at 242:24–244:6.) The patrol officer would either issue a traffic citation or give the driver

5 a warning, while the HSU de puties would investigate the immigration status of the

6 passengers and detain them if there was a basis to do so.

7

Day labor operations took place on: (1) Se ptember 27, 2007, at the Churc h of the

8 Good Shepherd of the Hills in Cave Creek, (2) October 4, 2007, in Queen Creek, (3)

9 October 15, 2007, in the area of 32nd Street and Thomas (“Pruitt’s Furniture Store”) in

10 Phoenix, and (4) October 22, 2007, in Fountain Hills. (Exs. 123, 126, 129, 131.)

11

According to the arrest reports of the four day la bor operations, all of the 35

12 arrests were for federal civil immigration violations, and the arrestees were turned over to

13 ICE for processing. (Id.) None of the 35 persons were arre sted for violating state laws or

14 municipal ordinances. (Id.) Further, they were all passengers in the vehicle, not drivers.

15 (Id.) Thus, their identity and immigr ation status were investigat ed during the course of a

16 stop based on the driver’s violat ion of traffic laws, even w hen that stop resulted in the

17 driver only receiving a warni ng. The MCSO made 14 total traffic stops, 11 of which

18 resulted in the 35 arrests. ( Id.) Thus, onl y three of the 14 stops di d not result i n

19 immigration arrests, all of those coming from the Fountain Hills operation. (Id.)

20

None of the arrest reports of these operations contains any description of anything

21 done by t he passengers once t he vehicle was stopped that w ould create reasona ble

22 suspicion that the passengers we re in the country without authorization. The stops wer e

23 made purely on the observation of the undercover officers that the vehicles had picked up

24 Hispanic day laborers from site s where Latino day laborers we re known to gather. It was

25 the nature of the operation that once the st op had been made, the HSU officers proceeded

26 to the scene to conduct an investigation of the Latino day laborer passengers.

27

The two news releases that covered the day labor operations com municated that

28 the operations were designed to enforce immigration laws, (“Starting at 4:00 am this

- 12 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 13 of 142

1 morning, September 27, 2007, Sheriff’s deputies began cracking down on illegal

2 immigration in Cave Creek”), and were directed at da y laborers whom the MC SO

3 perceived as coming from Mexico (quoting Sheriff Arpaio to the effect that “[a]s far as I

4 am concerned the only sanctu ary for illegal aliens is in Mexico”). (Exs. 307–08.) They

5 further encouraged citizens to report day labor locations to the MCSO as part of its illegal

6 immigration enforcement operations. (Id.)

7

2. Small-Scale Saturation Patrols

8

There was testim ony and evi dence introduced at trial concerni ng 25 patrols that

9 were described as saturation patrols but were neither explicitly identified as day labor

10 operations nor as one of the 13 large-scale saturation patrol s whose arrest reports were

11 admitted at trial. During 15 of the 25 small-scale satu ration patrols, all of the persons 12 arrested were unaut horized aliens.8 During six of the patrols, the great m ajority of all 13 persons arrested were unauthorized aliens.9 During four of these patrols, the MCSO made

14 very few total arrests and of that number only a few of the a rrests or no arrests were of 15 unauthorized aliens.10

16 8 The 2007 patrols in which all persons arrested were unauthorized aliens occurred
17 on October 30 (ten of ten arre sts), November 7 (eight of eight a rrests), November 15 18 (nine of ni ne arrests), Nove mber 21 ( 12 of 12 arrests), November 29 (ni ne of nine
arrests), December 1 (eight of eight arrests), December 5 (13 of 13 arrests), D ecember 14 19 (26 of 26 a rrests), and Decem ber 22 (t wo of two arrests). (Exs. 80, 81, 114, 120.) The 20 2008 patrols in which all persons arrested were unauthorized aliens occurred on Januar y
4 (six of si x arrests), January 5 ( four of four arrests), January 31 (t wo separate patrols) 21 (six of six arrests), February 4 (three of three arrests), and September 4 (11 of 11 arrests). 22 (Exs. 112, 114.)

23

9 The 2007 patrols in which the great ma jority of all persons arrested were

24

unauthorized aliens occurred on December 8 (16 of 17 arrests), and December 10 (five of eight arrests). (Ex. 114.) The 2008 patrols in which the great majority of all persons

25 arrested were unauthorized aliens occurred on February 29, (eight of 11 arrests), May 6–7

26

(14 of 18 a rrests), July 8 (18 of 19 arrests), and A ugust 19 (12 of 16 arrests). (Exs. 108, 117, 119.)

27 10 The 2008 patrols in which no arrests were made of unauthorized aliens occurred
28

- 13 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 14 of 142

1

The small-scale saturation pa trols seem to be divisible into two different types of

2 operations. As with day labor operations, ma ny of t hese small-scale saturation patrols, 3 particularly those con ducted before May 2008, 11 show an extrem ely high c orrelation

4 between the total number of traffic stops executed in an operation a nd the number of

5 those stops that resulted in on e or m ore immigration arrests. These sm all-scale patrols

6 with high arrest ratio s seem to have been either day labor operations or had targeting

7 elements very similar to day labor operations in that the patrols targeted vehicles that

8 picked up Latino day laborers.

9

The second type of small-sca le patrol (post-May 2008) appears to principally rely

10 on traffic patrols whic h, while using traffic stops as a pretext for enforcing immigration

11 laws, did not uniquely target vehicles who picked up day laborers. These patrols thus had

12 a higher num ber of s tops during the operation. Bot h types of sm all-scale patrols were

13 conducted at locations eith er where the MCSO had prev iously conducted day labor

14 operations or da y laborers were known t o congregate. (Exs. 76, 80, 81, 108, 112, 114,

15 117, 119, 120, 125, 175, 286.)

16

Participating deputies kept track of cert ain figures during their patrols. Although

17 there was some variation in the categories of information kept by t he deputies, the

18 deputies were always required to keep track at least of the nu mber of persons arrested for

19 federal immigration violations and the number of unauthorized aliens who were arrested

20 on state charges. ( See, e.g., Exs. 97, 102, 111.) After th e patrol, supervising officers

21 would collect the individual stat sheets a nd summarize the activity during the patrol by

22

23 on February 25 (zero of tw o arrests) and on October 10 (zero of one arrest). (Exs. 114 ,

24

125.) The 2009 patrols in wh ich a m ajority of the a rrests made were of other tha n unauthorized aliens occurred on January 23 (one of five arrests) an d May 29 (three of 11

25 arrests). (Exs. 175, 286.)

26

11 One exception is the December 2007 tr affic operation at Aguila, Wickenburg,

27 and Wittmann. (Ex. 76.)

28

- 14 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 15 of 142

1 statistical category.12 (Tr. at 1009:11–23.) After the patr ol statistics were tallied, Lt.

2 Sousa, Sgts. Madrid or Palm er, or anothe r MCSO officer would send out an e-m ail

3 briefing describing the total officer activity during the patrol. (Id. at 1010:7–12, 1133:13–

4 14, 690:23–691:3.) Sgt. Madrid would brief Sheriff Arpa io personally on how m any

5 unauthorized aliens ha d been arrested duri ng the patrol. (Id. at 1133:13–15.) He would

6 relay the num ber of people arrested for not being legally present in the country up his

7 chain of command, because he was asked fo r this information by his supervi sors. (Id. at

8 1153:16–25.) Sgt. Palmer would do likewise. (Id. at 690:23–691:3.)

9

During both types of small-scale patrols, the MCSO issued ne ws releases that

10 emphasized that their purpose was immigration enforcement.

11

a. Small-Scale Patrols with High Arrest Ratios

12

After the day labor operation at Pruitt’s Furn iture Store, the Pruitt’s area remained

13 a focal point for activists. In response to t he protests and the con tinuing presence of da y

14 laborers, the MCSO conducted 11 small-scale tr affic saturation patrols in that area in the 15 months between November 2007 and February 2008.13 Its first two large-scale saturation 16 patrols were also centered on the same area.14

17

12 Although most of the deputies’ actual statistics sheets have been destroyed, a

18 few remain and are in the re cord, although there was some variance between in the

categories of information requested for various patrols. (Doc. 235-3, Exs. 9–11.) Many if 19 not all of the summary sheets remain and are in the record.

20

13 October 30, N ovember 7, November 21, December 1, December 8, December

21 10, and December 22, 2007, and January 5, January 31, Febr uary 4, and F ebruary 25,

22

2008. The exhi bit for the Janua ry 5 patrol reports two sepa rate small-scale saturation patrols occurring on the same day—one at Pr uitt’s and one in Avondale. The operation at

23 Pruitt’s had one stop that resulted in two immigr ation arrests with a citation issued to the

24 driver.

25

14 At the Court’s request, the parties file d a stipulation concerni ng exhibits that

contained arrest inform ation associated with particular MCSO operations. That 26 stipulation omitted three follow- up operations that occurred at Pruitt’s on December 22,

27 2007, (Ex. 114 at MCS O 014904), Januar y 5, 2008, (Ex. 114 MCSO 014693), and February 25, 2008 (Ex. 114, MCSO 014533). Although, as will be detailed below, none
28

- 15 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 16 of 142

1

As a whole, the individual reports of the small-scale opera tions around Pruitt’s

2 show an extremely high correlation betwe en total stops and stops that resulted in

3 immigration arrests. Only about half of the Pr uitt’s arrest reports ke pt track of the exact

4 number of stops m ade during an operation. Others m ade general estimates o f the total

5 number of stops, stated the number of immigration arrests resulting from the total stops,

6 or stated the number of citations issued to other vehicles from which no arrest was made.

7 This information is probative of the correlation that existed between total stops and stops

8 that resulted in immigration arrests during these operations.

9

Reports of the October 30 and November 7 operations were written by Sgt.

10 Baranyos, who preceded S gt. Palmer at HS U. These reports, while not specifying the 11 total number of stops,15 nevertheless show that all recorded stops resulted in one or m ore 12 immigration arrests.16 (Ex. 114.)

13 of these reports resulted in significant arrest s either on im migration or state crim inal
14 charges, they apparently were saturation patr ols, even if sm all ones, and t he Court thus 15 considers them.

16

15 To the extent that the reports authored by Sgt. Baranyos state that “num erous”

stops were made during an operation, the Court notes that he may have had a generous

17 understanding of the wor d “numerous.” Note for exam ple his report of the October 30

18 operation in which he stated that “num erous” traffic violations occurred that resulted in four traffic stops. ( Ex. 114 at M CSO 014678.) Further, in his N ovember 15 report of a

19 saturation patrol in Mesa, Sgt. Baranyos noted that “numerous traffic stops were

20 conducted in the area w ith the following results,” and then sets forth three traffic stops that resulted in the issuance of three citations and six im migration arrests. (Ex. 120.) Hi s

21 use of t he term numerous thus suggest s that for Sgt. Baranyos four stops we re

22 “numerous” stops.

23

16 In the October 30 report, Sgt. Baranyos stated that HSU “conducted four traffic

24

stops for numerous traffic violations” and that the four stops resulted in the arrest of ten illegal immigrants. All ten were arrested for violating federal immigration law and turned

25 over to ICE for administrative processing. Wh ile the report does not establis h that each

traffic stop resulted in the arrest of at least one illegal immigrant, it does establish a high 26 number of arrests of illegal aliens for a relativ ely low number of traffic stops. The drivers

27 of all four vehicles were issued civil citati ons, and there is no ot her record of arrests or citations issued during the operation. (Ex. 114 at MCS O 014678.) Sim ilarly, in the
28

- 16 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 17 of 142

1

The next f our of the small-scale operations at Pruit t’s (taking place bet ween

2 November 21 and De cember 10) specified both the total num ber of traffic stops m ade

3 during each operation an d the number of traffic stops th at resulted in the arrest of 4 unauthorized aliens. 24 stops were made, and 21 resulted in immigration arrests.17 (Id.)

5

After the first six operations, the num ber of stops a nd immigration arrests at

6 Pruitt’s declined.18 (Id.)

7

These reports suggest that as the Pru itt’s location be came known f or constant

8

9 November 7 operation, Sgt. Ba ranyos stated that “Detectives conducted numerous traffic stops in the area “with the follo wing results.” He then se t forth four stops w hich resulted

10 in the eight immigration arrests. Sgt. Baran yos noted no other traffi c citations issued or

11

arrests occurring during the operation. All eight persons arrested were passengers in t heir respective vehicles. (Id. at MCSO 014672–73.)

12

13

17 The MC SO made four traffic stops during its Novem ber 21 ope ration. (Id. at MCSO 014893.) All four of them resulted in the arrest of persons w ho were in the

14 country illegally. ( Id.) In t he December 1, 2007 opera tion, the MCSO made five stops

15

each of which resulted in at least one federal immigration arrest. ( Id. at MCSO 014665– 67.) In its December 8 operation, nine out of ten total traffic stops resulted in the arrest of

16 at least one una uthorized resident. ( Id. at MCSO 014663–64.) In its December 10

operation three out of five stops resulted in the arrest of five unauthorized persons. (Id. at 17 MCSO 014659.)

18

18 In the December 22 summary report, Sgt. Madrid noted that one stop resulted in

19 both immigration arrests made during the operation where “s everal stops were m ade”

20 resulting in six other tra ffic citations being written to U.S. citizens. ( Id. at MCSO 014909.) In its January 5, 2008 operation t wo out of four total traffic stops resulted in

21 arrests of una uthorized aliens. ( Id. at MCSO 014693.) In his reports for Januar y 31,

22

February 4, and Fe bruary 25, Sgt. Madrid note d, apparently as a matter of form, that “several traffic stops were made.” On Januar y 31, one of these ‘several stops” resulted in

23 the arrest of two unauthorized aliens, on February 4, two of these “several stops” resulted

24

in the arrests of three unauthorized aliens. “[A] few other stops” were made “that resulted only in traffic citation.” (Id. at MCSO 014519, 014525.) In the final Pruitt’s operation, on

25 February 25, 2008, none of th e several stops resulted in the arrest of an unauthorized

26

alien—some stops resulted in traffic citations , one driver was arrested for driving on a suspended license, and anot her was arrest ed for possessing drug paraphernal ia. (Id. at

27 MCSO 014533.)

28

- 17 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 18 of 142

1 immigration patrols, bot h small and large scal e, the s uccess rate of s uch operations

2 declined. But prior to that time, the MCSO made an extraordinary number of immigration

3 arrests per vehicle pulled over. The M CSO kept the public apprised of its efforts to

4 combat illegal immigration at Pruitt’s. (Ex. 309 (“Illegal immigration activists have

5 protested at Pruitt’s every Saturday in the la st six weeks since Sheriff Arpaio’s deputies

6 began patrolling the vicinity of the furniture store near 36th Street and Thomas Road.

7 Already, 44 illegal aliens have been arrested by Sheriff’s deputies, including eight illegals

8 arrested this past Saturday during the weekly protest.”).)

9

Several of the remaining small-scale satu ration patrols that occurre d in the same

10 time frame, but did not occur at Pruitt’s, such as the small-scale patrols at Mesa, 19 Cave

11 Creek and Bell Roads ,20 35th A venue and Lower Buc keye Road,21 and in Avondale, 22

12

13

19 Three successive Mesa patrols occurre d in the same general neighborhood on November 15, November 29 and December 5, 2007. (E xs. 120, 80, 81.) For the

14 November 15 operation, S gt. Baranyos’s report details that “numerous” traffic stops and

15

one observed drug transaction resulted in four stops duri ng which MCSO made nine immigration arrests. (Ex. 120.) Reports for the Nove mber 29 a nd December 5 Mes a

16 small-scale saturation patrols were written by Sg t. Madrid. (Exs. 80, 81 .) As he did with

the last Pruitt’s reports, Sgt. Madrid noted in each report that “several traffic stops were 17 made.” (Id.) During the November 29 operation, nine immigration arrests occurred in the

18 five stops detailed in the re port—thus five of “several” traffic stops—that were all processed by IC E. (Ex. 80.) D uring the D ecember 5 Mesa operation, 13 i mmigration
19 arrests occurred in seven of “several” traffi c stops, and all arrestees were processed by

20 ICE. (Ex. 81.)

21

20 The operation at 24th Street and Bell Road took place on January 4, 2008. (Ex.

22

114 at MCSO 014512.) During this patrol, the MCSO arrested six unauthorized aliens in three traffic stops dur ing an operation in w hich five total traffic citations were issued.

23 (Id.) A total of two civil traffic citations were written to United Stat es Citizens that did

24 not result in immigration arrests during the operation. (Id.)

25

21 On January 31, 2008, the MCSO conducted a saturation patrol “ in the area of

the Durango complex” at 35th and Lower B uckeye roads. (Id. at MCSO 014519.) Three 26 stops at or close to that intersection each res ulted in the immigration arrests of a total of

27 four persons, all of whom were unauthorized but most, if not all, of whom were arrested on unspecified state charges. ( Id.) There were “a few ot her stops” m ade during this
28

- 18 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 19 of 142

1 similarly involved operations that demonstrated a rem arkably high correlation betwee n

2 the number of stops made by deputies in an operation and the number of stops that result

3 in an immigration arrest.

4

Based on the high arr est to stop ratio s in the 17 smal l-scale saturation patrols

5 discussed above, if the M CSO was not conducting day labor operations, it was 6 conducting operations very similar to them with comparable targeting elements. 23 As

7 with the day labor operations, these high-ratio small-scale saturation patrols all invol ve

8 only “several” stops at most. Yet the MCSO deputies participating in these operation s

9 made immigration arrests on a considerable majority of their recorded traffic stops. Many

10 of the stops resulted in the arrest of multip le illegal aliens for each stop. All or a

11 considerable number of thes e small-scale patrols may in fact have been da y labor

12 operations. But even if not, the high stop to arrest ratio lead s the Court to conclude that

13 the targeting factors used by the MCSO in these operations to determine whether to stop

14 the vehicles included the race and work status of the vehicle’s occupants.

15

b. Small-Scale Operations Without High Arrest Ratios

16

17 operation that “resulted only in traffic citatio n.” (Id.) Note that this report was filed as a
18 joint report for saturation oper ations that occurred both at the Dur ango complex and at Pruitt’s on the same day. The Pruitt’s operation resulted in one stop th at resulted in two
19 arrests of una uthorized persons. The D urango operation resulted in three stops tha t
20 resulted in four arrests of una uthorized persons. Both operations resulted in the arrest of six persons, who were not aut horized to be in the country, but five out of the six were
21 arrested on state charges, one was turned over to ICE. (Ex. 114 at MCSO 014519.)

22

22 On February 29, 2008, the M CSO conducted a saturation patrol in District 2 in

23 Avondale and made seven total traffic stops. Fo ur of those stops r esulted in eight arrests

24 of unauthorized aliens. (Ex. 119.)

25

23 13 of the 25 small-scale operations reflect a high ratio of total stops to stops that

26

resulted in immigration arrests. Four more Pruitt’s operations were the final small-scale operations conducted at Pruitt’s after it w ould have become appa rent that MCSO was

27 conducting repeated enforcement out of that location.

28

- 19 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 20 of 142

1

The remaining eight operations 24 continued, for the m ost part, to be located in

2 areas where, based at least on their past operations, the MCSO knew Latino day laborers

3 assembled. While many arrests were made, they arose out of a smaller percentage of total

4 stops.

5

For example, the December 14, 2007 Aguila operation pr oduced 29 arrests, 26 of

6 which were for immigration vi olations with all the immigration arrests processed 7 administratively through ICE. (Ex. 76.) 25 Those arrests, however, came from only five of

8 the 35–40 stops. ( Id.) Still, the nature of the arrests de monstrates that the operation, no

9 matter how it was carried out, was designed to engage in immigration enforcement.

10 Therefore, the persons who were stopped, contacted or cited, were all contacted with the

11 premier goal of enforcing immigration laws.

12

On May 6–7, 2008, the MCSO returned to Fountain Hills, where it had previously

13 conducted a day labor operation, and conducted a two-day saturation patrol there. During

14 the first day of t his operation, MCSO made seven traffic stops with four of those seven

15 stops resulting in immigration arrests, thus reflecting a high ratio of stops to immigration-

16 related arrests. (Ex. 108.) Se ven of the eight unauthorized persons arrested were

17 processed through ICE while one was arrested on state charges for an outstanding felony

18 warrant and an ICE detainer was attached. ( Id.) During the operation’ s second day, Sgt.

19 Palmer estimated that MCS O made approximately 20 stops. ( Id.) Only seven of those

20

21

24 The December 14, 2007 operation in A guila; the May 6–7, 2008 operation in

22 Fountain Hills; the Cave Creek operations on July 8, August 19, and September 4, 2008; the two operations at 7th Street and Thunde rbird operations oc curring on October 10,

23 2008 and January 23, 2009; and the May 29, 2009 operation in Avondale.

24

25 The MCSO conducted this saturation patr ol with the primary focus on the town

25 of Aguila and a secondary fo cus on the City of Wickenbur g and the Town of Wittmann.

26

As the earlier October 4, 20 07 MCSO news release dem onstrates, an earlier saturatio n patrol had occurred in the Wickenburg area at whic h approximately 25 una uthorized

27 aliens were arrested. (Ex. 308).

28

- 20 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 21 of 142

1 stops resulted in arrests. (Id.) Four of those seven stops resulted in the im migration arrest

2 of seven unlawful residents w ho were processed through IC E. (Id.) While eight of t he

3 total of approximately 27 stops that occurred during the two-day operation may still be an

4 impressive ratio of stops to immigration arrests, it is not as high as the ratios for the other

5 small-scale saturation patrols previously discussed.

6

That trend continue d during t he subsequent Cave Creek,26 7th Street and

7 Thunderbird,27 and Avondale 28 operations. The MCSO had previously conducted day

8 labor operations in Cave Creek, and Avondale was the site of a prior small-scale patrol

9 and two large-scale patrols. Of note is that during the September 4, 2008 operation in

10

11

26 In the first Cave Creek patrol, on Ju ly 8, 2008, the M CSO made 59 stops and

arrested 19 people. 18 of the 19 persons arre sted were unaut horized aliens. (Ex. 117.)

12 During the August 19 saturatio n patrol, the MCSO made 47 stops that resulted in 16

13

arrests, 12 of w hom were unauthorized aliens. (Ex. 109.) During the September 4 saturation patrol, the MCS O arrested 11 pers ons on 33 stops w ith all of t he persons

14 arrested being unauthorized aliens. (Ex. 114.)

15

27 The 7th Street and Thunderbird operations took place on October 10, 2008, and

16 January 23, 2009. The October 10 saturation patrol was made in response to vandalism

complaints, and only one arrest was made for a liquor violation warrant. (Ex. 125.) 17 During the January 23 saturation patrol, five arrests were made, only one of which was of

18 an unauthorized alien booked on state charges. (Ex. 286.)

19

28 The May 29, 2009 A vondale patrol was ap parently not planned in adva nce, but

20 was conducted “[d]ue to the ve ndor detail being rescheduled.” (Ex. 175.) On that date , the MCSO made 11 arrests, three of whom were unauthorized aliens and all of whom

21 were arrested on state charges ranging fr om driving on a sus pended license to open

22

container. (Id.) A vendor detail was apparently an operation in which MCSO targeted “unpermitted food vendors, which are generally peddlers using s hopping carts or

23 modified bicycles selling f ood.” (Ex. 100.) One of the goals of t he operation was to

24

enforce the County Health Code, but such operations were also targeted at unauthorized aliens as the sam e instructions about cont acting a suspe ct about hi s immigration status

25 that were eventually given in large-scale sa turation patrols were also given t o deputies

26

participating in such operations. ( Id.) Because food vendors are not by definition members of the Plaintiff class as certified in this action, the Court does not further

27 consider such operations.

28

- 21 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 22 of 142

1 Cave Creek, ten of t he 11 pers ons arrested provided their nam es, all of whic h were 2 Hispanic.29 (Ex. 112.) The single person arr ested who did not provi de his nam e was

3 nevertheless arrested on im migration charges, as were the ten others. (Id.) All were

4 administratively processed through ICE. (Id.)

5

Despite the lower stop to immigration arrest ratios, the MCSO specifically

6 identified some of these operations in news releases as an integral part of Sheriff Arpaio’s

7 “illegal immigration stance.” (Ex. 316; see also Exs. 315 (Ma y 8, 2008 ne ws release

8 describing arrests of “illegal aliens” in Foun tain Hills), 186 (July 8, 2008 news release

9 describing Sheriff’s Illegal Immig ration Interdiction Unit responding to complaints from

10 Cave Creek citizens and announcing that “in a matter of five hours, deputies conducted

11 81 interviews, in the process of m aking 59 tr affic violation stops . During those traffic

12 stops, 19 people were arrested and taken into custody, incl uding the 18 illegal aliens”),

13 332 (news release dated September 4, 2008 sta ting, “Early this morning Sheriff Arpaio’s

14 Illegal Immigration Interdiction unit (Triple I) saturated the tow ns of Cave Creek and

15 Carefree. In four short hours, eleven illegal aliens were arrested; . . . In the last two weeks

16 deputies have arrested twenty three illegal aliens in Cave Creek.”).)

17

3. Large-Scale Saturation Patrols

18

The first 13 large-scale saturatio n patrols that the MCSO conducted were the

19 principal focus of trial testim ony. The large scale saturation pat rols were preceded by,

20

21

29 At trial, the parties introduced a list of Hispanic surnames from the 1980 U.S.

22

census. (Ex. 320.) If a surname or part of a hyphe nated surname appeared on the cens us list of Hispanic surnames, the Court concluded that the name was a Hispanic name. If the

23 name did not appear on the list, the Court did not count it as a Hispanic surname even if it

24

was a close alternate spelling or the name otherw ise appeared to be Hispanic. At trial, th e MCSO noted that His panic surnames are not a flawless i ndicator of Hispanic identity.

25 Several deputies noted, for example, that Sgt. Madrid’s wife is not Hispanic although she

26

now has a Hispanic s urname. The Court acce pts that Hispa nic names are not a perfe ct indicator of Hispanic identity. A Hispanic surname is nevert heless probative of Hispanic

27 identity.

28

- 22 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 23 of 142

1 and to som e extent conducted sim ultaneously with, the smaller-scale saturation patrols.

2 The large-scale saturation patrols began in January 2008. Th ey continued until well after

3 the period that arrest reports for s uch operations were provided in evidence. Like the last

4 eight small-scale saturation patrols discussed above, large-scale saturation patrols mostly

5 consisted of enforcing traffic and other laws. Participating deputies made stops for minor

6 infractions of the traffic code tha t departed from MCSO’s norma l traffic enforcement

7 priorities. Again, once a vehicle was stoppe d, the deputies would determine whether to

8 investigate the identities of the occupants of the vehicle.

9

Unlike the small-scale saturation patrols, the large-scale operations involved many

10 more patrol deputies and covered larger areas . Lt. Sousa, who supervised the HSU as of

11 September 2007, oversaw most of the large-scale saturation pa trols either as Operations

12 Commander or De puty Operations Commander. The two H SU supervising sergeants—

13 for most such patrols, Sgts. Madrid and Palmer, and before Sgt. Palmer, Sgt. Baranyos—

14 were typically “Operations Supervisors” for such patrols. Deput ies participating in the

15 large scale patrols were frequently assign ed from multiple divisions of the MCSO,

16 whether or not the de puties were 287(g) certified. (Tr. at 697: 19–23, 1135:20–24.) Both

17 HSU and non HSU deputies who participated in such patrols investigated the identity of a 18 vehicle’s passengers.30 If non-287(g) certified officers encountered persons they believed

19 to be in the United States without authorization, they were supposed to detain the person

20 and place a radio call for a 287(g) certified deputy to respond and handle the matter.

21

Deputies assigned to participate in large-sc ale saturation patrols we re expected to

22 sign-in at a briefing that woul d take place at the command post prior to the patrol and

23

24

30 Deputies Kikes and Beeks, who testified at trial, were not 287(g) certified at the time that they participated in all or m ost of the saturation patrols, but they nevertheless

25 made immigration arrests in each such patrol . Deputy Kikes participated in at least three

26

saturation patrols, Deputy Beeks participated in at least four. They both were noted as the arresting officer in m aking 287(g) arrests during operations in which they were not

27 authorized to make such arrests. (Ex. 82 at MCSO 001851; Tr. at 1477:3–10.)

28

- 23 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 24 of 142

1 read all or parts of the operation plans at that tim e. (Id. at 995:6–11.) Lt. Sousa did not

2 distribute many copies of such operation plans because he did not want the m to become

3 available to the general public. (Id. at 1059:2–12.) Deputies were also frequently given an

4 oral briefing at the com mand post by Lt. Sousa, or other m embers of the MC SO

5 command structure at the time of sign-in. No t all participating deputies attended the 6 briefings, signed in to the operation, or read all of the operations plans.31

7

After conducting eac h large-scale satu ration patrol, MCSO created records

8 documenting arrests made on thos e patrols. (Exs. 77, 79, 82, 87, 90, 97, 102, 111, 168,

9 170, 174, 176, 179–82.) There are not complete arrest records for all such patrols, but the

10 arrest reports generally contain t he names of the persons arrested, the charges on which

11 they were arrested, the initia l reason for stopping the vehicle in which the arrested

12 person(s) were occupants, and whether the person was an unauthorized alien.

13

The first two large-scale patrols are exce ptions. The report for the January 18–19,

14 2008 large-scale saturation patr ol at Pruitt’s contains no names of arrestees, arresting

15 officers, or the probable cause that justified the initial stop. (Ex. 77.) Consequently, that

16 report is not included in many of the calculations that appear later in this Order. The

17 report for the second large-s cale saturation patrol at Pr uitt’s (March 21–22, 2008)

18 contains a list of arrestees that includes their names, but it does not ide ntify arresting 19 officers or the probable cause supporting the initial stop.32 (Ex. 79.)

20

The reports from the 11 large-s cale patrols that took place between Marc h 27,

21

22

31 The arrest records demonstrate that not infrequently an officer made an arrest

who did not sign in. For example, Deputy Kikes conducted an arrest during the saturation

23 patrol on March 27, 2008, but never signed the roster. (T r. at 616: 3–15; Ex. 82.) And

24

while virtually every HS U officer woul d participate in the saturation patrols, ( id. at 683:18–21), members of the H SU would typically not attend the briefings conducted

25 prior to the saturation patrols (Id. at 1501:18–25).

26

32 Although the arrest sheets give the nam e of 43 pe ople arrested, the tally sheet

27 suggests that 44 people were arrested. (Ex. 79.)

28

- 24 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 25 of 142

1 2008, and Novem ber 18, 2009, generally include the nam e of an arresting officer, th e

2 alleged probable cause supporting the stop, th e name of the person arrested, the charge

3 for which the person was arre sted, and whether the person was processed under 287( g) 4 for not being legally present in t he country.33 (Exs. 82, 87, 90, 97, 102, 111, 168, 170,

5 174 178.)

6

Most of the MCSO a dministrators and de puties who testified ack nowledged that

7 immigration enforcement was at least a primary purpose—if not the primary purpose—of

8 such operations. Insofar as a ny MCSO officers testified th at there was no particular

9 purpose associated with the la rge scale saturation patrols at issue other than general law

10 enforcement, their testimony is outweighed by substantial, if not overwhelming, evidence 11 to the contrary.34

12

As with the day labor operations and sm all-scale saturation patrols, participating

13

14

33 The report for the saturation patrol on Se ptember 5, 2009, does not record the

15

alleged probable cause supporting the stop. (Ex. 170). The reports for the October 16–17, 2009, and Novem ber 16–18, 2009, saturation patrols again include the nam e of an

16 arresting officer, the alleged probable caus e for the stop, a nd the charge f or which a

person was arrested. (Exs. 174, 178.) Because the MCS O’s 287(g) field authority ha d 17 been revoked by this time, they do not indicate the use of 287(g) authority, although they

18 do indicate that some detainees were turned over to ICE. (Id.)

19

34 For exam ple, Sgt. Madrid readily ackno wledged that the principa l purpose of

20 such patrols was immigration enforcement. (Tr. at 1136:11–20.) Sher iff Arpaio testified that in addition to usin g the patrols to enforce federal immigration laws, he used the

21 saturation patrols to enforce the state human smuggling and employer sanctions laws. (Id.

22

at 330:9–12.) Chief Sands testified, although somewhat reluctantly , that immigratio n enforcement was one of the purposes of the saturation patrols. ( Id. at 786:14–18, 787:5–

23 6.) Sgt. Palmer, while not acknowledging that immigration enforcement was a purpose of

24

such patrols, did acknowledge that he expect ed to arrest a large n umber of people who were not lawfully present in the country on 287( g) authority during such patrols. ( Id. at

25 688:9–11.) Lt. Sousa and Deputy Rangel denied that immi gration enforcement was a

26

purpose of such patrol s and testified that th e saturation patrols were “based on citizens’ complaints referenc[ing] criminal activity or criminal nuisance.” ( Id. at 993:24–994:1,

27 943:15–16.)

28

- 25 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 26 of 142

1 deputies were required to keep t rack of the number of unauthorized aliens they arrested

2 during the large-scale patrols and report thes e figures to their super vising sergeants. The

3 supervising sergeants compiled and s ummarized these figures to e mphasize the number

4 of unauthorized aliens arrested and sent the reports to the MCSO command structure,

5 including the public relations department.

6

The MCSO public relations department issued news releases discussing the large -

7 scale saturation patrols that either empha sized that their purpose was immigration

8 enforcement, or prominently featured the num ber of unauthorized aliens arrested during

9 such operations. (Exs. 310 (dated January 18, 2008, announces Central Phoenix operation

10 in which “Illegal Immigration Arrests [are] Anticipated”), 311 (“The Thomas Road crime

11 suppression operation around Pruitt’s Furn iture Store occurred ov er a two month time

12 period and resulted in 134 people arrested, 94 of w hom were determ ined to be in the

13 United States illegall y.”), 312 (dated Ma rch 28, 2008, announces ongoing Bell Road

14 Operation and announces 21 arrests, 12 of wh om are illegal immigrants fi ve of whom

15 were arrested on state charges), 313 (dated April 3, 2008, a nnouncing crime suppression

16 operation in Guadalupe because “tensions are escalating between illegal aliens and town

17 residents,” and further referring to Bell R oad/ Cave Creek and 32nd Street and Thomas

18 operations at which 79 of 165 arrests were determined to be illegal aliens), 314 (dated

19 April 4, 2008, announcing 26 ar rests of which five were of suspected illegal aliens), 316

20 (dated June 26, 2008, describing Mesa “illegal immigration” operation, and recent similar

21 operations in Phoe nix, Guadalupe and Fountain Hills), 330 ( dated July 15, 2008 ,

22 describing Mesa crime suppression/illegal immigration operation), 331 (dated August 13,

23 2008, describing West Valley operation desi gned to capture human smugglers and their

24 co-conspirators), 333 (dated January 9, 2 009, announcing Buckeye operation to capture

25 human smugglers and their co-conspirators, a nd “in the course of t heir law enforcement

26 duties, where illegal immigrants are found, they will be arre sted and booked into jail”),

27 334 (dated April 23, 2009 , announcing Avondale opera tions targeting “criminal

28 violations including drugs, illegal immigr ation and human smug gling”), 349 (dated

- 26 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 27 of 142

1 October 16, 2009, announcing operation in Northwest Valley targeting “all aspects of

2 illegal immigration l aws such as employ er sanctions, human smuggling, and crime

3 suppression), 350 (dat ed October 19, 2009, announcing 66 arrests, 30 of w hom were

4 suspected of being in the country illegally).)

5

a.

Operations Plans

6

The operations plans for the first three large-scale saturation patrols (two at

7 Pruitt’s, and the third at Cave Creek and Bell Roads) were very rudimentary. Those plans

8 did not include any language regarding officers’ use of race, or their discretion (or lack

9 thereof) in m aking stops a nd arrests. (Exs . 75, 79, 82.) They in cluded the following

10 instructions: 1) “All criminal violations en countered will be dealt with appropriately,”

11 and 2) “Contacts will only be made with valid PC”. (Id.; see also Tr. at 996:14–17.)

12

The operations plan for the MCSO’s fourth large-scale saturation patrol on Apri l

13 3–4, 2008, at Gua dalupe contained more detail. It gave brief instruction on the primary

14 (criminal and traffic enforcement) and second ary (public relations contacts with citizens

15 in the community) objectives of the patrol. (Ex. 86.) It provided separate paragraphs on

16 “Conducting traffic stops on saturation patrol, ” and “ Conducting interviews

17 reference a contact or vi olator’s citizenship.” (Id. (emphasis in original).) The revis ed

18 instructions also included a sentence that required MCSO officers to book a nyone that

19 they observed committing a criminal offense. (Id.)

20

1) Instructions on Conducting Stops

21

A paragraph in the instructions specified that “[a]ll sworn personnel will conduct

22 all traffic stops in accordance with MCSO Policy and Procedures, as well as training

23 received at the basic academy level. Note: At no time will MCSO personnel stop a

24 vehicle based on the race of the subjects in the vehicle (racial profiling is prohi bited).”

25 (Ex. 86.) That general instruction remained in operation plans for many of the operations

26 thereafter, (Exs. 90, 97, 102, 111, 169, 174), a nd was further incorporated into the Triple

27 I team protocols, (Ex. 90 at MCSO 001888).

28 / / /

- 27 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 28 of 142

1

2) Instructions on Investigating Citizenship

2

The next paragraph i n the operations plans contained specific instructions both to

3 officers who were 287( g) certified, and those who were not, about “ [c]onducting

4 interviews reference a contact or violator’s citizenship” during a large scale saturation

5 patrol. (Ex 86 (emphas is in original).) Certified 287(g) officers were instructed that they

6 could conduct interviews regarding a person’s citizenship status onl y “when indicators

7 existed per the U.S. Immigra tion and Nationality Act, Title 8 U.S.C. § 1324, 287g and

8 training received during the 287g training cour se.” (Exs. 86, 90, 97, 102, 111, 169.) The

9 plans did not incl ude the indicators set forth in § 1324, but pr ovided as an example that 10 “[t]he violator does not have a valid identification and does not speak English.”35 (Ex.

11 86.)

12

“287g” refers to the secti on of the act, codified at 8 U.S.C. § 1357(g), that

13 authorizes ICE to certify local law enforcement authorities to enforce federal immigration

14 law. That section itself, howe ver, provides no indicators as to unaut horized presence.

15 Nonetheless, as will be further discussed below, the plan’s reference to “training received

16 [by MCSO officers] during the 287g training course” explicitly authorized MCSO

17

18

35 In fact, while in appropriate circumstan ces an inability to sp eak English and an

inability to provide a drivers’ license may be indicators of unauthorized presence, neither

19 is an indicator listed under § 1324. Section 1324 is the federal criminal smuggling statute,

20 which provides criminal penaltie s to anyone who “knowing th at a person is an alien, brings to or attempts to bring to the Unite d States in any manner whatsoever such person

21 at a place other than a designated port of en try.” 8 U.S.C. § 1324 (a)(1)(A)(i) (2006). To

22

determine whether the person being sm uggled in such circumstances is an alien, the statute provides that any of the thr ee following indicators shall be evidence “that an alien

23 involved in the alleged viola tion had not received prior official authorization to come to,

24

enter, or reside in the United States”: a) records of proceedings i n which it was determined that a person was not lawfully present, b) official State Departm ent

25 documents showing that the person was not granted authorization to enter the country, or

26

c) testimony by a federal imm igration officer with personal knowledge that a person is not legally present in the country. Id. § 1324( b)(3)(A–C). The statute is silent on ci vil

27 immigration violations or factors like not speaking English or not carrying identification.

28

- 28 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 29 of 142

1 deputies to consider race as one factor among others in fo rming reasonable suspicion in

2 an immigration enforcement context that a person is in the country without authorization.

3

The instructions also noted that a non-287(g) certified officer could detain persons

4 she or he believed were violating immigration law pending the arrival of a 287(g) officer,

5 but “at no t ime” could such a “deput y call for a 287(g) certified deputy based on race.”

6 (Exs. 86, 97.) However, this instruction was modified for subsequent saturation patrols to

7 indicate that “at no time will a deputy ca ll for a 287g certified deputy based just [or only]

8 on race.” (Exs. 90 at MCSO 001898, (Mesa saturation patr ol in June 26–27, 2008)

9 (emphasis added), 102 (Sun Cit y saturation pa trol in August 2008) (“at no tim e will a

10 deputy call for a 287g certified deputy based just on race”), 111 (Januar y 2009 in

11 Southwest Valley), 169 (September 2009 in Southwest Valley) (“at no time will a deputy

12 call for a 287g certified depu ty based only on race”).) Thes e instructions were also

13 incorporated into th e III strike team protocols. (E x. 90 at MCSO 001888.) This

14 modification made the MCSO’s policy on how race could be considered consistent with

15 the instructions given to 287(g) certified officers about conducting interviews.

16

When presented with an operation plan which stated that officers could not call for

17 a 287(g) certified deputy “based just on race,” Sgt. Palmer confirmed that this meant that

18 officers could call a 287( g) certified officer based on race in co mbination with other

19 factors. (Tr. at 783:3.)

20

3) Instruction to Book All Criminal Offenders

21

The operation plan also contained limited instruction concerning those individuals

22 deputies were required to arrest duri ng saturation patrols. This inst ruction specified in

23 bold print that “All criminal offenders will get booked .” (Ex. 87.) These instructions,

24 then, while not indicating ho w deputies should handle ci vil violations, presum ably

25 removed the discretion to issue crim inal citations or give only warnings for minor

26 criminal conduct. According to the instruction, if the deput y witnessed or becam e aware

27 of criminal conduct during th e operation, she or he m ust arrest a nd book the criminal

28 offender. A similar instruction appeared in the operation plans for many of the large-scale

- 29 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 30 of 142

1 saturation patrols thereafter. (Exs. 86, 90, 97, 102, 111, 169, 174.)

2

b. Large-Scale Saturation Patrol Results

3

By the Court’s count, of the 727 arrest s recorded during la rge scale saturation

4 patrols, 347—nearly half—were of persons who were not in the country legally. (Exs. 77,

5 79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176, 179–82.) Th e MCSO itself arrived at an

6 even higher figure. (Ex. 359 (Ma rch 18, 2010 news release stating that, “[a]ccording to

7 the Sheriff, the 13 previous two-day crime- suppression operations netted a total of 728

8 arrests. Some legal U.S. residents were arrest ed but of the 728 t otal arrests, 530 or 72%

9 were later determined to be illegal aliens.”).)

10

During the large scale saturation patrols fo r which arrest records were placed in

11 evidence and last names were available, 496 out of 700 total arrests or 71% of all persons

12 arrested, had Hispanic surnames . (Exs. 79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176,

13 179–82.) 341 of those arrests in volved immigration-related offenses. (Id.) Of the 583

14 people who were arrested during saturation patrols that took place while the MCSO had

15 287(g) authority, and where records of the l ast names were kept, 414, or 71%, appeared

16 to have Hispanic surnames. (Exs. 79, 82, 87, 90, 97, 102, 111, 168, 170.) That percentage

17 remained consistent after ICE revoke d the MCSO’s 287(g) authority—even then, 82 of

18 the 117 arrests (70%) in volved a person wit h a Hispanic surname. (Exs. 174, 176, 179–

19 82.)

20

c. ICE’s Revocation of the MCSO’s 287(g) Authority

21

Prior to the actual revoca tion of 287(g) authority (announced in early October and

22 effective on October 16, 2009) MCS O began noting in its news releases that “a move is

23 underway to suspend [Sheriff Arpaio’s] 287 G agr eement.” (Ex. 353.) ICE be gan

24 refusing to accept some of the persons th at were arrested during MCSO saturation

25 patrols. (Exs. 128, 342.) A nd in saturation patrols the MCSO began for what appears to

26 be the first time to arrest some unauthorized aliens on t he charge of conspiring to violate

27 the Arizona hum an smuggling law instead of making an arrest on federal im migration

28 charges. (Ex. 168.)

- 30 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 31 of 142

1

Moreover, sometime before July 15, 2009, Chief Sands asked Sgt. Palmer to

2 conduct legal research into whether the MCSO had authority to enforce immigration law

3 absent the authorization of the Department of Homeland Sec urity. (Tr. at 702: 19–24.)

4 Sgt. Palmer conducted an inte rnet search, and copied his fi ndings into an e-mail to Chief

5 Sands on July 15, 2009. ( Id. at 703:11.) The e-mail stated that “State and local law

6 enforcement officials have the general power to investigate and arrest violators of federal

7 immigration statutes without IN S knowledge or approval, as long as they are authorized

8 to do so by state law.” (Ex. 269.) It continued, “[t]he 1996 immigration control legislation

9 passed by Congress was intended to encourage states and local agencies to participate in

10 the process of e nforcing federal immigration laws.” (Id.) The e-mail provided as a 11 citation for this proposition “8 U.S.C. § 1324(a)(1)(A)(iv)(b)(iii).”36

12

That section of the U nited States Code did not the n and does not now e xist.

13 Nevertheless, it apparently pr ovided the im petus for Sheriff Arpaio’s public statements

14 that the MCSO maintained th e authority to make immigration arrests despite ICE’s

15 suspension of 287( g) authority. In his interview with Glenn Beck a few days after the

16 effective date of the ICE re vocation, Sheriff Arpaio stated that MC SO officers retained

17 the authority to enforce federal immigration law because it had been granted by “that law

18 in 1996, part of the comprehe nsive law that was passed, it’s in there.” (Tr. at 364:24–

19 363:5.)

20

In such interviews the Sh eriff stated that the revocation of 287( g) authority did

21 not end the MCSO’s attempts to enforce fe deral immigration law. At the time of the

22 revocation the MCS O had approxim ately 100 field deputies who were 287( g) certified.

23 (Exs. 356, 359, 360.) Shortly after the revoca tion of his 287(g) authority, Sheriff Arpaio

24

36 Sgt. Palmer also wrote an email to Lt . Sousa which claimed that “all violations

25 of the INA are federal cri minal violations.” (Tr. at 708:16–19.) During his 2010

26

deposition, Sgt. Palmer test ified that t he MCSO had i nherent authority to enf orce immigration laws, based on training he had received from Kris Kobach. (Id. at 698:23–

27 699:7.)

28

- 31 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 32 of 142

1 decided to have all of his de puties trained on illegal immigr ation law. According to the

2 MCSO, that training enabled all MCSO deputies to make immigration arrests. An MCSO

3 news release dated March 18, 2010 notes:

4

Arpaio recently ordered that all 900 sw orn deputies be prop erly trained to

5

enforce illegal immigration laws, a move m ade necessary after the recent decision by De partment of H omeland Security to take away the federal

6

authority of 100 de puties, all of wh om had been form ally trained by I CE

(Immigration and Customs Enforcement) to enforce federal immigration

7

laws.

8

‘They took away the ability of 100 fe derally trained deputies to enforce

9

immigration laws, and so I replaced th em with 900 sworn deputies, all of

10

whom are now in a position to enfo rce illegal immigration laws in

Maricopa County,” Arpaio said.

11 (Ex. 359; see also Exs. 356, 358 (MCS O news release dated March 1, 2010 stating that

12 “[t]hese arrests are a result of Sheriff Joe Arpaio’s recent promise to ensure that all 900 of

13 his sworn deputies receive training on the enforcement of illegal immigration laws.”),

14 360, 362.)

15 This training erroneously instructed MCSO deputies that a person wit hin the

16 country without authorization was necessarily committing a fe deral crime, and they thus

17 maintained the authority to de tain them for criminal viola tions. (Tr. 699:3–700:17.) Sgt.

18 Palmer continued to provide such instru ction and training until December 2011, when

19 this Court entered its injunctive order pr eventing the MCSO from detaining persons on

20 the belief, without more, that those persons

were in this co untry without legal

21 authorization. Ortega-Melendres, 836 F. Supp. 2d at 994.

22 At the same time, Sheriff Arpaio gave in terviews to the national and local pres s in

23 which he asserted that if a person is in the country without authorization that person has

24 necessarily committed a criminal offense. “They did commit a crime. They are here

25 illegally.” (Tr. at 362:17–21.)

26 After the revocation of his 287(g) authority the Sheriff continued to run numerous

27 saturation patrols that focused on arres ting unauthorized immigrants. (Exs. 350

28

- 32 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 33 of 142

1 (“[D]eputies turned over a to tal of 19 of the 30 suspecte d illegal aliens who were not

2 charged for any state violations to Im migration and Custom Enforcement officials

3 without incident.”), 358, 359 (i n the 13 previ ous operations 530 of 728 arrests were of

4 illegal aliens), 361, 362 (in the 14 previous operations, 436 of 839 arrests were of illegal

5 aliens, 78 of 111 arrests in most recent ope ration were of illegal aliens), 363 (63 of 93

6 arrests of illegal aliens), 367.) In such operations he continued to arrest and turn over to

7 ICE the unaut horized aliens that his deput ies arrested during these patrols. (Ex. 360

8 (MCSO news release noting that 47 of 64 pe ople arrested in a post-revocation saturation

9 patrol were illegal aliens. 27 of those 47 were arrested on state charges with the

10 remainder being turned over to ICE”).) At tr ial, Sheriff Arpaio testified that he has

11 continued to enforce “the immigration laws, human smuggling, employer sanction” as he

12 did previously. (Tr. at 473:23–474:2.)

13

In sum, according to the Sheriff, the loss of 287(g) authority did not affect how the

14 MCSO conducted its immigration related operations, including the saturation patrols. (Id.

15 at 469:23–470:5). The Sheriff still maintains the right and intention to conduct such

16 operations today. (Tr. at 330:9–14, 469:20–470:2; 473: 5–474:7; 474:20–24.) Sheriff

17 Arpaio testified that the last saturation patr ol the MCSO conducted prior to trial occurred

18 during October 2011 and was conduct ed in sout hwest Phoenix. (Id. at 474: 8–13.)

19 Nevertheless, the Sheriff tes tified that the MCSO continues to e ngage in immigration

20 enforcement even though not us ing saturation patrols to do s o. (Id. at 474: 14–24.) He

21 noted during his test imony that in t he two weeks prior to trial, the MCSO arrested

22 approximately 40 una uthorized aliens, and t hose that it couldn’t charge with a state

23 violation it successfully turned over to ICE. (Id. at 502:25–503:6.)

24

Once the MCS O lost its 287(g) author ity, it revised its oper ation plans for

25 saturation patrols. See Section I.D.3.a, supra. While the MCSO con tinued to assert the

26 authority to arrest and detain persons it

believed to be i n the country without

27 authorization but could not arrest on state charges, it had no practical authority to process

28

- 33 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 34 of 142

1 them absent the participation of ICE. 37 Neither the MCSO, nor any state authority, ha d

2 any prerogative to initiate rem oval proceedings, authorize voluntary departure or, in

3 appropriate cases, bring crim inal immigration charges against such persons. See, e.g.,

4 Arizona v. United Stat es, ___ U.S. ___, ___, 132 S. Ct. 2492, 2506–07 ( 2012); Reno v.

5 Am.-Arab Anti-Discrimination Comm., 525 U. S. 471, 483–484 ( 1999) (federal

6 government retains exclusive discretion on these matters); Martinez-Medina v. Holder,

7 673 F.3d 1029, 1036 (9th Cir. 2011).

8

Accordingly, the MCSO revised its opera tion plans for the la rge scale saturation

9 patrols. Lt. Sousa directed either Sgt. Palm er or Sgt. Madrid to draft what became known

10 as the LEAR Protocol. (Tr. at 1056:14–23.) The LEAR protocol states that “IF a Deput y

11 Sheriff believes with reasonable suspicion he has one or m ore illegal aliens detained

12 AND there are no state charges on which to book the subject(s) into jail THEN the

13 Deputy will follow the LEAR Procedures outlined below.” (Ex. 174.) An officer is to call

14 a field supervisor to location when he “has indicators as outlined above leading him to

15 believe (Reasonable Suspicion) a violator or other subject he is in lawful contact with is

16 in fact an illegal alien in the United States.” ( Id.) Thus the LEAR protocol authorized the

17 deputy to detain the individual prior to further processing from ICE.

18

Thereafter, the protocol requires the MCSO field supervisor to obtain and “provide

19 a brief summary of the contact, including how the contact was made and what indicators 20 exist that lead to the belief the person is an illegal alien.” 38 (Id.) The operational plans

21

22

37 In a press interview, Sheriff Arpaio apparently stated, however, that if ICE refused to take them he would “l oad them on a bus and drive them to the border.”(Ex.

23 348.) But aside from this comment in a newspaper article admitted into evidence, there is

24 no evidence that the MCSO actually did, or is doing so.

25

38 The LEA R procedures require the field supervisor to ens ure that a detailed

written record of the encounter is made that includes “all inform ation concerning the 26 contact with any illegal aliens as well as any LEAR contact.” (Ex. 174.) It specifies that

27 “information that will be recorded includes . . . the full and com plete name of the illegal alien(s), the alien’s DOB, full descriptors, an address in AZ if obtainable, the Deputy’s
28

- 34 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 35 of 142

1 continue to specify that “ICE LEAR will want to talk with the suspected illegal alien via

2 cell phone in order to confirm illegal alie n status in the United States. ICE LEAR will

3 determine if their unit will respond to take custody of the illegal alien.” ( Id.) The policy

4 further specifies that “[a]ny person detained solely for illegal alien status in the U.S.

5 whom LEAR refuses to respond for AND for which there is no ot her probable cause to

6 detail WILL be immediately released from custody.” (Id.)

7

MCSO drafted, placed in effect, and trained all of its deputies on this policy. (Tr.

8 at 1055:14–1056:13, 1069:17–1070:18, 1076:11–18.) This polic y remains in force at the

9 MCSO. In determining who m ay be present without authorization for purposes of

10 application of the LEAR Po licy, Lt. Sousa noted that MCSO officers “still had the

11 [287(g)] training,” so they could “definitely” still use the i ndicators from that training in

12 carrying out the LEAR policy. (Id. at 1007:6–11.)

13 II. SPECIFIC FINDINGS

14

Based on the facts presented at trial, the Court dra ws the fol lowing factual

15 conclusions:

16

1. The purpose of the saturation pa trols discussed abov e was to enforce

17

immigration laws.

Many MCSO administrators a nd deputies who testified acknowledged that 18

immigration enforcement was at least a primar y purpose, if not the prim ary purpose, of 19

saturation patrols. During all types of saturati on patrols discussed above, all participating 20

deputies were required to keep t rack of the number of unauthorized aliens they arrested 21

and report these figures to their supervising sergeants. The supervising sergeants 22

compiled and summarized these figures to e mphasize the number of un authorized aliens 23

arrested and the reports were sent to the MCSO command structure, including the public 24

relations department. 25

26 name and serial num ber making the origi nal contact, a phone num ber to reach the 27 Deputy” and “the person the supervisor spoke to at LEAR.” (Id.)

28

- 35 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 36 of 142

1

The MCSO public relations departm ent issued news releas es discussing the

2 saturation patrols. These news releases eith er emphasized that the patrols’ purpose was

3 immigration enforcement, or prominently feat ured the number of unauthorized aliens

4 arrested during suc h operations. Most of t he time, the reports ignor ed any other arrests

5 that took place.

6

The large-scale operation plans contained instructions on initiating investigations

7 into the citizenship status of persons contacted during the operation.

8

The arrest records also su pport this conclusion. Every person arrested during the

9 day labor operations was arrested on im migration charges. The vast m ajority of persons

10 arrested during sm all-scale saturation patr ols were unaut horized aliens. Finally, a

11 significant number of persons a rrested during the large-scale saturation patrols were

12 unauthorized aliens.

13

2. ICE trained HSU officers that it was acceptable to consider race as one

14

factor among others in mak ing law enforcement decisions in an immigration context.

15

The testimony of M CSO officers and de puties makes clear that ICE training

16 allowed for the consideration of race as a factor in making immigration law enforcement

17 decisions. At trial, Sgt. Palmer testified that ICE training permitted the use of race as on e

18 factor among many in stopping a vehicle, (Tr. at 715:3–19), and that ICE trained him that

19 “Mexican Ancestry” could be one among other factors that would provide him reasonable

20 suspicion that a person is not lawfu lly present in the United States ( id. at 715:9–12). Sgt.

21 Madrid testified that he was trained by ICE that a subject’s race was one relevant factor

22 among others that officers coul d use to develop reasonable suspicion that a subject was

23 unlawfully present in the United States. (Id. at 1164:4-12.)

24

Lt. Sousa testified at his deposition that since he was not 287(g) certified and his

25 sergeants were, when it came to what ICE taught in 287(g) tr aining regarding the use of

26 race, “I would have to rely on my sergeants, ” and that “when we start getting into all the

27 specifics, that’s when I lean on my sergeants. ” (Doc. 431-1, Ex. 90 at 56:15–19.)

28

- 36 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 37 of 142

1 Nevertheless, Lt. Sousa testified at trial that it was his understanding that ICE officers

2 taught MCSO deputies in their 287(g) training that while race could not be us ed even as

3 one factor when making an initial stop, it coul d be used as one of a number of indicators

4 to extend a stop and investigate a person’s alienage. (Tr. at 1016:3–7.)

5

Similarly, the ICE 287(g) training m anual expressly allows for c onsideration of

6 race. The 287(g) training manual for January 2008 that was admitted in the record cites to

7 United States v. Brignoni-Ponce, 422 U.S. 873 (1975), for the proposition that “apparent

8 Mexican ancestry was a relevant factor” that could be used in form ing a reasonabl e

9 suspicion that a person is in the country without authorization “but standing alone was

10 insufficient to stop the individuals.” (Ex. 68 at 7.) In referring to Brignoni-Ponce, the ICE

11 materials go on t o observe that “[t]his is an administrative case but it also applies in

12 criminal proceedings” and further notes that “[a]n example of this in action in the

13 criminal context is t hat a LEA Officer cannot stop a vehicle for an investigation i nto

14 smuggling just because the occupants appear Mexican.” (Id.)

15

Alonzo Pena, ICE’s Special Agent in Charge of Arizona at the time that ICE

16 began its 287( g) certification training of MCSO officers, testified that it was his

17 understanding that officers with 287(g) authority can form a reasonable suspicion that a

18 person is unlawfully present when “several factors in combination” are present, with race

19 being one of those factors. (Tr. at 1831: 17–832:19.) Agent Pena does not believe that

20 race is sufficient in and of itself to give rise to such suspicion, but he does believe that

21 race can be a factor in forming such a suspicion. (Id.)

22

3. In an immigration enforcement context, the MCSO did not believe that

23

it constituted racial profiling to consider race as one factor among others in ma king law enforcement decisions. Its written operational

24

plans and policy descriptions confirme d that i n the c ontext of

immigration enforcement, the MCSO could consider race as one factor

25

among others.

26

The MCSO has no general written po licy concerning raci al profiling. ( Id. at

27 465:18–24.) In his trial testim ony the Sheriff acknowledged that he had earlier testified

28

- 37 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 38 of 142

1 that the MCSO does not need a training pr ogram to prevent racial profiling because he

2 did not believe the MCSO enga ges in racial profiling. ( Id. at 466:16–19.) He further

3 testified that he believes that the MCSO is “the most trained law enforcement agency in

4 the country with the five weeks of training from the government, [presumably the 287(g)

5 training for those deputies who received it] , academy training, in-house training.” (Id. at

6 465:21–24.)

7

The large-scale saturation patrol operati on plans written after April 2008 refer

8 deputies to the MCSO Academy training they received a bout racial profiling. MC SO

9 witnesses who testified concerning t he Academy training stated that they received brief

10 and generalized instruction re garding racial profiling, but could remember nothing else 11 about it.39 There was no testimony that such traini ng defined racial profiling or provided

12 any instruction to officers on how to proce ed in the circumstances present in Maricopa

13 County when the MCSO decided to enforce immigration laws.

14

In addition to the Academy training, Sgt. Madrid testified th at Lt. Sousa would

15 also “yell” at the briefings prior to the large-scale saturation patrols that “we don’t

16 racially profile . . . several times to make sure everybody was clear.” ( Id. at 1191:5–7.)

17 Again, no definition of “racia l profiling” was provi ded during those instructions, and no

18

39 Deputy Rangel testified that he was traine d not to “racially profile” as part of a

19 course on criminal law, and received no f urther academy or in-service training from the

20 MCSO on racial bias. (Tr. at 899:4–10.) Deputy Armendariz believed the MCSO training was part of a basic ethics class, and descri bed it as follows: “I believe it was short and

21 sweet, and we don’t racial profile.” ( Id. at 1549:17–20.) He rememb ers being told not to

22 racially profile, but has never received a definition of what “racial profiling” meant. (Id.at 1151:18–21.) Deputy DiPietro does not recall how the term “racial profiling” was defined

23 during his traini ng prohibiting raci al profiling. ( Id. at 320:3–5.) Whe n asked if he wa s

24

trained at the MCSO academy regarding the prohibition on ra cial profiling, Sgt. Palmer stated that he “believe[s] there was” such training. ( Id. at 753: 3–6.) Sgt. Madrid states

25 that he is “sure there was” training at the academy level prohibiting racial profiling, but

26 that “I don’t specifically remember it now.” (Id. at 1214:17–19.)

27

28

- 38 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 39 of 142

1 examples of what would constitute “racial profiling” were offered. ( Id. at 1215:5–12.)

2 Further, as Lt. Sousa himself tes tified, when he issued s uch oral instruction he also told

3 those assembled that he knew that they were not racially profiling, but that he was giving

4 the briefing “to remind you of what people are saying out there and being proactive.” (Id.

5 at 1024:18–21, 1025: 6–8.) According to hi s testimony a prim ary reason he issued the

6 instruction was not because he deemed it necessary, but so he could demonstrate to the

7 public that his officers were re ceiving such instruction and testify during this lawsuit that

8 he had in fact issued such instructions. (Id. at 1025:12–17.)

9

The MCSO introduced in evidence an electronic bulle tin board posting on the

10 MCSO’s electronic “Briefing Board” for Oc tober 21, 2008, where the MC SO published

11 its Illegal Immigration Enforcement Protocols. That posting repeated the instruction t hat

12 also appeared in the large-scale saturation patrol operations plans after April 2008. “At no

13 time will sworn personnel stop a vehicle base d on the race of any subject in a vehicle.

14 Racial profiling is pr ohibited and will not be tolerated .” (Ex. 92 at 3 (e mphasis in

15 original).) All those who testified in this la wsuit agreed that it c onstituted impermissible

16 “racial profiling” for a law enforcement o fficer to stop a person for a law enforcement 17 purpose based uniquely or primarily on a person’s ra ce.40 Nevertheless, a num ber of

18

40 Sheriff Arpaio testified when presente d with a hypothetical example of a la w

19 enforcement officer stopping a person solely because of his race, that “that woul d be

20

racial profiling.” ( Id. at 468:21–469:5.) MCSO ’s police practice s expert, former Dalla s Police Chief Bennie Click defined “racial prof iling” as “the unlawful, discriminatory

21 practice of treating race, ethnicity or skin color as a primary indication of criminal

22

conduct.” (Ex. 1070 at 43 (emphasis added) .) Agent P ena defined “racial profiling” as “picking an individual for law enforcement action based so lely on his race and no ot her

23 particular criteria,” and understood that ICE 287(g) certification process included training

24

that racial profiling was prohibited under th is definition. (Tr. at 1818:24–1819:3.) Agent Jason Kidd of ICE defined “racial profiling” as “the use of race as a determ ining factor

25 for a law enforcement activity.” ( Id. at 1388:15–16.) Lt . Sousa went so far as to testify

that it would constitute “racial profiling” to make a law enforcement contact based on 26 race, even as one among other factors. ( Id. at 1015:7–11.) Deputy Kikes testified that

27 when instructed not to engage in racial profiling, that meant that “[y]ou don't just pick on the—the Chinese, the Americ ans, the whites, the blacks , the browns, the greens.
28

- 39 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 40 of 142

1 MCSO witnesses also testified it was appropri ate to consider race as one factor among

2 others in making law enforcement decisions in an immigration enforcement context.

3

As the operations plans themselves an d other public pr onouncements of the

4 MCSO make plain, w hile officers were prohib ited from using ra ce as the only basis to

5 undertake a law enforcement i nvestigation, they were allo wed as a matter of policy a nd

6 instruction to consider race as one factor among others in m aking law enforcement

7 decisions in the cont ext of im migration enforcement. For example, while prohibiting

8 racial profiling ge nerally, the operations pl ans simultaneously instruct MCSO officers

9 that they may consider the race of persons they encountered as one factor among others

10 in making law enforcement deci sions. First, according to th e operations plans, a 287(g)

11 certified officer should initiate investigations into a person’s citizenship status “whe n

12 indicators existed per . . . the training received during the 287g training course.” (Exs. 86,

13 90, 92, 97, 102, 111, 169.) The testimony at trial was unif orm that duri ng their 287( g)

14 training course MCSO officers were taught that they could use race as one indicator

15 among others in forming reason able suspicion that a person was in the country without

16 authorization.

17

Second, the operations plans instructed MCSO officers who were not 287( g)

18 certified that they should not summon a 287(g) certified officer to the scene to investigate

19 a person’s immigration status based only on that person’s race. (Ex. 90 at MCSO 001898;

20 Exs. 102, 111, 169.) I n discussing this instruction at trial, both Sgts. Palm er and Madrid

21 testified that, under such instruc tion, MCSO officers could consider the race of the

22 subject as one factor am ong others in making such a determination; they just could not

23

24

Anybody and everybody who had a violation was to be stopped; was to be c ited; was to be pulled over.” ( Id. at 612:10–13.) Deputy Armendariz, an HSU deputy, testified that

25 ICE training provi ded a list of indicators with which to do investigations. He does not

26

recall if race was one of the indicators. ( Id. at 1486:19–1487:13.) Deputy Ratcliffe stated that during his 287(g) training, he was taught that there was “no place for” the use of race

27 in making law enforcement decisions. (Tr. at 1355:8–10.)

28

- 40 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 41 of 142

1 consider the subject’s race as the only factor. (Tr. at 782:8– 11, 783:3, 1 162:14–23,

2 1170:5–15.) This testim ony reasonably acknowledged the obvious: that while MCS O

3 policy prohibits using race as th e only or sole factor, it still pe rmits an officer to use race

4 as a factor in making a law enforcement decision.

5

The MCSO’s frequently-issued news rele ases reflect this understanding. In one,

6 the MCSO described its policy pertaining to decisions about whom to pull over during

7 these operations. (Ex. 342.) Li ke the operation pl ans, the policy described in the news

8 release prohibits racial profiling without de fining the term, while at the same ti me

9 permitting the use of race as a factor in an officer’s decision to pull over a vehicle. ( Id.)

10 In the news release the Sheriff is quoted as saying, “All stops will be made in full

11 accordance with Sheriff’s Office policy and procedures and at no time will any vehicle be

12 stopped solely because of the race of the occupants in side that vehicle. Racial profiling is

13 strictly prohibited, Arpaio says.” (Id. (emphasis added).) In interpreting similar langua ge

14 in the oper ations plans that governed w hen a non-certified deputy shoul d summon a

15 certified deputy to initiate an immigration investigation, Sgts. Palmer and Madrid noted

16 that in prohibiting such a deputy from acting so lely based on the race of the subject, th e

17 policy permitted the deputy to c onsider race as one factor am ong others in deciding to

18 act. (Tr. at 782:8–11, 783:3, 1162: 14–23, 1170:5–15.) This same understanding woul d

19 apply to the MCSO policy that pr ohibits using race as the sole factor in decidi ng to pull

20 over a vehicle during a saturation patrol. (Ex. 342.)

21

Further, as is discussed below, both Sgts. Palmer and Ma drid testified that so long

22 as there was a legitimate basis for an officer to pull over a vehicle for a traffic infraction,

23 there was by definition no raci al profiling involved in the st op. For example, Sgt. Palmer

24 testified that if, in reviewing arrest reports, he saw that a de puty had reported that he ha d

25 reasonable suspicion t o justify a stop that meant the deputy did no t engage in “racial

26 profiling.” (Tr. at 724:22–725:1.) Sgt. Madrid testified that if he determined that an

27 officer had probable cause to make a stop, he “wouldn’t even suspect” that the officer had

28 engaged in racial profiling. (Id. at 1172:20–23.)

- 41 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 42 of 142

1

Thus, as illustrated by these operation plans and news releases, while the MCS O

2 did prohibit racial profiling, it understood racial profiling to m ean making law

3 enforcement decisions based exclusively on racial factors. The MCSO did not understand

4 this term, in an immigration c ontext, to prohibit th e use of race as a factor am ong others

5 in making a law enforcement d ecision. Thus, MCSO deputies could consider race as one

6 factor in stopping a vehicle or initiating an i nvestigation so long as race was not the sole

7 basis on which deputies made that decision. Accordingly, the Court finds that the MCSO

8 operated pursuant to policies that, while pr ohibiting “racial profili ng,” did not require

9 MCSO officers to be race-neutral in decidi ng how to act with respect to immigration

10 investigations; the policies mere ly required that race not be the sole reaso n for their

11 decision.

12

4. The MCSO considered Latino ancestr y as one fact or among others in

13

choosing the location for saturation patrols.

The MCSO almost always scheduled its day la bor and sm all-scale saturation 14

patrols where Latino da y laborers congregated; the same is true for a considerable 15

number of its large-scale saturation patrols. 16

The MCSO witnesses uniformly testified that there is nothi ng about being a day 17

laborer per se that is illegal. But, a s both the testimony at trial and a num ber of MCSO’s 18

news releases demonstrate, in selecting lo cations for day la bor, small-scale and large 19

scale saturation patrols, the MCSO equated being a day laborer with being an illegal 20

alien. (Exs. 307 (news release describing a crackdown on illegal aliens at a day labor 21

center), 308 (news release entitled “Sheriff Arpaio Goes After Day Laborers”), 309 (news 22

release referring to “illegal immigrant da y laborers” and “pro-illegal day laborer 23

supporters” who “continue to protest the Sheriff’s MCSO po licies at Pruitt’s Furniture 24

Store”), 310 (anticipating the arrest of m any unauthorized aliens in the Pruitt’s location 25

because it remains a popular spot for day laborers), 311 (news release which noted “there 26

are two legal day laborer centers in the Be ll Road area which are ‘magnets for more 27

illegal aliens’”); see also Doc. 453 at 150 ¶ 36 (the MCS O acknowledges that m any 28

- 42 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 43 of 142

1 MCSO officers thought day laborers were illegal aliens).) It is presumably for this reason

2 that the MCSO news releases invited Maric opa County citizens to report day laborers to

3 the MCSO on its immigration hotline. (Ex. 3 09 (“The Sheriff recently initiated an Illegal

4 Immigration Hot Line . . . to help citizens report information rega rding illegal aliens.

5 Since the tip line was implem ented, over 120 calls of 2,100 have been received

6 specifically about day laborers.”).)

7

Theoretically, the MCSO could have select ed sites for operations due onl y to the

8 presence of day laborers absent any racial considerations. A da y laborer is neither

9 necessarily Latino nor unauthorized. And there is nothi ng about being a day laborer that

10 is, in and of itself, illegal. (Tr. at 386:17–22, 1193:8–9, 864:2–4.) But the MCSO did not

11 conduct operations in which it simply checked the identity and immigration s tatus of all

12 day laborers. Nor did it present at trial eviden ce that would suggest that during the time it

13 had 287(g) authority, it had a reasona ble basis on which to form a suspicion that any day

14 laborer, regardless of race, was an unauthorized alien. Rather, pursuant to at least its own

15 policy, the MCSO had to ha ve a basis unde r Arizona law to stop and question persons

16 prior to checking their immigration status. When the MCSO’s underlying purpose was

17 immigration enforcement and not traffic en forcement it implemen ted that policy by

18 directing patrol vehicles to follow and strictly enforce all requirements of the traffic code

19 against vehicles that picked up Latino day l aborers. Sgt. Madrid, and Deputi es Rangel

20 and DiPietro confirmed that the purpose of t he day labor and sm all-scale operations was

21 “to investigate day laborers for their i mmigration status.” (Tr. at 1152: 12–14, 792:1–24,

22 908:8–11, 1137:6–8.)

23

The evidence demonstrates that the MCSO specifically equated being a Hispanic

24 or Mexican (as oppos ed to Cauc asian or A frican-American) day laborer with being an

25 unauthorized alien. (Exs. 308 (M CSO news release asserting that the onl y sanctuary for

26 illegal alien day laborers is in Mexico), 310 (MCSO news rele ase asserting that despite

27 the anticipated arrest of ma ny “illegal aliens” the MCSO is not engaged in racial

28 profiling.), 311; see also Doc 453 at 150 ¶¶ 28–30 (the MCSO a cknowledging that the

- 43 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 44 of 142

1 Sheriff and MCSO deputies believed the ove rwhelming number of illegal aliens in

2 Maricopa County are from Mexico and South America).) In his testimony Sheriff Arpaio

3 acknowledged that he woul d not investigat e Caucasians for im migration compliance

4 because it would not have occurred to him that they were in the country without

5 authorization. (Tr. at 441:22–4 42:3.) For the totality of all of the MCSO operations in

6 which it targeted and arrested day laborer s, Chief Sands could not ide ntify a single

7 instance in which the MCSO arrested a day laborer who was not Hispanic on any charge.

8 (Doc. 530 at 1 ¶ 84.) Similarly, there is no evidence that undercover officers directed

9 patrol officers during day labor operations to stop vehicles that had picked up da y

10 laborers that were not Latino. Thus, the Court concludes as a m atter of fact t hat MCSO

11 officers, who believe d that La tino day laborers were una uthorized, centered da y labor

12 operations in locations where specifically Latino day laborers assem bled, and w here

13 MCSO deputies perceived they had a higher likelihood of encountering persons present

14 in the country in violation of immigration laws. The logistics of such operations, together

15 with other evidence intr oduced at trial, show that the MCSO used this com bination of

16 race and work status in determ ining where to locate operati ons in which it would target

17 vehicles for pretextual enforcement of tra ffic regulations to investigate imm igration

18 status.

19

However, several MCSO witnesses testified that the locations for these operations

20 were selected in response to complaints about day laborers being involved in other illegal

21 activity, and not principally to enforce immigrations laws against Hispanics. While the

22 Court recognizes that a single law enfor cement operation can se rve multiple purposes,

23 and that law enforcement offi cials are entitled to considerable deference in locating and

24 conducting their operations, th e Court does not credit such testimony because, among

25 other reasons, there are in the record some direct connections between a citizen complaint

26 regarding Hispanics and Latinos congre gating in a certain area and an MCSO

27 enforcement action.

28 / / /

- 44 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 45 of 142

1

A. The Cave Creek day lab or operation w as not in respons e to

2

public safety issues presented by the gathering of day laborers.

According to the news rel ease issued by the MCSO after the first Cave Creek 3

operation, the genesis for that operation was “tips received on [Sheriff Arpaio’s] newly 4

implemented illegal immigration hotline” abou t a local church providing assistance to 5

day laborers. (Ex. 307.) Acco rding to the news release, the day laborers also caused 6

“public safety issues al ong Cave Creek Roa d.” (Id.) However, on Septem ber 19 and 22, 7

2007, several days previous to the Septem ber 27 ope ration, Latino HSU officers went 8

undercover to the church, signed up for work, and verified the presence of day laborers 9

inside the church parking lot. The undercover reports detailed that the Good Shepherd of 10

the Hills congregation allowed day laborers to “sign-in” and wait “inside their propert y” 11

to be employed, in turn, by those who wished to hire day laborers. (Ex. 122.) The Church 12

would post a sign outside on th e street, noting the availability inside the property of day 13

laborers for hire. ( Id.) The underc over investigation discovered “no i nformation 14
pertaining to forced la bor, human smuggling, or possible ‘drop houses.’” 41 (Id.) And, of 15

course, the reports c ontained nothing about the day la borers in t he church parki ng lot 16

causing public safety problem s along Cave Creek Road. Nevertheless, on the September 17

27, the MCSO conducted a day labor operation at the church. 18

As the undercover reports indicated, the day laborers gathered ins ide the parking 19

lot of the church. Thus, the day labor operation at the church was not conducted because 20

the day laborers presented public safety is sues on Cave Creek Road. Further, no arrests 21
were made or citations issued du ring the operati on on such a basis. 42 Thus while the 22

23

41 In an email sent on September 24, 2007, Deputy Sean Ross informed Lt. Sousa

24

that Deputies Rangel and G onzalez had gone to the c hurch undercover. (Ex. 122.) At trial, Deputy Rangel denied that he had done so. (Tr. at 908:12–19.)

25 42 There is evidence that day laborers ga thered at other locations in Cave Cree k
26 that may have caused such problem s. For example, when a day labor operation wa s

27 scheduled for a Cave Creek loc ation several weeks later, deputi es discovered that the problem along Ca ve Creek R oad was at l east temporarily cured by a Cave Creek anti-
28

- 45 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 46 of 142

1 Court credits the news release to the extent that it announced the results of an operation

2 launched at a Church that assisted day labo rers, it does not credit the statement that the

3 operation was in response to traffic problems along Cave Creek Road.

4

B. The Queen Creek day labor oper ation was a response to citizen

5

complaints about the presence of Hispanic day laborers.

The second day labor operation in Queen Creek on October 4, 2007, was also 6

connected to a specific complaint regarding Hispanic da y laborers. Two days before the 7

operation, the Q ueen Creek Tow n Manager had forwarded a c omplaint to Lieutenant 8

D’Amico—who was the MCSO lieut enant in charge of the MC SO district incorporating 9

Queen Creek—that had been or iginally sent to the Qu een Creek Mayor and t own 10
council.43 (Ex. 219.) In the comp laint, the author states that a Hispanic man jeered at her 11

on the corner of Ocotillo and Ellsworth. ( Id.) According to the e-ma il “He then ran back 12

to another Hispanic man and exchanged high fives while both laughed.” (Id.) The e-mail 13

further stated “[t]hen as I turned right another Hispanic man on the same corner, gave me 14

what I w ould describe as a very intim idating look. Kids passing this area whe n on t he 15

school bus have seen Hispan ic man [sic] take out cell ph ones and look like they wer e 16

taking a picture of the kids. These men have whistled or made other noises at very young 17

teenage girls.” (Id.) 18

The next day, October 3, Lieutenant D’Amico forwarded the complaint to 19

Lieutenant Sousa, the com mander of the HS U. (Id.) The day after that, October 4, the 20

HSU conducted a day labor operation at the corner detailed in th e complaint—Ocotillo 21

22 loitering ordinance that had recently becom e effective and the MC SO presence in the

23 area. As a result they enga ged in no da y labor operations and the onl y person on whom

24

they conducted a traff ic stop was apparently not eligible for “287g action.” (Ex. 121.) Follow-up patrols took place at both the c hurch and along the Carefree Highway in Cave

25 Creek during the following year. (See, e.g., Ex. 186.)

26

43 The Town Mana ger appears to have for warded the complaint at the request of

27 Lieutenant D’Amico. (Ex. 219.)

28

- 46 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 47 of 142

1 and Ellsworth. (Id.)

2

When he was presented wit h the exhi bit containing the e-ma il complaint and its

3 transmission history at trial, Sh eriff Arpaio testified that he could not tell whether any of

4 the conduct complained of in the exhibit was criminal, but would have referred the matter

5 for investigation. (Tr. at 390:16–391:5.) He further testif ied that the e-mail complaint

6 would not have resulted in the Queen Creek operation by the MCSO without some

7 conclusion that a crime had been committ ed because the MCSO does not just “go

8 grabbing people on street corners unless we have a crime committed .” (Id. at 392:14–15.)

9 He further testified that the MC SO would not have had time to mount the Queen Creek

10 operation between the time that it received the complaint a nd the time that the operation

11 occurred two days later, because it takes three to four weeks to plan such an operation.

12 (Id. at 393:6–14.) At any rate, he testified, th ose who were arrested in the Queen Creek

13 operation were arrested by the MC SO for committing state crimes, ( id. at 392:16–93:5),

14 and thus their arrest presum ably did not demonstrate that MCS O was conducting

15 operations against Lat ino day laborers purely on the basis that they were Latino day

16 laborers.

17

However, as the contemporaneous reco rds and ot her testimony demonstrate,

18 Sheriff Arpaio’s testim ony in this respect is incorrect. On the sam e day as the Queen

19 Creek operation, Lt. Sousa forwarded the e-mail complaint to Paul Chagolla, who ran the

20 MCSO’s public relations, with a designati on of high im portance. The MC SO swiftly

21 issued a news release that day titled “She riff Arpaio Goes After Day Laborers.” It

22 confirmed that the operation was in response to the citizen’s complaint. The news release

23 noted: “[t]oday, Maricopa County Sheriff’s Joe Arpaio’s Offi ce [sic] Illegal Immigration

24 Interdiction Unit (Triple I), responding to Qu een Creek citizen complaints regarding day

25 laborers harassing school children at a bus stop, arrested 16 more illegal alien s under the

26 federal immigration laws.” The news release further noted “[c]iti zens complained that

27 day laborers are shouting at the children and photographing them at the bus stop.

28

- 47 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 48 of 142

1 Sheriff’s deputies contacted the 16 illegals during traffic investigations.”44 (Ex. 308.)

2

The news release directly refers to the com plaint received by Lie utenant Sousa

3 only a da y before as the reason for the operation regarding Hispanic day laborers, and

4 notes that the operation was run by t he Illegal Immigration Interdiction Unit. (Id.) As the

5 news release also states, the 16 persons were arrested not fo r state crimes, but for federal

6 immigration violations and tur ned over to ICE. ( Id.; Ex. 129.) Thus, the evidence

7 demonstrates that on October 4, 2007, t he MCSO conducted a small-scale saturation

8 patrol on the corner of Ells worth and Ocotillo, based on a complaint transmitted to the

9 MCSO on October 2 that Hispanic day laborers congregated there.

10

C. The Pruitt’s day labor operations were a response to complaints

11

of day laborers and illegal immigration.

By October 2007, the MCSO had been awa re for two years that the area around 12

Pruitt’s Furniture Store was a si gnificant gathering spot for Latino day laborers. In late 13

November 2005, the Sheriff received a letter from the Mi nuteman Civil Defense Corps, a 14

group of citizens concerned about illegal immi gration who conducted “protest ralli es” at 15

day labor sites and pick up poi nts throughout the val ley. (Ex. 385.) In their letter to 16

Sheriff Arpaio they identified two significant day laborer centers, one at 36t h Street and 17

Thomas (“Pruitt’s”), and the other at Cave Creek and Bell Roads. ( Id.) The letter 18

described how the past weekend there had be en around 100 da y laborers, 30 minuteman 19

protestors, six members of the American Civil Liberties Union (“ ACLU”), and members 20

of the media to report on “the day[‘]s activities” at the Pruitt’s site. (Id.) The letter further 21

22

44 This news release also refers to the Sheriff’s previous enforcement efforts in

23 Wickenburg and Cave Creek that resulted in 34 arrests of unauthorized persons. Because

24

the September 27 Cave Creek operation resulted in 9 arrests, the Court infers, pursuant to its Order, (Docs. 261, 493) t hat a previous day labor operation at Wickenburg resulted in

25 the arrest of 25 una uthorized aliens. The news release further claims that “[s]ince the hot

26

line began operating 96 illegal aliens have been arrested by Sheriff’s deputies.” (Ex. 308.) The Court thus infers that other operations occurred in which 46 other unauthorized

27 aliens were arrested.

28

- 48 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 49 of 142

1 informed the Sheriff that “[w] e will hold these rallies every Saturday until the end of the

2 year,” and complained that neither Phoe nix Police nor IC E would res pond to t he

3 Minutemen’s request to investigate day laborers. (Id.)

4

The letter, which equated da y laborers with illegal immigrants, stated that the

5 Minutemen “want to work with an organization that is willi ng to investigate and deport

6 illegal immigrants when they are spotted in our cities,” and furt her asked “[i]s it

7 unreasonable to ask our police to question day laborers about their immigration status?”

8 (Id.) Sheriff Arpaio s uggested an internal meeting about how to respond to this group.

9 (Tr. 329:7–11; Ex. 385.) Althou gh the MCSO’s actions at th ese locations almost two

10 years after the date of the letter is hardly a direct response to t he letter, the letter and

11 Sheriff Arpaio’s notations on it dem onstrate the MC SO’s knowledge of the group, the

12 day labor centers of which it complained, and that these locations were areas of activism

13 and press coverage regarding immigration issues.

14

The Friday before the Mo nday, October 15 operation occurred, MCSO Detective

15 Gabriel Almanza had a conversation with a doctor whose office was located in the

16 commercial complex ad jacent to Pruitt’s and who was also aware of an apparent

17 successful operation previously conducted by the MCSO at the day labor locations at

18 Cave Creek a nd Bell Road. Th e detective asked the doctor to send him an e-mail

19 memorializing their conversation. (Ex. 124.) The doctor did so.

20

After commenting that “what you did ou t at 25th St. and Bell was wonderful!” 45

21 the e-mail complained of the high concentration of day laborers who were illegal

22 immigrants and congregated in the commerc ial complex at 36th Street and Thomas. (Id.)

23 According to her e-mail, the day laborers were all illegal “because they admit it when

24 asked.” (Id.) She complained that th ey harassed her patients, made sexual innue ndos,

25

26

45 The M CSO was thus apparentl y involved in sim ilar unreported operations at 25th St. and Bell Roa ds. The Cour t therefore infers, pursuant to its order, ( Docs. 261,

27 493), that previous day labor operations occurred at 25th St. and Bell Roads.

28

- 49 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 50 of 142

1 trespassed, loitered, littered, blocked sidewalks, urinated and defecated on the property

2 and “showed their bellies” to everyone. ( Id.) The doctor also co mplained that the

3 neighborhood had becom e a fo cal point in which neighbor hood residents had regular

4 showdowns with Hispan ic Rights advocates since the ow ner of Pruitt’s Furniture Store

5 had forced the day laborers off of his property. ( Id. (“Reza & Gutierrez staged a large

6 chanting protest at Pruitt’s to shut Pruitt’ s out of business for kicking them off his

7 property,” and “Salvador Reza & Alfredo Gu tierrez come out here every other week &

8 tell these workers they can do anything they want anytime and are protected. We know

9 this because [O]fficer Ruelas said they told him this & we see Reza out here all the

10 time.”).)

11

The following Monday, October 15, 2007, the HSU conducted a day labor patrol

12 in this location. (Ex. 131.) Although MCSO successfully sought to have the complainant

13 document her complaint in an e-mail, MCSO’s resulting oper ation was not targeted at

14 those persons who committed the acts co mplained of. Rather, during the day labor

15 operations at Pruitt’s, just as with the prev ious operations, the MCSO targeted vehicles

16 picking up day laborers and arrested them only on federal immigration charges. (Id.)

17

A week later, the MCSO also conducted a day labor operation in Fountain Hills

18 based on information provided by local businesses that day laborers were in the area with

19 no other specific complaint being made. (Doc. 123) All persons were arrested on federal

20 violations and turned over to ICE.

21

Despite the yield from the Pruitt’s operati on being disappointing to Sgt. Madrid,

22 (see, e.g., Ex. 131 (“It should be no ted that this area had far le ss day laborers in the area

23 than our two previous details completed by HSU.”)), the MCSO continued to run its

24 small-scale saturation patrols at and around that location because of the activism and

25 resulting media focus that the location had drawn. (Ex. 309.)

26

In its December 5, 2007 news release, th e MCSO noted that Sheriff “Arpaio is set

27 to increase the presence at Pruitt’s of his Illegal Immigration Interdiction Unit (Triple I)

28 this weekend, as pro-illega l immigration demonstrators and illegal immigrant day

- 50 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 51 of 142

1 laborers continue to protest his illegal immi gration policies on the driveways of the

2 Pruitt’s Furniture Store.” (Ex. 309.) The news release furthe r observed that “[i]llegal

3 immigration activists have protested at Pruitt’s every Saturday in the last six weeks since

4 Sheriff Arpaio’s deputies began patrolling the vicinity.” ( Id.) In response, Sheriff Arpaio

5 pledged to keep running such operations until the activists stopped their prot ests. “This

6 weekend, I will increase the number [of] de puties to patrol the Pruitt’s area, and I

7 promise that my deputies will arrest all viol ators of the state and federal immigration

8 laws. . . . I will not give up . All the activists must stop their protest before I stop

9 enforcing law in that area.’” ( Id.; see also Ex. 124 (noting the repeated presence of press,

10 and Hispanic activists Alfredo Gutierrez and Salvador Reza).) This scheduling of small-

11 scale patrols in response to the activities of ac tivists may be equally or more indicative of

12 Sheriff Arpaio’s desire to gene rate media attention of his im migration enforcement

13 activity than of the MCSO’s us e of race in selecting locati ons for patrols. Nevertheless,

14 the selection of this location because of the pr esence of Hispanic activists is indicative of

15 the MCSO’s focus on illegal immigration on conducting patrols, and its general

16 association of day laborers with illegal immigration.

17

D. The Mesa small-scale patrols we re in response to complaints

18

about illegal immigration and “Mexicans.”

Contemporaneous with the small-scale operations scheduled at Pruitt’s, the MCSO 19

began conducting similar small-scale patrols in Mesa in response to citizen complaints. In 20

late September 2007, Sheriff Arpaio reviewed transcribed comments from the M CSO’s 21

immigration hot line. One of the callers stated: “[w]e have called the non-emergency and 22

illegal hot line numerous times and nobody gets all the Mexicans hanging out at Mesa Dr. 23

between Southern and Broa dway. Why isn’t anything being don e?” (Ex. 375.) The 24

Sheriff highlighted that hot line entry and sent the comment and his annotation t o Chief 25

Sands and Deputy Sheriff He ndershott, and placed a co py of the com ment in hi s 26

immigration file. (Id.) 27

Beginning on November 15, 2007, the MC SO conducted three separate saturation 28

- 51 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 52 of 142

1 patrols in that sam e neighborhood (Broadway and Stapley), with stops and arres ts

2 occurring in the sever al square m iles surrounding that intersection. Alm ost all persons

3 arrested during t hese operations were trans ported to I CE and processed for violating

4 federal immigration law, although a few were also processed on state charges.

5

E. The large-scale patrols were conducted to target Hispanic

6

unauthorized immigrants.

As with the day labor and small-scale sa turation patrols, many of the large-scale 7

saturation patrols wer e centered either on l ocations where day la borers gathered, or on 8

locations that had a high c oncentration of Latino residents. Chief Sands testified at trial 9

that although he w ould take direction from Sheriff Arpaio if he ever gave it in 10

designating a location for a large-scale saturation patrol, it was generally Chief Sands that 11

selected the locations. (Tr. at 707:16–18, 809:20–810:3, 814:21–815:1, 824:24–825:6.) 12

He acknowledged that in selecting som e of the locations he consid ered complaints from 13

members of the public and from businesses about day labor activity. (Id. at 790:5–791:11, 14

814:21 25.) However, he testified that that he would not conduct a saturation patrol based 15

solely on a complaint that did not allege violations of law. (Id. at 795:18–21.) 16

When considered in light of the reasons the MCSO contemporaneously gave in the 17

news releases that announced the pending operations, this testimony is not quite as 18

persuasive. As the news release announci ng the first large scale saturation patrol 19

demonstrates, the principal reason the site was chos en was because, even after the 20

departure of the activists, the location remain ed a gathering spot for day laborers which 21

the MCSO knew to be Hispanic. The news release quoted the Sheriff as saying that 22

23

[t]he protestors who support the ille gal immigration m ovement may have left the area, but the problems that caused Pruitt’s Furniture Store to

24

contract with the Sheriff’s Office fo r security still exist. . . . The posse

volunteers and deputy sheriffs will not racially profile anyone in this

25

operation . . . . Still, I anticipate th at many illegal immigrants will be

26

arrested as this central Phoenix ne ighborhood remains a popular spot for

day laborers. All criminal violations will be subject to arrest which means if

27

we come across illegals, properly traine d officers will be there to enforce

28

the state and federal immigration laws.

- 52 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 53 of 142

1 (Ex. 310.) The next large-scale saturation patrol operation likewise centered on this same

2 location.

3

When the MCSO initiated its third large-scale saturation patrol at the intersection

4 of Cave Creek and Bell Road, the MCSO news releases again demonstrate that this site

5 was chosen because of the presence of Latino day laborers. The MCSO stated that the site

6 had two day laborer centers which are “magnets for more illegal aliens” and which create

7 an atmosphere detrimental to business. (Ex. 311 (“Hundreds of the Sheriff’s volunteer

8 armed posse member and depu ties will migrate today . . . from central Phoenix and the

9 Thomas Road area to 25th Street and B ell Road” to assist with the atmosphere

10 detrimental to business created by “the gr owing number of day l aborers in the area.”).)

11 The news release goes on to not e that th e operation would addr ess at least “two day 12 laborer centers in the Bell Road area wh ich are ‘magnets for more illegal aliens.” 46 (Id.)

13 Further, this was the location th at, together with the Pruitt’s location, the Minuteman had

14 identified to the MCSO two years earlier as a freque nt day labor location. Finally, the

15 MCSO had previously conducted the January 4, 2008 small-scale saturation patrol at this

16 location (Ex. 114) and at least one earlier operation for which records were not submitted

17 at trial.

18

The fourth large-scale saturat ion patrol occurred on April 3–4, 2008, at

19 Guadalupe. (Ex. 87.) The M CSO also consid ered race as one factor am ong others in

20 selecting Guadalupe as the site for a large- scale saturation patrol . Although the news

21 release announcing t he operation stated that Guadalupe was selected because “tensions

22 are escalating between illegal aliens and town residents,” (Ex. 313), there was no

23

24

46 Chief Sands testified that he planned a saturation patrol on Bell Road and Cave Creek Road because Sheriff Ar paio requested that he condu ct a saturation patrol there

25 after receiving a written request from ten business owners. (Tr. at 797:15–20.) Chief

26

Sands is not aware of any effort made by th e MCSO to investigate the claims made by the small business owners, interview them, or check the sources of the letter in any way

27 before planning and executing the saturation patrol. (Id. at 797:24–798:15.)

28

- 53 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 54 of 142

1 testimony or evi dence as to how the MCSO came to that conclusion. Chief Sands

2 testified that he does not nece ssarily consult crime data to select saturation patrol

3 locations, and would not use an increase in crime to determine where to have a saturation

4 patrol. (Tr. at 787:25–788:8.) He testified that any crime an alysis he did conduct would

5 be attached to the saturati on patrol operation plans. ( Id. at 789: 10–13.) The operations 6 plans for the saturation patrol in Guadalupe have no crime analysis attached.47

7

Further, the only docum ent in evidence that even suggests a reason for the

8 operation is an e-mail written by Lt. Siem ens to various contacts in the police

9 departments of the adjacent municipalities in advance of the patrol that des cribes the

10 operation as a respons e to the MCS O District 1 Com mander’s complaint of increased

11 criminal and gang activity in the area. (E x. 87 at M CSO 001876–7.) No m ention of

12 “illegal aliens” is made.

13

It is also clear that the MCSO did not conduct the saturation patrol at the req uest

14 of the town. In fact, during the middle of the operation, the town mayor asked the MCSO

15 to cease the operation and leave. (Ex. 314 (d ated April 4, 2008, announcing that the

16 results of the first day of the saturation patrol, and furt her noting that the Mayor ha d

17 asked the Sheriff to leave town ).) In response to the Guadalupe Mayor’s request to leave,

18 the MCSO issued a news release quoting Sheri ff Arpaio as saying that “the Sheriff stil l

19 has jurisdiction here and I will still enforce the illegal immigration laws in Guadalupe.”

20

47 Chief Sands acknowledged that, alt hough occasionally he assembled crime

21 statistics for the areas in whic h a large-scale saturation patrol was planned, the locations

22

for such operations were not t ypically selected as a result of comparing crime rates among different valley locations, (Tr. at 789:19 –22), or an increase or spike in crime in

23 any particular location ( id. at 787:16–788:8). The nature of crime statistics and analysis

24

attached to those plans that have them vary: some provide local crime statistics indicating a spike in a particular area (Ex. 168 at MCSO 057002–03), some provide only statistics

25 on the raw numbers of m ajor crimes in a city over the past quart er (Exs. 90 at MCSO

26

001890, 97 at MCSO 001937), some provide information on immigration enforcement in an area (Ex. 111 at MCSO 0 01557–58), and some, like Guadalupe, include no crime data

27 at all (Ex. 102).

28

- 54 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 55 of 142

1 (Id.) This appears to be a m ore frank as sessment of the MC SO’s purpose for t he

2 operation. Because the MCSO’s purpose for the operation was to enforce immigration

3 law, and it believed that the vast majority of illegal immigrants in Maricopa County were

4 Hispanic, the Court concludes the MCSO desired to conduct such an oper ation in a 5 neighborhood densely populated with Hispanic residents. 48

6

After conducting its small-scale patrols in Guadalupe, the MCSO conducted the

7 fifth and sixth large scale operations in Mesa,49 the eighth and ninth large scale saturation

8 patrols in Avondale (MCSO’s District II)50 (Ex. 111), and the eleventh large-scale patrol,

9

10

48 According to the 2 010 United States Census Bureau , 62.2% of t he residents of

11

Guadalupe are of Hispan ic or Latino origin. State & C ounty Quickfacts: G uadalupe (town), Arizona, http://quickfacts.census.gov/qfd/states/04/0430270.html. A court may

12 take judicial notice of facts that “can be accurately and readily determined from sources

13

whose accuracy cannot reasonabl y be questioned.” Fe d. R. Evid. 201( b)(2). The Ninth Circuit has determined that censu s data m eets these requirem ents. United States v.

14 Esquivel, 88 F.3d 722, 727 (9th Cir. 1996).

15

49 In addition to the hotline complaint, Ex. 375, that prompted the initial Mesa

16 small-scale saturation patrols in November and December 2007, (Exs. 80, 81, 121),

Sheriff Arpaio had received , and referred to Chief Sa nds for action, additional 17 communications about day labor locations in the City of Mesa th at associated such

18 locations with Latinos before holding the large-scale satura tion patrols there. (Exs. 223 (May 8, 2008 letter complaining that illegal immigrants “know little to nothing about this
19 country other than the fact th at welfare is better here than in M exico,” and noti ng that

20 “[l]iving in Mesa, I can drive down any of the streets where day laborers (most of whom, I would believe to be here illegally) gather and wait for work” yet Mesa city police do not

21 inquire about their citizenship), 244 (May 24, 2008 letter complaining of Mesa declining

22 to investigate illegals due to Hispanic head of Mesa po lice union and MCSO Hispanic deputies, and also complaining of the “30+ illegals that were on all four corners” at

23 Norton’s corner and other Mesa and southe ast valley locations). In his opera tions plans,

24

the Sheriff also noted that he was responding to the invitations of East Valley legislators in scheduling his large-scale saturation patrols in Mesa. (Exs. 90 at MCSO 001881, 97 at

25 MCSO 001929.)

26

50 A second, and apparently i mpromptu, small-scale saturation patrol again

27 occurred there on May 29, 2009, (Ex. 175), after these two large-scale patrols.

28

- 55 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 56 of 142

1 in the Durango area on the 35th Ave. corridor in September 2009 (Exs. 169–70).51 Due to

2 its previous day labor and small-scale saturation operations, the MCSO at least knew that

3 Latino day laborers assembled in these areas. Unlike the firs t three large-scale saturation

4 patrols, however, there is no evidence in the record that these patrols were covered by

5 advance news releases that di rectly stated that the reason for the site selection was the

6 presence of day laborers. To the extent th at these large-scale patrols included more

7 officers and covered larger ge ographic areas than the small- scale patrols that preceded

8 them, the fact that the large-scale operatio ns covered areas in whic h the MCS O had

9 previously conducted successful smaller-scale operations makes considerations of race in

10 their selection somewhat more attenuated.

11

Of the additional large-scale patro ls that followed, the record is clear that at least

12 three of them —the seventh and t welfth in t he far northwest valle y and t he tenth in the

13 southeast valley—occurred in locations f or which the Sheriff had received pre vious

14 complaints about the presence of Mexicans or day la borers or both. The MCSO held the

15 first of its two operations in the Sun City area on Augu st 13–14, 2008, and the second

16 slightly more than a year later on October 16–17, 2009. (Exs. 102, 103, 174.) While this

17 general area had not been the location of a reported small-scale saturation patrol, the

18 operation occurred s lightly more than a week after Sheriff Arpaio reviewed

19 correspondence from two separa te constituents. The first correspondence, dated August

20 1, 2008, cam e from a Sun City wom an who co mplained of Spanish being spoken in a

21 McDonald’s at Bell Road and Boswell and requested that the Sheriff rid the area of

22 illegal immigrants. (Ex. 237 .) The Sheriff anno tated the memorandum indicating h e

23 would look into it and copied it to Brian Sa nds on August 5, noting that the letter was

24 “for our operation.” ( Id.) On August 8, 2008, the Sheriff was sen t another e-mail that

25

26

51 The MC SO had earlier conduct ed a sm all-scale saturation patrol at 35th A ve. and Lower Buckeye Road with high arrest ratios on January 31, 2008. (Ex. 114 at MCSO

27 014519.)

28

- 56 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 57 of 142

1 stated, “I would love to see an im migrant sweep conducted in Surprise, specifically at the

2 intersection of Grand and Greenway. The area contains dozens of day workers attempting

3 to flag down m otorists seven days a week.” The Sheriff reviewed the e-mail on Augus t

4 13 and had a copy sent to Brian Sands and Lita at the PLO on that same date. (Ex. 235.)

5

The first day of the two-da y operation, however, was on the sam e day the Sher iff

6 annotated the second e-mail and sent it to Chief Sands. Thus, he would not have had time

7 to plan the operation after having read the e-mail. Further, Sheriff Arpaio’s notation on

8 August 5 that the complaint was “for our operation,” sugges ts that an operation had

9 already been planned and that the letter served to justify it, rather than serving as the

10 motivation for the site selection. Moreover, in announcing the operation, the MCSO news

11 release stated in part that during the operation it w ould be “traveling w ell known

12 smuggling routes” on I-17 in the nort h county area. (Ex. 331.) The operation did appear

13 to result in the arrest of five separate human smuggling loads with at least three of those

14 loads being stopped on I-17 and thus not in locations that were the subject of the

15 correspondence. (Ex. 102 at MCSO 001974.)

16

The tenth saturation patrol occurred on July 23–24, 2009, in the Southeast valley.

17 (Exs. 128, 168.) To be sure, the Sheriff had receiv ed and referred for action at least one

18 previous letter which com plains of day labor locations in the southeast valley areas that

19 were covered by this patrol. (Ex. 244.) Nevertheless, the letter had been sent a full year

20 earlier. (Id. (dating the letter at May 25, 2008).) Thus, while the MCSO was aware of day

21 labor locations in the southeast valley area covered by the patr ol, the July 23–24, 2009

22 patrol was not a direct response to the May 24, 2008 complaint.

23

The thirteenth and final la rge-scale saturation patrol di scussed in detail at trial

24 occurred on a countywide basis. (Ex. 176.) Such a ge neralized location can support no

25 inference that it was selected as a result of the race of the persons who inhabit it.

26

At trial, Plaintiffs attempted to draw a direct link between citizen complaints

27 received by the MCSO that referred to racial or ethnic characteristics of persons in

28 particular locations and the correspondi ng scheduling by MCSO of a saturation patr ol in

- 57 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 58 of 142

1 those locations. Plaintiffs have establishe d such a di rect link between the day la bor

2 operations in Cave Cr eek and Q ueen Creek in October 2007, and the three sm all-scale

3 saturation patrols in Mesa in November and December 2007. In those patrols, the MCS O

4 responded directly with saturation patr ols to complaints abou t the gathering of

5 “Hispanic” and “Mexican” da y laborers without s ufficient indication that they were

6 otherwise engaged in violations of state or m unicipal law. To t he extent that Plaintiffs

7 attempted to establish such a direct link be tween citizen complaints about operations in

8 Sun City and or elsewhere, th ey have not met their burden of proof that the operations

9 were planned in response to the specific ci tizen complaints about ethnicity. Nevertheless,

10 due to the MCSO’s conflation of racial and w ork status indicators in loc ating these

11 operations, Plaintiffs have establ ished that as a whole, in the site selection for all of the

12 MCSO’s day labor operations, most of their small-scale patrol operations, and m any of

13 their large-scale patrol operations, race was a factor, among others, to the extent that the

14 MCSO sought to base such oper ations around locations at which Latino da y laborers

15 were known to assemble.

16

5. All saturation patrols relied on pre-textual stops as a b asis to

17

investigate the occupants of a vehicle.

Even when it had 287(g) authority, the MCSO, pursuant to its own policy, did not 18

directly stop persons that it believed to be in the country without authorization. 19

20

287g trained deputies can’t contact so meone just because they think they are here illegally. 287g deputies can only screen people reference their

21

immigration status that they come across during their duties as a Deput y

Sheriff and then indicators must exist per the US Immigration and

22

Nationality Act, Title 8 US C, 287g, before screeni ng can take place (must

23

have probable cause or reasonable suspicion to contact a violator or suspect

for state criminal and civil statutes). 24
(Ex. 92.) 25
Thus, even when the purpose of an oper ation was to enforce federal immigration 26
laws, as with the operations at issue in this lawsuit, MCSO deputies first needed a basis in 27
state law to contact and detain the persons they sought to screen. The saturation patrols at 28

- 58 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 59 of 142

1 issue in this lawsuit all invol ved traffic stops used as a pretext to detect those occupants

2 of automobiles who m ay be in this count ry without authorization. ( Tr. at 837: 1–17.)

3 Defendants have neve r asserted that they st opped vehicles during the saturation patrols

4 based solely on a reasona ble suspicion tha t the drivers or passengers were not legall y

5 present in the country. Instead, they stopped the vehicles because of traffic violations and

6 then investigated occupants for immigration offenses once the stops had been made.

7

6. During saturation patrols, part icipating deputies conducted many

8

stops for minor violations of the traffic code

, including minor

equipment violations. This dep arts from MCSO’s traffic enforcement

9

priorities during regular patrols.

10

The MCSO so stipulated prior to trial. (Doc. 530 ¶ 85 at 12.)

11

7. Generally, MCSO of ficers had no di fficulty in finding a basis to stop

12

any vehicle they wished for a traffic infraction.

MCSO witnesses who testified at tria l acknowledged that “if you foll ow any 13

vehicle on the roads of this c ountry for even a short amount of time, you will be able to 14

pull that person over for som e kind of viol ation.” (Tr. at 696: 17–21, 1541:8–11 (“You 15

could not go down the street without seeing a moving violation.”), 1579:20–23; Doc. 530 16

at ¶ 86 (“Deputy Rangel testified that it is possible to de velop probable cause to stop just 17

about any vehicle after following it for two minutes.”).) Chief Sa nds also testified that it 18

is not feasible to require officers to stop every driver whom th ey observe committing a 19

traffic violation. (Tr. at 830:10–14.) 20

21

8. The MCSO provided no race-neutra l criteria for deputies to use in determining whom to pull over for traffic violations during the three

22

types of saturation patrols.

23

One of the MCSO’s chief defenses against the arguments of the Plaintiff class was

24 that during saturation patrols it used a zero tolerance policy that required participating

25 MCSO officers to pull over every vehicle th at they observed committing any traffic

26 infraction, no matter how slight . The MCSO represented to the Court that this policy

27 ensured that there was no racial bias in the selection of vehicles that MCSO pulled over

28 during saturation patrols. After having reviewed the evidence of the parties and heard the

- 59 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 60 of 142

1 testimony, the C ourt concludes that no such policy was ever clearly prom ulgated or

2 understood by MCSO deputies participating in such patrols.

3

As an initial matter, n o written instructions were given for sm all-scale saturation

4 patrols or day labor operations. ( Id. at 1155:10–20.) The fi rst several large-scale

5 saturation patrols also occurred before the promulgation of any policy that was

6 subsequently identified as a zero tolerance policy. ( Id. at 996:15–17.) Even after th e

7 large-scale saturation patrol instructions were modified in April 2008, they specified only

8 that all persons committing a criminal violation should be booked. ( Id. at 996:21–25.)

9 The operations plans contained no specif ic instruction to deputies about how to

10 determine, in a race-neutral way, which vehicles to pull over for traffic or equi pment 11 infractions.52

12

Other than the written instructions explaining that all criminal offenders should be

13 booked, there was no consistent understanding about the substance of any zero tolerance

14 policy. Lt. Sousa, w ho identified himself as the author of th e policy, testified that it

15 pertained only to what a deputy could do after he had already m ade a stop. He testified:

16 “[I]f we made a lawful traffi c stop, and you had a crim inal defendant with an arrestable

17 charge, they would get booked. And whoever we stopped, we would write a citation for 18 the probable cause for the stop.” 53 (Id. at 996:21–25). He testified that the policy did not

19

20

52 The HSU officers and others w ho participated in small-scale patrols may have

been aware of such instructi ons once they were developed for the large-scale saturation

21 patrols, but even assum ing the deputies w ould have applied such instructions to small-

22

scale patrols, such plans were not written un til April of 2008. By then all but the last seven small-scale patrols discussed at trial had occurred. These last patrols, together with

23 the December 2007 operation in Aguila, were the patrols with the lower stop to arrest

24 ratios.

25

53 The revised plans contain no instruc tions concerning c iting those who were

stopped. Nor do they require patrol deputies to pull over every vehicle that they observe 26 that is committing a traffic infraction. And, as a practical matter, the shift summaries and

27 trial testimony demonstrate th at MCSO officers did not issue citations to eve ry vehicle they stopped. For example, during the Ja nuary 9–10, 2009 satura tion patrol in the
28

- 60 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 61 of 142

1 remove officer discretion as to m aking the decision as to whic h cars to stop in the first

2 instance. (Id. at 998:18–25, 999:4–7.)

3

The testimony of ot her command personnel and deputies participating in

4 saturation patrols vari ed considerably as to what the zero tolerance policy was. Sheriff

5 Arpaio, Chief Sands and Deputies Arm endariz, Beeks, and DiPietro described the poli cy

6 as did Lt. Sousa—it did not sp ecify which vehicles deputies should st op and deputies

7 retained discretion on that matter.

8

Sheriff Arpaio, for exampl e, in an MCSO news release, described a “zero

9 tolerance law enforcement operation” as requiri ng deputies to arrest any person found to

10 have committed a criminal offense. “All violat ors of any law . . . w ill be booked into his

11 jails with no one getting a ‘get out of jail free card.’” (Ex. 342.) Chief Sands testified that

12 the policy did not require officers to stop every vehicle they observed violating the traffic

13 laws, but that officers were required to arrest any person w hom they had probable cause

14 to believe committed a crimin al offense. (Tr. at 830: 18–831:8.) Unlike Lt. Sousa, he

15 testified that deputies were not required to issue a citation t o every vehicle they stoppe d

16 for violating the traffic law. ( Id.) He further testified that the MCS O did not analyze

17 officer activity to determine wh ether officers in fact followed this definition of the “zero

18 tolerance” policy. (Id. at 831:1–4.) Lt. Sousa expressly conceded that one of the reasons

19 he included language prohibiting racial profiling in operations plans and directives was so

20 that he could testify to it in any subsequent litigation. ( Id. at 1025:12–1026:7.) Chief

21 Sands confirmed that the phrase “zero toleranc e” policy is “rhetor ic used by Lt. S ousa.”

22

23 Southwest Valley, officers stopped 473 and 246 cars, respectively, and arrested or cited

24

only 320 and 167 people, sugges ting that at least 232 vehicle stops over the two da ys resulted in neither a citation nor an arrest. (E x. 111.) Further, as David Vasquez testified,

25 he was pulled over f or a cracked windshield during the first large-scale Mesa saturation

26 patrol, but was neither cited nor arrested. (Tr. at 201:1–5.)

27

28

- 61 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 62 of 142

1 (Id. at 831:1.)

2

Although Deputy Armendariz c ould not reme mber what he was instructed as to

3 the particulars of the “zero tolerance” policy, ( id. at 1581:2–21) , he testified that he

4 understood that he still had discretion as to whether or not to stop a particular vehicle, (id.

5 at 1579:24–1580:2). Nevertheless, it was hi s understanding that the policy required him

6 to take a person into custody instead of issuing a citation when “an arrest is likely.” (Id. at

7 1581:17–21.) Deputy Beek s agreed that the zero tolera nce policy did not take away a

8 deputy’s discretion when it came to decidi ng which traffic offender to stop. H e

9 understood that under the “zero tolerance” polic y, “[w]e were told to be pr oactive, and if

10 we saw violations, to address them,” but that “[w]e were given discretion” to make stops.

11 (Id. at 1475:2–6.) Deputy Di Pietro testified that while on saturation patrols, he was not

12 given any instruction about which vehicle to pull over and answered affirmatively when

13 asked whether the de cision to stop a ve hicle on a saturation patrol was “com pletely

14 within your discretion.” (Id. at 303:24–25.)

15

On the other hand, both HS U sergeants and Deputies Rangel and Ki kes offered

16 definitions of a zero tolerance policy that di ctated to deputies on patrol who must be

17 pulled over in the first place. Sgt. Palmer testified that the “zero tolerance” policy

18 required officers to stop any car which they observed to be in violation of any traffic law,

19 and to issue a citation for that violation. ( Id. at 694:2–6.) Sgt. Ma drid also stated that the

20 “zero tolerance” policy took away the “ordinary officer discretion to let things slide” and

21 required officers to pull over any vehicle on the road that had committed any traffic

22 infraction. (Id. at 1155:21–1156:6.) Sgts. Madrid and Palmer did not often participate in

23 arrests during large-scale saturation patrols, however, as they were both engage d in

24 supervisory functions with S gt. Madrid m ostly stationed at the com mand post and S gt.

25 Palmer doing field supervision. (Id. at 1160:5–8, 759:4–10.)

26

Deputies Rangel and Kikes also described the policy as removing discretion from

27 the deputies as to which vehicles to stop. Deputy Rangel testified that, under the policy,

28 he would stop every person he saw committing a traffic violation, ask every person in the

- 62 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 63 of 142

1 car for identification, and investigate those passengers who did not provide identification.

2 (Id. at 944:4–947:11.) Deputy Kikes testified that under the policy officers were to stop

3 “anybody and everybody who had a violation,” and issue citations. (Id. at 612:10–19.)

4

Both officers who testified that the “ze ro tolerance” policy require d them to stop

5 every car that committed any traffic infracti on, and other MCSO officers who testified,

6 acknowledged, however, that such a policy w ould be im possible to enforce because it

7 would involve stopping nearly every car on the road. For example, Deputy Kikes testified

8 that so m any people on t he road commit minor traffic or equipment infractions that

9 stopping every person who commits a violation, and therefore following the policy as he

10 understood it, is “im possible.” (Id. at 613: 3–6.) Sgt. P almer acknowledged that “if you

11 follow any vehicle on th e roads of this countr y for even a short am ount of time, you will

12 be able to pull that person over for som e kind of viol ation.” (Id. at 696: 17–21.) Chief

13 Sands testified that it is not feasible to re quire officers to stop every driver whom they

14 observe committing a traffic violation. (Id. at 830:10–14.)

15

Deputy Kikes’ own arrest record while participating on saturation patrols suggests

16 that in practice he fo llowed no such policy. Deputy Kikes participated in at least three 17 large-scale saturation patrols over the course of at least four days. 54 There is no record of

18 any civil citations he issued during the patrol, because the MCSO kept no suc h records,

19 but, according to the operations plans, he was under an obligation to arrest anyone for

20 any criminal violation he observe d during any part of hi s patrols including traf fic stops.

21 In the three saturation patrol s in w hich Deputy Kikes participated, com prising at least

22 four patrol days, he arrested a total of five people. Al l of the persons he ar rested had

23 Hispanic surnames and all arrested were cla ssified as 287( g) and thus in the c ountry

24

25

54 Deputy Kikes testified that he does no t recall if he wor ked both days of all

26

patrols, but knows tha t he worke d a full da y on every day that he did wor k. (Tr. at 608:23–609:3.) The arrest records demonstrate that he made arrests on four separate days

27 during such patrols.

28

- 63 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 64 of 142

1 without authorization. (Exs. 82, 87, 111.) To accept Deputy Kike s’s testimony in its

2 entirety would mean that Deputy Kikes spent at least four da ys on traffic patrol in an

3 environment where so m any people commit traffic or equipment infractions it would be

4 impossible to stop t hem all. He neverthe less followed the zero tolerance policy and

5 stopped “anybody and everybody” he could. (T r. at 612:12–13.) Once he made a stop, he

6 arrested every person with an outstanding warrant or who was otherwise com mitting a

7 criminal violation. (Id. at 14–23.) And all of that resulted in five a rrests over four da ys,

8 all of w hich just happened to be of Hispan ic persons who were in the country without

9 authorization. The Court rejects such a factual proposition. In the face of such facts, the

10 Court concludes that Deputy Ki kes, in fact, was not following the zero tolerance policy

11 that he described during trial.

12

The same is true, alt hough less starkl y so, for Deputy Rangel. Deputy Rangel

13 participated in at least seven large-scale saturation patrols, some of which took place over

14 multiple days. By the Court’s calculations, 54 of the 60 arrests ma de by Deputy Rangel

15 during the large-scale saturation patrols, or 90% of the total arrests he m ade, were of 16 persons with Hispanic names.55 If the human-trafficking lo ads intercepted by Deputy

17 Rangel during the August 2008 Sun City and the November 2009 countywide patrols are

18

55 During the large-scale sa turation patrol at Cave Cr eek and Bell he arrested a

19 total of tw o people, one of w hom had a H ispanic surname. (Ex. 82 .) During the large-

20 scale patrol at Guadalupe he arrested five people, four of w hom had Hispanic surnames. (Ex. 87.) During the first larg e-scale Mesa patrol he arrested six people, thre e of whom

21 had Hispanic names. (Ex. 90.) During the second large-scale Mesa patrol he arrested two

22

people both of whom had Hispanic surnames. (Ex. 97.) During the first Sun City patrol in August 2008 he arrested 33 people, 32 of whom had His panic names.55 (Ex. 102. )

23 Although the probable cause listed on the arrest report for stopping this vehicle was “lane

24

change,” no one was arrested for the state law ch arge of human smuggling, but all were arrested and processed t hrough ICE on federal immigration charges. ( Id.) During the

25 second Sun City patrol of October 16, 2009 he arrested one person who had a Hispanic

26

surname. (Ex. 174.) During the November 16, 2009 countywide patrol he arrested eleven people, all of w hom had His panic surnames. (Ex. 180.) These eleven persons were all

27 turned over to ICE based on the MCSO’s LEAR policy.

28

- 64 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 65 of 142

1 excluded, then 11 of 16 arrests or 68.7% had Hispanic names. To accept Deputy Rangel’s

2 testimony in its entirety would mean that Deputy Rangel spent at least nine to ten days on

3 traffic patrol in an environment where so many people commit traffic or equipm ent

4 infractions it would be “possible to develop probable cause to stop just about any vehicle

5 after following it for two minutes.” (Doc. 53 0 at ¶ 86.) In accordance with the zero

6 tolerance policy, Deputy Rangel stopped all su ch vehicles, and investigated the identity

7 of every passenger in every vehi cle he stopped. He subseque ntly arrested every person

8 with an outstanding warrant or who were otherwise comm itting a criminal violation.

9 Nevertheless, during the nine to ten days, he made only 16 arrests (excluding the four van

10 loads from two patrols that resulted in 44 ar rests). Of the 16 arres ts 11 just happened to

11 be of Hispanic persons who were in the coun try without authorization, and four of them

12 were arrested on immigration charges. In the face of such facts, the Court concludes that

13 Deputy Rangel, in fact, was not following the zero tolerance pol icy that he described

14 during trial.

15

A look at the arrest reports in general also demonstrates that officers exercised

16 individual discretion regarding stops. More often than not, th e disparities of arrest rates

17 between officers participating in saturation patrols cannot be easily explained. F or

18 example, 47 officers signe d in for the July 14 , 2008 saturation patrol in Mesa. (Ex. 97.) 19 Of these 47, 13 arrested at least one pers on, and 41 total people were arrested. 56 (Id.)

20 Deputy Armendariz arrested 18 of the 41 pe ople arrested, includ ing the drivers and

21 passengers of 11 diffe rent cars. (Id.) 11 of t he persons arrest ed by Deputy Armendariz,

22 and five of the six of the passengers he a rrested, were processed for not being legall y 23 present in the country. ( Id.) Ten of the arrestees had His panic surnames.57 (Id.) The next-

24

56 Another officer made an arrest, but did not sign in. (Ex. 97.)

25

57 The nam e of the eleventh pe rson arrested as bei ng unauthorized, Minerva

26 Vujando, also strongly sugg ests that this pers on was of Hispanic ancestry. Nevertheless,

27

the name did not a ppear as in Exhibit 3 20. Hence the Court did not count it as an Hispanic name.

28

- 65 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 66 of 142

1 highest arrest total for any officer was for Deputies Silva and Roughan, who both arrested

2 four people. (Id.) Six of the eight people whom Deputies Silva and Roughan arrested had

3 Hispanic surnames, and seve n were proce ssed for not being legally pres ent in the 4 country.58 (Id.) These statistics again do not suggest that officers were following a zero

5 tolerance policy in which they pulled over every vehicle for an infraction no matter how

6 small and arrested every pers on they en countered who had committ ed a crimi nal

7 violation.

8

Further, the activity of at l east some officers suggests a definite focus on vehicles

9 with Hispanic occupants. For example, during the April 23, 2009 operation in Avondale,

10 Deputy Armendariz arrested 12 people, 11 of whom had Hispani c surnames and 10 of

11 whom were processed through the 287(g) program. (Ex. 111.) These arrests came from a

12 total of seven vehicle stops, and included the arrests of five passengers, all of whom were

13 Hispanic and all of whom were processed through the 287(g) program. (Id.) The deputies

14 arresting the next- highest number of people during this sa turation patrol arrested onl y

15 two. (Id.)

16

Few of t he “stat sheets” docum enting the activity of individual officers remain.

17 Those stat sheets that do remain, however, al so suggest that the number of stops made by

18 individual officers varied widel y during the same saturation patrol. For exam ple,

19 individual stat sheets for the November 16, 2009 saturation patrol, which were preserved,

20 show that officers working the same patrol during the same twelve-hour shift m ade the

21 following number of traffic stops: 5, 15, 0, 9, 5, 6, 0, 4, 12, 2, 3, 12, 4, 2, 6, 24, 10, and

22 10. (Doc. 235, Ex. 10.) If an officer could stop virtually any vehicle for a traffic

23 infraction after following it for a minute or two, these statistics demonstrate that no zero

24 tolerance policy was uniform ly followed that would provide neutral criteria about whic h

25

26

58 Again the name of the seventh person arrested as being una uthorized, Jario Olampo, also strongly suggests that this person was also Hispanic. Nevertheless, the

27 name did not appear as Hispanic in Exhibit 320, and hence was not counted as such.

28

- 66 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 67 of 142

1 cars should be stoppe d by participating de puties. The reports, therefore, establish that

2 MCSO personnel wer e not f ollowing the z ero tolerance policy as described by Sgts.

3 Palmer and Madrid.

4

Based upon the contr adictory testimony regarding the effect and definition of the

5 zero tolerance policy, that the MCSO shredded individual officers stat sheets while under

6 a discovery obligation to preserve them , that most witnesses testified that it would be

7 impossible to follow a policy that required them to s top every vehicle the y observed

8 committing a traffic or equipmen t violation, that the MCSO conducted no analysis to

9 determine whether officers were in fact fo llowing any “zero toleran ce” policy, and that

10 those records w hich were preserved sugges t that officers did not follow a “zero

11 tolerance” policy based on any of the definitions suggested, th e Court concludes that to

12 the extent any “zero tolerance” was in effect , it was merely the sent ence of instruction

13 contained in the oper ation plans that requi red MCSO deputies to book all criminal

14 offenders, and c ontained no race-neutral cr iteria for deputies to follow in saturation

15 patrols.

16

9. The MCSO used race as one fact or among oth ers in mak ing law

17

enforcement decisions during saturation patrols.

18

A. The MCSO used race as a factor in choosing vehicles to pull over during day labor and high-ratio small-scale operations.

19

As has been previ ously set forth in the di scussion relating to the selection of

20 locations for saturation patrols, duri ng the day labor and sm all-scale saturation patr ols

21 with high arrest ratio s, participating MCSO officers determined which vehicles they

22 would pull over for traffic enforcement based, at least in part, on their observations of the

23 Latino ancestry of the persons that entered the vehicles. After the vehicles were pulled

24 over, the im migration status of the Latino pa ssengers was investigated as a m atter of

25 course.

26

The arrest statistics from the day labor op erations demonstrate that race was used

27 as such a factor in a way that does not mere ly rely on the total number or total percentage

28

- 67 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 68 of 142

1 of Hispanics arrested during such operations . All 35 arrests of unaut horized persons

2 resulted from 11 traffic stops. A total of 14 tr affic stops were m ade during all day labor

3 operations. It is extraordinary that with on ly 9% of the Maricopa County population

4 being unauthorized, the MCSO could make arrests of unauthorized aliens on 11 of the 14

5 traffic stops it made, with virtually all such stops resulting in multiple arrests. This

6 extremely high ratio of stop s resulting in immigration arrests to the total stops made

7 during the operations shows that the MCS O used targeting factor s including both race

8 and work status to achieve this ratio.

9

The same i s true for t he small-scale saturation patrols with hi gh arrest ratio s, in

10 which 115 out of 124 arrests we re of persons una uthorized. See Section I.D.2.a, supra.

11 While an exact number of tota l stops resulting in these arrest s of unauthorized persons is

12 not specifically ascertainable based on the re ports, the reports do reveal that a great

13 majority of all stops during such operations resulted in the arrest of unauthorized aliens

14 and frequently multiple unaut horized aliens per stop. Id. The day labor and sm all-scale

15 saturation patrols with high arrest ratios, due to the nature of the operations , considered

16 race and work status as factors of a vehicl e’s occupants in determining which ones would

17 be stopped.

18

B. The MCSO used race as a fact or in determining whom to

19

investigate and arrest durin g the s mall-scale patrols without high arrest ratios.

20

The arrest reports for these eight operatio ns did not, for the most part, permit the

21 Court to determine the number of stops that resulted in immigration arrests. To the extent

22 that such determinations could be estimated by the reports kept, with one exception, they

23 did not demonstrate the high ratio between stops and arrests that the pre vious operations

24 had demonstrated.59 Thus the evidence that verified th at the MCSO used race in the day

25 59 During six hours on the first day of the Fountain Hills operation, the HSU
26 (assisted by the Enforcement Support (“ES”) Unit) made a total of seven t raffic stops,

27 four of which resulted in seve n arrests of unauthorized aliens. (Ex. 108.) Such statistics, including the low num ber of t otal stops, seem to be ar out that the first day of the
28

- 68 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 69 of 142

1 labor and small-scale saturation patrols wit h high arrest ratios was not present in t hese

2 eight operations.

3

Nevertheless, the arrest reports provi de strong evidence that the purpose of m ost

4 such operations was a rresting unauthorized aliens. 85 out of 107 persons arr ested were

5 unauthorized aliens. See Section II.D.2.b, supra. To the extent it was disclosed by the

6 reports, the rem aining 22 a uthorized residents arrested du ring such operations were

7 arrested for driving on a suspended license, or having outstanding misdemeanor or felony

8 warrants. Id. There is little to no eviden ce in the record that woul d indicate how many of

9 these authorized residents arrested were Latino.

10

Still, three of the eight arrest reports from these operations provide information

11 from which the num ber of passengers actually arrested from an estimated number of

12 stops can be derived. Two of those three reports further list the names of all persons 13 arrested.60 They demonstrate that during these three operations MCSO deputies stopped a

14 total of approximately 95 to 100 vehicles. Du ring these stops a tota l of 55 persons were

15 arrested. 51 of t he 55 persons were unauth orized aliens, and 36 of t hese were 16 passengers.61 During the two operati ons for whic h the nam es of persons arrested were

17
18 operation may have been a day labor operation. Nevertheless on the next day Sgt. Palmer estimates in the arrest report that of twenty stops, only four resulted in immigration
19 arrests. The total operation, therefore, did not have a high arrest ratio as did previ ous 20 operations.

21

60 The arrest reports for the Aguila (E x. 76), Fountain Hills (Ex. 108), and

22

September 4, 2008 Cave Creek ( Ex. 112), operations provide information concerning the estimated total num ber of stops m ade during each operation and specific information

23 concerning the stops t hat resulted in im migration arrests. The F ountain Hills and Cave

24 Creek arrest reports also provide the names of persons arrested.

25

61 The Aguila arrest report designates that the driver was cited fo r each of the five

stops that resulted in the arrest of unauthorized aliens. (Ex. 76.) It also lists the number of 26 aliens detained. (Id.) The Court assumed that one of the persons detained for each of the

27 vehicles was the driver. If this is not true it does not serve to change the number of total persons arrested, it merely increases the pe rcentage of those who were passengers. The
28

- 69 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 70 of 142

1 kept, all passengers and drivers arrested for immigration offenses had Hispanic names.

2

Thus the Court can conclude from the three saturation patr ols with sufficient

3 records that 51 of the 55 arrests were of unau thorized persons, most if not all of whom

4 had Hispanic surnames. 52 of these persons have names that indicate Latino descent .

5 There is no evidence from thes e arrest reports from which it can be determined that the

6 MCSO investigated or arrested any passeng er during these operati ons who was not of

7 Latino descent. Of the three persons arrested without Hispanic nam es, two had t o be

8 drivers because they were arre sted for driving without a lic ense. The reports provide no

9 information about the ot her person, including whether she was in a motor vehicle at all,

10 or, if so, w hether she was a drive r or a passe nger, other than that sh e was arrested on an 11 outstanding felony warrant.62 While these numbers do co me from a limited sample, and

12

13

Fountain Hills report explicitly di stinguishes between drivers and passengers arrested in the narrative. It also discusses the arrest of two more unauthorized residents during the

14 welfare check of a residence. Because thes e arrests did not result from a motor vehicle

stop they were not coun ted in the Court’s totals. (Ex. 1 08.) The third page of the Cave 15 Creek report, designates whether a person ar rested was a passenger. (Ex. 112.) However,

16 two persons were arrested for failing to provide identifica tion during a single stop, and neither was designated as a passenger. ( Id.) Since a vehicle can have but a single dri ver,
17 the Court has also counte d one of those tw o persons as a passenge r and the other as a

18 driver in arriving at the above estimated totals. (Id.)

19

62 The narrative arrest report of the Aguila operation only discusses the arrest of 26

20

persons—all unauthorized. (Ex. 76.) The nar rative arrest report of t he September 4 Cave Creek operation only discusses the arrest of 11 persons—all unauthorized. (Ex. 112.) It is

21 possible, however, to read the summary total sheets of these operations to conclude that

22

three additional people were tak en into cus tody during the Agui la operation and four were taken into custody duri ng the Cave Creek operation. Nevertheless, the narrative

23 report of t he Cave C reek operation plainly states that onl y 11 total arrests were mad e

24

during the operation—all of unauthorized alie ns, and the sheet listing the names of all persons arrested contains onl y 11 names. If the Aguila summary total sheet, or the Cave

25 Creek summary total sheet, mean s to suggest that additional persons were arrested other

than those listed in the narra tive report, they provided no information about such persons 26 or their arrest. If additional arrests were made, but not other wise discussed in eithe r

27 narrative report or the total summary shee t, it only c onfirms that the de puties participating were principally focused on t he arrest of una uthorized aliens, as they
28

- 70 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 71 of 142

1 are not definitively indicative of racial bias, th ey do strongly suggest that in at least these

2 three operations the MCSO was both: (1) principally looking to arrest unauthorized aliens

3 whom they believed to be Hispanic persons; and (2) they were more likely to investigate

4 the identities of Hispanic passengers than non-Hispanic passengers.

5

C. The MCSO used race as a fact or in law enforcement decisions

6

during large-scale saturation patrols.

As discussed, beginning in A pril 2008, the large-scale saturation patrols were 7

subject to different and more s pecific instructions than were sm all-scale or day labor 8

saturation patrols. The operational plans we re revised in at least three important 9

particulars, and a c omparison of those re visions with the patrol results shows t hat the 10

MCSO relied on race as a factor in making law enforcement decisions. 11

12

1. During large-scale patrols, participating MCSO deputies were instructed to not racially profile and were obliged to

13

book all criminal offenders. Yet arrest records show a

14

disproportionate number of arrests of persons with Hispanic surnames.

15

Because the purpose of the saturation pa trols was to arrest unauthorized aliens,

16 and because the great majority of unauthorized aliens in Mari copa County are persons of

17 Hispanic descent, it would not be in and of itself indicative of a racial bias in an operation

18 for a disproportionate number of Hispanic persons to be arrested. Nevertheless, when the

19 plans prohibit racial profiling, and further re quire that all persons committing crimes be

20 arrested regardless of race, and yet a highly disproportionate percentage of the persons

21 arrested during the operation are nevertheless persons with Hispanic names, the

22 disconnect between t he operational plans and instructions and the observable results of

23 the large-scale patrols demonstrates that the deputies are not following their instructions,

24 or that a racial bias is permitted, or ev

en systematically implemented, in s uch

25

26

27 omitted non-immigration arrests from their reports or summaries.

28

- 71 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 72 of 142

1 operations.63

2

The overall arrest rates of pers ons with Hispanic names ar ising from the large-

3 scale saturation patrols are very disproportiona te to the population as a whole. Beginning

4 with the large scale patrol held near Pr uitt’s on March 21–22, 20 08, 42 out of the 43

5 arrests (97%) were of persons with His panic names. (Ex. 79.) For the Cave Creek

6 operation on March 27–28, 2008 , 36 of the 54 arrestees (67%) of the arrestees had

7 Hispanic names. (Ex. 82.) (T hese two operations, however, were conducted prior to the

8 issuance of the new instructions). At the Gu adalupe patrol of April 3–4, 2008, the

9 operation during which the ne w instructions were first im plemented, 33 of t he 47

10 arrestees (70%) had H ispanic names. (Ex. 87 .) At the first large-s cale Mesa patrol, the

11 deputies arrested 63 people, 35 ( 57%) of whom had Hispanic names (Ex. 90); during t he

12 second Mesa patrol, 26 out of 41 persons ar rested (63%) had His panic names (Ex. 97).

13 During the first Sun City patr ol, 88 of the 105 arrests (84%) were of pe rsons with 14 Hispanic names.64 (Ex. 102.) In the first Southwes t Valley operation on January 9–10,

15 2009, 34 of 53 arrests (64%) had His panic names. (Ex. 111. ) In the West Valley

16 operation on A pril 23-24, 2009 , 30 of 41 arrests (73%) were of persons with Hispanic

17 names. (Id.) During the Sout heast Valley operation of July 23–24, 20 09, 30 of the 41

18 arrestees (59%) had Hispanic surnames. (Exs. 128, 168.) Then, in the operation at

19 Durango and 35th Ave. on September 5–6, 2009, 37 of the 51 persons arrested (72%) had

20 Hispanic surnames. (Ex. 170.)

21

Two more large-scale patrols occurred following revocation of the M CSO’s

22 287(g) authority. In the October 2009 Sun City operation, 45 out of 66 persons arrested

23

24

63 Even if MCSO deputies were particularly looking for undocumented immigrants without regard to race in these large-scale satu ration patrols, the percent of

25 undocumented immigrants in Maricopa County is, at most, 8.9%. See note 4, supra.

26

64 During this patrol the MCSO interdic ted five vans that wer e transporting

27 undocumented individuals.

28

- 72 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 73 of 142

1 (68%) had Hispanic surnames . (Ex. 174.) During the fina l county-wide operation for

2 which arrest reports were filed, 37 out of the 51 persons ( 73%) arrested had His panic

3 surnames. (Exs. 176, 178–82 .) In total 700 offenders were arrested duri ng these

4 operations.65 496 out of 700 arrests or 71% of

all persons arr ested, had Hispani c

5 surnames. This 71% arrest ra te occurred in a county where between 30 and 32% of the

6 population is Hispanic, and wh ere, as the MCSO’s expert report acknowledges, the rates

7 of Hispanic stops by the MCS O are norm ally slightly less than th e percentage of the

8 population that they comprise. (Ex. 402 at 3.) This a rrest rate further occurred in

9 operations in which deputies were instructed to arrest all persons committing any kind of

10 criminal offense, and were instructed that they should not racially profile.

11

While a disproportionate number of persons with Hispanic names were generally

12 arrested during such operations, that gul f widens when the arre st rate of Latino

13 passengers is considered. According to the large-scale saturation patrol arrest reports, 184

14 passengers in vehicles were arrested on som e charge other than the traffic pre-text give n

15 for stopping the vehicle. 175 of t hese passengers, or 95%, had Hi spanic surnames. Even

16 removing all of passengers who w ere arrested on immigration charges from the equation 17 (141 total, 140 Hispanic), 66 35 of the 43, or 81% of the passengers arrested on non-

18 immigration charges had Hispanic surnames. Only nine passengers who did not ha ve a

19 Hispanic surname were ever arrested on any charge. The Court recognizes that there were

20 several human smuggling loads that the MCS O intercepted: some on the August 2008

21 Sun City patrol (70 passenger s), the Oct ober 2009 Sun City patrol (20), and t he

22 November 2009 countywide patrol (25). (Exs. 102, 174, 178–82.) Exclude the passenger

23

24

65 As discussed above, the Court has excluded the first large-scale saturation patrol at Pruitts (January 2008), where 27 arrests were made (six for 287(g)), because no

25 surname data was included. (Ex. 77.)

26

66 One passenger in a vanload i nterdicted by Officer Rangel did not have a na me

27 listed in Ex. 320 (Gerseldiade Rugio) and was not counted as Hispanic.

28

- 73 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 74 of 142

1 tallies from those vanloads (1 15, 114 of which were Hispanic), and 61 of the 69

2 passengers (88%) were Hispanic. Clearly a di sproportionate number of passengers with

3 Hispanic surnames were arrest ed during the large-scale satura tion patrols. This indicates

4 that the MCSO was mo re likely to inves tigate and a rrest passengers if they were

5 Hispanic.

6

In sum, a remarkably high percentage of arrests during the large scale patrols were

7 of people with Hispanic surnames. These results occurred while the MCSO claimed to be

8 operating under a policy that forbade racial profiling and required deputies to arrest all

9 criminal offenders. In light of the arrest numbers, the Court finds that either the MCSO

10 was in fact not operating under t hose policies during the large-scale saturation patrols or

11 MCSO’s policy forbidding raci al profiling nevertheles s permitted the consideration of

12 race as a factor in executing the operations.

13

2. MCSO officers were instructed th at during large-scale

14

saturation patrols they coul d use race, as one factor among others, in initiatin g investigations into the

15

immigration status of a person contacted.

16

And, in fact, the MCSO deputies operated under the idea that they were allowed to

17 consider race in making immigration-related law enforcement decisions. The large-scale

18 saturation plans cont ained a paragraph prohibiting racial profiling and specifically 19 prohibiting deputies from making a decision t o stop a vehicle based on t he race of its

20 occupants. Nevertheless, as previousl y discussed, the MCS O determined that it did not

21 constitute racial profiling to base decisions in part on r ace, so long as race was not the 22 sole basis for that de cision. The operations plans for the large-scale saturation patrols

23 explicitly instructed the MCSO officers who were 287(g) certified that they could use the

24 indicators taught them in their 287(g)

training in deciding whether to initiate

25 investigations into a contact’s immigration st atus. And all MCSO offi cers testified that

26 ICE taught them that one such indicato r, among others, was a person’s race. The

27 operations plans also instructed non- 287(g)-certified officers that they shoul d not 28 summon a 287(g) officer to initia te such an investigation base d on race alone. But, as at

- 74 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 75 of 142

1 least Sgts. Palmer and Madrid testified, this instruction meant that officers could consider

2 race as one amongst a number of factors in making such a determination.

3

Further, all of the MCSO command staff including Sheriff Arpaio, Chief Sands,

4 Lt. Sousa, and Sgts. Madrid a nd Palmer, acknowledged that the MC SO uses race as one

5 factor in assessing whether an immigration investigation should be conducted after a stop

6 has been made. At trial, Sheriff Arpaio wa s referred to media interviews in which he

7 commented that a factor the MCSO considered in evaluati ng whether a person is in the

8 country legally is whether “they look like they came from another country,” (Ex. 410b),

9 or “look like they just came from Mexico,” (Ex. 410c). He ex plained that when he made

10 these comments he meant that su ch appearance could be a fact or for an MCSO officer to

11 consider in determining whether further investigation of imm igration status was

12 appropriate once a vehicle had already bee n stopped. (Tr. at 498:22–503:6.) Chief Sands,

13 Sgt. Madrid, and Sgt. Palmer also acknowledged that the MCSO did use and continues to

14 use Hispanic ancestry in this manner in deciding which occupants of a ve hicle should be

15 investigated for immigration compliance. Chief Sands confirmed that the MCSO does not

16 prohibit officers from relying on the race of a vehicle’s occupant as one factor when

17 initiating an immigration investigation once the vehicle has been stopped, so long as race

18 was not a factor in the stop itself. ( Id. at 782:5–16.) Lt. Sousa testified at trial that it was

19 his understanding that ICE officers taught MCS O deputies in their 287( g) training t hat

20 while race could not be used even as one fa ctor when making an in itial stop, it could be

21 used as one of a number of indicators to extend a stop and investigate a person’s alienage.

22 (Id. at 1016:3–6.)

23

The Court thus determines that as a m atter of both policy and practice, the MCSO

24 allowed its deputies participa ting in saturation patrols to consider race as one factor

25 among others in determ ining whom it should investigate during large-scale saturation

26 patrols.

27 / / /

28 / / /

- 75 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 76 of 142

1

3. MCSO officers were instructed that they could use race as

2

one factor among others in mak ing a decision to stop vehicles during large-scale saturation patrols, and did so.

3

As indicated above, the large-scale saturation plans containe d a paragraph

4 specifically prohibiting deputies from making a decision to stop a vehicle based on the

5 race of its occupants. Nevertheless, as ha s been previously di scussed, the MCSO

6 determined that it did not constitute racial p rofiling to base decisions to stop a vehicle in

7 part on the race of its occupant s, so long as race was not th e sole basis for that decision.

8 When the MCSO described its own policy as it pertained to stops during such operations,

9 it stated that MCSO officers in making stops during saturation patrols, could not use race

10 as the sole factor on which to pull a vehicle over so as to avoid “racial profiling.” (Ex.

11 342 (“at no time will any vehicl e be stopped solely because of the race of the occupants

12 inside that vehicle”).) It pointe dly did not prohibit officers from using race as a

13 consideration in deciding to make such a stop.

14

Sgt. Palmer testified that if there was a legitimate basis to pull a vehicle over, for a

15 traffic infraction or otherwis e, then, by definition, a deputy would not be raciall y

16 profiling. (Tr. at 724: 22–725:1.) And Sgt. Madrid testified that so long as there was a

17 legitimate basis to pull over a ve hicle, it would never occur to him that a deputy could be

18 racially profiling by doing so.67 (Id. at 1172:20–24.)

19

With such understandings, once an MC SO deputy had i dentified a parti cular

20 vehicle with Hispanic occupants, he or s he could deve lop a legitimate basis under the

21 Arizona traffic code to pull over that vehicl e with very little difficu lty without “racially

22 profiling.” Once they observed a traffic in fraction, MCSO deputies had a factor in

23 addition to race on which to pull the ve hicle over. Their decision would never be

24

25

67 At any rate, all of the MCSO command personnel acknowledged that they never

26

examined their arrest statistics or otherwise m ade any effort to determine whether their deputies were engagi ng in racial profiling in the stops and arrests they m ade during

27 saturation patrols.

28

- 76 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 77 of 142

1 reviewed nor racial bias su spected by their supervising sergeants because the stop was

2 not made solely on the basis of race.

3

At trial, Sheriff Arpaio and much of th e rest of the MCSO command staff testified

4 that the MCSO could use race as a factor in deciding to interrogate vehicle passengers

5 once a ve hicle had been pulled over, but coul d not use race as a factor in decidi ng

6 whether to pull the vehicle over. That distinction, however, is a very fine one. There is no

7 evidence, in the oper ations plans or othe rwise, that once MC SO deputies had been

8 instructed that it was acceptable to consider race as one factor among others in an

9 immigration context, they were further in structed that they nevertheless could not

10 consider race as any factor in determining whether to stop a vehicle. Fur ther, Sheriff

11 Arpaio’s testimony in this respect seems contradictory to his quote from the MCSO news

12 release, in which he i ndicates it would constitute racial profiling if the only reason a

13 vehicle was pulled over was because of the race of the occupants. (Ex. 342.)

14

Despite Lt. Sousa’s understanding to the contrary, at l east one of his sergea nts

15 testified that ICE specifically trained MCSO deputies that they could use race or Mexican

16 ancestry as one c onsideration among others in deciding whether or not to stop a vehicle,

17 and that MCSO deput ies in fact did so. (Tr. at 715:3–19, 1164:4–12.) And Sgt. Madrid

18 acknowledged that he could not know whether one of his deputies used race as a factor in

19 making a stop unless he was actually present at the stop. ( Id. at 1171:10–14.) He also

20 testified that he would not typically be present at a stop during saturation patrols, since he

21 was usually assigned to the command post during such operations. (Id. at 1160:1–25.)

22

Nevertheless, Deputy Rangel, and to some extent Sgt. Madrid, testified that due to

23 tinted windows and headrests an officer coul d not always perceive the race of the

24 occupants of ve hicles before m aking a stop. ( Id. at 927:9–21, 1192:4–15.) Thus, the

25 MCSO argues, it was impossible for its officers to be racially profiling. While the Court

26 accepts the testimony of Deputy Rangel and Sgt. Madrid, it rejects the assertion that such

27 obstructions always or even regularly prev ented deputies from making an assessm ent of

28 the race of the occupants of a vehicle in which they are interested. The large-scale patrols

- 77 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 78 of 142

1 were conducted in an environment in wh ich MCSO deputies kne w that the operations

2 were designed to enforce immigration laws. (Id. at 1136:15–20; see also id. at 786:14–18,

3 787:5–14, 901:4–902:17.) The deputies were re quired to keep track of the number of

4 unauthorized aliens they arrested during s uch patrols and report th at figure to their

5 supervisors. (See, e.g., Exs. 102 at MCSO 00197 8–001986, 111 at MCSO 056988–

6 056998; see also Tr. at 690:23–691:1, 1153:13–18.) They correctly believed that the vast

7 majority of unauthorized residents of Maricopa County are of Hispanic origin. They were

8 trained to use race as one f actor among ot hers when investigating immigration status.

9 While some MCSO pronouncemen ts indicated that it constitute d racial profiling to stop

10 vehicles based on the race of its occupants, others stated that it constituted racial profiling

11 only when race was the sole consideration in making the decision to stop a vehicle.

12 Further, their supervising sergeants did not believe that racial profiling could exist in a

13 stop so long as there was a legitimate basis to stop the vehicle. And every time Lt. Sousa

14 instructed participants in larg e scale saturation patrols not t o racially profile, he assured

15 them that he knew they were not doing so. (Id. at 1025:6–8.) There was no policy or race-

16 neutral criteria that gover ned which vehicles to stop on saturation patrols. Due to the

17 pervasive nature of t raffic or equi pment infractions that exist on the road, an MCSO

18 deputy could stop virtually a ny vehicle he or she wished to stop on a legitimate basis.

19 Based upon these policies, practi ces, and, to a lesser ex tent, the arrest records from the

20 operations, the Court finds that MCSO officers emphasized the enforcement of traffic and

21 vehicle infractions against vehic les that ha d Hispanic occupants, and i n so doi ng,

22 considered and incorporated the use of race as a factor in deciding w hich vehicle to pull

23 over during large-scale saturation patrols.

24

This determination is fortified by the testimony of D r. Ralph Taylor. Dr. Tayl or

25 conducted a study of t he MCSO’s CAD records related to MC SO large-scale saturation

26 patrols to determ ine whether stops duri ng large scale saturation patrols focused on

27 vehicles with Hispanic occupants. The MCSO’s CAD database pr ovides detail of those

28 incidents during w hich MCSO officers contact their dispatch. ( Id. at 69: 4–9.) When an

- 78 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 79 of 142

1 MCSO deputy asks dispatch to r un a nam e through the MCSO database, the name is

2 captured in the CAD database. The C AD database also records categories for individual

3 stops, and type “T” is the category for a traffic stop or a traffic violation. ( Id. at 69:8–9.)

4 A stop that begins as a traffic stop but during which an officer makes an arrest on another

5 charge, such as a drug arrest, will have a diff erent final call than type T. ( Id. at 130:22.)

6 Thus, presumably, stops during which any arre sts, including im migration arrests, were

7 made, were not counted in the totals arrive d at by Dr. Ta ylor. This m eans that Dr.

8 Taylor’s statistics reflecting an increase in inquiries in Hispanic names during large-scale

9 saturation patrols did not include those stops in which Hisp anic names were checked and

10 immigration arrests resulted.

11

Dr. Taylor only had complete information on 11 of the 13 large-s cale saturation

12 patrols on whic h testimony was offered at trial. ( Id. at 76: 24–77:3.) He ha d no

13 information concerning the in dividual officers signed in to t he first two large-scale 14 saturation patrols at Pruitt’s on which to run an analysis. 68 In addition to the CAD

15 database, Dr. Tayl or relied on inde pendent U.S. Census data correlating the likelihood

16 that a person wit h any give n name self-identified as Hispanic. He did a differential

17 analysis that focused particularly on nam es whose owners identified as Hispanic more

18 than 90% of the time, more than 80% of the time, and more than 70% of the time. ( Id. at

19 193:2–7.) He also included na mes whose ow ners self-identified as Hispanic at a 60% 20 threshold as “a type of robustness analysis.”69 (Id. at 193:6–7.)

21

22

68 Nevertheless, records produced at trial demonstrate that during the first Pruitt’s

large-scale patrol there were six of 27 arrests that were of unauthorized persons. (Ex. 77.)

23 During the second Pruitt’s large-scale opera tion 42 of 43 people arrested were

24 unauthorized persons. (Exs. 79, 82.)

25

69 Dr. Taylor’s statistics in this respect were, apparently, more sophisticated than

26 those provided in the 1980 census list of Spanish surnames. (Ex. 320.)

27

28

- 79 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 80 of 142

1

Dr. Taylor compared the na mes that MCSO officers called in to central dispatch

2 during saturation patrols to the nam es called in by MCSO officers during non-saturation 3 patrol days. (Id. at 99:22–100:3.) 70 He also compared the names called in by MCSO

4 officers who w orked on saturati on patrols, regardless of w hether they wer e working a

5 saturation patrol, to the names called in by MCSO officers wh o did not work on

6 saturation patrols. ( Id. at 100:25–101:6.) F urther, he com pared the nam es called in on

7 days when saturation patrols took place, rega rdless of whether the name was called in as

8 part of a sa turation patrol, to names called in on all ot her days. (Id. at 155:1–4.) Finally,

9 Dr. Taylor studied t he relative lengt hs of s tops involving at least one li kely-Hispanic

10 surname.

11

He concluded that, depending on which t hreshold of Hispanic surname was used,

12 names checked by an officer par ticipating in a saturation patrol during a saturation patrol

13 were between 46% and 54% m ore likely to be Hispanic than those checked by other

14 officers operating on t he same day. (Id. at 96:12–20.) He also found that, depending on

15 the name threshold, names checked by all MCSO officers on saturation patrol days were

16 between 26% to 39% more likely to be Hisp anic than names check ed on non-saturation

17 patrol days. (Id. at 91:22–25.) C ompared to names checked one week before and one

18 week after a saturatio n patrol, names checke d on a saturation patrol day were betwee n

19 28.8% and 34.8% more likely to be Hispanic, (id. at 93:20–25), a nd names checked by

20 saturation patrol officers operating on satur ation patrol days were between 34% and 40%

21 more likely to be Hispanic than nam es checked by officers who were never involved in a

22 saturation patrol, ( id. at 97:22–98:5). Finally , Dr. Taylor found that stops in which an

23

24

70 As previously stated, in all patrol operations for the relevant period, t he percentage of vehicles that the MCSO pulled over w ith Hispanic occupants is slightly

25 lower than the percentage of the population of Maricopa C ounty that is Hispanic. (Ex.

26 402 at 3.)

27

28

- 80 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 81 of 142

1 officer checked at least one His panic name lasted between two and three minutes longer

2 than comparable stops in which no Hispanic names were run. (Id. at 109:14–16.)

3

Defendants called D r. Steven Cam arota to rebut Dr. Ta ylor’s conclusions.

4 Although, for the most part, Dr. Camarota did not take issue with Dr. Taylor’s tabulations

5 from the CAD records mainta ined by t he MCSO, he di d question several of the

6 assumptions underlying Dr. Tayl or’s analysis and the adequacy of the inform ation on

7 which it w as based. He furt her offered alternative explana tions for the results of Dr.

8 Taylor’s analysis.

9

While Dr. Camarota did not independently verify Dr. Taylor’s findings, he agreed

10 that officers checked Hispanic names at a higher ra te during saturation patrols. ( Id. at

11 1310:6–9.) He further agreed that the Hispanic surname tables Dr. Ta ylor used ar e

12 reliable. (Id. at 1305:22–1306:2.) In his own analysis, Dr. Camarota found that on days in

13 which a saturation pat rol was underway, the share of names checked that was Hispanic

14 was 4.8% higher tha n on other days of t he year. (Id. at 1309:22–1310:1.) Dr. Camarota

15 speculated that diffe rent poverty rates co uld result in dis parate stop rat es between

16 Hispanics and non-Hispanics, because “people with low incomes are going to have more

17 difficulty. . . meetin g the equipment standards.” ( Id. at 1260:16–21.) Dr . Camarota

18 presented no a nalysis of the stop rates co rrected for poverty rates to support his

19 speculation.

20

As between Dr. Tayl or and Dr. Camarota in this respect, th e Court credits the

21 opinion of Dr. Ta ylor. Dr. Camarota testified that his opinions were based in part on Lt.

22 Sousa’s description to him of the zero tolerance policy that was followed on saturation

23 patrols. Dr. Camarota testified that Lt. Sous a told him that on su ch patrols officers

24 “attempt when practicable, and when it’s viab le, to pull over during saturation patrol

25 anybody they see in violation making equipmen t violations or violating the rules of the

26 road.” (Id. at 1334:22–1335: 5.) As the Court has already dete rmined, however, the

27 MCSO followed no such policy during large-scale saturation patrols, and the description

28 of the zero tolerance policy Dr. Camarota tes tified that he received from Lt. Sousa is

- 81 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 82 of 142

1 different than Lt. S ousa’s description given during trial. Thus, Dr. Camarota’s

2 conclusions that relied on t he existence of the zero tolerance policy as he understood it

3 are impaired. Dr. Cam arota himself acknowledged in his testim ony that if his

4 understanding of the zero tolerance policy was inaccurate and if “that’s not what happens

5 during a s aturation patrol, then that can ma tter” with respect to his analysis that

6 socioeconomic factors could acco unt for different stop rates. ( Id. at 1336:4–15.) The 7 Court, therefore, gives more weight to the opinion of Dr. Taylor.71

8

Regarding the length of stops, Dr. Camaro ta suggested that th e need to translate

9 information for the person stopped m ay contribute to stops of Hispanics taking m ore

10 time. (Id. at 1297:11–15.) Dr. Taylor agreed that if officers translate information during a

11 stop, the stop could take longer than a stop where no translation is required. (Id. at 175:9–

12 17.) Dr. Camarota testified that Hispanics are more likely to have hyphenated last names,

13 which would require officers to check both a lternate last names and could also increase

14 the length of a stop. ( Id. at 1298:9–23.) While the Cour t agrees that both of thes e

15 alternative explanations carry weight, as multiple MCSO officers admitted, once they

16 stopped a vehicle with Latino passengers, they used t he race of the occupants of the

17 vehicle as one factor am ong others to prolong the stop and inve stigate the im migration

18 status of the vehicle’s passengers . The Cour t believes that the MCSO’s pursuit of this

19 practice, even if it did not u ltimately result in an arrest, is a more likely explanation for

20 the increased stop time resulting from stops with Hispanic names.

21

Further, Dr. Camarota testified that missi ng data could affect the reliability of Dr.

22

23

71 Defendants’ police practices expert, Bennie Click, similarly opined in his report

24

that there was no impermissible racial profiling occurring during saturation patrols due to a zero tolerance policy that limited the discre tion of MCSO deputies in whom they could

25 pull over. (Ex. 1070 at 46.) He arrived at th is conclusion based on a description of t he

26

zero tolerance policy provid ed him by Sgt. Madrid. ( Id.) The Court similarly rejects Mr. Click’s conclusion based on his misassumption regarding a zero tolerance policy that was

27 never effectively implemented at the MCSO.

28

- 82 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 83 of 142

1 Taylor’s conclusions. In conducting his analysis, Dr. Taylor recorded only those stops in

2 which the CAD Database recorded the fact that an officer ha d checked at least one name.

3 (Id. at 75:17–19.) In approximately 30% of the recorded stops in the CAD Database, the

4 officer did not check any names at all. ( Id. at 1236:9–10.) In conduc ting his analysis, Dr.

5 Taylor included only those stops in which the CAD Database recorded that the stop was

6 categorized as final call type T. (Id. at 75:14–15.) Slightly over 80% of the stops for each

7 year were categorized as final call type T. ( Id. at 78:15.) Dr. Taylor’s data set therefore

8 did not include data for a number of stops conducted by the MCSO, apparently including

9 those that would have resulted in im migration arrests. Further, the MCS O does not

10 review the CAD data for quality control, and makes no attempt to verify the accuracy of

11 the CAD data. (Id. at 1265:20–25, 1252:19–24.)

12

While the Court does weigh the incompleteness of the available information, there

13 is no question that all of the information used was pr ovided to t he Plaintiffs by t he 14 MCSO, and was all the informa tion that it kept on t he topic.72 Since the data that was

15 excluded did not include any na me that coul d be evaluated, the Court concludes tha t

16 drawing conclusions from limited data sets is still probative when complete data are not

17 available. Further, the non- T stops that we re excluded from Dr. Taylor ’s analysis

18 involved a collection of stops wh ich, in the aggregate, involv ed a lower degree of officer

19 discretion than stops designated as a traffic stop or a traffi c violation. The Court thus

20 credits Dr. Taylor’s analysis and finds it cr edible and probative as to whether MCSO

21 deputies used race as a factor among others in stopping vehicles with Latino occupants on

22 saturation patrols.

23

Despite the voluminous evidence to the contrary, the MCSO argues that a number

24

72 The MCSO’s police practices expert acknowledged that the MCSO fell below

25 the standard in not keeping mo re complete records of its o fficer’s encounters during this

26 period. (Tr. at 1752:6–24, 1753:17–1754:1.)

27

28

- 83 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 84 of 142

1 of specific deputies testified at trial that they never used race in the law enforcement

2 decisions they made, even in an immigration context. For example, Deputy Armendariz

3 testified that he never used race or ethnicity to make a decision to stop a ve hicle, detain a

4 driver or occupant, or to initiate questioning of anyone. ( Id. at 1507:11–20.) Similarly,

5 Detective Beeks testified that race and ethni city are not criteria for a traffic stop. ( Id. at

6 1436:8–10.) Deputy Kikes also testified that he never trie s to determine anything about

7 the race, ethnicity, or demographics of vehi cle occupants in deciding who to pull over.

8 (Id. at 625:10–14.) D eputy Rangel joined Deputy Armendariz in testifying that, as a

9 matter of course, they and ot her deputies investigate the id entity of every occupant of

10 every vehicle they stop, re gardless of race. ( Id. at 1518:14–19, 1543:4–12 (Deputy

11 Armendariz testifies that its typical for all la w enforcement officers to ask all passengers

12 to volunteer their identification after pulling over a car, and he always does this whether

13 it’s a routine traffic stop or a saturation patrol), 931:2–13, 944:9–16 (Deputy Rangel

14 testifies that he asks everybody in a vehicle for identification as a matter of habit, and not

15 only while conducting saturation patrols).)

16

While the Court does not doubt the work ethic of these deputies, nor their desire

17 to follow the various directives pertaining t o their operations, it is difficult to reconcile

18 their testimony in this respect with their actual performance during large-scale saturation

19 patrols. That analysis demonstrates that it is unlikely that Deputy Arm endariz, Deputy

20 Rangel, Deputy Beeks, or Deput y Kikes engage d in the race-neutral policing that they

21 claimed.

22

Deputy Armendariz participated in at least nine of the large-scale saturation

23 patrols, some of which took place over mu ltiple days. 75 of the 97 arrests made by

24 Deputy Armendariz during the large-scale saturation patrols, or 77.3% of his total arrests, 25 were of persons with Hispanic names.73 Further, at least 35 of these arrests were made of

26

73 During the large-scale sa turation patrol at Cave Cr eek and Bell he arrested a

27 total of four people, all of whom had Hispanic surnames. (Ex. 82.) During the first largescale Mesa patrol he arrested five people, all of whom had Hispa nic names. (Ex. 87. )
28

- 84 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 85 of 142

1 passengers. 33 of the m were determined to be unauthorized aliens, although only 32 of 2 them had nam es that are listed as Hispanic in Exhibit 320. 74 Deputy Armendariz did

3 arrest two passengers with non-Hispanic names.

4

Such statistics as exist regarding Deputy Armendariz’s performance in small-scale

5 patrols are even more indicative of racial disproportionality, albeit in a smaller sample. 75

6 Looking at the records for those operations that identify arresting officers, Officer

7 During the second large-scale Mesa patrol he arrested 18 people, ten of whom had
8 Hispanic names (Actually, elev en persons w ere designated in the arrest report as being

9 unauthorized aliens, howe ver, the nam e of the eleventh, Mine rva Vujando, was not included in Ex. 320 as an Hispanic name, so the Court does not coun t it here). (Ex. 97.)

10 During the first Sun City patrol he arrested 17 persons on one arrest, all of whom had

11

Hispanic names. (Ex. 102.) Although the proba ble cause listed on t he arrest report for stopping this vehicle was a vi olation of Arizona’s H uman Smuggling Act, all persons in

12 this arrest processed with ICE on federal i mmigration charges. While the arrest was not

13

made on the state charge, the Court is willing to assume that, due to the large number being transported, there was suf ficient probable cause to pull t he persons over for a

14 violation of state law, even if Deputy Armendariz had not c onsidered race as a factor.

15

During the first Sout hwest Valley saturation patrol, he arrested nine people over the course of two days, five of whom had Hispanic surnames. (Ex. 111.) On the April 23–24

16 West Valley patrol, he arrested 16 pe ople, 14 of w hom had Hispanic surnames. (Id.) On

the July 23–24 Chandler Southeast Valley patrol, he arrested 17 people, 11 of whom had 17 Hispanic surnames. (Exs. 128, 168.) O n the September 5, 2009 patrol at Dura ngo and

18 35th Ave, he arrested eight people, six of w hom had Hispanic surnames. (Ex. 170.) During the November 16, 2009 c ountywide patrol he arrested three people, all of whom
19 had Hispanic surnames. (Exs. 176, 178–82.)

20

74 During the August 2008 Sun City large-scale patrol, Deputy Armendariz pulled

21 over a vehicle with 17 occupants. The passengers were arrested for federal immigration

22 violations. However, even if those arrest s are rem oved from the equation as havi ng sufficient probable cause to investigate and arrest absent Deput y Armendariz’s use of

23 race as a factor in m aking the stop, then 58 of 80 his arrests, or 72.5%, had Hispanic

24 names, and 16 of 19 passengers arrested had Hispanic names.

25

75 Although technically speaking the oper ation plans prohibitin g racial profiling

26

and requiring all poss ible arrests applied only to large-scale saturation pat rols, Deputy Armendariz testified that he never considered race in any aspect of his law enforcement.

27 Thus, if true, his arrests should reflect that reality.

28

- 85 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 86 of 142

1 Armendariz participated in at least the first day of the Fountain Hills operation, and in the

2 September 2008 Cave Creek operation. The Fountain Hills operati on lasted six hours.

3 (Ex. 108.) Duri ng those six hour s, seven st ops were m ade, four of w hich resulted in

4 immigration arrests. (Id.) Of the four stops that resulted in immigration arrests, three were

5 made by D eputy Armendariz, the othe r was made by Deputy C osme. (Id.) All of th e

6 recorded stops m ade by De puty Armendariz resulted in t he arrest of unauthorized 7 aliens.76 (Id.)

8

The records for the September 2008 Ca ve Creek operation also reveal whi ch

9 officers made the stops that resulted in immigration arrests. Four of the 33 stops made on

10 that day re sulted in i mmigration arrests. (Ex. 112.) D eputy Armendariz made two of

11 those four stops. ( Id.) The ratio of stops t o immigration arrests m ade does not serve t o

12 demonstrate whether Deputy Armendariz may have been using race as a criteria on which

13 to stop traffic violators. Nevertheless, during these two da ys of operations, Deput y

14 Armendariz made five traffic stops that resulte d in ten arrests of una uthorized residents.

15 (Id.) All of the persons arrested by Deputy Ar mendariz had Hispanic surnames and each

16 of them was arrested on fe deral immigration charges. (Id.) At least six, but possibl y as

17 many as eight of thes e persons were passengers in vehicles. (Id.) During these two days,

18 it is clear that Deputy Armendariz made no e ffort to pull over every vehicle he observed

19 committing a traffic violation be cause during the entire first day of the Fountain Hills

20 operation, both units of the MCS O pulled only over seven ve hicles. During the

21 September 2008 Cave Creek operation, althou gh more vehicles were stoppe d, and more

22 vehicles may have been stopped by Deput y Armendariz, he never arrested anyone on

23 either day, other than Hispanic drivers or passengers. (Id.)

24

When asked to expl ain his disparate arrest rate of Hispanic persons, De puty

25

26

76 On the second day of the Fountain H ills operation no record was kept of the officers who made the stops, so it is not possible to know if Deputy Armendariz

27 participated, or how many of the stops he made.

28

- 86 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 87 of 142

1 Armendariz testified that the ma jority of Maricopa County’s population is Hispanic. (Tr.

2 at 1504:10–1505:2.) That assertion is si mply wrong. A pproximately 30% of the

3 population of Maricopa County is Hispanic. See United States Census, State & Count y

4 QuickFacts, Maricopa County, Arizona, http://quickfacts.census.gov/qfd/states/04/

5 04013.html (last visited May 21, 2013). A pproximately 77% of the arrests m ade by

6 Deputy Armendariz during la rge-scale saturation patrol s had Hispanic surna mes. 100%

7 of the persons he arrested during the limited sampling of small-scale patrols had Hispanic

8 surnames. The Court concludes that Deputy Armendariz considered race as one factor

9 among others in making law enf orcement decisions during both l arge- and sm all-scale

10 saturation patrols.

11

Deputy Beeks participated in at least four of the large-scale saturation patrols. (Id.)

12 From the Court’s calculations 14 of t he 15 arrests made by Deputy Beeks during th e

13 large-scale saturation patrols, or 93.3% of the total arrests he made were of persons wit h 14 Hispanic names.77 Further, during these large scale saturation patrols, Deputy Beeks

15 arrested 11 passengers. (Exs. 82, 90, 174.) Ni ne of them were determined to be

16 unauthorized aliens, and all of them had names that are listed as Hispanic in Exhibit 320.

17 It is likely that the ten arrests Deputy Beek s made during the second S un City patrol 18 stemmed from a human smuggling load. All ten came from the same vehicle.78 (Ex. 174.)

19 Excluding those num bers, Deputy Beeks m ade five other arrests, four of whom had

20

21

77 During the large-scale saturation patrol at Cave Creek and Be ll he arrested one

22 person, and that person had a Hispanic surname. (Ex. 82.) During the first large-scale Mesa patrol he arrested three people, all of whom had Hispa nic surnames. (Ex. 90.)

23 During the April 2009 West Valley patrol he made one arrest of a person who di d not

24

have a Hispanic surname. (Ex. 111.) During the s econd Sun City patrol of October 17, 2009, he arrested ten people. (Ex. 174.) All of them had Hispanic surnames.

25

26

78 Three of the ten were arrested on state charges and seven of the te n were turned over to ICE under M CSO’s LEAR policy, presumably meaning ther e was no basis to

27 arrest on state charges.

28

- 87 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 88 of 142

1 Hispanic last names a nd were in the country without authorization. The Court concludes

2 that Deputy Beeks c onsidered race as one factor among others in decidi ng whom he

3 would stop.

4

The large-scale patrol arrest statistic s for both Deputy Rangel and Deputy Ki kes

5 have been previ ously discussed. See Section II.8, supra. As noted, Deputy Ki kes

6 participated in three large-scale saturation patrols over four da ys and made a total of five

7 arrests on all such pa trols. All five had His panic names. Thus 100% of all persons he

8 arrested during a m inimum of three days of saturation patrols were Hispanic. Similarly,

9 Deputy Rangel participated in seven large-scale saturation patrols in which 54 out of the 10 60 people he arrested had Hispanic surnames.79 The Court concludes that Deputies Kikes

11 and Rangel considered race as one factor among others in making law enforcement

12 decisions in an immigration context.

13

To the extent that the MC SO invites the Court to find that the MCSO saturation

14 patrols did not incorporate racial bias in design or execution based on t he testimony of

15 these officers that they did not so engage, the Court declines to do so. The great weight of

16 the evidence is that all types of saturation patrols at issue in this case incorporated race as

17 a consideration into their operations, bot h in design and execution, the vehicles the

18 deputies decided t o stop, a nd in t he decisions made as to w hom to investigate for

19 immigration violations.

20

The day la bor operations and si milar small-scale patrols with high arrest ratios

21 specifically required the investigation of passengers that were Latino day laborers, which

22

23

79 If the human-trafficking load(s) arrest ed by Deput y Rangel dur ing the A ugust

24

2008 Sun City patrol are removed from the equation, then 11 of 16 arrests or 68.7% of his total arrests are of persons with Hispanic names. During the nine days, he made 60 (or

25 16) arrests. Of the 60 (or 16) arrests, 54 (or 11) just ha ppened to be of Hispanic persons

26

who were in the country w ithout authorization, and 47 (or 4) of the m were on immigration charges. The Court rejects the proposition that Deputy Rangel was not

27 considering race in the vehicles he stopped or the passengers he investigated and arrested.

28

- 88 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 89 of 142

1 meant a disproportionate numbe r of Latino passengers had their identities investigated,

2 regardless of w hether that inves tigation resulted in ar rest. The num ber and types of

3 resulting arrests for each of these operations demonstrates that their principal purpose

4 was the investigation and arrest of persons lik ely to be unauthorized residents. As shown

5 above, members of the MCSO believe t hat virtually all unauthorized residents in

6 Maricopa County are Hispanic . Because (1) the MCSO was involved in an operation

7 whose principal purpose was to investigate a nd arrest unauthorized residents, (2) it was

8 trained by ICE that it coul d take into account Hispanic ba ckground as one factor am ong

9 others leading t o the reasonable suspicion th at a per son is not here legally, and ( 3)

10 individual deputies were required during such operations to keep track specifically of the

11 number of people they arrested who were not authorized, th e Court concludes that those

12 deputies emphasized stopping and investigating the identities of Hispanic persons during

13 such operations.

14

In the large-scale patrols, MCSO policy in structed officers to rely on their 287(g)

15 certification training in making similar decisions and consequently allowed the officers to

16 consider the passenger’s race in making the decision to investigate the passenger’s

17 identity. That direction would have resulted in the dispr oportionate investigation of

18 passengers of Latino backgr ound, regardless of whether probable cause or reasonable

19 suspicion otherwise existed to justify such a search. Dr. Taylor’s analysis confirms that

20 Hispanic names were more likely to be checked. During the T-Stops that included names

21 called into dispatch duri ng the 11 operat ions that were the s ubject of Dr. Ta ylor’s

22 analysis, 308 people were arrested for being present in the c ountry without authorization.

23 (Tr. at 1311:20-1313:3). Further, according to Dr. Taylor, depending on the t hreshold of

24 name used, between an additional 1,312 and 1,988 Hispanic names were checked during

25 the CAD stops that he monitored. (Id. at 90:12–16.)

26

Further, as demonstrated below, in its ongoing enforcement of state laws related to

27 immigration and the LEAR policy, the MCSO continues to consider race as one

28 indicator, among others, that a person is in th e country without authorization. Therefore,

- 89 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 90 of 142

1 MCSO officers continue to st op and check the identities of a disproportionate number of

2 Hispanic persons.

3

10. The MCSO stops a vehicle for the length of time it takes to investigate

4

its occupants, not the amount of time necessary to dispose of the traffic infraction that resulted in the stop.

5

MCSO traffic stops at issue lasted as lo ng as it took to chec k the identity of the

6 Hispanic occupants of a vehicle. Som e of these stops l asted much longer than it would

7 have taken to handle the traffic infraction that justified pulling the vehicle over in the first

8 place. This is demonstrated by comparing two similar stops during which the MCSO took

9 the same enforcement action.

10

At trial, David Vasquez testified that he was pulle d over by De puty Ratcliffe of

11 the MCSO during the first la rge-scale saturation patrol in Mesa. (Tr. at 199:20–22,

12 201:24–202:2.) Mr. Vasquez acknowledged th at the stated purpose for the stop was a

13 very small if not imperceptible chip in his windshield. (Ex. 54.) Mr. Vasquez is Hispanic

14 and his wife is not Hispanic. (Tr. at 1 98:15–17, 1992–3.) De puty Ratcliffe asked Mr.

15 Vasquez for his identi fication but did not make the sam e inquiry of his w ife. (Id. at

16 200:21–201:6.) After Deputy Ra tcliffe checked Mr. Vasquez’ s identification, he was

17 released without being issued a citation for t he chipped windshield or any other reason.

18 (Id. at 201:1–6.) Although Mr. Vasquez estimated in his test imony that the stop t ook ten

19 or 15 minutes, he was confronted on cross-examination with the CAD record of the stop

20 that demonstrated that it to ok just over four minutes. (Id.) Upon cross-examination Mr.

21 Vasquez acknowledged that th e stop could have taken as little as four minutes. ( Id. at

22 206:13–14, 208:2–7.) The Court credits the CAD record.

23

By contrast, although the stop that resulted in the arrest of Jose de Jesus Ortega-

24 Melendres also resulted i n only an oral warning to the driver, it lasted approximately 40

25 minutes. Considerable trial testim ony concerned that stop. On t hat day, D eputy Louis

26 DiPietro, a member of the can ine unit, was recruited by the HSU and assigned to follow

27 cars the HSU officers targeted until he could develop probable cause to stop the car for a

28

- 90 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 91 of 142

1 traffic violation. ( Id. at 242: 10–20.) Members of the undercover team observed Mr.

2 Ortega-Melendres and other Hispanic indi viduals get into a vehicle, and radioed t o

3 Deputy DiPietro that he shou ld follow the car and develop probable cause to stop it. ( Id.

4 at 244:18–24.) Deputy DiPietro followed the car for between one and three miles, then

5 pulled it over for speeding. (Id. at 245:8–24.)

6

The evidence established that Sgt. Madrid and Deputy Rangel, both HSU officers,

7 came to the scene after they heard that D eputy DiPietro had stopped the car. Deput y

8 DiPietro testified that he did not believe that he had probable cause to detain the 9 passengers for any state crime, 80 but he held all of t he occupants of the vehicle pending

10 the arrival of S gt. Madrid and D eputy Rangel and their completion of an investigation

11 into the immigration status of the passengers. ( Id. at 256:9–18.) It took up to t en minutes 12 for Deputy Rangel and Sgt. Madrid to arrive. 81 The Court so concludes because Deput y

13 Rangel testified that the driver would have been at the scene a total of between 30 and 40

14 minutes, and that the driver would have been at the scene for approxim ately 30 minutes

15 after Deputy Ra ngel arrived. ( Id. at 952: 4–6.) It t hen took Deputy Rangel and Sgt.

16 Madrid, operating in tandem , approximately 30 minutes to conduct their investigation

17 into the immigration status of the three passenge rs that were in the car before placing the

18 passengers under arrest. ( Id. at 952:9–11.) D eputy DiPietro then released the driver. ( Id.

19 at 246:6–8.)

20

Upon arrival, Deputy Rangel, who had no reason to believe that the passengers

21

22

80 DiPietro did testify that he believe d the majority of da y laborers to be

unauthorized immigrants. However, when questioned further, he admitted that he did not

23 form this belief until he participated in the day labor operation that resulted in the Ortega-

24 Melendres stop. (Tr. at 299:14-300:17.)

25

81 To the extent that Deputy DiPietro testified he made any independent analysis as

26

to whether the passengers were unlawfully present or breaki ng any law s, the Court concludes that pursuant to the ope ration, HSU officers would ha ve arrived regardless of

27 Deputy DiPietro’s conclusions. (Ex. 129; see also Ex. 126.)

28

- 91 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 92 of 142

1 had violated any state law acc ordingly to his own testimony, asked the passengers in the 2 vehicle for their identification.82 (Id. at 910:3–20.) Deputy Rangel and Sgt. Madrid began

3 questioning the passengers. S ometime thereafter they received from Mr. Ortega4 Melendres his B-1/B-2 visa. They may have also received from him his valid I-94 form.83

5 (Id. at 910:19–25.) A t some point, after ex amining the doc umentation provided by

6 Ortega-Melendres and the information provided by his fellow passengers, Deputy Rangel

7 determined to arrest the Hisp anic passengers. He handcuffed them and arranged for their

8 transportation to ICE. (Id. at 915:5–7.)

9

Neither Deputy Rangel nor De puty Madrid ever spoke to t he driver. Deput y

10 DiPietro alone had contact with him. (Id. at 952:14–15, 246:2 0–25, 247:23–24.) Deputy

11 Rangel testified that he never spoke with th e driver because it was not HSU’s job to clear

12 the driver. (Id. at 910:11–18.) Although Deputy DiPietro vacillated several times in his

13 testimony, and was c onfronted with c ontrary testimony from his deposition, the Court

14 ultimately credits Deputy DiPiet ro’s testimony that he he ld the driver until HSU had

15 completed its investigation. Therefore, 40 minutes after the initial stop, after the

16 investigation of the ve hicle’s passengers was com plete and the H SU had determined to

17

18

82 Deputy Rangel, who is and was at all times relevant to this lawsuit a member of

the MCSO’s Human Smuggling Unit, has not been trained in the hum an smuggling

19 statute, although he has read it. (Tr. at 95 3:19–25.) He has never been trained that da y

20 laborers are committing criminal violations by seeking or accepting labor. (Id. at 935:12– 17.) Deputy Rangel did not believe that the vehicle that De puty DiPietro s topped was
21 involved in human smuggling. ( Id. at 938:19–22.) Deputy Rang el does not believe that

22 transporting a da y laborer implicates the hum an smuggling statute, even i f the person transporting the day laborer knows or has reas on to believe that the day laborer is not
23 authorized to be in the country. (Id. at 953:5–954:2.)

24

83 Deputy Rangel disputes that Ortega Me lendres ever produced an I-94 f orm.

25 According to ICE doc umentation, however, when he was presented at the ICE detention

26

facility, “Ortega-Melendres did have his I-94 in his wallet.” (Ex. 1093.) After being held for several more hours at ICE pending inve stigation Ortega-Melendres was released

27 without further action being taken against him.

28

- 92 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 93 of 142

1 detain the passengers, Deputy Di Pietro gave the driver a verbal w arning and let him go.

2 (Id. at 246: 11–16.) Yet, as the stop of Mr. Vasquez demonstrates, it would only ha ve

3 taken approximately four minutes to issue a warning to the driver. That Deputy DiPietro

4 retained the driver until the investigation of the passenge rs was complete does not

5 establish that it woul d have reasona bly taken forty minutes to give the driver an oral

6 warning for speeding.

7

A brief review of the arrest reports shows that a great number of the arrests during

8 the saturation patrols involv ed the arrest of multiple passengers during a stop when

9 drivers received only a traffic warning or

citation. In many such cases, merely

10 investigating the ident ities of the passenge rs would have dwarfed the amount of time

11 necessary to issue a tr affic citation. For example, during the first day labor operation a t

12 Cave Creek, Deputy DiPietro issued onl y warnings to both drivers he stopped. As with

13 the driver of the Orte ga-Melendres vehicle, Deputy DiPietro also issued only a traffic

14 warning to the second driver he stopped on that day. There were, however, six passengers

15 who were i nvestigated and arre sted during that stop. ( Ex. 126.) The Court finds t hat it

16 would have taken longer than 40 minutes, and certainly long er than four, for the MCSO

17 officers to investigate the identities of those six passengers.

18

Similarly, during the balance of the day labor operations, and apparently the small-

19 scale saturation patrols, many of the im migration arrests arose from traffic stops duri ng

20 which multiple passengers were arrested. (Exs. 76, 80, 81, 108, 112, 114, 117, 119, 120,

21 123, 125, 129, 131, 175, 2 86.) Based on t he Ortega-Melendres stop, it woul d take three

22 deputies approximately 40 m inutes to issue a citation or a warning to the driver and

23 investigate the identity of three passengers w ho did not have ready id entification in their

24 possession. Thus, the Court finds that m any of the traffic stops co nducted during those

25 operations would have taken around 40 minutes.

26

There was, however, additional eviden ce about how much time it takes to

27 investigate the identit y of a passenger. De puties Rangel and Armendariz both testified

28 about the process. As discu ssed above, they testified that MCSO deputies ask all

- 93 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 94 of 142

1 passengers for identification during every traffic stop. If an occ upant provides them with

2 identification they run the id entification through the standard database accessible from

3 their patrol vehicles. If a passenger provides no identification, they next ask the passenger

4 to provide his or her name and date of birth. They then run the provided name and date of

5 birth in the standard database.

6

Deputy Rangel testified that if th e standard M VD database containe d no

7 information concerning a person with that name and date of birth, he returns and asks the

8 vehicle’s occupant(s) for another form of identification and/or asks questions concerning

9 their identity and status. (Tr. at 946:5–9.) If he received no further identification, and

10 Deputy Rangel was on a satur ation patrol, he would then arr est the person for a n

11 immigration violation. (Id. at 947: 2–20.) Since the term ination of MCS O’s 287(g)

12 authority, when he encounters an individual who he suspects is undocumented but he has

13 no basis to take into custody for violation of a state crime, he takes that person int o

14 MCSO custody, pending their transfer to ICE. (Id. at 958:23–959:7.)

15

Deputy Armendariz testified that if the da tabase accessible from his patrol vehicle

16 provided no information on a pe rson with the name and date of birth supplied, he t hen

17 takes the person into custody until thei r identity could be ascertained. ( Id. at 1544:7–9,

18 1585:7–1586:12.) In su ch a circumstance, he accesses ot her databases that m ay or may

19 not be avai lable through t he MVD database such as the JWI, NCIC, and ACIC. ( Id. at

20 1520:25–1524:4.) If these databa ses are not accessible to him from his patrol vehicle, or

21 if, for other reasons it would be beneficial to have dispatch run the searches, he contacts

22 dispatch and has dispatch run the supplied identity through other databases, including

23 PACE—a system maintained by the City of P hoenix. (Id. at 1526:21–24.) He

24 acknowledged that such a process takes time, and it would be impossible to calculate an

25 average. Nevertheless, he testified that such an inquiry takes

26

a while because the dispatchers—the dispatcher that we have that we

27

run on that particular channel runs information for the entire county. . . You ha ve to base it on the fact that when—we’re on the satellite

28

or we’re on a m obile system and the computers run real slow. There

- 94 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 95 of 142

1

are a lot of cases where DPS, the DPS system itself is down and the queue is down.

2

3

There is when we go to our info channel and we run them on our information channel where the dispat cher is backlogged because, as

4

I said, she runs – it’s one dispatc her for the entire county, w hoever

transfers over to that channel that needs information. 5

6

And also I request a PA CE check, which is throug h the City of

Phoenix. So she has to call—the dispatcher that is to contact the City

7

of Phoenix for more information.

8 (Id. at 1525:21–23, 1526:12–24.)

9

Deputy Armendariz acknowledged that while he is waiting for a response, he

10 returns to the vehicle and asks further questions to the passenger, or requests other forms

11 of identification including the passe nger’s social security number. ( Id. at 1525:4–14 ,

12 1585:23–1586:12.) He further noted, consistent with other testim ony, that such inquiries

13 can prolong the stop because Hispanic surnames are often hyphenated, requiring a check

14 of each permutation of the same name. (Id. at 1508:4–1509:3, 1527:13–18.)

15

Deputy Armendariz does no t believe that it has ever ta ken him more than a half

16 hour to run such a database check, but ackn owledged that an iden tification check would

17 run approximately fifteen m inutes. (Id. at 1590:5–12.) Deputy Armendariz then twice

18 confirmed that it is still his practice to go th rough this process of investigating passengers

19 during all of his stops. ( Id. at 1526:1–3, 1546:3–17.) Af ter the lunch break in his

20 testimony, however, he seemed to contradict himself in part w hen he testified that now

21 that he does not have 287(g) authority, if he is unable to figure out a passenger’s identity

22 he just lets them go. ( Id. at 1589:12–18.) The Court finds that such testimony is not

23 credible especially in light of the LEAR po licy, discussed below, which w ould require

24 Deputy Armendariz to detain such persons if he develops reasonable suspicion that the y

25 are not in the country legally.

26

As the investigation of De puty Rangel and Sgt. Madrid into the identity of Mr.

27 Ortega-Melendres and his fellow passengers de monstrates, investigating the identity of

28 multiple persons per stop extends the duration of the time that it takes to conduct such

- 95 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 96 of 142

1 stops, even when multiple officers are conducting the inquiries.

2

While writing a citation w ould take somewhat longer t han issuing a warning, it

3 would not take considerably longer. Many case s suggest that such stops last around ten

4 minutes. See, e.g., Illinois v. Caballes, 543 U.S. 405, 406 (2005) (noting that the issuance

5 of a warning ticket, arrival of another officer, tour arou nd the car with a narcotics-

6 detection dog, search of the trunk and resulting arrest took “less than 10 minutes” in

7 total). Yet, Deputy DiPietro estimated that it typically could take up to twenty minutes to

8 issue a citation. (Tr. at 297:16–22.) Even accepting t his higher estimate, many of the

9 arrests during saturation patrol s resulted in the arrest of multiple passengers, and thus

10 their investigation would have taken significantly more time than it would have taken to

11 issue a ticket to the driver. A lthough most arrest reports of the operations show that a

12 traffic stop resulted in at most a citation to the driver, during a few the driver was arrested

13 on criminal charges. Even so, the majority of the evidence indicates that investigating the

14 identities of passengers occurred frequently during MCSO operati ons and that such

15 investigations took significantly longer than it would take to warn or cite the driver. Thus,

16 the Court finds that for most stops conducted by the MCSO, the length of the stop lasted

17 the time it took to investigate the passengers rather than to deal with the traffic citation.

18

11. Some MCSO deputi es claim to cond uct identity checks on all vehicle

19

occupants. Due to MCSO policy that allows officers to consider race in determining whether to initiate an immigration investigation, vehicle

20

occupants who are Latino are more likely to have their identity

21

checked as a matter of operational procedure and policy.

The MCSO acknowledges that there is no legal requireme nt in this state that 22

passengers in vehicl es carry identification. Nevertheless, Sheriff Arpaio stated in a 23

national press interview that when persons were passengers in a vehicle with a drive r 24

stopped on criminal suspicion, MCSO deputies were entitled to investigate the passengers 25

in the vehicle as a matter of course. (Ex. 41 0a (stating that if unauthorized aliens were 26

passengers in a vehicle with a driver stopped for an immigration violation or other crime, 27

“we have the right to talk to those people”).) Some MCSO wi tnesses at trial, including 28

- 96 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 97 of 142

1 Deputy Armendariz, testified that, as a matt er of cont inuing practice, MCSO officers

2 investigate the identity of all passengers in ev ery vehicle they stop regardless of whether

3 the stop w as made during a saturation pat rol. (Tr. at 1518:14–19, 1543: 4–12 (Deputy

4 Armendariz testifies that its typical for all la w enforcement officers to ask all passengers

5 to volunteer their identification after pulling over a car, and he always does this whether

6 it’s a routine traffic stop or a saturation patrol), 923:12–14, 931, 944: 9–16 (Deputy

7 Rangel testifies that he asks everybody in a vehicle for identification as a matter of habit,

8 and not only while conducting saturation patr ols).) Further, Chief Click stated in his

9 report that it was his understanding that “all pa ssengers in vehicles that had be en stopped

10 would be contacted” because of the zero tolerance policy. (Ex. 1070 at 46.) At least some

11 deputies understood the purpose of saturation patrols to be making contact with as many

12 people as possible during the course of each traffic stop. (Tr. at 302:16–22.) Thus, many

13 stat sheets requested the number of contacts made during patrol stops. To th e extent that

14 the deputies understood t his to be the pur pose of saturation patrol s, they would ha ve

15 likely asked for the identity of every person stopped as a matter of course, as Deputy

16 Armendariz suggested.

17

Regardless of whether indi vidual officers routinely in vestigated the identity of

18 every person in every car they stoppe d, Sgt. Madrid testified that officers participating i n

19 day labor operations were instructed that when they responded to a vehicle that had been

20 stopped, they were to investigate all passengers for immigration violations. (Id. at

21 1144:1–14.) As set forth above, investiga ting passengers’ identities was a basic element

22 of a day la bor operation. N one of the reports made any attem pt to set forth reasonable 23 suspicion to investigate the passengers once a stop was made. 84 Rather, they confirm that

24

84 At trial, Deputy DiPietro testified that the HSU officers were en route to the

25 scene once they heard he stopped the vehicl e. (Tr. at 256: 9–18.) Thus, as an operationa l

26

matter, the deputies were not looking to es tablish independent reasonable suspicion to investigate the passengers once the vehic le was stoppe d, even if they coul d have

27 established it.

28

- 97 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 98 of 142

1 the investigation of the passengers’ identifie s followed the traffic stop as a matter of

2 course. (Exs. 123, 129, 131.) Three of the four reports state:

3

traffic stops [were] made from UC [und ercover] vehicles relaying that da y

4

laborers were picked up from the area . Once the pick up ve hicle was located by MCSO marked patrol units, detectives would establish probable

5

cause for a traffic stop. Once the ve hicle was stopped HSU detectives

6

would interview the subjects in the vehicles in reference to their legal status to be in the US.

7 (Exs. 123, 129, 131; Tr. at 1144:1–8; 1151:4–11.)

8

As with the reports of the day l abor operations, the great majority of the small-

9 scale saturation patrol reports, es pecially those with high arrest ratios, set forth for every

10 traffic stop that resulted in the arrest of an un authorized alien: (1) the basis for the traffic

11 stop, (2) whether and for what the driver w as cited and/or arrested, (3) the number of

12 unauthorized aliens arrested during the st op, and (4) the num ber of persons , including

13 unauthorized aliens, that were arrested on state charges as opposed to federal immigration

14 charges. It is clear from these arrest reports that officers investigated passengers because

15 many of the stops resulted in multiple arrests per stop. In any small-scale patrol where the

16 deputy developed reasonable suspicion during the traffic stop that another state crime was

17 being or ha d been committed, the MCS O arrested the vehicle’s occupa nt on that basis.

18 The reports, however, do not state any observations m ade after the vehicle was pulled

19 over that would provide reasonable suspi cion that the passengers were in the country

20 without authorization.

21

The arrest reports for large-scale satura tion patrols confirm that separate probable

22 cause or re asonable suspicion as to passenger s was not consi dered a necessity prior t o

23 investigating their identities. Those reports contain a column listin g the probable cause

24 that lead to each arrest. Again, in almo st all cases involvi ng passengers who were

25 arrested, the onl y probable caus e listed is that the person was a passenger in a vehicle

26 stopped for a traffic violation. (Exs. 79, 82 (particularly the arrests of Deputies Ruiz,

27 Almanza, Smith, Calderon, Armendariz, Romney, Sloup a nd Seclacek), 90, 97

28

- 98 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 99 of 142

1 (particularly the arrests of Deputies Armenda riz, Schmizer, Doyle, Beeks, Brockman,

2 Trombi, Komoroski, Cosme, Templeton, Silva, Sum mers, Roughan and Rangel); 102,

3 111, 174, 178, 180.) Thus, as with the small-scale patr ols, these arrest reports do not

4 delineate any individualized reasonable suspicion or probable cause on whic h an MCSO

5 deputy could detain a passenger or prolong a st op to investigate a passenger ’s

6 authorization for being in the United States.

7

Based on the weight of the evi dence and testimony, the C ourt concludes that

8 officers in the MCSO operations frequently detained passengers to investigate their

9 immigration status as a m atter of course , whether based in part on t he race of the

10 occupants or ot herwise. In som e of th ose stops, som e officers m ay have ha d an

11 objectively reasonable suspicion with res pect to i ndividual passengers sufficient to

12 prolong detention for a reasona ble time to co nduct a brief investig ation. Nevertheless,

13 MCSO practice and some of its operational procedures do not require its deputies to have

14 such suspicion beyond the in itial traffic stop or to docume nt their bases to routinely

15 investigate the identities of a vehicle’s occupants.

16

12. The MCSO never made an eval uation to determine whether its

17

saturation patrols were being implemented with racial bias.

MCSO command personnel uniformly testified that they did not conduct any sort 18

of investigation or m onitoring to determ ine whether the saturation patrols were being 19

implemented in a racially-bia sed fashion. For example, Chief Sands testified that the 20

MCSO does not c ollect data on those people it stops or detains to determine whether 21
officers are engaging in racial profiling.85 (Id. at 833:6–8.) Sgt. Palmer testified that if he 22

23

85 Chief Click, the MCSO’s st andard of care expert at trial, testified that any

supervisor who wanted to minimize racial profiling would have to take active steps to 24 combat it by reviewing records, investigatin g unusual findings, and retraining officers as

25 needed. (Tr. at 1746: 241747:5, 1750:201751:9, 1754:413.) He testified that

“anything that woul d raise the specter of ra cial profiling needs to be investigated and 26 looked at further.” (Id. at 1765:12–14.) Chief Click testified that to determine whether

27 or not officers are improperly using race during a saturation patrol, a departm ent would not merely look to see if there was probable cause for a particular stop, but “look at the
28

- 99 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 100 of 142

1 saw that a deputy had reported that he had reasonable suspicion to justify a stop, he knew

2 that the de puty did not enga ge in “racial profiling.” ( Id. at 724: 22–725:1.) He f urther

3 testified that he socializes with other o fficers in the MCS O off-duty, and based on

4 knowing them socially and knowing them as well as he does, he knows that they do not

5 engage in “racial profiling.” (Id. at 778:25–779:2.) He also testified that he believes there

6 is no need to investigate wh ether MCSO officers improperly use race in the course of

7 their law enforcement duties be cause “quite frankl y, sir, I know m y brothers, and we 8 abide by the law.” 86 (Id. at 779:17–18.) Because he is cer tain that the other members of

9 the HSU would never engage i n racial prof iling, Sgt. Palmer never took any action to

10 determine whether HSU deputies engaged in racial profiling and never put any system in

11 place to monitor for racial profiling. (Id. at 780:15–22.)

12

Sgt. Madrid has never reviewed his depu ties’ incident reports for the purpose of

13 checking whether they are engaged in racial profiling. (Id. at 1172:12–15.) If Sgt. Madrid

14

15

bigger picture, how many people did either the individual deputy stop or how many were stopped, how m any total peopl e were stopped during the patrol?” ( Id. at 1764:23–

16 1765:1.)

17

86 The deputies that Sgt. Palmer supervis ed in the HSU are, apparently the same

18 ones with whom he exchanged e-mails demeaning Mexicans. (Exs. 18, 29.) Sgt. Palm er, considering the e-mails a “joke,” forwarded th em to the deputies he supervised in the
19 HSU. (Tr. at 735: 1113.) Although Sgt. Palmer believ es he was disciplined for sending

20 the emails, he rem ained a supervising sergeant in the Hum an Smuggling Unit. ( Id. at 737:17–18.) A year later, Sgt. Palm er circulated to the HSU a fictional article from the

21 Los Angeles Times purporting to be about immigration which contained baseless

22 statistics regarding the unauthorized population in California. (Ex. 2.) Sgt. Palmer did not investigate whether the statistics in the e-mail were true before sending it to his

23 subordinates. (Tr. at 729:21–23 .) Sgt. Palmer forwarded the e-mail to his deputies in the

24

Human Smuggling Unit as factual info rmation for trai ning purposes. ( Id. at 732:2–6.) Sgt. Palmer later learned that the statistic s in the e-mail were not from the Los Angeles

25 Times and were not f actual, but does not re call ever sending an e-mail to his deputies

26 mentioning that the earlier e-mail was a hoax. (Id. at 732:13.)

27

28

- 100 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 101 of 142

1 determined that an officer had probable cause to make a stop, he “wouldn’t even suspect”

2 that the officer had engage d in racial profiling. ( Id. at 1172: 20–24.) Lt. Sousa did not

3 review citations, stat sheets, or any other documents to determine whether racial profiling

4 was occurring in the Hum an Smuggling Unit because he believe d that racial profiling

5 was a “nonissue.” ( Id. at 1022:12 16.) Lt. Sousa is not aw are of the MCSO ever

6 disciplining an officer for racial profiling. (Id. at 1023:23–25.)

7

13. After the revocation of its 287(g) status, the MCSO erroneously trained

8

all of its 900 deputies that they co uld enforce federal immigration law. The MCSO further erroneously traine d its deputies that unauthorized

9

presence in the country, without mo re, was a criminal as opposed to an

administrative violation of fe deral immigration law. The MCSO

10

operated under that misunderstandi ng during most of the period

11

relevant to this lawsuit.

12

Until December 2011, the MC SO continued to operate under the erroneous

13 premise that being a n unauthorized alien in this country in and of itself established a

14 criminal violation of federa l immigration law which the MCSO was entitled to enforce

15 without 287(g) authorization. (Tr. at 699:3–702:17.) At the time of revocation, the MCSO

16 had approximately 100 field de puties who were 287(g) certified. (Exs. 356, 359, 360.)

17 Shortly after the revocation of hi s 287(g) authority, Sheriff Arpaio decided to have all of

18 his deputies trained on immigration law. Being so trained, the MCSO asserted, all MCSO

19 deputies could m ake immigration arrests. (Exs. 359 (M CSO news release dated March

20 18, 2010 stating that because ICE revoked the ability of 1 00 287(g)-trained officers to

21 enforce immigration law, the M CSO would now use all 900 of its deputies to enforce

22 immigration laws in Maricopa County), 356, 358 ( MCSO news release dated March 1,

23 2010 stating that “[t]hese arrests are a result of S heriff Joe Ar paio’s recent prom ise to

24 ensure that all 900 of his sworn deputies re ceive training on the en forcement of illegal

25 immigration laws”), 360, 362.)

26

This training erroneously instructed MCSO deputies that a person wit hin the

27 country without authorization was necessarily committing a federal crime, and the MCSO

28 thus maintained the authority to detain them for crim inal violations. (Tr. at 699:3–

- 101 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 102 of 142

1 702:17.) Further, Sheriff Arpaio gave intervie ws to the national and local press in which

2 he asserted that if a person is in the co untry without authorization, that person has

3 necessarily committed a criminal offense. (Id. at 362:17–21 (“[T]hey did commit a crime.

4 They are here illegally.”).) Sgt. Palmer conti nued to provide such instruction and training

5 until December 2011, when this Court enjoined the MCSO from detaining persons on the

6 belief, without more, that those persons wer e in this country without legal authorization.

7 Ortega-Melendres, 836 F. Supp. 2d at 994.

8

Moreover, the Sheriff continued to ru n numerous saturation pat rols focused on

9 arresting unauthorized immigrants generally. (Exs. 350 (“[D]eputies turned over a total of

10 19 of the 30 s uspected illegal a liens who were not charged fo r any state violations to

11 Immigration and Custom Enforcement officials without incident.”); 358–62 (emphasizing

12 the number of illegal immigrants arrested in these operations).) In such operations, he

13 continued to arrest and turn over to ICE the unauthorized aliens that his deputies arrested

14 during these patrols. (Ex. 360 (MCSO news release noting t hat 47 of 64 people arrested

15 in a post-revocation saturation patrol were ille gal aliens. 27 of those 47 were arrested on

16 state charges with the remainder being turned over to ICE).)

17

14. When enforcing state laws related to immigration the MCSO continues

18

to use race as an indica tor, among others, of unauthorized presence, as it did in its previous operations.

19

At trial, Sheriff Arpaio testified that the loss of 287(g) authority did not affect how

20 the MCSO conducted its immigration related operations, including the saturation patrols.

21 (Tr. at 469:23–470:5.) He has continued to enforce “the immigration laws, human

22 smuggling, employer sanction” as he did pr eviously. (Id. at 473:23–474:1.) The Sheriff

23 maintains the right and intention to co nduct such operations in the future. (Id. at 469:20–

24 470:2, 473:5–474:7, 474:20–24.) Sheriff Arpaio testified that the last saturation patrol the

25 MCSO conducted prior to trial occurred du ring October 2011 i n southwest Phoenix. (Id.

26 at 474:8–13.) He testified that although the MCSO had not conducted a saturation patrol

27 in the eight months prior to trial, he has not re-evaluated the propriety of the patrols based

28

- 102 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 103 of 142

1 on the current litigation or other litigation. ( Id. at 474:14–475:1.) Further, the MCSO

2 continues to m ake immigration arrests. As th e Sheriff testified, th ey arrested about 40

3 unauthorized persons in Maricopa County in the two weeks prior to trial. They charged

4 those they could with state la w violations and the y successfully turned th e rest over to

5 ICE. (Id. at 503:3–11.) The Sheriff reaffirmed that the MCSO “will continue to do all that

6 we can to reduce the number of illegal aliens making their way into the United States and

7 Maricopa County.” (Id. at 336:23–337:8.)

8

Several officers and deputies likewise affi rmed that, essentially, nothing has

9 changed. Chief Sands testified that he does not belie ve that the revocation of 287( g)

10 authority had any impact on MCSO’s ability to conduct saturati on patrols or Human

11 Smuggling operations. (Id. at 845:14–22, 837:6–7.) Chief Sands testified that, the MCSO

12 will “continue enforcement of immigration issues.” (Id. at 837:6–7.)

13

Sgt. Madrid also testified that ICE’s te rmination of the MCSO’s 287(g) authority

14 does not affect the MCSO’s ability to conduct immigra tion enforcement operations

15 because a person’s immigration status is relevant to determining whether there has been a

16 violation of the Arizona state crime of huma n smuggling, or possi bly other state laws

17 related to immigratio n. (Id. at 1157:17–1158:6 .) As discussed above, Sgt. Madri d

18 testified that, in enforcing the state hum an smuggling statute, MCSO officers continue to

19 consider race as one factor am ong many “in deciding whether someone is suspected of

20 being an undocumented immigrant in a smuggling load.” (Id. at 1164:4–12.) In reviewing

21 a report prepared by an MCSO deputy under his supervision in which the deputy stated

22 that he was suspicious that passengers in a vehicle were unaut horized immigrants based

23 on, among other factors, “[t]he Hispanic decent [sic] of his passengers the pungent body

24 odor and the lack of luggag e for traveling,” (Ex. 157 at MCSO 024667), Sgt. Madrid

25 stated that he would not con duct any corrective follow up on the officer who submitted it

26 based on the use of race as a factor in

forming his original suspicion, (Tr. at

27 1170:221171:3.)

28

Sgt. Palmer similarly testified that MCSO policy allows officers to “decide to

- 103 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 104 of 142

1 initiate an investigation duri ng a stop based on race or et hnicity, among other factors.”

2 (Id. at 717:2–4.) He specifically testified a passenger’s race c ould be used to determ ine

3 whether the vehicle was a hum an smuggling load. (Id. at 721:18.) He stood by his swor n

4 deposition testimony that he be lieved a subject’s race was one relevant factor am ong

5 others that officers coul d use t o develop reasonable suspicion that t he subject was

6 unlawfully present in the United States. ( Id. at 726:1–15.) Further, when presented with

7 the same report that Sgt. Madrid had reviewed in which a deputy de scribed the suspect’s

8 Mexican descent as a basis, among ot hers, for his belief that th e suspect was in the

9 country illegally, Sgt. Palmer stated that “[a]mong the other indicators listed there I don’t

10 see a problem with that, no.” (Id. at 721:1–2.)

11

Finally, Deputy Rangel testif ied that he currently uses the 287(g) factor s to

12 determine whether he has reasonable suspicion that someone is unlawfully present. (Id. at

13 956:25–957:5.)

14

15. MCSO deputies continue to fo llow the LEAR policy , which directs

15

them to detain persons whom they cannot arrest on state char ges, but whom they believe to be in the country without authorization, pending

16

direction from, or delivery to, ICE.

17

The MCSO continues to arrest those it be lieves to be unauthorized aliens, charges

18 those it can on state charges, and turns the re st over to ICE. At trial, Sheriff Arpaio 19 testified that “in the last two weeks we’ve made over 40 arrests of illegal aliens coming

20 into our county, and a few we did not have the stat e charge, including some young

21 children, and ICE did accept those people.” (Id. at 503:3–6.) He specified that the state 22 charge to which he referred was the Arizon a Human Smuggling Act and then noted that

23 when the MCS O arrested unaut horized aliens that could not be charged under the Act,

24 “we haven’t had any problem yet turning those th at we cannot charge in state court over 25 to ICE.” (Id. at 503:10–11.) Although the LEAR policy as written does not require ICE to

26 accept such persons, according to Sheriff Arpa io, there is no problem with ICE doing so.

27 Nevertheless, the Sheriff has apparently stated in press interviews that if he encounters a 28 problem with ICE agreeing to accept the unautho rized aliens he arrests, the Sheriff will

- 104 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 105 of 142

1 have the MCSO transport such persons back to Mexico. (Ex. 348.)

2

Similarly, according to Chief Sands under MCSO’s current practice “[i]t’s the

3 ones that you possibly can’t determine there’s enough evidence to ch arge them with the

4 state law, and then you would turn them over to ICE.” (Id. at 845:15–17.)

5

Deputy Rangel similarly testified that MCSO initially “take[s] into custody” and

6 then turns over to ICE “an individual that you s uspect is an illegal immigrant but for

7 which you do not have pr obable cause of a state crime.” ( Id. at 958:23–959: 14.) He

8 repeated that the individual would be “d etained by the MCSO until the MCSO . . .

9 receives a response from ICE as to whether ICE wants the individual or wants them to be

10 released.” (Id.)

11

Likewise, Lt. Sousa testified at trial that after the Department lost its 287(g)

12 authority, its officers continue d to detain pe ople whom they believed t o be unla wfully

13 present in the country and “mak e that phone call to ICE if they didn’t have the state

14 charge.” (Id. at 1007:9–11.)

15

Sgt. Madrid also testified that after th e MCSO lost its 287(g) aut hority, MCSO

16 deputies would continue to arr est persons that they believed we re present without

17 authorization and tur n such pe ople over to ICE. ( Id. at 1161:14–19 (testifying that his

18 practice was to detain a suspected illegal immi grant and “make a call to ICE and let them

19 make that determination”), 1226:8–23 (testifying that, after the loss of 287 (g) authority,

20 HSU continued to operate in th e same way except that they w ould have to call ICE after

21 detaining a suspected illegal immigrant rather than arresting that person with their own

22 287(g) authority).)

23

Sgt. Palmer testified that MCSO officer s who encounter people they believe are

24 unlawfully present in t he country “ha[ve] to wait for cont act with an ICE agent.” ( Id. at

25 698:8–11.) MCSO has drafted, placed in effe ct, and t rained all of its deputies on this

26 policy. (Id. at 1055:14–24, 1056:9 –13, 1070:1–10, 1076:11– 18.) Deputy DiPietro

27 testified that he received “some online trai ning” on the effect of the loss of 287( g)

28 authority, and that “we were to call ICE, because we didn’t have our 287(g) any longer.”

- 105 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 106 of 142

1 (Id. at 291: 22–23.) Deputy Armendariz stated th at it is his current practice to conduc t

2 “investigative detentions” of vehicle passengers to determine whet her they are in the

3 country legally. ( Id. at 1519:13–15; 1544:7–9, 1585:8–1586 :9.) He also testified that if

4 the database accessible from his patrol vehicl e provided no information on a person with

5 the name and date of birth supplied, he th en takes the person in to custody until their

6 identity could be ascertained. (Id.)

7

The Court thus concludes that it is current MCSO policy to detain people on the

8 reasonable suspicion, without more, that they are not legally present in the country while

9 MCSO deputies attempt to or do contact MCSO field officers and/or ICE personnel to

10 investigate the detainee’s alienage. (Id. at 1590:1–12, 959:3–14, 503:3–11, 845:7–22,

11 1161:7–19, 1162:6–22, 1205:10–1206:9, 1226:5–14, 958:23–959:2, 1055:14–24,

12 1056:9–13, 1070:1–10, 1076:11–18.)

13

16. In following its LEAR policy, the MCSO conti nues to use race as an

14

indicator of unauthorized presence.

Pursuant to its LEAR policy, MCSO deputies continue to apply the indicators of 15

unlawful presence that were iden tified in the 287(g) training their officers received from 16

ICE to determine whether there is reasona ble suspicion that someone is in the country 17

without authorization. Lt. Sousa stated th at in implementing th e LEAR policy, the 18

formerly certified 287(g) officers “still had that training, so they w ould definitely know 19

the indicators.” (Id. at 1007:9–10.) Sgt. Madrid testified that agents continue to look for 20

indications of unauthorized presence during stops and that they are trained to use race as 21

one of those indicators. (Id. at 1162:6-1164:12.) Deputy Rangel testified that he currently 22

uses the 287(g) factors to determ ine whether he has reasonable suspicion that someone is 23

unlawfully present. (Id. at 957:1–5.) The MCSO therefore continues to pursue the same 24

policies and practices it did before it lost 287(g) authority. 25

26

17. The MCSO arrests and/ or detains al l persons it believes to be unauthorized, and it remains the re gular practice of some of MCSO

27

deputies to investigate all the occupants of every vehicle they stop.

28

The MCSO continues to investigate the id entity and immigration status of person s

- 106 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 107 of 142

1 it detains during vehic le stops. (Id. at 503:9–12 (Arpaio), 845 :14–22 (Sands), 1007:9–11

2 (Sousa), 1226:8–23 (Madrid), 698:8–11 (P almer), 958:23–959:7 (Rangel) 1526:1–3,

3 1546:3–17 (Armendariz), 29 1:22–23 (DiPietro).) Deputy Armendariz twice confirmed

4 that it is still his practice to go through this process of investigating passengers during all

5 of his stops. (Id. at 1526:1–3, 1546:3–17.)

6

Sgt. Madrid testified that agents continue to look for indications of unauthorized

7 presence during stops and that they are trained to use race as one of those indicators. (Id.)

8

Further, once a vehicle has been stopped, MCSO policies allow MCSO deputies to

9 consider the Latino ancestry of a vehicle’s o ccupants, as one fa ctor among others, in

10 deciding whether to inquire into the immigration compliance of persons stopped.

11

CONCLUSIONS OF LAW

12 I. PROPRIETY OF INJUNCTIVE RELIEF

13

In this action, Plaintiffs seek injunctive relief only. To obtain such relief, Plaintiffs

14 have the burde n of establishi ng that, not only have t hey been wronged, but there is “a

15 sufficient likelihood that [they] will again be wron ged in a similar way.” City of Los

16 Angeles v. Lyons, 461 U.S. 95, 111 (1983). To the extent the MCSO has ongoing policies

17 or practices that violate the constitutional prot ections of the Plaintiff class, such policies

18 or practices constitute a sufficient possibility of ongoing harm to su pport an injunction.

19 See LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985); Thomas v. Cnty. of L.A., 978

20 F.2d 504, 508 (9th Cir. 1992); Walter v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998).

21

When it had 287( g) enforcement authority, the MCSO implemented operations,

22 policies and practices to take full advantage of its expanded authority to enforce federal

23 administrative immigration regulations and enhance the efficiency of its enforcement

24 operations against una uthorized aliens. Because the federal gover nment has term inated

25 the MCSO’s 287(g) authority, and because Plaintiffs seek injunctive relief onl y, the

26 MCSO’s policies, operations, and practices adopted to implement its 287(g) authority

27 would not otherwise be relevant except that, as was made clear by the testimony of the

28 Sheriff and other members of the MCSO command staff at trial, nothing has changed: the

- 107 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 108 of 142

1 MCSO both uses these same policies, operations and practic es, and claim s the right t o

2 continue to use them in its enforcement of both immigration-related state law and its

3 LEAR policy.

4

Plaintiffs challenge a num ber of aspects of the policies, operations and practices

5 that the MCSO has used and co ntinues to use. The MCSO sti pulated that Sheriff Arpaio

6 is its ultimate policy maker. A policy, endors ed by an officer who claims he has final

7 decisionmaking authority, combined with statements by officers who are responsible for

8 implementing the policy, provides evidence that the MCSO made “a deliberate choice to

9 follow a c ourse of a ction made from among various alternatives by the official or

10 officials responsible for establishing final policy with respect to th e subject matter in

11 question.” Meehan v. Cnty. of Los Angeles , 856 F.2d 102, 107 (9 th Cir. 1988) (quoti ng

12 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (emphasis in original).

13

Thus, to the extent such practices violat e the constitutional rights of the Plaintiff

14 class, Plaintiffs are entitled to injunctive relief. See LaDuke, 762 F.2d at 1326 (holding

15 that plaintiffs “do not have to induce a polic e encounter before the possibility of injury

16 can occur” because s tops are the result of an “unconstitutional pa ttern of conduct”);

17 Thomas, 978 F.2d at 508 (stating that injunctive relief is appropriate when plaintiffs show

18 that police misconduct “is purposefully aimed at minorities and that such misconduct was

19 condoned and tacitly authorized by department policy makers”).

20

To the extent the MCSO asserts that, despite any po tential future harm to the

21 certified class resultin g from its policies, Plai ntiffs cannot prevail because none of the

22 class representatives demonstrated at trial th at they suffered personal harm, its argument

23 is not well-founded. It is true that to gain class certification, named plaintiffs must “allege

24 and show that they personally have been injured.” Warth v. Sel din, 422 U.S. 490, 502

25 (1975). However, when the claims of nam ed plaintiffs are not pr oven at trial, unnam ed

26 class members may be awarded relief so long as a “controversy” still exists between the

27 unnamed class m embers and the defenda nts. Sosna v. Iow a, 419 U.S. 393, 402 (1975) .

28 (“The controversy may exist, however, between a named defendant and a member of the

- 108 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 109 of 142

1 class represented by the named plaintiff, even though the claim of the named plaintiff has

2 become moot.”); see also Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 753 (1976)

3 (granting relief to class memb ers in multiple subclasses ev en though the named class

4 representative’s claim failed, because “[t]he unnamed members of the class . . . have such

5 a personal stake in the outc ome of the contr oversy . . . as to assure that concrete

6 adverseness”) (internal quotations and citatio n omitted). The ev idence demonstrates that

7 such a controversy exists between Defendants and unnamed class members here.

8

At any rate, as discussed in great er detail below, Mr. Ortega-Melendres’s Fourth

9 and Fourteenth Amendment claims succeed, so he “ personally [has] been injured” and is

10 an appropriate class representative. Warth, 422 U.S. at 502.

11 II. SPECIFIC CONCLUSIONS

12

A. The MCSO is enjoined from enforcing its LEAR policy.

13

Mere unauthorized presence in this coun try, without more, is not a criminal

14 offense. It is true that use of unauthorized methods of entr y into this countr y generally

15 constitutes at least misdemeanor or petty criminal violations of federal immigration law.

16 See, e.g., 8 U.S.C. § 1325 (2005) (making it a federal misdemeanor to enter or attempt to

17 enter the United States at “any time or plac e other than as designated by im migration

18 officers.”). However, aliens may enter the country legally, but become subject to removal

19 either by staying longer than authorized or othe rwise acting in excess of their

20 authorization. Although a num ber of such aliens are here without or in excess o

f

21 authorization, they have only committed a civil, as opposed to a criminal, violation o f

22 federal law. As the Supreme Court recently explained “[a]s a general rule, it is not a

23 crime for a removable alien to remain pres ent in the United Stat es. If the police stop

24 someone based on nothing more than possible removability, the usual predicate for an

25 arrest is absent.” Arizona v. United States, ___ U.S. ____, ____, 132 S. Ct. 2492, 2505

26 (2012) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)).

27

This Court preliminarily enjoined the MCSO on Decem ber 23, 2011 from

28 detaining persons based onl y on a suspicion th at they were in this country without

- 109 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 110 of 142

1 authorization in the absence of additional facts. The MCSO appealed the preliminary

2 injunction to the Ninth Circuit. In affirming the preliminary injunction, the Ninth Circuit

3 reiterated these principles:

4

We have long made clear that, unl ike illegal entry, mere unauthorized

5

presence in the United States is not a crime. See Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011 ) (“Nor is there any other

6

federal criminal statute making unlawful presence in the United States,

alone, a federal crime, although an alien’s willful failure to register his

7

presence in the United States when requi red to do so is a crim e, and other

8

criminal statutes may be applicable in a particular circumstance.”) (citation

omitted); Gonzales v. City of Pe oria, 722 F.2d 468, 476–77 (9th Cir. 1983)

9

(explaining that illegal presence is “only a civil violation”), overruled on

10

other grounds by Hodgers-D urgin, 199 F. 3d 1037. The S upreme Court

recently affirmed that, “[a]s a general rule, it is not a crime for a removable

11

alien to remain present in the United States.” Arizona v. United States, 132

12

S.Ct. at 2502.

13 Ortega-Melendres v. Arpaio (Ortega-Melendres II), 695 F.3d 990, 1000 (9th Cir. 2012).

14

As demonstrated by t he testimony of ever y MCSO officer at trial, the MC SO’s

15 LEAR policy directs its deputies to detain pe rsons believed to be unauthorized aliens but

16 whom they cannot arrest on state charges. The focus of the LEAR policy on detaining

17 any removable alien as opposed to aliens who have committed criminal offens es

18 necessarily means that the MCSO is detain ing persons based onl y on its suspicion that

19 they have committed a civil infraction of federal immigr ation law. As a local law

20 enforcement agency with out 287(g) authority, the MCSO has no statutory, inherent, or

21 constitutional authority to detain people for ci vil violations of fede ral immigration law.

22 See Martinez-Medina, 673 F.3d at 1036 (“ [U]nlike illegal entry, which is a criminal

23 violation, an alien’s illegal presence in the United States is only a civil violation.”) (citing

24 Gonzales, 722 F.2d at 476).

25

As the Suprem e Court explaine d in Arizona, removable aliens are subject to

26 administrative removal proceedings th at are civil in nature. 132 S. Ct. at 2499. Thus,

27 “Congress has put in place a system in whi ch state officers may not m ake warrantless

28 arrests of aliens based on possible re

movability except in s pecific, limited

- 110 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 111 of 142

1 circumstances.”87 Id. at 2507. After the termination of its 287(g) authority, t he MCSO

2 offers no l egal authority that w ould place it, or its LEAR policy, in one of those

3 circumstances. When the MCSO merely suspects a person of being in the country without

4 authorization, it does not, in the absence of additional fact s that would ma ke the person

5 guilty of an immigration-related crime, have a basis to arrest or even engage in a brief

6 investigatory detention of such persons.

7

In affirming this Court’s preliminary in junction, not only di d the Ninth Circuit

8 establish that the MCSO has no power to arrest such persons under such circumstances, it

9 made clear that the MCSO has no power to detain them to investigate their immigration

10 status. It is the existence of a suspected crime that gives a police officer the right to detain

11 a person for the minimum time ne cessary to determine whether a crime is in progress.

12 “[P]ossible criminality is key to any Terry investigatory stop or prolonged detention. . . .

13 Absent suspicion that a ‘suspect is engaged in, or is about to engage in, criminal activity,’

14 law enforcement may not stop or detain an individual.” Ortega-Melendres II, 695 F.3d at 15 1000 (quoting United States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004).88

16

In the absence, then, of any reasonable suspicion of a possible crime, there is no

17 basis on w hich the M CSO can m ake an inve stigative detention—let alone an arrest—

18 based only on t he belief that som eone is in the country wit hout authorization. See also

19 Arizona v. Johnson, 555 U.S. 323, 326 ( 2009) (holding that a n investigatory stop is

20 justified at its inception on ly when an officer “reasona bly suspects that the person

21 apprehended is committing or has committed a criminal offense”).

22

87 As an example, the Court cited the Atto rney General’s authority to enter into a

23 287(g) agreement. Arizona, 132 S. Ct. at 2506. Other ex amples include an “imminent

24 mass influx of aliens off the coast of the United States.” 8 U.S.C. § 1103(a)(10).

25

88 In United States v. Brignoni- Ponce, 422 U.S. 873, 881–82 (1975) the Supreme

26

Court extended the authority to conduct Terry-like stops to civil immigration contexts for those who had authority to investigate such violations. But, after revocation of its 287( g)

27 authority, the MCSO cannot claim such authority or benefit from this extension.

28

- 111 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 112 of 142

1

The MCSO’s LEAR policy is not save d by that part of the S upreme Court’s

2 decision in Arizona that upheld, as against a preempti on challenge, a provi sion in SB

3 1070 which provides that, “[f] or any lawf ul stop, de tention or arrest m ade by a law

4 enforcement official . . . a reasonable atte mpt shall be made, wh en practicable, to

5 determine the immigration status of the person.” A.R.S. § 11-1051(B); see Arizona, 132

6 S. Ct. at 2515-16. The threshold requirement is a “lawful” stop or detention. As explained

7 above, any stop or det ention based only on a reasonable suspicion that a person is in the

8 country without authorization, without more facts, is not lawful. Thus, the LEAR policy

9 does not fall under the ambit of A.R.S. § 11-1051(B).

10

Further, while 8 U.S. C. § 1357(g)(10) does not require a 287(g) agreem ent for a

11 local law enforcement ag ency to report “that a particular alien is not lawfully present in

12 the United States,” or to “cooperate in the identification, apprehension, detention, or

13 removal of aliens not lawfully present in the United States,” such statutory language does

14 not negate constitutional guaran tees or authorize local la w enforcement agencies to

15 unilaterally arrest such individuals. As the Supreme Court said in discussing this statutory

16 authorization, “[d]etaining individuals solely to verify their imm igration status would

17 raise constitutional concerns.” Arizona, 132 S.Ct. at 2509. T hus, in de scribing the

18 cooperation anticipated by the statute, the Supreme Court observed:

19

There may be some ambiguity as to what constitutes cooperation under the

20

federal law; but no coherent understa nding of the term would incorporate the unilateral decision of state offi cers to arrest an alien for being

21

removable absent any request, appr oval, or ot her instruction from the

Federal Government. The De partment of H omeland Security gives

22

examples of what would constitute co operation under federal law. These

23

include situations where States particip ate in a joint task force with federal

officers, provide operations support in executing a warrant, or allow federal

24

immigration officials to gain access to de tainees held in state facilities. . . .

25

State officials can also assist th e Federal Government by respondi ng to

requests for information ab out when an alien will be released from their

26

custody. . . . But, . . . unilateral stat e action to detain . . . goes far beyond

27

these measures, defeating any need for real cooperation.

28 Id. at 2507.

- 112 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 113 of 142

1

The LEAR policy requires the arrest of the subject encountered by the MCSO. As

2 Sheriff Arpaio testified, the MCSO continues to arrest all persons that it comes across

3 that it believes to be unauthorized aliens. Wh en the MCSO finds so me aliens that it

4 cannot charge with a violation of state law, it turns them ove r to ICE (a nd has done s o

5 consistently without problem). Of course, his testimony highlights the fact that once such

6 persons come into t he custody of the MCSO, they are not free to leave and are hence

7 under arrest. His testim ony in this respect is supported by the similar testimony of a

8 number of other M CSO witnesses. Chief Sands, Deputy Rangel, and others testified that

9 such persons are take n into custody first, and only those that cannot be c harged on state

10 charges are then turned over to ICE. Such persons are investigated and apprehended upon

11 the prerogative of the MCSO an d not at the direction of IC E. And such apprehensions

12 occur despite the lack of any au thority on the part of the MCSO to investigate or arrest

13 for civil immigration violations.

14

Even if this Court accepted the MCSO ’s argument that the application of the

15 LEAR policy involves only a detention of the subject pending contact with ICE, it would

16 not make the detention constitutional. In th e absence of a reasonable suspicion that a

17 crime has been com mitted, the MCSO lacks authority to engage in a detention of

18 someone pending such contact. As stated abov e, a law enforcement officer must suspect

19 that an individual is “engaged in, or is about to engage in, criminal activity,” before he or

20 she can stop or detain that indi vidual. Ortega-Melendres II, 695 F .3d at 1000. To the

21 extent the MCSO actually fo llows the written requirement s of the LEAR policy, it

22 requires the MCSO deputy to summon an MCSO supervisor to the scene and requires the

23 supervisor to obtain certain information, contact ICE, pass along the information to ICE,

24 await an ICE response, and/or deliver the arre stees to ICE. This in evitably takes time in

25 which the subject is not free t o leave regardless of whether the detention is officially

26 termed an arrest. If th e cooperation clause in 8 U. S.C. § 1357(g) (10) were to be read

27 broadly enough to countenance such arrests as cooperation, there wo uld be no nee d for

28 the 287(g) authorization and training which the same statute authorizes. Cf. Christensen

- 113 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 114 of 142

1 v. C.I.R., 523 F. 3d 957, 961 (9th Cir. 2008) (stating that courts should avoid

2 interpretations “that would render . . . subsections redundant”).

3

In the MC SO’s operations, there appears to be no pra ctical difference betw een

4 how it presently implements the LEAR policy and how it performed when it had full

5 287(g) authority. Even after the revocation of its 287(g) authority, the MCS O continues

6 to look for indications of unaut horized presence using its 287( g) training, which taught

7 officers that race could be used as an indi cator. The MCSO furthe r continues to take

8 credit in the press for unauthorized aliens that it arrested but c ould not charge and thus

9 turned over to ICE pursuant to its LEAR policy.

10

The MCSO’s LEAR policy is not authorized by Arizona v. United States, 8 U.S.C.

11 § 1357(g)(10), or any other case or statute. The policy is further in excess of the MCSO’s

12 constitutional authority because the policy’s focus on remova ble aliens as opposed to

13 aliens who have committed crimin al offenses violates the st rictures against unreasonable 14 seizures set forth in the Fourth Amendment. 89 The Court therefore concludes as a matter

15 of law that when MCSO detains a vehicle’s occupant(s) because a deputy believes that

16 the occupants are not legally pr esent in the country, but has no probable cause to detain

17 them for any other reason, th e deputy violates the Fourt h Amendment rights of the

18 occupants. See Arizona, 132 S. C t. at 2509 ( “Detaining individuals solely to verify their

19 immigration status would raise constitutiona l concerns.”) (citation omitted). The Court

20 further concludes, as a matter of law, that the MCSO has violated the expli cit terms of

21 this Court’s preliminary injunction set forth in its December 23, 2011 order because the

22 MCSO continues to follow the LEAR po licy and the LEA R policy violates the

23 injunction. See Ortega-Melendres v. Arpai o (Ortega-Melendres I), 836 F. S upp. 2d 959,

24

89 The Fourth Amendment’s application to unauthorized aliens is unclear and may

25 vary based on the alien’s ties to the country. See U.S. v. Verdugo–Urquidez , 494 U. S.

26

259, 265 (1990). However, it is clear that la w enforcement actions may not “diminish the Fourth Amendment rights of citizens who may be mistaken for aliens.” Brignoni–Ponce,

27 422 U.S. at 884.

28

- 114 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 115 of 142

1 994 (D. Ariz. 2011). The MCSO is thus permanently en joined from enforcing its LEAR

2 policy with respect to Latino occupants of motor vehicles in Maricopa County.

3

B. The MCSO is enjoi ned from using Hisp anic ancestry or race as any

4

factor in making law enforcement decisions.

The day labor, small-scale, and large-scale saturation patrols either incor porate 5

racial considerations into their operational structure, as is the case with day labor 6

operations, or the MCSO explicitly allows its de puties to consider the race of subjects as 7

one factor among others in form ing reasonable suspicion that the subjects are 8

unauthorized aliens. The M CSO presently claims the right to enforce state law with the 9

same operations guided by the same policies that it used to enforce federal immigration 10

law. Sheriff Arpaio and others specifically claim that the Arizona Human Smuggling Act 11

and the Em ployer Sanctions laws afford th e MCSO the right to purs ue unauthorized 12

aliens. Because they fo llow the same policies and procedur es as they did previously, the 13

MCSO and its officers continue to consider race as an indicator of illegal presence in 14

enforcing state laws related to immigration, and in enforcing the MCSO’s LEAR policy. 15

There are, however, at least two problems with the m ethods in which the MCSO 16

pursues these enforcement prerogatives that render those methods unconstitutional. 17

18

1. The MCSO’s use of Hispanic an cestry or race as a factor i n forming reasonable suspicion that persons have vi olated state

19

laws relating to immigration status violates the Fourth

20

Amendment.

“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the 21
Government, and its protections extend to brief investigatory stops of persons or vehicles 22
that fall short of traditional arrest.” United States v. Arvizu , 534 U.S. 266, 273 (2002) 23

(citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). However, the Fourth Amendment is satisfied 24
if an officer’s action is supported by “reaso nable suspicion supported by articulable facts 25
that criminal activity may be afoot.” United States v. Sokol ow, 490 U.S. 1, 7 ( 1989) 26

(citing Terry, 392 U.S. at 30). 27
During a so-called “ Terry stop,” an officer’s reasonable suspicion that a pe rson 28

- 115 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 116 of 142

1 may be involved in criminal activity permits the officer to stop the person for a brief time

2 and take additional steps to investigate further. Terry, 392 U.S. at 24. Under Ninth Circuit

3 law, the race of an individual cannot be co nsidered when determining whether an officer

4 has or ha d reasonable suspicion in c onnection with a Terry stop, including for

5 immigration investigation. See, e.g., Montero-Camargo, 208 F.3d 1122 ( 9th Cir. 2000);

6 (Doc. 530 at 23 ¶ c). Neverthele ss, analysis under the Fourth Amendment, including that

7 relating to reasonable suspicion, is wholly objective, and “[ s]ubjective intentions play no

8 role in or dinary, probable-cause Fourth Amendment analysis.” See Whren v. United

9 States, 517 U.S. 806, 813 (1996).

10

All parties to this action stipula ted as a matter of law that “[r]ace cannot be

11 considered as a factor for reasonable sus picion.” (Doc. 530 at 23 ¶ c.) The parties’

12 stipulation comes from the foll owing legal background. In Brignoni-Ponce, 422 U.S. at

13 881–82, the Supreme Court held that the Border Patrol had to have reasonable suspicion

14 that a person was in the coun try without authorization prio r to stopping a vehicle to

15 question its occupa nts about thei r immigration status. Even then, absent consent or the

16 development of probable cause, it could onl y make a brief Terry-like stop to conduct a

17 quick and limited inquiry. In that case, the Court further held that the Hispanic race of the

18 occupants of a ve hicle being dri ven in close proximity to the bord er did not, without

19 more, provide reasonable suspicion to stop a car at all.

20

Even if [t he officers] saw enough t o think that the occupant s were of

21

Mexican descent, this factor alone wo uld justify neither a reasonable belief that they were aliens, nor a reasonabl e belief that the car concealed ot her

22

aliens who were illegally in the country. Large num bers of native-born and

naturalized citizens have the physic al characteristics identified with

23

Mexican ancestry, and even in the borde r area a relatively small proportion

24

of them are aliens. The likelihood that any given person of Mexican

ancestry is an alien is high enough to make Mexican appearance a relevant

25

factor, but standing alone it does not justify stopping all M exican-

26

Americans to ask if they are aliens.

27 Id. at 886–87. Brignoni-Ponce thus ge nerally stands for the proposition that a person’s 28

- 116 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 117 of 142

1 Mexican ancestry, even when that person is in proximity to the border, does not provide

2 sufficient reasonable suspicion, on its own, to justify even a brief investigative detention.

3 However, the opinion’s observation in dicta that “[t]he likelihood that any given person

4 of Mexican ancestry is an alien is high en ough to make Mexican appearance a relevant

5 factor” has been interpreted by ICE to mean that a person’s Hispanic appear ance can be

6 used as one am ongst a num ber of factors in establishing the re quisite quantum of

7 reasonable suspicion to justify a brief investigative detention. The 287(g) training manual

8 for January 2008 that was used by ICE in training the MCSO cites to Brignoni-Ponce for

9 the proposition that “apparent Mexican ancestry was a relevant factor” that could be used

10 in forming a reasonable suspicion that a person is in the country without authorization but

11 standing alone was insufficient to stop the individuals. (Ex. 68 at 7.)

12

ICE failed to take into account that its interpretation of the Brignoni-Ponce dicta

13 in this respect was rejected by the en banc Ninth Circuit 13 years ago in United States v.

14 Montero-Camargo, 208 F.3d 1122 (9th Ci r. 2000) (en banc). In Montero-Camargo, the

15 Ninth Circuit held, at a minimum, that in locations where a significant portion of the legal

16 resident population is of Hispanic ancestry, Hispanic descent was not a permissible factor

17 to consider, either alone or in conj unction with othe r factors, in form ing reasonable

18 suspicion justifying the detention of a suspect based on his or her suspected unauthorized

19 presence. Id. at 1131–33.

20

In that case, the Border Patrol had st opped the drivers of two vehicles who

21 reversed course and headed back in the direction of Mexico after passing a sign

22 indicating that an upcoming bo rder patrol facility, previously closed, was now open

23 again. Id. at 1126–27. The location where the dr ivers reversed their direction was 50

24 miles north of the border, not visible from the border patrol facility, and had been

25 frequently used to exchange illegal immigrants or drugs. Id. Border Patrol agents bega n

26 following the vehicles af ter they observed them change their direction. Id. To the agents

27 trailing the vehicles from behind, the occupants of the vehicles appear ed to be Hispanic.

28 Id. They thus pulled the vehicles over and asked the occupants about their citizenship. Id.

- 117 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 118 of 142

1 A subsequent search of the cars revealed quantities of marijuana, and the drivers were

2 arrested and convicted for, among other th ings, possession wit h intent to distribute

3 marijuana. Id. Both the district c ourt and the Ni nth Circuit panel allowed reliance upon

4 the Hispanic appearance of the vehicle’s occupants as one factor among others giving rise

5 to reasonable suspicion to justify the stop. Id. at 1131. While the en banc Ni nth Circuit

6 also affirmed the convictions, it emphasized that the defendants’ Hispanic appearance

7 was not a proper factor to consider in determ ining whether the Border Patrol agents had

8 reasonable suspicion to stop the vehicles. Id. In so hol ding, the Ninth Circuit noted that

9 for reasonable suspicion to exist, the totality of the circumstances “must arouse a

10 reasonable suspicion that the particular person being stopped has committed or is about 11 to commit a crime.” 90 Id. at 1129 (citing United States v. Cortez, 449 U.S. 411, 418

12 (1981) (emphasis in original). The court went on to note that:

13

[t]he likelihood that in an area in which the major ity—or even a substantial

14

part—of the population is Hispanic, any given person of Hispanic ancestry is in fact an alien, let alone an illega l alien, is not high enough to make

15

Hispanic appearance a relevant factor in the reasonable suspicion calculus.

As we have previously held, factors that have such a low probative val ue

16

that no re asonable officer would ha ve relied on t hem to m ake an

17

investigative stop must be disregarded as a matter of law.

18 Id. at 1132; see also Gonzalez-Rivera, 22 F.3d at 1446. The court concluded its opinion

19

90 The court observe d that it was perm issible for police in m aking an arrest in a

20 specific crime to consider a description of the particular suspect including race for purposes of forming probable cause in making an arrest. Montero-Camargo, 208 F.3d at

21 1134 n.21 (“Nor do we preclude the us e of racial or ethnic appearance as one factor

22

relevant to reasona ble suspicion or probabl e cause when a particular suspect has been identified as have a specific racial or et hnic appearance, be i t Caucasian, African-

23 America, Hispanic or other.”) (em phasis in original). It held, however, as had previ ous

24

courts before it, that it is not appropriate for law enforcement to consider race as being an indicator that a person is m ore likely to be a perpetrator of a generic class of crime. See

25 id. at 1122 n.10 (citing United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9 th Cir.

26

1994) (holding that reasonable suspicion can not be based “on broa d profiles which case suspicion on e ntire categories of people w ithout any individualized suspicion of the

27 particular person to be stopped”)).

28

- 118 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 119 of 142

1 by noting “at this point in our nation’s history, and given the continuing changes in our

2 ethnic and racial composition, Hispanic appearan ce is, in general, of such little probative

3 value that it may not be considered as a

relevant factor w here particularized or

4 individualized suspicion is required.” Id. at 1135.

5

The MCSO stipulated that Ninth Circuit la w prohibits its officers from using race

6 or Hispanic appearance in determining “w hether an officer has or ha d reasonable

7 suspicion in connection with a Terry stop, including for im migration investigation.”

8 (Doc. 530 at 23 ¶ c.) To t he extent the Court finds that the MCSO nevertheless uses and

9 has used race or Hispanic appearance as a factor in forming reasonable suspicion, the

10 MCSO urges the Court to “determine whether the actions taken were justified based upon

11 other factors constituting the totality of the circumstances.” (Doc. 562 at 30 n.29.) It

12 suggests that “[t]o do otherwise, would be contrary to the holding in Montero-Camargo”

13 in which the Ninth Circuit, while rejecting th e use of race as any criteria in arriving a t

14 reasonable suspicion, nevertheless recognized that there were sufficient facts independent

15 of race to provide reasonable suspicion justifying the stop. (Id.)

16

To the extent that there wa s a legitimate, pretextual tr affic basis for the original

17 stop that does not involve race, it does not m atter to Fourth Amendment analysis that th e

18 officer’s underlying decision to m ake the stop m ay have subj ectively been based on

19 considerations of race. See Whren, 517 U. S. at 813. Further, to the extent that other

20 factors in combination, and excluding race as a consideration, were sufficient to justify

21 reasonable suspicion for the stops, th ere is no F ourth Amendment violation. See United 22 States v. Manzo-J urado, 457 F .3d 928, 934 36 (9th Cir. 2006). As discussed below,

23 however, such motivations do make a difference to the equal protection analysis.

24

As to the investigation and arrests of ve hicle occupants for unauthorized presence,

25 with few exceptions, the arrest reports cont ain insufficient facts on which this Court

26 could determine that, even absent their consideration of race, MCSO deputies could have

27 formed reasonable suspicion that an occupant of the vehicle was in the count ry without

28

- 119 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 120 of 142

1 authorization. That is true for most of th e MCSO’s operations at issue in this trial. 91 See,

2 e.g., Manzo-Jurado, 457 F.3d a t 932 (hol ding that a n “individual[’s] appearance as a

3 member of a Hispanic work cr ew, [his] inability to speak Eng lish, [his] proximity to the

4 border, and unsuspic ious behavior,” cannot together provide law enforcement with

5 reasonable suspicion to investigate his immigration status).

6

The problem with the MCSO’s policies and procedures is that they institutionalize

7 the systematic consideration of race as one factor among ot hers in form ing reasonable

8 suspicion or probable cause in making law enforcement de cisions. To the extent that

9 officers do consider the race of a person i n making law enforcement decisions that result

10 in his or he r seizure, they necessarily consid er race as a factor in forming the reasonable

11 suspicion or proba ble cause that led to their arrest. It is tr ue that in any given factual

12 setting there may be other facts indepe ndent of race sufficient to justify reasonable

13 suspicion that a state statute related to immigration has been violated. But, that possibility

14 does not justify the MCSO’s sy stematic policy in using r ace as a factor in forming

15 reasonable suspicion. Further, it is apparent that allowing th e MCSO to cons ider race as

16 one factor among others in fo rming reasonable suspicion w ill produce irreparable injury

17 to the Plaintiff class. The MCSO is thus enjoined from promulgating, implementing,

18 continuing, or following any such policy or practice.

19

2. The MCSO’s use of Hispanic an cestry or race as a factor i n

20

91 In a few cases, however, there are such facts. In the few examples noted in the

21 footnotes, for instance, the Court has pres umed, based on the she er number of persons

22

arrested from a single vehicle that there was at least reasonable suspicion to believe that the state crim e of hum an smuggling was occu rring. Further, a few arrest reports do

23 demonstrate that MCSO officers made a stop that resulted in the driv er being taken int o

24

custody. In such cases, it would be withi n the scope of the arrest, ev en if not within the basis for the original stop, for the MCSO deputies to in vestigate the identity of a

25 passenger to see if he or she could drive the vehicle away from the scene. If ICE had

26

placed a detainer on the passenger, the resulti ng arrest would have originated from the investigation into his or her identity that would have been within the scope of the original

27 arrest. United States v. Diaz-Castaneda, 494 F.3d. 1146 (9th Cir. 2007).

28

- 120 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 121 of 142

1

forming reasonable suspicion that persons have vi olated state laws relating to immigration status violates the Equal Protection

2

Clause of the Fourteenth Amendment.

3

The MCSO’s consideration of race or ethnicity as a factor in developing probable

4 cause or reasonable suspicion also gives rise to equal pr otection issues. The Equa l 5 Protection Clause provides that no state shall “deny any pers on within its jurisdiction the

6 equal protection of t he law.” U. S. Const. Amend. XIV, § 1. The Clause is “a direction 7 that all persons similarly situated should be treated alike.”92 City of Cleburne v. Cleburne 8 Living Ctr., 473 U.S. 432, 439 (1985).

9

The Equal Protection Clause is violated by governm ental action undertaken with

10 intent to discriminate against a particular individual or class of individuals. See Personnel

11 Adm’r of Mass. v. Feeney , 442 U.S. 256, 271–72 (1979). Discriminatory intent may be

12 demonstrated by statutory la nguage, or by governmental action tha t creates a disparate

13 impact on the individual or class and there is direct or circumstantial evidence of a

14 discriminatory purpose. Id. at 272–74; Vill. of Arlington Heights v. Metro. Hous. Dev.

15 Corp., 429 U.S. 252, 266 (1977).

16

The MCSO’s policies and practices, some of which it apparently received from

17 ICE, expressly permitted officers to make racial classifications. Such racial classifications

18 are subject to strict scrutiny, and the policies here fail to withstand that scrutiny, for the

19 reasons described below. See Parents Involved in Community Schools v. Seattle School

20 Dist. No. 1, 551 U.S. 701 (2007). Nevertheless, th e MCSO, consistent with its argument

21 that the Plaintiff class has been unable to demonstrate that the representatives of the class

22 suffered any harm, argues that there is no evi dence that Deputies DiPietro or Rangel had

23 any racial m otivation for stoppi ng the vehicle in which Mr. Ortega-Melendres was a

24

25

92 The text of the Fourt eenth Amendment makes exp licit distinctions between

26

citizens and persons in the rights it protects. The right to the equal protection of the laws applies to persons and not just citizens of the United States . U.S. Const. amend. XIV;

27 Plyler v. Doe, 457 U.S. 202, 211.

28

- 121 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 122 of 142

1 passenger. That argument, however, fails to addr ess the most r elevant facts. Those facts

2 reveal an institutionalized consideration of race in MCSO operations.

3

According to the news rel ease issued by the MCSO after the first Cave Creek

4 operation at which Mr. Ortega-Melendres was arrested, the genesis for that operation was

5 “tips received on [Sheriff Ar paio’s] newly implemented illegal immigration hotline”

6 about a local church provid ing assistance to da y laborers.” (Ex. 307.) A s has been

7 discussed above, the MCSO had solicited such complaints from citizens because it sought

8 to enforce federal immigration laws agains t Hispanic day la borers. Other courts have

9 found an equal pr otection violation when “plaintiffs’ status as day laborers was

10 inextricably intertwined with race in the minds of . . . law enforcement officials.” Doe v.

11 Vill. of Mamoraneck, 462 F. Supp. 2d 520, 552 (S.D.N.Y. 2006).

12

On September 19 a nd 22, 2007, several days previous to the September 27

13 operation, Latino HSU officers went undercover to the churc h, signed up for work, and

14 verified the presence of day labor ers inside the church parking lot. They then held their

15 operation there, in part, based on the racial makeup of the day laborers who were present.

16 Thus, the location for the operati on was selected, at least in part, based on racial makeup

17 of the day laborers that were present there. When locations are selected, in whole or in

18 part, because they will enha nce enforcement of the law against a specific racial

19 component of the commun ity, that selection involves raci al classification and must meet

20 the requirements of strict scrutiny. As an MCSO witness acknowledged, it woul d be

21 “racial profiling for deputies to aggressively enforce traffic laws in predominantly Latino

22 neighborhoods because of an assumption that illegal i mmigrants live or work there.” (Tr.

23 at 1152:20–24.)

24

As is also explained above in some detail, Deputy DiPietro received his instruction

25 to stop the vehicle from the undercover office rs based in part on their obs ervation that

26 Mr. Ortega-Melendres and those who entered the truck with him were Latino. Therefore,

27 regardless of whether Deputy DiPietro or even De puty Rangel were able to observe the

28 racial makeup of the occupants of the vehicle, the direction to develop a basis to stop the

- 122 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 123 of 142

1 vehicle in which Mr. Ortega-M elendres was a passenger was ba sed, in part, on his race.

2

Similarly, in da y labor and sm all-scale operations, MCS O undercover officers

3 routinely directed that vehicles that picked up His panic day laborers be targeted for pre-

4 textual traffic enforcement. And, pursuan t to MCS O policy and practi ce in other

5 operations, MCSO deputies, in determining which vehicles they will stop for traffic

6 enforcement purposes, emphasize those vehicles that have Hi spanic occupants. As the

7 supervising sergeants noted, according to their understanding, it would be impossible for

8 a deputy to commit racial prof iling if he has a legitimate re ason to pull over a vehicle.

9 This is clearly a limited and incorrect understanding.

10

Further, having pulled over a ve hicle with Hispanic occupants, MCSO deputies

11 are further authorized by polic y, operation plans, and conti nuing practice to consider the

12 race of the occupants in deciding which ones they will investigate for immigration-related

13 violations of state law. The fact that Mr. Ortega-Melendres’s vehicle was stopped and his

14 identity investigated, based at least in part on racial considerations, makes Mr. Ortega-

15 Melendres an adequate repres entative for persons in the class that were subjected to

16 similar policies or practices.

17

Any government policy or practice that discriminates based upon race is subject to

18 strict judicial scrutiny. In such cases, the racial distinction must be narrowly tailored to

19 serve a compelling governmental interest. See Parents Involved, 551 U.S. at 720 (holding

20 that “when the governm ent distributes bur dens . . . on t he basis of individual racia l

21 classifications that action is re viewed under strict scrutiny.”); Gratz v. Bol linger, 539

22 U.S. 244, 270 ( 2003) (holding that “racial cl assifications are simply too pernicious to

23 permit any but the most exact connection between justif ication and classification.”);

24 Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (sam e). Government decisions are further

25 subject to equal protection review when race is merely one factor that motivates action,

26 even if it is not the pr edominant factor. A gove rnment policy is pr esumed to be racially

27 discriminatory when it is “based in part on reports that referred to explicit racial

28 characteristics.” Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir. 1980) (emphasis added)

- 123 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 124 of 142

1 (Kennedy, J.). In Grutter, the Supreme Court applied stri ct scrutiny t o a pol icy which

2 involved race as one factor among many even though plain tiff’s expert conceded that

3 “race is not the predominant factor” in the policy. 539 U.S. at 320; see also Arlington

4 Heights, 429 U.S. at 263 (subje cting government action t o equal protection review on

5 “proof that a discriminatory purpose has been a motivating factor in the decision”).

6

The enforcement of im migration-related civil or crim inal offenses amounts to a

7 compelling governmental interest. Yet Defenda nts have not argued that this policy is

8 narrowly tailored to meet that interest. Given the facts su rrounding the presence of

9 Hispanics in Maricopa Coun ty, the MCS O could not successfully do so. The great

10 majority of Hispanic persons in the county are citizens, legal residents of the United

11 States, or are otherwise authorized to be here. Thus the fact that a person is Hispanic and

12 is in Maricopa County is no t a narrowly-tailored basis on which one could conclude that

13 the person is an una uthorized alien, even if a great majority of the unauthorized persons

14 in Maricopa County are Hisp anic. Further, as has bee n explained above, in the Ninth

15 Circuit, race cannot be used under the Fo urth Amendment to form probable cause or

16 reasonable suspicion that a crime has been co mmitted. Thus, there is no legitimate basis

17 for considering a person’s race in form ing a belief that he or she is m ore likely to engage

18 in a crim inal violation, and the requisite “exact connection between justification and

19 classification,” Gratz, 539 U.S. at 270, in focusing on Hispanic persons i n immigration 20 enforcement is lacking. 93

21

Despite the presence of express racial clas sifications in the policies, practices, and

22

23

93 Plaintiffs’ Title VI claim differs from the Equal Protection Clause claim only in

24

that Title VI provides that covered entities may not discrimina te based on national origin in addition to race. Some officers testified about the use of “appare nt Mexican ancestry”

25 in the use of law enforcement, but no evidence was presen ted that any MCSO policy had

26

a disparate impact on people of Mexican a ncestry as opposed to on Hispa nics generally. The Title VI claim thus succeeds only with respect to the Equa l Protection Clause

27 concerning racial discrimination.

28

- 124 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 125 of 142

1 procedures followed by the MCSO, it argues that a plaintiff challenging law enforcemen t

2 policies on equal pr otection grounds must show “both that the . . . syst em had a

3 discriminatory effect and that it was motivated by a di scriminatory purpose.” Wayte v.

4 U.S., 470 U.S. 598, 608 ( 1985) (citation omitted); see also Arlington Height s, 429 U.S.

5 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a 6 violation of the Equal Protection Clause.”). 94 But t he discriminatory intent requirement

7 arises when law enforcem ent operations that are race-neutral nevertheless produc e

8 racially disparate results. Feeney, 442 U.S. at 272. In thos e circumstances, the Supreme

9 Court has determined that such policies are not violations of the Fourteenth Amendment

10 if there is no discrim inatory intent. Id. at 280–81. As discu ssed above, however, the

11 operations in this case are not race-neutral. They expressly incorporate racial bias. The

12 MCSO’s policies at issue here make overt ra cial classifications because they perm it the

13 consideration of race as one factor among others in making law enforcement decisions. In

14 such circumstances, according to Wayte, “[a] showing of discri minatory intent is not

15 necessary.” 470 U.S. at 609 n.10.

16

In light of the facts found above, the Plaintiffs have sufficiently established a basis

17 for injunction on equal protec tion grounds without the need for additional analysis.

18 Nevertheless, even if Plaintiffs were required to show additional indicia of discriminatory

19 intent, they have sufficiently done so. A “sen sitive inquiry into such circumstantial .and

20 direct evidence of intent as may be available,” Arlington Heights, 429 U .S. at 266,

21 demonstrates that the MCS O discrimination against Hispanics was inte ntional, even if it

22 was done to be responsive to some elements of the electorate.

23

The Court finds direct evidence of disc riminatory intent based on the M CSO’s

24 policies, operations plans and procedures . Although such disc rimination must be

25 intentional in a disparate impact case, it need not be based on ill-w ill. That is, although

26

94 Title VI s imilarly authorizes a privat e right of action onl y in c ases involving

27 intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001).

28

- 125 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 126 of 142

1 the MCSO permits its officers to make overt racial classifications in m aking law

2 enforcement decisions, it does not necessarily fo llow that such polici es and practices are

3 based on overt antipat hy towards Hispanics. The policies, at least origi nally, may have 4 been based on a desire to pr oduce the most efficient immigration enforcement. 95 Yet, to

5 the extent the MCSO intended and does discriminate based on race, through it s policies,

6 the lack of racial antipathy as a motivation makes no di fference in the constitutional

7 analysis. The Supreme Court has note d that their “cases clearly reject the argument that

8 motives affect the stri ct scrutiny analysis.” Parents Involved, 551 U.S. at 741 (2007)

9 (collecting cases). Accordi ng to the S upreme Court, “all governm ental action based on

10 race—a group classification long recogniz ed as ‘i n most circumstances irrelevant and

11 therefore prohibited’—should be subjected to de tailed judicial inquiry to ensure that the

12 personal right to e qual protection of th e laws has not been infringe d.” Adarand

13 Constructors, Inc. v. Pena , 515 U.S. 200, 22 7 (1995) (quoting Hirabayashi v. United

14 States, 320 U.S. 81, 100 (1943) (emphasis in original).

15

In addition to the explic it policies and practices of the MCSO discussed above,

16 there is circumstantial eviden ce of discrim inatory intent. The MCSO further made

17 changes in its policies and instructions to present the appearance of racially-neutral

18 operations without actually implementing such operations. One such measure was the so-

19 called “zero tolerance policy.” No officer coul d provide a consistent definition of that

20 policy as instituted by the MC SO for large-scale saturation patrols. At best, it did not

21 limit in any way a deputy’s discretion as to whom to pull over for traffic violations during

22 an operation. By Lt. Sousa’s own admission, the zero tolerance policy was s pecifically

23 designed to “avoid the percep tion of racial profiling.” (Tr. at 998:5–17.). Lt. Sousa

24 expressly conceded that one of the reasons he incl uded language pr ohibiting racial

25

26

95 Nevertheless, after fielding repor ts and critiques from some within the Hispanic community about its policie s, the MCSO’s response to those critiques reflects a

27 confrontational attitude, including its response to the protests at Pruitt’s.

28

- 126 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 127 of 142

1 profiling in operations plans a nd directives was so that he could testify to it in any

2 subsequent litigation. Chief Sands himself referred to th is policy as “rhetoric.” ( Id. at

3 830:23–831:1.)

4

Further, Lt. Sousa periodically instructed deputies at pre-operational briefings that

5 they should not racially profile. At the same time, however, Lt. Sous a told them he was

6 sure that they were not racially profiling. Co incident with these self-assuring instructions

7 and assurances, the MCS O continued to implement policies and operat ions plans

8 regarding saturation patrols that instructed officers that while race could not be the onl y

9 basis on which to base law en forcement action, it was a leg itimate factor, among others,

10 on which they could base decisions pertaining to immigration enforcement. The MCSO

11 did so in s pite of criticisms from the medi a and ot her sources that its off icers were

12 engaging in racial profiling.

13

In addition to its policies th at permitted the consideration of race as a factor in

14 making law enforcement decisions, the M CSO did no monitoring to determine whether

15 operations as a whole , or indi vidual officers participating in operations, demonstrated

16 patterns of racial bias. Based on the C ourt’s review of the arrest statistics and shift

17 summaries, the C ourt concludes t hat a cursor y review of the shif t summaries after the

18 HSU operations would have demonstrated high disparitie s of Hispanic surnames among

19 those arrested during saturation patrols, even for non-immigration related offenses. It

20 would further have revealed a high inci dence of Hispanic surnam es among passengers

21 arrested, even for non-immigration related offenses. Such a review would have suggested

22 to the MCSO the possi bility that such stops and arrests were being effectuated in a

23 manner that was not race-neutral.

24

Chief Click, the MCSO’s st andard of care expert at trial, testified that any

25 supervisor who wanted to minimize racial profiling would have to take active steps to

26 combat it by reviewing records, investigatin g unusual findings, and retraining officers as

27 needed. He testified that “anything that would raise the specter of racial profiling needs to

28 be investigated and looked at further.” (Id. at 1765:12–14.) Despite the presence of arrest

- 127 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 128 of 142

1 reports, stat sheet summaries, and other records that raised the specter of racial profiling,

2 Sgts. Madrid and Palmer, Lt. Sousa and Chief Sands took no action to investigate racially

3 biased policing during the saturation patrols.

4

Chief Click testified that to determine whether or not officers are improperly using

5 race during a saturation patr ol, a department would not merely look t o see if there was

6 probable cause for a particular stop, but “look at the bigger picture, how many people did

7 either the individual deputy stop or how many were stopped, how many total people were

8 stopped during the patrol?” ( Id. at 1764: 23–1765:1.) Yet both supervising sergeants

9 testified that as long as there was probable cau se to stop a particular vehicle, they woul d

10 have no suspicion of racially-biased policing in an operation.

11

When asked about a policy to prevent racial profiling, Chief Click stated that, “I

12 think if it was solely, ‘I trust them, so I theref ore don’t have to monitor them,’ that would

13 fall below the standard of care.” (Id. at 1754:11–13.) Sgt. Palmer testified that he simply

14 trusted his deputies not to enga ge in racial profiling, even as he e xchanged e-mails that

15 denigrated people of Mexican a ncestry and Spanish-speakers with those very deputies.

16 Although he claimed t o have been subject to unspecified discipline for such e-mails, he

17 was not removed from his positi on. Sgt. Palmer’s e-mails to his deputies would have led

18 those deputies to believe that racial inse nsitivity towards Hispanics was practiced and

19 endorsed within the HSU. See DeWalt v. Carter, 224 F.3d 607, 612 n.3 (7th Cir. 2000)

20 (holding that the us e of r acially offensive language do es not constitute a per se

21 constitutional violation, but it “is strong evidence of racial animus”).

22

Further, the MCSO did not have its de puties make a record of all their stops

23 during saturation patrols, even though, as te stified to by Chief Click, it is a standard

24 reasonable practice for a law enforcement officer to document any law-enforcement

25 related stop he or she has with any person. (Tr. at 1778:4–13.) Thus , the MCSO’s failure

26 to monitor its deputies’ actions for pattern s of racial profiling was exacerbated by its

27 inadequate recordkeeping, which made it more difficult to conduct such monitoring.

28

During the time that the MCSO wa s aware that ICE was contemplating

- 128 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 129 of 142

1 terminating its 287(g) certification, it relied, in significant part, on the internet research of

2 Sgt. Palmer to determine whether it could c ontinue to enforce federal imm igration law

3 without 287(g) authority . The sergeant supplied to hi s command staff a n on-existent

4 federal law obtained from the internet, by which the MCSO erroneously concluded that it

5 had legal authority to continue to enforce federal immigration law. After MCSO’s 287(g)

6 authority was revoked, Sheriff Arpaio, on national television, pr ofessed MCSO’s

7 erroneous position that it coul d continue to enforce fede ral immigration law absent

8 federal authorization based on th is non-existent statute as justification. In relying on S gt.

9 Palmer’s unverified i nternet research, the MC SO did not m ake any c ompetent effort to

10 ensure that its legal positions were in compliance with cont rolling authority, and

11 therefore made no real effort to ensure that its deputies were following the law pertaining 12 to the rights of minorities during such operations.96

13

Further, Sheriff Arpaio’s public stat ements about the HS U operations and the

14 saturation patrols signaled to M CSO deputies that the pur pose of those ope rations and

15 patrols was to arrest people w ho were not le gally present in the United States. As the

16 chief policymaker within the MCSO, Sheriff Arpaio’s public comments may have created

17 the impression both in and out of the M CSO that considering a person’s r ace when

18 evaluating whether that person was legally pr esent in the United St ates was appropriate

19 and endorsed by the MCSO.

20

At trial, Sheriff Arpaio testified that he did not agree with his statements on CNN

21 or the Gle nn Beck s how. (Id. at 363:17; 365:17.) Yet la ter on in his testim ony he

22 inconsistently explained that when he ma de these com ments he only m eant that such

23 appearance could be a factor for an MCSO officer to cons ider in determining whether

24

96 The MCSO did eventually base its training concerni ng its deputies continue d

25 authority to enforce federal immigration law on the legal theories of Kris Kobach. ( See,

26

e.g., Tr. At 747:1824.) Mr. Kobach is apparently legall y trained, but it is not clear that MCSO sought his legal counsel on w hether his theories were in co mpliance with the law

27 in this jurisdiction.

28

- 129 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 130 of 142

1 further investigation of im migration status was appropriat e once a vehicle had already

2 been stopped. (Id. 498:22-503:6.) Whether or not he believed at the time or believes now

3 the statements that he made during these nationally-televised interviews is not relevant to

4 the question of whether the inte rviews would have led MCSO officers to believe that the

5 sentiments were the policy of the MCSO. Defendants stipulated that Sheriff Arpaio “ha s

6 final authority over all the ag ency’s decisions,” and “sets the overall direction a nd policy

7 for the MCSO.” (Doc. 513 at 8.) Sheriff Ar paio’s statements and t he attendant news

8 releases shed light not only on “[t] he historical background of the decision,” but also

9 provide “contemporary statements by me mbers of the decisionm aking body.” Arlington

10 Heights, 429 U.S. at 267–68.

11

Finally, after December 2011, when this Court entered its pr eliminary injunction

12 prohibiting the MCSO from deta ining persons based solely on a belief that the person

13 was in the country w ithout authorization, the MCSO continued to conduct its LEA R

14 policy in violation of the explicit terms of that injunction. Its officers continued to race as

15 a factor in doing so.

16

The MCSO asserts t hat it had no disc riminatory purpose in prom ulgating its

17 policies because they were based on training received by ICE. Even assuming this is true,

18 the MCSO cannot suggest that it can conti nue system-wide policies applying racial

19 classifications, because even though they are legally

erroneous and facially

20 discriminatory, the MCSO believed in good faith that they were permissible at the time of

21 their adoption. Such reliance does not prevent the Equal Protection Clause from barring

22 the future use of such facially discriminatory systemic classifications, even assuming they

23 were implemented in good faith.

24

Defendants cite numerous cases holding that advice of c ounsel is a defense to an

25 equal protection claim. They do not cite a ny evidence that the ICE officers conducting 26 the training were attorneys prov iding legal advice to the MCSO. 97 And again, even

27 97 Defendants also cite U.S. v. Lopez-Moreno, 420 F.3d 420, 434 (5th Cir. 2005),
28

- 130 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 131 of 142

1 assuming that counsel wrongf ully advised th e MCSO that it could pr omulgate system-

2 wide policies in enforcing state laws re lated to immigration, the MCSO has a

3 constitutional responsibility to refrain from wr ongfully using race in law enforcement

4 decisions independent of any advice provided by another law enfo rcement agency, even

5 ICE. U.S. Const. amend. XIV, § 1

6

Based on the factors set forth in Arlington Heights and discussed above, Plaintiffs

7 have established that the MCS O had suffici ent intent to discriminate against Latino

8 occupants of m otor vehicles. Further, the Court concludes that the MCSO ha d and

9 continues to have a f acially discriminatory policy of c onsidering Hispanic a ppearance

10 probative of whether a person is legally presen t in the country in vi olation of the Equal

11 Protection Clause. The MCSO is thus permanently enjoined from using race, or allowing

12 its deputies and other agents to use race as a criteria in making law enforcement decisions

13 with respect to Latino occupants of vehicles in Maricopa County.

14

C. The MCSO is enjoined from un constitutionally lengthening stops

15

unless during the legitimate course of the stop it develops reasonable suspicion, based on permissible fact ors, that a state crime is being

16

committed.

17

In appropriate circumstances, it is accep table for law enforcem ent to engage in

18 pre-textual traffic stops to inves tigate other potential criminal acts. See Whren, 517 U.S. 19 at 810813. Analysis under the Fourth Amendment is wholly objective, and “[s]ubjective

20 intentions play no rol e in ordina ry, probable-cause Fourth Amendment analysis.” Id. at

21 813. However, “[a] seizure that is justified solely by the interest in issuing a warning 22 ticket to the driver can bec ome unlawful if it is prolonge d beyond the time reasonably

23 required to complete that mission.” Illinois v. Caball es, 543 U.S. 405, 407 (2005);

24

25 in which the Fifth Circuit denied an equal protection claim when it found that an officer

26

who questioned the Hispanic passengers of a vehicle whose driver was unresponsive to the officers’ questions had not demonstrated the requisite intent to discriminate. This out-

27 of-circuit case involved an individual officer and not a department policy.

28

- 131 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 132 of 142

1 Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that the scope of the stop “m ust be

2 carefully tailored to its underlying justification”); United States v. Turvin, 517 F.3d 1097,

3 1099, 1104 (9th Cir. 2008) (same).

4

When the driver of t heir vehicle is st opped, passengers are legally seized for the

5 same time it takes the offi cer to resolve the basis fo r the stop with the driver. Brendlin v.

6 California, 551 U.S. 249, 257–58 (2007). Yet, st opping a driver for a traffic violation

7 provides no “reason to stop or deta in the passengers.” Maryland v. Wilson, 519 U.S. 408,

8 413 (1997). The deputy cannot prolong the stop to investigate a passenger unless the

9 deputy through his or her observations obta ins particularized reasona ble suspicion that

10 the passenger is committing a violation that the deputy is author ized to enforce. See

11 United States v. Cortez, 449 U.S. 411, 41718 (1981). In such cases, the deputy is onl y

12 allowed to prolong the stop for the brief time sufficient to investigate the existence of the

13 crime. Arizona, 132 S . Ct. at 2528. W hen the MCSO deputies w ere 287(g) authorized,

14 that authority presum ably extended to include administrative and he nce non-criminal

15 violations of federal immigration law. Such authority, however, no longer exists.

16

Even in t he absence of reasona ble suspicion, however, an officer m ay make

17 inquiries of the driver and passengers concer ning “matters unrelated to the justification

18 for the traffic stop.” But agai n, such inquiries may not “ measurably extend the duration

19 of the stop.” Johnson, 555 U.S. at 323 (emphasis added). See also Muehler v. Mena , 544

20 U.S. 93, 101 ( 2005) (“Mere police questioning does not c onstitute a seizure” unless it

21 prolongs the detention of the individual) Even if a simple request for passenger

22 identification is thus within the scope of a traffic stop fo r a minor infraction to the extent

23 it does not extend the stop, see United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th

24 Cir. 2007), detaining passengers to investigat e their im migration status once they ha ve

25 either provided or not provided identification runs into the Fourth Amendment. Detaining

26 a passenger while running his or her identif ication through an MCSO database is not

27 “reasonably related in scope” to the traffic infraction and therefore requires independent

28 reasonable suspicion. Caballes, 543 U.S. at 407; Terry, 392 U.S. at 20. “Detaining

- 132 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 133 of 142

1 individuals solely to verify their immigration status” ra ises “constitutional concerns.”

2 Arizona, 132 S. Ct. at 2509.

3

The evidence demonstrat es that during m any saturation patr ol stops, officers

4 investigated the identities of and arrested multiple passengers on immigration violations,

5 while also being responsi ble for issuing a citation to the driv er. In such circumstances,

6 based on the amount of time it took to resolve the stop of Mr. Ortega-Melendres, together

7 with the process testified to by Deputies Arm endariz and Rangel, the Court concludes

8 that the investigation of the passengers woul d have fr equently taken significantly m ore 9 time than it generally took to issue a traffic citation to a driver.98

10

As the facts summarized above indicate, at least some MCSO deputies claim that

11 they investigate the identities of all of the passengers of the vehicles they stop as a matter

12 of course. The arrest reports do not generally support this proposition. Nevertheless, to

13 the extent that MCSO officers investigate the identity of all vehicle occupants as a matter

14 of course, they do s o without determ ining whether there is reasona ble suspicion with

15 respect to the indi vidual occupants that woul d justify their extension of the stop. The

16 same is also true to the extent that: (1) Sh eriff Arpaio claimed the right for the MCSO to

17 investigate all the passengers in a vehicle when the driver was pulled over, and (2) during

18 day labor operations, duri ng which participating deputies were instructed to investigate

19 the immigration status of all of the occupants of a vehicle.

20

Even if some officers participating duri ng saturation patrols extended t he duration

21 of the stop only upon obtaining reasonable suspicion as they saw it that some or all of the

22 vehicle’s occupants were unauthorized, they had been erroneously instructed that in

23

24

98 As discussed above, t he traffic stops would only have taken longer once 287(g) authority was revoked. A passenger pulled ov er under the M CSO’s LEAR policy woul d

25 have to wait for the deputy to resolve the traffic violation and contact a supervisor, for the

26

supervisor to arrive and conduct additional investigation into the passenger’s identity, and for any additional time he or she m ight spend in custody if an office r determined to hold

27 him or her while waiting for a response from ICE.

28

- 133 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 134 of 142

1 doing so they c ould use race as one factor among others in f orming that reasonable

2 suspicion. Montero-Camargo, 208 F.3d at 1135 (holding t hat Hispanic appearance, for

3 example, is “of such little pr obative value that it may not be considered as a relevant

4 factor where particularized or individualized suspicion is required”). Thus, to the extent

5 that officers considered race as a necessary factor in form ing the reasonable suspicion on

6 which they prolonged the stop, they had insufficient basis for bot h the reasonable

7 suspicion and the prolonged stop.

8

As a result of its enforcement of stat e law related to immi gration and its LEAR

9 policy, MCSO deputies continue to screen the occupants of vehi cles they stop for

10 immigration compliance despite the revocation of their 287(g) authority. In doing so, they

11 are either prolonging a stop to investigate a civil violation of federal law which they have

12 no authority to enforce, or, as demonstrated by their past activities, present a substantial

13 likelihood that they will prolong the stop beyond the time reasonably necessary to resolve

14 the traffic stop. The MCSO, in so operating and claiming a right to so operate, presents a

15 likelihood that it will violate the Fourth Am endment rights of the Plaintiff class, and is

16 thus prohibited from prolonging stops in the absence of re asonable suspicion, formed on

17 a permissible basis, that a separate crime is or is about to be committed.

18

D. The MCSO is enjoined from

using reasonable suspicion of

19

unauthorized presence, without more, as probable cause or reasonable suspicion that the Hu man Smuggling Act or Em ployer Sanctions Law

20

has been violated sufficient to just ify an in vestigatory detention or

21

arrest.

As is stated above, the MCSO has no probable cause to arrest or even hold a 22
person that it only believes has committed a ci vil infraction of state or federal laws. 99 At 23

trial, Sheriff Arpaio testified to two s pecific state statutes that he claims give the MCSO 24

authority to continue to engage in 25

ongoing enforcement operations—the Arizona

Employers Sanction Law and the Arizona Human Smuggling Statute. 26

27

99 Of course, an MCS O officer can detain someone for purposes of issuing a civil

traffic or other citation to the extent authorized to do so by state law.

28

- 134 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 135 of 142

1

The Arizona Employer Sanctions Law, A.R.S. § 23-211 (2010) et seq., explicitly

2 authorizes the “county sheriff or any other lo cal law enforcement ag ency to assist in

3 investigating a complaint” filed pursuant to that law. A.R.S. §§ 23-212, 23-212.01. But

4 the law contains only civil, and not criminal , sanctions against employers. It im poses no

5 criminal sanction against unau thorized aliens. The law thus provides no basis for th e

6 MCSO to criminally cite, arrest, or engage in investigatory detentions of persons whom it

7 believes to be in the country without authorization based upon a reasonable suspicion that

8 they have violated the Employer Sanctions Law or are conspiring with others to do so. As

9 the Ninth Circuit has already noted, “ possible criminality is key to any Terry

10 investigatory stop or prolonged detention. . . . Absent suspicion that a ‘suspect is engaged

11 in, or is about to engage in, criminal activity,’ law enforcement may not stop or detain an

12 individual.” Ortega-Melendres II, 695 F.3d at 1000 (quoting United States v. Sandov al,

13 390 F.3d 1077, 1080 (9th Cir. 2004). The Arizona Empl oyer Sanctions Law, a non-

14 criminal law, thus provides th e MCSO with no basis to stop or detain any person that it

15 believes to be in the country without authorization.

16

By contrast, the Arizona H uman Smuggling Act provi des criminal sanctions

17 against those who smuggle unauthorized persons. The Act specifies that “[i]t is unlawful

18 for a person to i ntentionally engage in the smuggling of hum an beings for profit or

19 commercial purpose.” A.R.S. § 13-2319. As defined by the Act, “sm uggling of hum an

20 beings” means:

21

[1] the transportation, proc urement of transportation or use of propert y or real property

22

[2] by a person or an entity that knows or has reaso n to know that the

23

person or persons transported or to be transported are

24

[a] not United States citizens, perm anent resident aliens or persons

25

otherwise lawfully in this state or

26

[b] have attempted to enter, entered or remained in the United States in

violation of law.

27 A.R.S. § 13-2319(F)(3).

28

- 135 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 136 of 142

1

There is nothing in the Act that crim inalizes unauthorized presence. The Act

2 criminalizes smuggling an una uthorized alien. Even to the extent th at an unauthorized

3 alien could be charged for com mitting the crim e of cons piracy to violate the Arizona

4 Human Smuggling Act with his or her s muggler, an MCSO officer could onl y have

5 reasonable suspicion sufficient to detain the unauthorized alien on cons piracy charges if

6 he had reasonable suspicion under the “totality of the ci rcumstances” that both the crime

7 of human smuggling is being committed and the unauthorized alien conspired in its

8 commission. Montero-Camargo, 208 F.3d at 1129.

9

Having reasonable suspicion that the Arizona state crime of human smuggling is

10 being violated requires considerably more facts than merely having reasonable suspicion

11 that a person is in the countr y without aut horization. There m ust be, at the least, a

12 reasonable suspicion under all of the circum stances of the conjunction of the elem ents

13 necessary for the crime to be present. Asid e from the other elemen ts, an MCSO officer

14 would have to have reasonable suspicion that the person w ho was transporting the

15 unauthorized alien “knew or had reason to know that the [unauthorized alien was] not [a]

16 United States Citizen[], permanent resident alien[ ], or person[] otherwise lawfully in this

17 state.” A.R.S. § 13-2319(F)(3).

18

One does not have reason to know that an alien is unauthorized m erely because he

19 or she is unauthorized. To offer an example from the fact s of the present case, Deput y

20 DiPietro set forth no legitimate basis on which he could have formed a reasonable

21 suspicion that the driver of the vehicle in which Ortega-Melendres was a passenger knew

22 or had reason to know that the persons he was transporting were not lawfully in this state.

23 When Deputy DiPietro himself was asked ho w he c ame to the opi nion that the day

24 laborers were likely to be unaut horized, he testified that he did not form that belief until

25 after participating in the operation during which he arrested Ortega-Melendres.

26

When a 287(g)-trained MCSO deputy participating in an HS U operation did not

27 purport to have the experience to form a reasonable suspicion that day laborers in general

28 were unauthorized aliens until after the operation in whic h he made the arrest that is

- 136 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 137 of 142

1 subject to question, it is not clear how he coul d successfully attribute to the driver of th e

2 vehicle he stopped during the operation “reason to know” that day laborers were likely to

3 be “unauthorized aliens.” Even if he had th is experience, the idea that day laborers are

4 usually unauthorized aliens is unsupported by any statistics presented at trial, and, as

5 discussed above, is typically compounded with an unconstitutional association between 6 work status and race, at least within the MCSO.100

7

Further, the MCSO acknowledges that, at the time of his arrest, Ortega-Melendres

8 was in pos session of a visa that was validly issued and, on its face, authorized his

9 presence on the da y of his arrest. Thus, ev en assuming that he did not ha ve his I-94

10 document in his pos session and/or was othe rwise “out-of-status” with the federal

11 immigration requirements of his visa, the status violation was a viola tion of federal civil

12 immigration regulations, and did not cons titute a v iolation of the Arizona Human

13 Smuggling Act. Pursuant to his existing and validly issued visa, Ortega-Melendres was

14 lawfully in this state. To th e extent that he was lawfully in this state, but out of

15 compliance with federal immigration regulations, that is an issue presented by the federal

16 immigration regulations, and not state law, a nd thus not within the jurisdiction of MCSO

17 officers after the revocation of their 287(g) authority.

18

Additionally, the MCSO cannot use Ortega-M elendres’s Hispanic origin as any

19 basis for argui ng that the dri ver of his ve hicle had re ason to know t hat he was in t he

20

100 A section of the Hum an Smuggling Act does state that “[n]otwithstanding any

21 other law, in the enforcement of this section a peace officer may lawfully stop any person

22

who is ope rating a m otor vehicle if the off icer has reasonable s uspicion to believe t he person is in violation of any civil traffic la w.” A.R.S. §13-2319(E). This section of t he

23 statute does nothing more than to allow pe ace officers to stop dri vers of motor vehicles

24

who have committed traffic infrac tions. Nothing in the text of the statute allows a peace officer to prolong a tra ffic stop to investigate a potential violation of the Arizona Human

25 Smuggling Act in the absence of reasonable su spicion that the Act is being violated. A

26

reasonable suspicion that a person is in viol ation of a civil traffic law, does not, in and of itself, provide reasonable suspicion that a dr iver has violated the Act. Any interpretation

27 of the statute to the contrary would create constitutional problems.

28

- 137 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 138 of 142

1 country without authorization. If an MCSO officer cannot use Hispanic ancestry as a

2 reason on which to base reasonable suspicion th at a crime is being co mmitted, then he or

3 she cannot use it to e stablish that a hum an smuggler had reason t o know that he was 4 transporting an unauthorized alien.101

5

Thus, a reasonable suspicion that someone is in the c ountry without authorization

6 does not alone constitute sufficient reasonable suspicion to detain someone on the basis

7 that the Ar izona Human Smuggling Act is being viola ted. The preliminary injunction

8 entered by this Court on Septe mber 23, 2011 is made permanent. Further, suspected

9 violations of the Arizona Employer Sanctions Law provides the MCSO with no basis to

10 conduct investigatory detentions of persons th at it believes to be in the country without

11 authorization. The MCSO is thus enjoined from detaining persons on the belief that they

12 are involved with a violation of, or ha ve otherwise conspired to violate, the Arizona

13 Employer Sanctions Law. The MCS O is fu rther permanently enjo ined from detaining

14 persons based only on the belief that they are in the country without authorization, for the

15 reasons set forth in this Court’s order of December 23, 2011.

16

CONCLUSION

17

Injunctive relief in a class action must be properly tailored to the actual harm

18 proven at trial. See Lewis v. Casey , 518 U.S. 343, 358 (1996) (“It is the role of courts to

19 provide relief to claimants, in individual or class actions, who have suffered, or will

20 immediately suffer, actual harm; it is not the role of courts, but that of the political

21 branches, to shape the institutions of governm ent in such fashion as to comply with the

22 laws and Constitution.”). Plain tiffs are entitled to injunctiv e relief necessary to remedy

23 the Fourth and Fourteenth Amendment violations caused by MCSO’s past and continuing

24

101 To the extent that the officers systema tically only held an d investigated the

25 Hispanic persons being sm uggled for co nspiracy to com mit human smuggling and

26

released the alleged C aucasian smugglers, as they apparently did in the case of Orte gaMelendres and other day labor operations, that would pr esent equal protection problems

27 additional to those already discussed.

28

- 138 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 139 of 142

1 operations. The MC SO is thus perm anently enjoined from: (1) detaining, holding or

2 arresting Latino occupants of ve hicles in Maricopa County based on a reasonable belief,

3 without more, that such persons are in the country without authorization, (2) following or

4 enforcing its LEAR policy against any Latino oc cupant of a vehicle in Maricopa County;

5 (3) using race or Latino ancestry as a fact or in determining to stop any vehicle in

6 Maricopa County with a Latino occupant; (4) using race or Latino ancestry as a factor in

7 making law e nforcement decisions with resp ect to whether any La tino occupant of a

8 vehicle in Maricopa County m ay be in the country without authorization; (5) detaining

9 Latino occupants of vehicles stopped for traffic violations for a period longer than

10 reasonably necessary to resolve the traffi c violation in the absence of reasonable

11 suspicion that any of them have committed or are committing a violation of federal or

12 state criminal law; (6) detaining, hol ding or arresting Latino occ upants of a vehicle in

13 Maricopa County for violations of th e Arizona Human Smuggling Act without a

14 reasonable basis for believing that, under all the circumstances, the necessary elements of

15 the crime are present; (7) deta ining, arresting or hol ding persons based on a reasonable

16 suspicion that they are conspiring with th eir employer to violate the Arizona Em ployer

17 Sanctions Act.

18

The permanent injunctive re lief ordered a bove is im mediately effective. But, as

19 the Court previously discussed with the parties at the end of trial, it will confer with them

20 before ordering any further re lief that the eviden ce demonstrates to be necessary to

21 effectuate this relief. In considering the nece ssity and extent of such additional relief, and

22 in addition to the other matte rs discussed at length during this order, the Court has

23 determined that the MCSO is aggressively responsive to the wishes of a significant

24 portion of the Maricopa Count y electorate that desire s vigorous law enforcement

25 operations against unauthorized residents by state and local law enforcement authorities.

26 The MCSO continues to engage in law enforcement efforts against unauthorized aliens,

27 and continues to aggressively assert it s authority to do so. I n doing so, t he MCSO

28 erroneously trained its patrol deputies that, despite the revocation of its 287(g) authority,

- 139 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 140 of 142

1 the MCSO nevertheless had aut hority to e nforce federal immigration law. It further

2 violated and continues to violate the term s of this court’s preliminary injunction entered

3 on December 23, 2011 by enforcing its LEAR policy.

4

To the extent that the MCSO implemented faulty instruction from ICE through the

5 racially-biased policies and prac tices governing its e nforcement operations, its ow n

6 implementation of those operations was also significantly flawed by its failure to observe

7 normal standards of police conduct as define d by its ow n practices expert. Among other

8 things the MCSO im plemented a “zero tolerance” policy without meaningful effect to

9 mollify those concerned about the racial dispar ity caused by MCSO operations, and thus

10 failed to have a clear policy t hat required ex ecution of the satura tion patrols and other

11 enforcement efforts in a race neutral manner; made no efforts to determine whether its

12 officers were engaging in racially-biased en forcement during its saturation patrols, and

13 failed to comply with standard police practices concerning record-keeping maintained by

14 other law enforcement authorities engaged in such operations.

15

The Court will entertain any proposals that are mutually acceptable to the parties

16 in implementing steps to ensure com pliance with its above orders, but in the absence of

17 such proposals will proceed to enter such orders as are ne cessary to effectuate the above

18 relief. In determining what au thority may be necessary to pr ovide such relief, the Court

19 is particularly interested in the views of the parties co ncerning the following questions:

20 (1) To what extent, if any, should any law enforcement operations of the MCSO that have

21 the potential to involv e members of the Pl aintiff class be subjec t to the dir ect oversight

22 and pre-approval? (2) To what extent, if any, should the MC SO be required to provide

23 training to all of its person nel including posse members concerning the inappropriate use

24 of race as an indicator of legal violations? (3) To what extent, if any, should the MCSO

25 be required to provide training to all of its personnel concerning the elem ents of the

26 Arizona Human Smuggling Statute and t he requirements necessary to ha ve reasonable

27 suspicion that the statute is bei ng violated? (4) To what extent, if any, does the M CSO

28 still hold itself out to the general public as enforcing laws against illegal aliens or as

- 140 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 141 of 142

1 currently engaged in immigration enforcement? (5) To what extent should the MCSO be

2 required to keep publicly available reco rds of all persons with w hom it has law

3 enforcement contact in vehicles so long as it is engaged in the enforcement of state laws

4 that have immigration-related elements such as the state Hum an Smuggling Act? (6) To

5 what extent should those re cords be re quired to contain the purpose of any la w

6 enforcement stops, the names of persons contacted, and the resulting length of the stop?

7

As further guidance for the proceeding, the Court asks the parties to consider the

8 following stipulations of settlement in place in other jurisdictions:

9

1) Daniels v. New York, No. 99 Civ. 1695 (S.D.N.Y. Sept. 24, 2003), available at

10 http://ccrjustice.org/files/Daniels_ StipulationOfSettlement_12_03_0.pdf

11

2) United States v. L os Angeles, No. 00-11769 GAF (C.D. Cal. June 15, 2001),

12 available at http://www.lapdonline.org/assets/pdf/final_consent_decree.pdf

13

3) United States v. State of New Jersey , Civil No. 99-5970 (D.N.J. Dec. 30, 1999),

14 available at http://www.nj.gov/oag/jointapp.htm.

15

IT IS THEREFORE ORDERED that Plaintiffs are entitled to injunctive relief

16 necessary to rem edy the Fourt h and Fourte enth Amendment violations caused by

17 MCSO’s past and continuing operations. The MCSO is thus permanently enjoined from:

18

1. Detaining, holding or arresting La tino occupants of ve hicles in Maricopa

19 County based on a rea sonable belief, without more, that such person s are in the country

20 without authorization.

21

2. Following or enforcing its LEAR policy against any Latino occupant of a

22 vehicle in Maricopa County.

23

3. Using race or Latino an cestry as a factor in determ ining to stop any vehicle

24 in Maricopa County with a Latino occupant.

25

4. Using race or Latino ancestry as a factor in m aking law enforcem ent

26 decisions with respect to whethe r any Latino o ccupant of a vehicle in Maricopa County

27 may be in the country without authorization.

28

5. Detaining Latino occupants of vehicles stoppe d for traffic violations for a

- 141 -

Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 142 of 142

1 period longer than reasonably ne cessary to resolve the traffic violation in the absence of

2 reasonable suspicion that any of them have committed or are committing a violation of

3 federal or state criminal law.

4

6. Detaining, holding or arresting La tino occupants of a ve hicle in Maricopa

5 County for violations of the Arizona H uman Smuggling Act without a reasona ble basis

6 for believing that, under all the circum stances, the necessary elements of the crime are

7 present.

8

7. Detaining, arresting or holding persons based on a reasonable suspicion that

9 they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

10

IT IS FURTHER ORDERED setting a hearing at whic h the above matters will

11 be discussed for Friday, June 14, 2013 at 9:30 a. m. in C ourtroom 602, S andra Day

12 O’Connor U.S. Federal Courthouse, 401 W. Washington St., P hoenix, Arizona 85003-

13 2151.

14

Dated this 24th day of May, 2013.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 142 -

 </s> 1 WO

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6 Manuel de Jesus Ortega Melendres, on

7

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

8

Plaintiffs,

9 v.

10 Joseph M. Arpaio, i n his indi vidual and
11 official capacity as Sheriff of Maricopa County, AZ; et al.,
12 Defendants.
13

No. CV-07-02513-PHX-GMS SUPPLEMENTAL PERMANENT INJUNCTION/JUDGMENT ORDER

14

BACKGROUND

15

On May 24, 2013, the Court issued Findings of Fact and Conclusions of Law after

16 conducting a bench trial in this matter. (Doc. 579.) The Court held that Defendants’ operations at
17
issue violated the Plaintiff cl ass’s rights under the Fourth and Fourteenth Am endments to the
18 19 United States Constitution.

20

The Court permanently enjoined Defendants from the following:

21

(1) Detaining, holding or arresting Latino occupants of vehicles based on a

22

reasonable belief, without more, that such persons are in the country without authorization;

23

(2) Following or enforcing its “LEAR” policy, as currently written, against any

24

Latino occupant of a vehicle in Maricopa County;

25

(3) Using race or Latino ancestry as a factor in determining whether to stop any

vehicle;
26

(4) Using race or Latino ancestry as a factor in making law enforcement decisions

27

with respect to whether any Latino occupant of a vehicle may be in the country

28

without authorization;

(5) Detaining Latino occupants of vehicles stopped for traffic violations for a

1

period longer than reasonably necessary to resolve the traffic violation in the

2

absence of reasonable suspicion that any of the vehicle’s occupants have

committed or are committing a violation of federal or state criminal law;

3

(6) Detaining, holding, or arresting Latino occupants of a vehicle for violations of

4

the Arizona Human Smuggling Act without a reasonable basis for believing that

5

the necessary elements of the crime are present; and

6

(7) Detaining, arresting, or holding persons who are occupants of motor vehicles based on a reasonable suspicion that they are conspiring with their employer to

7

violate the Arizona Employer Sanctions Act.

8

After issuing the in junctions, the Court he ld a status conference with the Parties on June

9 14, 2013. (Doc. 582.) The Parties desired to negotiate the term s of a c onsent decree to ensure

10 Defendants’ com pliance with the injunctions . On Augus t 16, the Parties filed a Proposed 11
Consent Decree that contained both terms to which the parties were able to reach agreement, and
12 13 terms on which they could not ag ree. (Doc. 592.) The Court he ld a hearing on A ugust 30 at

14 which it discussed both the term s agreed upon and the disputed term s with the Parties. (Doc.

15 599.) As a result of the trial and the subseque nt proceedings, the Cour t orders the following

16 supplemental injunctive relief. 17

18

REMEDIES

19

I. DEFINITIONS

20 1. The following terms and definitions shall apply to this Order:

21

a. “Boilerplate” means language that is stock, formulaic, appears repeatedly in different

22

reports, and fails to attest to the unique facts of an incident;

23

b. “CAB” means the Community Advisory Board;

24

c. “CAD” means “Computer Aided Dispatch,” the electronic system that tracks

25

communications between MCSO deputies and dispatch while on patrol;

26

d. “CBP” means U.S. Customers and Border Protection;

27

28

- 2 -

1

e. “Complainant” means any person, including a member of the public, MCSO deputy,

2

detention officer, civilian employee, or posse member, who makes a complaint

3

against MCSO;

4

f. “Complaint” means any allegation of improper conduct made by a member of the

5

public or MCSO personnel regarding MCSO services, policy or procedure, that

6

alleges dissatisfaction with or misconduct by MCSO personnel;

7

g. “Order” means this Order;

8

h. “County” means Maricopa County, including its agents and employees;

9

i. “Court” means the United States District Judge for the District of Arizona presiding

10

over this case;

11

j. “Defendants” means defendants in the above-captioned action, i.e., Joseph M. Arpaio,

12

in his official capacity as Sheriff of Maricopa County, and the MCSO;

13

k. “Deputy” or “deputy” means any sworn law enforcement officer employed by or

14

working for MCSO, including Supervisors, patrol and reserve officers;

15

l. “Discipline” means a personnel action for violation of any law, regulation, rule, or

16

MCSO policy, including, but not limited to, an admonishment, written reprimand,

17

suspension, demotion or termination;

18

m. “Discriminatory Policing” means selective enforcement or non-enforcement of the

19

law, including the selecting or rejecting of particular policing tactics or strategies,

20

based on a person’s actual or perceived race or ethnicity. Discriminatory Policing

21

does not include using a person’s race or ethnicity in any reliable suspect-specific

22

description or for purposes of data collection;

23

n. “District” refers to one of the seven police service areas of MCSO;

24

o. “Effective Date” means the day this Order is entered by the Court;

25

p. “Exigent Circumstances” means emergencies in which a reasonable person would

26

believe that imminent death or bodily harm to a person or persons or the destruction

27

of evidence is likely or as otherwise defined by law;

28

q. “EIS” means Early Identification System;

- 3 -

1

r. “Full and Effective Compliance” means compliance with all relevant provisions of

2

this Order. The Defendants shall begin to be in Full and Effective Compliance with

3

this Order when all of the following have been both completed and consistently

4

maintained:

5

i. A Monitor has been appointed pursuant to Paragraphs 119–121 of this Order.

6

ii. The MCSO has formed an Implementation Unit pursuant to Paragraph 9 of

7

this Order.

8

iii. The MCSO has developed, and, pursuant to Paragraph 30, either the Monitor

9

or the Court has approved, and the MCSO has fully implemented the Policies

10

and Procedures and amendments to Policies and Procedures set out in Section

11

V of this Order.

12

iv. The MCSO has developed curriculum and training materials that have,

13

pursuant to Paragraph 46 of this Order, been approved by the Monitor or the

14

Court.

15

v. The MCSO has developed and implemented a training schedule pursuant to

16

Paragraph 44 of this Order.

17

vi. The MCSO has trained all existing MCSO Supervisors, Deputies, and posse

18

members pursuant to Paragraphs 41–53 of this Order.

19

vii. The MCSO has developed proposed protocols, including draft templates and

20

instructions for Significant Operations and Patrols as set out in Section VI of

21

this Order that have, pursuant to Paragraph 37, been approved by the Monitor

22

or the Court, and have been implemented.

23

viii. The MCSO has provided an adequate number of Supervisors as well as

24

proper Deputy assignments pursuant to Paragraphs 82 and 84 of this Order.

25

ix. The MCSO has developed and implemented a system for performance

26

evaluations pursuant to Paragraph 98 of this Order.

27

x. The MCSO has developed and implemented eligibility criteria for assignment

28

to specialized units pursuant to Paragraph 101 of this Order.

- 4 -

1

xi. The MCSO has developed and implemented an audit check plan to detect

2

Deputy misconduct pursuant to Paragraph 103 of this Order.

3

xii. The MCSO has developed and implemented a system to collect traffic stop

4

data and a protocol for audit checks of that system pursuant to Paragraphs 54–

5

59 of this Order.

6

xiii. The MCSO has developed and implemented a protocol for the periodic

7

analysis of the traffic stop data pursuant to Paragraph 64 of this Order.

8

xiv. The MCSO has developed and implemented a system for electronic data

9

entry by Deputies pursuant to Paragraph 60 of this Order.

10

xv. The MCSO has developed and implemented a system for the audio and

11

video recording of traffic stops and a protocol for reviewing the recordings

12

pursuant to Paragraphs 61–63 of this Order with the understanding that Full

13

and Effective Compliance may be achieved once all traffic patrol vehicles that

14

make traffic stops used by Specialized Units have been mounted with the

15

audio and video equipment, so long as the remaining vehicles are timely

16

equipped with the audio and video equipment according to the requirements

17

of those Paragraphs.

18

xvi. The MCSO has formed a Unit to aid in the development and

19

implementation of the EIS, developed and implemented the EIS, and trained

20

all MCSO personnel on the use of the EIS pursuant to Paragraphs 72–81 of

21

this Order.

22

xvii. The MCSO has developed and implemented a community outreach

23

program pursuant to Paragraphs 107–112 of this Order.

24

xviii. The MCSO has selected or hired a Community Liaison Officer pursuant to

25

Paragraphs 113–114 of this Order.

26

xix. The MCSO has worked with Plaintiffs’ representatives and community

27

representatives and created a Community Advisory Board pursuant to

28

Paragraphs 115–116 of this Order.

- 5 -

1

xx. The MCSO has conducted at least one comprehensive internal assessment

2

pursuant to Paragraphs 12–13 of this Order.

3

xxi. The Monitor has conducted a comprehensive assessment pursuant to

4

Paragraphs 13 or 138 and has certified that the MCSO is in compliance with

5

all of the scheduled obligations described above in Paragraph 1 and in

6

compliance with all other periodic and/or continuing obligations in this Order

7

since the Effective Date.

8

s. “IA” means Internal Affairs, the MCSO unit charged with conducting internal and

9

administrative investigations of MCSO deputies, agents, and employees;

10

t. “ICE” means U.S. Immigration and Customs Enforcement;

11

u. “Immigration-Related Law” means any civil or criminal offense related to

12

immigration status;

13

v. “Immigration-Related Crime” means any statute imposing criminal punishment in

14

which immigration status is an element of the offense;

15

w. “include” or “including” means “include or including, but not limited to”;

16

x. “Investigatory Stop,” “Investigatory Contact,” or “Investigatory Detention” means a

17

detention short of an arrest in accordance with Terry v. Ohio, 392 U.S. 1 (1968);

18

y. “LEAR Policy,” means the MCSO policy described on page 2 and 113 of the Court’s

19

May 24, 2013 Findings of Fact and Conclusions of Law of detaining persons believed

20

to be in the country without authorization but whom they cannot arrest on state

21

charges, in order to summon a supervisor and communicate with federal authorities;

22

z. “MCSO” means the Sheriff of the Maricopa County Sheriff’s Office acting in his or

23

her official capacity, including the MCSO’s agents, deputies, detention officers,

24

Supervisors, employees (both sworn and unsworn), and posse volunteers;

25

aa. “MCSO Implementation Unit” means the unit created by the MCSO and consisting of

26

MCSO Employees to facilitate implementation of this Order;

27

28

- 6 -

1

bb. “MCSO Personnel” or “MCSO Employee” means all MCSO Employees, contractors

2

and volunteers, including command staff, deputies, detention officers, civilian

3

employees and posse volunteers;

4

cc. “MDT” means Mobile Data Terminal, the computerized system used in MCSO

5

vehicles to conduct inquiries on individuals encountered on patrol;

6

dd. “Monitor” means a person or team of people who shall be selected to assess and

7

report on the Defendants’ implementation of this Order;

8

ee. “On-site Observation” means first-hand observation by the Monitor of MCSO

9

activities, e.g., ride-alongs with Deputies on patrol or attendance at MCSO meetings

10

or trainings;

11

ff. “Parties” means Plaintiffs and Defendants collectively in the above-captioned action;

12

gg. “Patrol Operations” means all MCSO law enforcement operations conducted by

13

Deputies in a law enforcement support or patrol capacity which involves motor

14

vehicle traffic stops, including Significant Operations as defined below. Jail or

15

detention facility operations are not a part of Patrol Operations;

16

hh. “Plaintiffs” means plaintiffs in the above-captioned action;

17

ii. “Policies and Procedures” means written regulations or directives, regardless of the

18

name of the regulation or directive, describing the duties, functions, and obligations

19

of MCSO personnel, and providing specific direction in how to fulfill those duties,

20

functions, or obligations. All Policies and Procedures should be available in

21

hardcopy and electronically;

22

jj. “Sheriff” means the current and future sheriffs of MCSO;

23

kk. “Significant Operation” or “Significant Patrol” means any pre-planned Patrol

24

Operation that will involve traffic stops of vehicles within Maricopa County

25

involving 10 or more MCSO Personnel excluding posse members;

26

ll. “Specialized Unit” means a temporary or permanent organization of deputies within

27

MCSO whose operational objectives are focused on a specific law enforcement

28

purpose beyond general patrol or criminal investigations;

- 7 -

1

mm. “Supervisor” or “supervisor” means a sworn MCSO employee at the rank of

2

sergeant or above (or anyone acting in those capacities) with oversight responsibility

3

for MCSO personnel;

4

nn. “Training” or “training” means MCSO instruction that aspires towards industry best

5

practices and includes adult-learning methods that incorporate realistic role-playing

6

scenarios, interactive exercises, traditional lecture formats, and testing and/or writings

7

that indicate that MCSO personnel taking the Training comprehend the material

8

taught;

9

oo. “Vehicle stop” means any instance where a MCSO Deputy directs a civilian operating

10

a motor vehicle of any type to stop and in which the driver and any passengers are

11

detained for any length of time.

12

II. EFFECTIVE DATE, JURISDICTION AND PARTY REPRESENTATIVES

13 2. This Order shall become effective upon entry by the Court.

14 3. To ensure that the requirements of this Order are properly and timely implemented, the

15

Court will retain jurisdiction over this action for all purposes until such time as the

16

Defendants have achieved Full and Effective Compliance and maintained such

17

compliance for no less than three years.

18 4. The Parties may agree to jointly ask the Court to terminate this Order if the Parties agree

19

that Defendants have achieved Full and Effective Compliance and maintained such

20

compliance for no less than three continuous years. If the Parties disagree on whether

21

Defendants have achieved Full and Effective Compliance for no less than three

22

continuous years, either Party may seek to terminate this Order. If Defendants move to

23

terminate, Defendants must provide the Monitor and Plaintiffs with notice that they

24

intend to do so at least 60 days prior to filing a motion to terminate. The Parties shall

25

confer with each other and the Monitor to see if any disagreements can be resolved

26

before Defendants file their motion with the Court. If, after a reasonable period of

27

consultation and the completion of any audit or evaluation that Plaintiffs and/or the

28

Monitor may wish to undertake, including On-Site Observations, document review, or

- 8 -

1 2 3 4 5 6 7 5. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6. 23 24 7. 25 26 27 28

interviews with the Defendants’ personnel, the Parties cannot resolve any compliance issues, the Defendants may file a motion to terminate this Order. If the Defendants move for termination of this Order, Plaintiffs will have 60 days after the receipt of the Defendants’ motion to object to the motion. If Plaintiffs do not object, the Court may grant the Defendants’ motion. If Plaintiffs do make an objection, the Court may hold a hearing on the motion, but at any rate shall resolve the dispute. After Defendants have reached Full and Effective Compliance, Defendants shall also have the right to move to terminate any part, portion, or term of this Order if they believe that they have maintained compliance with such portion, part, or term of this Order for no less than three continuous years. At least 60 days prior to filing a motion to terminate, Defendants must provide the Monitor and Plaintiffs with notice that they intend to do so. The Parties shall confer with each other and the Monitor to see if any disagreements can be resolved before Defendants file their motion with the Court. If, after a reasonable period of consultation and the completion of any audit or evaluation that Plaintiffs and/or the Monitor may wish to undertake, including On-Site Observations, document review, or interviews with the Defendants’ personnel, the Parties cannot resolve any compliance issues, the Defendants may file a motion to terminate this Order. Plaintiffs shall have the right to oppose such motion within 60 days after receipt of the Defendants’ motion. If Plaintiffs do not object, the Court may grant the Defendants’ motion. If Plaintiffs do make an objection, the Court may hold a hearing on the motion, but at any rate shall resolve the dispute. At all times, the Defendants shall bear the burden of demonstrating Full and Effective Compliance with this Order. This Order shall run against the Sheriff in his official capacity, as well as the MCSO. For purposes of implementation and enforcement of the Order, the representatives for the Parties shall be: a. Plaintiffs: The American Civil Liberties Union of Arizona (“ACLU-AZ”) and any
other representative(s) designated by the ACLU-AZ;

- 9 -

1

b. Defendants: Chief David Trombi and Captain Larry Farnsworth (or other designee

2

selected by the Sheriff).

3 8. The Court, upon 60 days’ notice to the Parties, retains the right to modify or terminate

4

this Order in whole or in part if it is satisfied that the Defendants have substantially

5

complied with any or all of the terms of the Order for a period of three years, or if it is

6

otherwise satisfied that a modification is justified.

7
III. MCSO IMPLEMENTATION UNIT AND INTERNAL AGENCY-WIDE
8
ASSESSMENT
9
9. Defendants shall hire and retain, or reassign current MCSO employees to form an inter-
10
disciplinary unit with the skills and abilities necessary to facilitate implementation of this
11
Order. This unit shall be called the MCSO Implementation Unit and serve as a liaison
12
between the Parties and the Monitor and shall assist with the Defendants’ implementation
13
of and compliance with this Order. At a minimum, this unit shall: coordinate the
14
Defendants’ compliance and implementation activities; facilitate the provision of data,
15
documents, materials, and access to the Defendants’ personnel to the Monitor and
16
Plaintiffs representatives; ensure that all data, documents and records are maintained as
17
provided in this Order; and assist in assigning implementation and compliance-related
18
tasks to MCSO Personnel, as directed by the Sheriff or his designee. The unit will
19
include a single person to serve as a point of contact in communications with Plaintiffs,
20
the Monitor and the Court.
21
10. MCSO shall collect and maintain all data and records necessary to: (1) implement this
22
order, and document implementation of and compliance with this Order, including data
23
and records necessary for the Monitor to conduct reliable outcome assessments,
24
compliance reviews, and audits; and (2) perform ongoing quality assurance in each of the
25
areas addressed by this Order. At a minimum, the foregoing data collection practices
26
shall comport with current professional standards, with input on those standards from the
27
Monitor.
28

- 10 -

1 11. Beginning with the Monitor’s first quarterly report, the Defendants, working with the unit

2

assigned for implementation of the Order, shall file with the Court, with a copy to the

3

Monitor and Plaintiffs, a status report no later than 30 days before the Monitor’s quarterly

4

report is due. The Defendants’ report shall (i) delineate the steps taken by the Defendants

5

during the reporting period to implement this Order; (ii) delineate the Defendants’ plans

6

to correct any problems; and (iii) include responses to any concerns raised in the

7

Monitor’s previous quarterly report.

8 12. The Defendants, working with the unit assigned for implementation of the Order, shall

9

conduct a comprehensive internal assessment of their Policies and Procedures affecting

10

Patrol Operations regarding Discriminatory Policing and unlawful detentions in the field

11

as well as overall compliance with the Court’s orders and this Order on an annual basis.

12

The comprehensive Patrol Operations assessment shall include, but not be limited to, an

13

analysis of collected traffic-stop and high-profile or immigration-related operations data;

14

written Policies and Procedures; Training, as set forth in the Order; compliance with

15

Policies and Procedures; Supervisor review; intake and investigation of civilian

16

Complaints; conduct of internal investigations; Discipline of officers; and community

17

relations. The first assessment shall be conducted within 180 days of the Effective Date.

18

Results of each assessment shall be provided to the Court, the Monitor, and Plaintiffs’

19

representatives.

20 13. The internal assessments prepared by the Defendants will state for the Monitor and

21

Plaintiffs’ representatives the date upon which the Defendants believe they are first in

22

compliance with any subpart of this Order and the date on which the Defendants first

23

assert they are in Full and Effective Compliance with the Order and the reasons for that

24

assertion. When the Defendants first assert compliance with any subpart or Full and

25

Effective Compliance with the Order, the Monitor shall within 30 days determine

26

whether the Defendants are in compliance with the designated subpart(s) or in Full and

27

Effective Compliance with the Order. If either party contests the Monitor’s determination

28

it may file an objection with the Court, from which the Court will make the

- 11 -

1

determination. Thereafter, in each assessment, the Defendants will indicate with which

2

subpart(s) of this Order it remains or has come into full compliance and the reasons

3

therefore. The Monitor shall within 30 days thereafter make a determination as to

4

whether the Defendants remain in Full and Effective Compliance with the Order and the

5

reasons therefore. The Court may, at its option, order hearings on any such assessments

6

to establish whether the Defendants are in Full and Effective Compliance with the Order

7

or in compliance with any subpart(s).

8

IV. MONITOR REVIEW PROCESS

9 14. In any place where this Order provides for Defendants to submit policies, procedures,

10

protocols or other materials to the Monitor for his or her review, Defendants shall submit

11

such materials to the Monitor and provide a copy to Plaintiffs’ representatives within the

12

specified time.

13 15. Plaintiffs shall have an opportunity to provide any comments or recommendations on the

14

materials within 14 days of receipt. The Monitor shall thereafter communicate to the

15

Parties the results of its review. If the Monitor has any concerns or recommendations

16

regarding the materials, it will include those concerns or recommendations. The MCSO

17

may then amend the materials and resubmit them to the Monitor within 14 days for

18

further review. Either Party may apply to the Monitor for an extension of the deadlines in

19

this Paragraph. In conducting its review, the Monitor may take into account industry best

20

practices and the record in this litigation.

21 16. If the Monitor approves the matter submitted, the Monitor will make a record of his or

22

her approval and inform both parties. In cases where neither party objects to the

23

Monitor’s action, the Monitor’s determination will be final. When the Monitor approves

24

such matter, no further action is needed before the MCSO implements the relevant

25

policies, procedures, protocols or materials. The MCSO shall do so promptly and without

26

delay.

27 17. If either Party does not agree with the Monitor’s determination, then the Party may make

28

a motion directly to the Court for resolution of the dispute. The non-moving Party may

- 12 -

1

respond to such motion within 14 days of filing. The moving Party may file a reply

2

within 7 days after that. Any policies, procedures, protocols or other materials subject to

3

the dispute need not be implemented until the Court makes a determination.

4

V. POLICIES AND PROCEDURES

5 18. MCSO shall deliver police services consistent with the Constitution and laws of the

6

United States and State of Arizona, MCSO policy, and this Order, and with current

7

professional standards. In conducting its activities, MCSO shall ensure that members of

8

the public receive equal protection of the law, without discriminating based on actual or

9

perceived race or ethnicity, and in a manner that promotes public confidence.

10 19. To further the goals in this Order, the MCSO shall conduct a comprehensive review of all

11

Patrol Operations Policies and Procedures and make appropriate amendments to ensure

12

that they reflect the Court’s permanent injunction and this Order.

13 20. The MCSO shall comply with and operate in accordance with the Policies and

14

Procedures discussed in this Order and shall take all reasonable measures to ensure that

15

all Patrol Operations personnel comply with all such Policies and Procedures.

16

a. Policies and Procedures to Ensure Bias-Free Policing

17 21. The MCSO shall promulgate a new, department-wide policy or policies clearly

18

prohibiting Discriminatory Policing and racial profiling. The policy or policies shall, at a

19

minimum:

20

a. define racial profiling as the reliance on race or ethnicity to any degree in making law

21

enforcement decisions, except in connection with a reliable and specific suspect

22

description;

23

b. prohibit the selective enforcement or non-enforcement of the law based on race or

24

ethnicity;

25

c. prohibit the selection or rejection of particular policing tactics or strategies or

26

locations based to any degree on race or ethnicity;

27

28

- 13 -

1

d. specify that the presence of reasonable suspicion or probable cause to believe an

2

individual has violated a law does not necessarily mean that an officer’s action is

3

race-neutral; and

4

e. include a description of the agency’s Training requirements on the topic of racial

5

profiling in Paragraphs 48–51, data collection requirements (including video and

6

audio recording of stops as set forth elsewhere in this Order) in Paragraphs 54–63 and

7

oversight mechanisms to detect and prevent racial profiling, including disciplinary

8

consequences for officers who engage in racial profiling.

9 22. MCSO leadership and supervising Deputies and detention officers shall unequivocally

10

and consistently reinforce to subordinates that Discriminatory Policing is unacceptable.

11 23. Within 30 days of the Effective Date, MCSO shall modify its Code of Conduct to

12

prohibit MCSO Employees from utilizing County property, such as County e-mail, in a

13

manner that discriminates against, or denigrates, anyone on the basis of race, color, or

14

national origin.

15 24. The MCSO shall ensure that its operations are not motivated by or initiated in response to

16

requests for law enforcement action based on race or ethnicity. In deciding to take any

17

law enforcement action, the MCSO shall not rely on any information received from the

18

public, including through any hotline, by mail, email, phone or in person, unless the

19

information contains evidence of a crime that is independently corroborated by the

20

MCSO, such independent corroboration is documented in writing, and reliance on the

21

information is consistent with all MCSO policies.

22

b. Policies and Procedures to Ensure Bias-Free Traffic Enforcement

23 25. The MCSO will revise its policy or policies relating to traffic enforcement to ensure that

24

those policies, at a minimum:

25

a. prohibit racial profiling in the enforcement of traffic laws, including the selection of

26

which vehicles to stop based to any degree on race or ethnicity, even where an officer

27

has reasonable suspicion or probable cause to believe a violation is being or has been

28

committed;

- 14 -

1

b. provide Deputies with guidance on effective traffic enforcement, including the

2

prioritization of traffic enforcement resources to promote public safety;

3

c. prohibit the selection of particular communities, locations or geographic areas for

4

targeted traffic enforcement based to any degree on the racial or ethnic composition

5

of the community;

6

d. prohibit the selection of which motor vehicle occupants to question or investigate

7

based to any degree on race or ethnicity;

8

e. prohibit the use of particular tactics or procedures on a traffic stop based on race or

9

ethnicity;

10

f. require deputies at the beginning of each stop, before making contact with the

11

vehicle, to contact dispatch and state the reason for the stop, unless Exigent

12

Circumstances make it unsafe or impracticable for the deputy to contact dispatch;

13

g. prohibit Deputies from extending the duration of any traffic stop longer than the time

14

that is necessary to address the original purpose for the stop and/or to resolve any

15

apparent criminal violation for which the Deputy has or acquires reasonable suspicion

16

or probable cause to believe has been committed or is being committed;

17

h. require the duration of each traffic stop to be recorded;

18

i. provide Deputies with a list and/or description of forms of identification deemed

19

acceptable for drivers and passengers (in circumstances where identification is

20

required of them) who are unable to present a driver’s license or other state-issued

21

identification; and

22

j. instruct Deputies that they are not to ask for the Social Security number or card of any

23

motorist who has provided a valid form of identification, unless it is needed to

24

complete a citation or report.

25

c. Policies and Procedures to Ensure Bias-Free Detentions and Arrests

26 26. The MCSO shall revise its policy or policies relating to Investigatory Detentions and

27

arrests to ensure that those policies, at a minimum:

28

- 15 -

1

a. require that Deputies have reasonable suspicion that a person is engaged in, has

2

committed, or is about to commit, a crime before initiating an investigatory seizure;

3

b. require that Deputies have probable cause to believe that a person is engaged in, has

4

committed, or is about to commit, a crime before initiating an arrest;

5

c. provide Deputies with guidance on factors to be considered in deciding whether to

6

cite and release an individual for a criminal violation or whether to make an arrest;

7

d. require Deputies to notify Supervisors before effectuating an arrest following any

8

immigration-related investigation or for an Immigration-Related Crime, or for any

9

crime by a vehicle passenger related to lack of an identity document;

10

e. prohibit the use of a person’s race or ethnicity as a factor in establishing reasonable

11

suspicion or probable cause to believe a person has, is, or will commit a crime, except

12

as part of a reliable and specific suspect description; and

13

f. prohibit the use of quotas, whether formal or informal, for stops, citations, detentions,

14

or arrests (though this requirement shall not be construed to prohibit the MCSO from

15

reviewing Deputy activity for the purpose of assessing a Deputy’s overall

16

effectiveness or whether the Deputy may be engaging in unconstitutional policing).

17

d. Policies and Procedures Governing the Enforcement of Immigration-Related

18

La

ws

19 27. The MCSO shall remove discussion of its LEAR Policy from all agency written Policies

20

and Procedures, except that the agency may mention the LEAR Policy in order to clarify

21

that it is discontinued.

22 28. The MCSO shall promulgate a new policy or policies, or will revise its existing policy or

23

policies, relating to the enforcement of Immigration-Related Laws to ensure that they, at

24

a minimum:

25

a. specify that unauthorized presence in the United States is not a crime and does not

26

itself constitute reasonable suspicion or probable cause to believe that a person has

27

committed or is committing any crime;

28

- 16 -

1

b. prohibit officers from detaining any individual based on actual or suspected

2

“unlawful presence,” without something more;

3

c. prohibit officers from initiating a pretextual vehicle stop where an officer has

4

reasonable suspicion or probable cause to believe a traffic or equipment violation has

5

been or is being committed in order to determine whether the driver or passengers are

6

unlawfully present;

7

d. prohibit the Deputies from relying on race or apparent Latino ancestry to any degree

8

to select whom to stop or to investigate for an Immigration-Related Crime (except in

9

connection with a specific suspect description);

10

e. prohibit Deputies from relying on a suspect’s speaking Spanish, or speaking English

11

with an accent, or appearance as a day laborer as a factor in developing reasonable

12

suspicion or probable cause to believe a person has committed or is committing any

13

crime, or reasonable suspicion to believe that an individual is in the country without

14

authorization;

15

f. unless the officer has reasonable suspicion that the person is in the country unlawfully

16

and probable cause to believe the individual has committed or is committing a crime,

17

the MCSO shall prohibit officers from (a) questioning any individual as to his/her

18

alienage or immigration status; (b) investigating an individual’s identity or searching

19

the individual in order to develop evidence of unlawful status; or (c) detaining an

20

individual while contacting ICE/CBP with an inquiry about immigration status or

21

awaiting a response from ICE/CBP. In such cases, the officer must still comply with

22

Paragraph 25(g) of this Order. Notwithstanding the foregoing, an officer may (a)

23

briefly question an individual as to his/her alienage or immigration status; (b) contact

24

ICE/CBP and await a response from federal authorities if the officer has reasonable

25

suspicion to believe the person is in the country unlawfully and reasonable suspicion

26

to believe the person is engaged in an Immigration-Related Crime for which unlawful

27

immigration status is an element, so long as doing so does not unreasonably extend

28

the stop in violation of Paragraph 25(g) of this Order;

- 17 -

1

g. prohibit Deputies from transporting or delivering an individual to ICE/CBP custody

2

from a traffic stop unless a request to do so has been voluntarily made by the

3

individual;

4

h. require that, before any questioning as to alienage or immigration status or any

5

contact with ICE/CBP is initiated, an officer check with a Supervisor to ensure that

6

the circumstances justify such an action under MCSO policy and receive approval to

7

proceed. Officers must also document, in every such case, (a) the reason(s) for

8

making the immigration-status inquiry or contacting ICE/CBP, (b) the time

9

Supervisor approval was received, (c) when ICE/CBP was contacted, (d) the time it

10

took to receive a response from ICE/CBP, if applicable, and (e) whether the

11

individual was then transferred to ICE/CBP custody.

12

e. Policies and Procedures Generally

13 29. MCSO Policies and Procedures shall define terms clearly, comply with applicable law

14

and the requirements of this Order, and comport with current professional standards.

15 30. Unless otherwise noted, the MCSO shall submit all Policies and Procedures and

16

amendments to Policies and Procedures provided for by this Order to the Monitor for

17

review within 90 days of the Effective Date pursuant to the process described in Section

18

IV. These Policies and Procedures shall be approved by the Monitor or the Court prior to

19

their implementation.

20 31. Within 60 days after such approval, MCSO shall ensure that all relevant MCSO Patrol

21

Operation Personnel have received, read, and understand their responsibilities pursuant to

22

the Policy or Procedure. The MCSO shall ensure that personnel continue to be regularly

23

notified of any new Policies and Procedures or changes to Policies and Procedures. The

24

Monitor shall assess and report to the Court and the Parties on whether he/she believes

25

relevant personnel are provided sufficient notification of and access to, and understand

26

each policy or procedure as necessary to fulfill their responsibilities.

27 32. The MCSO shall require that all Patrol Operation personnel report violations of policy;

28

that Supervisors of all ranks shall be held accountable for identifying and responding to

- 18 -

1

policy or procedure violations by personnel under their command; and that personnel be

2

held accountable for policy and procedure violations. The MCSO shall apply policies

3

uniformly.

4 33. MCSO Personnel who engage in Discriminatory Policing in any context will be subjected

5

to administrative Discipline and, where appropriate, referred for criminal prosecution.

6

MCSO shall provide clear guidelines, in writing, regarding the disciplinary consequences

7

for personnel who engage in Discriminatory Policing.

8 34. MCSO shall review each policy and procedure on an annual basis to ensure that the

9

policy or procedure provides effective direction to MCSO Personnel and remains

10

consistent with this Order, current law and professional standards. The MCSO shall

11

document such annual review in writing. MCSO also shall review Policies and

12

Procedures as necessary upon notice of a policy deficiency during audits or reviews.

13

MCSO shall revise any deficient policy as soon as practicable.

14

VI. PRE-PLANNED OPERATIONS

15 35. The Monitor shall regularly review the mission statement, policies and operations

16

documents of any Specialized Unit within the MCSO that enforces Immigration-Related

17

Laws to ensure that such unit(s) is/are operating in accordance with the Constitution, the

18

laws of the United States and State of Arizona, and this Order.

19 36. The MCSO shall ensure that any Significant Operations or Patrols are initiated and

20

carried out in a race-neutral fashion. For any Significant Operation or Patrol involving 10

21

or more MCSO personnel, excluding posse members, the MSCO shall develop a written

22

protocol including a statement of the operational motivations and objectives, parameters

23

for supporting documentation that shall be collected, operations plans, and provide

24

instructions to supervisors, deputies and posse members. That written protocol shall be

25

provided to the Monitor in advance of any Significant Operation or Patrol.

26 37. The MCSO shall submit a standard template for operations plans and standard

27

instructions for supervisors, deputies and posse members applicable to all Significant

28

Operations or Patrols to the Monitor for review pursuant to the process described in

- 19 -

1

Section IV within 90 days of the Effective Date. In Exigent Circumstances, the MCSO

2

may conduct Significant Operations or Patrols during the interim period but such patrols

3

shall be conducted in a manner that is in compliance with the requirement of this Order.

4

Any Significant Operations or Patrols thereafter must be in accordance with the approved

5

template and instructions.

6 38. If the MCSO conducts any Significant Operations or Patrols involving 10 or more MCSO

7

Personnel excluding posse members, it shall create the following documentation and

8

provide it to the Monitor and Plaintiffs within 30 days after the operation:

9

a. documentation of the specific justification/reason for the operation, certified as

10

drafted prior to the operation (this documentation must include analysis of relevant,

11

reliable, and comparative crime data);

12

b. information that triggered the operation and/or selection of the particular site for the

13

operation;

14

c. documentation of the steps taken to corroborate any information or intelligence

15

received from non-law enforcement personnel;

16

d. documentation of command staff review and approval of the operation and operations

17

plans;

18

e. a listing of specific operational objectives for the patrol;

19

f. documentation of specific operational objectives and instructions as communicated to

20

participating MCSO Personnel;

21

g. any operations plans, other instructions, guidance or post-operation feedback or de-

22

briefing provided to participating MCSO Personnel;

23

h. a post-operation analysis of the patrol, including a detailed report of any significant

24

events that occurred during the patrol;

25

i. arrest lists, officer participation logs and records for the patrol; and

26

j. data about each contact made during the operation, including whether it resulted in a

27

citation or arrest.

28

- 20 -

1 39. The MCSO shall hold a community outreach meeting no more than 30 days after any

2

Significant Operations or Patrols in the affected District(s). MCSO shall work with the

3

Community Advisory Board to ensure that the community outreach meeting adequately

4

communicates information regarding the objectives and results of the operation or patrol.

5

The community outreach meeting shall be advertised and conducted in English and

6

Spanish.

7 40. The MCSO shall notify the Monitor and Plaintiffs within 24 hours of any immigration-

8

related traffic enforcement activity or Significant Operation involving the arrest of 5 or

9

more people unless such disclosure would interfere with an on-going criminal

10

investigation in which case the notification shall be provided under seal to the Court,

11

which may determine that disclosure to the Monitor and Plaintiffs would not interfere

12

with an on-going criminal investigation. In any event, as soon as disclosure would no

13

longer interfere with an on-going criminal investigation, MCSO shall provide the

14

notification to the Monitor and Plaintiffs. To the extent that it is not already covered

15

above by Paragraph 38, the Monitor and Plaintiffs may request any documentation

16

related to such activity as they deem reasonably necessary to ensure compliance with the

17

Court’s orders.

18

VII. TRAINING

19

a. General Provisions

20 41. To ensure that the Policies and Procedures provided for by this Order are effectuated, the

21

MCSO shall implement the following requirements regarding Training.

22 42. The persons presenting this Training in each area shall be competent instructors with

23

significant experience and expertise in the area. Those presenting Training on legal

24

matters shall also hold a law degree from an accredited law school and be admitted to a

25

Bar of any state and/or the District of Columbia.

26 43. The Training shall include at least 60% live training (i.e., with a live instructor) which

27

includes an interactive component and no more than 40% on-line training. The Training

28

- 21 -

1

shall also include testing and/or writings that indicate that MCSO Personnel taking the

2

Training comprehend the material taught whether via live training or via on-line training.

3 44. Within 90 days of the Effective Date, MCSO shall set out a schedule for delivering all

4

Training required by this Order. Plaintiffs’ Representative and the Monitor shall be

5

provided with the schedule of all Trainings and will be permitted to observe all live

6

trainings and all on-line training. Attendees shall sign in at each live session. MCSO

7

shall keep an up-to-date list of the live and on-line Training sessions and hours attended

8

or viewed by each officer and Supervisor and make that available to the Monitor and

9

Plaintiffs.

10 45. The Training may incorporate adult-learning methods that incorporate role-playing

11

scenarios, interactive exercises, as well as traditional lecture formats.

12 46. The curriculum and any materials and information on the proposed instructors for the

13

Training provided for by this Order shall be provided to the Monitor within 90 days of

14

the Effective Date for review pursuant to the process described in Section IV. The

15

Monitor and Plaintiffs may provide resources that the MCSO can consult to develop the

16

content of the Training, including names of suggested instructors.

17 47. MCSO shall regularly update the Training to keep up with developments in the law and

18

to take into account feedback from the Monitor, the Court, Plaintiffs and MCSO

19

Personnel.

20

b. Bias-Free Policing Training

21 48. The MCSO shall provide all sworn Deputies, including Supervisors and chiefs, as well as

22

all posse members, with 12 hours of comprehensive and interdisciplinary Training on

23

bias-free policing within 240 days of the Effective Date, or for new Deputies or posse

24

members, within 90 days of the start of their service, and at least 6 hours annually

25

thereafter.

26 49. The Training shall incorporate the most current developments in federal and Arizona law

27

and MCSO policy, and shall address or include, at a minimum:

28

a. definitions of racial profiling and Discriminatory Policing;

- 22 -

1

b. examples of the type of conduct that would constitute Discriminatory Policing as well

2

as examples of the types of indicators Deputies may properly rely upon;

3

c. the protection of civil rights as a central part of the police mission and as essential to

4

effective policing;

5

d. an emphasis on ethics, professionalism and the protection of civil rights as a central

6

part of the police mission and as essential to effective policing;

7

e. constitutional and other legal requirements related to equal protection, unlawful

8

discrimination, and restrictions on the enforcement of Immigration-Related Laws,

9

including the requirements of this Order;

10

f. MCSO policies related to Discriminatory Policing, the enforcement of Immigration-

11

Related Laws and traffic enforcement, and to the extent past instructions to personnel

12

on these topics were incorrect, a correction of any misconceptions about the law or

13

MCSO policies;

14

g. MCSO’s protocol and requirements for ensuring that any significant pre-planned

15

operations or patrols are initiated and carried out in a race-neutral fashion;

16

h. police and community perspectives related to Discriminatory Policing;

17

i. the existence of arbitrary classifications, stereotypes, and implicit bias, and the impact

18

that these may have on the decision-making and behavior of a Deputy;

19

j. methods and strategies for identifying stereotypes and implicit bias in Deputy

20

decision-making;

21

k. methods and strategies for ensuring effective policing, including reliance solely on

22

non-discriminatory factors at key decision points;

23

l. methods and strategies to reduce misunderstanding, resolve and/or de-escalate

24

conflict, and avoid Complaints due to perceived police bias or discrimination;

25

m. cultural awareness and how to communicate with individuals in commonly

26

encountered scenarios;

27

n. problem-oriented policing tactics and other methods for improving public safety and

28

crime prevention through community engagement;

- 23 -

1

o. the benefits of actively engaging community organizations, including those serving

2

youth and immigrant communities;

3

p. the MCSO process for investigating Complaints of possible misconduct and the

4

disciplinary consequences for personnel found to have violated MCSO policy;

5

q. background information on the Melendres v. Arpaio litigation, as well as a summary

6

and explanation of the Court’s May 24, 2013 Findings of Fact and Conclusions of

7

Law in Melendres v. Arpaio, the parameters of the Court’s permanent injunction, and

8

the requirements of this Order; and

9

r. instruction on the data collection protocols and reporting requirements of this Order.

10

c. Training on Detentions, Arrests, and the Enforcement of Immigration-

11 Related

Laws

12 50. In addition to the Training on bias-free policing, the MCSO shall provide all sworn

13

personnel, including Supervisors and chiefs, as well as all posse members, with 6 hours

14

of Training on the Fourth Amendment, including on detentions, arrests and the

15

enforcement of Immigration-Related Laws within 180 days of the effective date of this

16

Order, or for new Deputies or posse members, within 90 days of the start of their service.

17

MCSO shall provide all Deputies with 4 hours of Training each year thereafter.

18 51. The Training shall incorporate the most current developments in federal and Arizona law

19

and MCSO policy, and shall address or include, at a minimum:

20

a. an explanation of the difference between various police contacts according to the

21

level of police intrusion and the requisite level of suspicion; the difference between

22

reasonable suspicion and mere speculation; and the difference between voluntary

23

consent and mere acquiescence to police authority;

24

b. guidance on the facts and circumstances that should be considered in initiating,

25

expanding or terminating an Investigatory Stop or detention;

26

c. guidance on the circumstances under which an Investigatory Detention can become

27

an arrest requiring probable cause;

28

- 24 -

1

d. constitutional and other legal requirements related to stops, detentions and arrests,

2

and the enforcement of Immigration-Related Laws, including the requirements of this

3

Order;

4

e. MCSO policies related to stops, detentions and arrests, and the enforcement of

5

Immigration-Related Laws, and the extent to which past instructions to personnel on

6

these topics were incorrect, a correction of any misconceptions about the law or

7

MCSO policies;

8

f. the circumstances under which a passenger may be questioned or asked for

9

identification;

10

g. the forms of identification that will be deemed acceptable if a driver or passenger (in

11

circumstances where identification is required of them) is unable to present an

12

Arizona driver’s license;

13

h. the circumstances under which an officer may initiate a vehicle stop in order to

14

investigate a load vehicle;

15

i. the circumstances under which a Deputy may question any individual as to his/her

16

alienage or immigration status, investigate an individual’s identity or search the

17

individual in order to develop evidence of unlawful status, contact ICE/CBP, await a

18

response from ICE/CBP and/or deliver an individual to ICE/CBP custody;

19

j. a discussion of the factors that may properly be considered in establishing reasonable

20

suspicion or probable cause to believe that a vehicle or an individual is involved in an

21

immigration-related state crime, such as a violation of the Arizona Human Smuggling

22

Statute, as drawn from legal precedent and updated as necessary; the factors shall not

23

include actual or apparent race or ethnicity, speaking Spanish, speaking English with

24

an accent, or appearance as a Hispanic day laborer;

25

k. a discussion of the factors that may properly be considered in establishing reasonable

26

suspicion or probable cause that an individual is in the country unlawfully, as drawn

27

from legal precedent and updated as necessary; the factors shall not include actual or

28

- 25 -

1

apparent race or ethnicity, speaking Spanish, speaking English with an accent, or

2

appearance as a day laborer;

3

l. an emphasis on the rule that use of race or ethnicity to any degree, except in the case

4

of a reliable, specific suspect description, is prohibited;

5

m. the MCSO process for investigating Complaints of possible misconduct and the

6

disciplinary consequences for personnel found to have violated MCSO policy;

7

n. provide all trainees a copy of the Court’s May 24, 2013 Findings of Fact and

8

Conclusions of Law in Melendres v. Arpaio and this Order, as well as a summary and

9

explanation of the same that is drafted by counsel for Plaintiffs or Defendants and

10

reviewed by the Monitor or the Court; and

11

o. instruction on the data collection protocols and reporting requirements of this Order,

12

particularly reporting requirements for any contact with ICE/CBP.

13

d. Supervisor and Command Level Training

14 52. MCSO shall provide Supervisors with comprehensive and interdisciplinary Training on

15

supervision strategies and supervisory responsibilities under the Order. MCSO shall

16

provide an initial mandatory supervisor training of no less than 6 hours, which shall be

17

completed prior to assuming supervisory responsibilities or, for current MCSO

18

Supervisors, within 180 days of the Effective Date of this Order. In addition to this initial

19

Supervisor Training, MCSO shall require each Supervisor to complete at least 4 hours of

20

Supervisor-specific Training annually thereafter. As needed, Supervisors shall also

21

receive Training and updates as required by changes in pertinent developments in the law

22

of equal protection, Fourth Amendment, the enforcement of Immigration-Related Laws,

23

and other areas, as well as Training in new skills.

24 53. The Supervisor-specific Training shall address or include, at a minimum:

25

a. techniques for effectively guiding and directing Deputies, and promoting effective

26

and constitutional police practices in conformity with the Policies and Procedures in

27

Paragraphs 18–34 and the Fourth and Fourteenth Amendment Training in Paragraphs

28

48–51;

- 26 -

1

b. how to conduct regular reviews of subordinates;

2

c. operation of Supervisory tools such as EIS;

3

d. evaluation of written reports, including how to identify conclusory, “canned,” or

4

perfunctory language that is not supported by specific facts;

5

e. how to analyze collected traffic stop data, audio and visual recordings, and patrol data

6

to look for warning signs or indicia of possible racial profiling or unlawful conduct;

7

f. how to plan significant operations and patrols to ensure that they are race-neutral and

8

how to supervise Deputies engaged in such operations;

9

g. incorporating integrity-related data into COMSTAT reporting;

10

h. how to respond to calls from Deputies requesting permission to proceed with an

11

investigation of an individual’s immigration status, including contacting ICE/CBP;

12

i. how to respond to the scene of a traffic stop when a civilian would like to make a

13

Complaint against a Deputy;

14

j. how to respond to and investigate allegations of Deputy misconduct generally;

15

k. evaluating Deputy performance as part of the regular employee performance

16

evaluation; and

17

l. building community partnerships and guiding Deputies to do the Training for

18

Personnel Conducting Misconduct Investigations.

19

VIII. TRAFFIC STOP DOCUMENTATION AND DATA COLLECTION AND

20

REVIEW

21

a. Collection of Traffic Stop Data

22 54. Within 180 days of the Effective Date, MCSO shall develop a system to ensure that

23

Deputies collect data on all vehicle stops, whether or not they result in the issuance of a

24

citation or arrest. This system shall require Deputies to document, at a minimum:

25

a. the name, badge/serial number, and unit of each Deputy and posse member involved;

26

b. the date, time and location of the stop, recorded in a format that can be subject to

27

geocoding;

28

c. the license plate state and number of the subject vehicle;

- 27 -

1

d. the total number of occupants in the vehicle;

2

e. the Deputy’s subjective perceived race, ethnicity and gender of the driver and any

3

passengers, based on the officer’s subjective impression (no inquiry into an

4

occupant’s ethnicity or gender is required or permitted);

5

f. the name of any individual upon whom the Deputy runs a license or warrant check

6

(including subject’s surname);

7

g. an indication of whether the Deputy otherwise contacted any passengers, the nature of

8

the contact, and the reasons for such contact;

9

h. the reason for the stop, recorded prior to contact with the occupants of the stopped

10

vehicle, including a description of the traffic or equipment violation observed, if any,

11

and any indicators of criminal activity developed before or during the stop;

12

i. time the stop began; any available data from the E-Ticketing system regarding the

13

time any citation was issued; time a release was made without citation; the time any

14

arrest was made; and the time the stop/detention was concluded either by citation,

15

release, or transport of a person to jail or elsewhere or Deputy’s departure from the

16

scene;

17

j. whether any inquiry as to immigration status was conducted and whether ICE/CBP

18

was contacted, and if so, the facts supporting the inquiry or contact with ICE/CBP,

19

the time Supervisor approval was sought, the time ICE/CBP was contacted, the time

20

it took to complete the immigration status investigation or receive a response from

21

ICE/CBP, and whether ICE/CBP ultimately took custody of the individual;

22

k. whether any individual was asked to consent to a search (and the response), whether a

23

probable cause search was performed on any individual, or whether a pat-and-frisk

24

search was performed on any individual;

25

l. whether any contraband or evidence was seized from any individual, and nature of the

26

contraband or evidence; and

27

m. the final disposition of the stop, including whether a citation was issued or an arrest

28

was made or a release was made without citation.

- 28 -

1 55. MCSO shall assign a unique ID for each incident/stop so that any other documentation

2

(e.g., citations, incident reports, tow forms) can be linked back to the stop.

3 56. The traffic stop data collection system shall be subject to regular audits and quality

4

control checks. MCSO shall develop a protocol for maintaining the integrity and

5

accuracy of the traffic stop data, to be reviewed by the Monitor pursuant to the process

6

described in Section IV.

7 57. MCSO shall explore the possibility of relying on the CAD and/or MDT systems to check

8

if all stops are being recorded and relying on in-car recording equipment to check

9

whether Deputies are accurately reporting stop length. In addition, MCSO shall

10

implement a system for Deputies to provide motorists with a copy of non-sensitive data

11

recorded for each stop (such as a receipt) with instructions for how to report any

12

inaccuracies the motorist believes are in the data, which can then be analyzed as part of

13

any audit. The receipt will be provided to motorists even if the stop does not result in a

14

citation or arrest.

15 58. The MCSO shall ensure that all databases containing individual-specific data comply

16

with federal and state privacy standards governing personally-identifiable information.

17

MCSO shall develop a process to restrict database access to authorized, identified users

18

who are accessing the information for a legitimate and identified purpose as defined by

19

the Parties. If the Parties cannot agree, the Court shall make the determination.

20 59. Notwithstanding the foregoing, the MCSO shall provide full access to the collected data

21

to the Monitor and Plaintiffs’ representatives, who shall keep any personal identifying

22

information confidential. Every 180 days, MCSO shall provide the traffic stop data

23

collected up to that date to the Monitor and Plaintiffs’ representatives in electronic form.

24

If proprietary software is necessary to view and analyze the data, MCSO shall provide a

25

copy of the same. If the Monitor or the Parties wish to submit data with personal

26

identifying information to the Court, they shall provide the personally identifying

27

information under seal.

28

- 29 -

1 b.

Electronic Data Entry

2 60. Within one year of the Effective Date, the MCSO shall develop a system by which

3

Deputies can input traffic stop data electronically. Such electronic data system shall have

4

the capability to generate summary reports and analyses, and to conduct searches and

5

queries. MCSO will explore whether such data collection capability is possible through

6

the agency’s existing CAD and MDT systems, or a combination of the CAD and MDT

7

systems with a new data collection system. Data need not all be collected in a single

8

database; however, it should be collected in a format that can be efficiently analyzed

9

together. Before developing an electronic system, the MCSO may collect data manually

10

but must ensure that such data can be entered into the electronic system in a timely and

11

accurate fashion as soon as practicable.

12

c. Audio-Video Recording of Traffic Stops

13 61. The MCSO will install functional video and audio recording equipment in all traffic

14

patrol vehicles that make traffic stops, and shall commence regular operation and

15

maintenance of such video and audio recording equipment. MCSO shall prioritize the

16

installation of such equipment in all traffic patrol vehicles that makes traffic stops used

17

by Specialized Units that enforce Immigration-Related Laws, and such installation must

18

be complete within 180 days of the Effective Date. MCSO shall equip all traffic patrol

19

vehicles that make traffic stops with video and audio recording equipment within 2 years

20

of the Effective Date. Subject to Maricopa County code and the State of Arizona’s

21

procurement law, the Court shall choose the vendor for the video and audio recording

22

equipment if the Parties and the Monitor cannot agree on one.

23 62. Deputies shall turn on any in-vehicle video and audio recording equipment as soon the

24

decision to initiate the stop is made and continue recording through the end of the stop.

25

MCSO shall repair or replace all non-functioning video or audio recording equipment, as

26

necessary for reliable functioning. Deputies who fail to activate and to use their recording

27

equipment according to MCSO policy or notify MCSO that their equipment is non-

28

functioning within a reasonable time shall be subject to Discipline.

- 30 -

1 63. MCSO shall retain traffic stop written data for a minimum of 5 years after it is created,

2

and shall retain in-car camera recordings for a minimum of 3 years unless a case

3

involving the traffic stop remains under investigation by the MCSO or the Monitor, or is

4

the subject of a Notice of Claim, civil litigation or criminal investigation, for a longer

5

period, in which case the MCSO shall maintain such data or recordings for at least one

6

year after the final disposition of the matter, including appeals. MCSO shall develop a

7

protocol, to be reviewed by the Monitor pursuant to the process described in Section IV,

8

for reviewing the in-car camera recordings and for responding to public records requests

9

in accordance with the Order.

10

d. Review of Traffic Stop Data

11 64. Within 180 days of the Effective Date, MCSO shall develop a protocol for periodic

12

analysis of the traffic stop data described above in Paragraphs 54 to 59 (“collected traffic

13

stop data”) and data gathered for any Significant Operation as described in this Order

14

(“collected patrol data”) to look for warning signs or indicia or possible racial profiling or

15

other improper conduct under this Order.

16 65. MCSO shall designate a group with the MCSO Implementation Unit, or other MCSO

17

Personnel working under the supervision of a Lieutenant or higher-ranked officer, to

18

analyze the collected data on a monthly, quarterly and annual basis, and report their

19

findings to the Monitor and the Parties. This review group shall analyze the data to look

20

for possible individual-level, unit-level or systemic problems. Review group members

21

shall not review or analyze collected traffic stop data or collected patrol data relating to

22

their own activities.

23 66. MCSO shall conduct one agency-wide comprehensive analysis of the data per year,

24

which shall incorporate analytical benchmarks previously reviewed by the Monitor

25

pursuant to the process described in Section IV. The benchmarks may be derived from

26

the EIS or IA-PRO system, subject to Monitor approval. The MCSO may hire or contract

27

with an outside entity to conduct this analysis. The yearly comprehensive analysis shall

28

be made available to the public and at no cost to the Monitor and Plaintiffs.

- 31 -

1 67. In this context, warning signs or indicia of possible racial profiling or other misconduct

2

include, but are not limited to:

3

a. racial and ethnic disparities in deputies’, units’ or the agency’s traffic stop patterns,

4

including disparities or increases in stops for minor traffic violations, arrests

5

following a traffic stop, and immigration status inquiries, that cannot be explained by

6

statistical modeling of race neutral factors or characteristics of deputies’ duties, or

7

racial or ethnic disparities in traffic stop patterns when compared with data of

8

deputies’ peers;

9

b. evidence of extended traffic stops or increased inquiries/investigations where

10

investigations involve a Latino driver or passengers;

11

c. a citation rate for traffic stops that is an outlier when compared to data of a Deputy’s

12

peers, or a low rate of seizure of contraband or arrests following searches and

13

investigations;

14

d. indications that deputies, units or the agency is not complying with the data collection

15

requirements of this Order; and

16

e. other indications of racial or ethnic bias in the exercise of official duties.

17 68. When reviewing collected patrol data, MCSO shall examine at least the following:

18

a. the justification for the Significant Operation, the process for site selection, and the

19

procedures followed during the planning and implementation of the Significant

20

Operation;

21

b. the effectiveness of the Significant Operation as measured against the specific

22

operational objectives for the Significant Operation, including a review of crime data

23

before and after the operation;

24

c. the tactics employed during the Significant Operation and whether they yielded the

25

desired results;

26

d. the number and rate of stops, Investigatory Detentions and arrests, and the

27

documented reasons supporting those stops, detentions and arrests, overall and broken

28

down by Deputy, geographic area, and the actual or perceived race and/or ethnicity

- 32 -

1

and the surname information captured or provided by the persons stopped, detained

2

or arrested;

3

e. the resource needs and allocation during the Significant Operation; and

4

f. any Complaints lodged against MCSO Personnel following a Significant Operation.

5 69. In addition to the agency-wide analysis of collected traffic stop and patrol data, MCSO

6

Supervisors shall also conduct a review of the collected data for the Deputies under his or

7

her command on a monthly basis to determine whether there are warning signs or indicia

8

of possible racial profiling, unlawful detentions and arrests, or improper enforcement of

9

Immigration-Related Laws by a Deputy. Each Supervisor will also report his or her

10

conclusions based on such review on a monthly basis to a designated commander in the

11

MCSO Implementation Unit

12 70. If any one of the foregoing reviews and analyses of the traffic stop data indicates that a

13

particular Deputy or unit may be engaging in racial profiling, unlawful searches or

14

seizures, or unlawful immigration enforcement, or that there may be systemic problems

15

regarding any of the foregoing, MCSO shall take reasonable steps to investigate and

16

closely monitor the situation. Interventions may include but are not limited to

17

counseling, Training, Supervisor ride-alongs, ordering changes in practice or procedure,

18

changing duty assignments, Discipline, or of other supervised, monitored, and

19

documented action plans and strategies designed to modify activity. If the MCSO or the

20

Monitor concludes that systemic problems of racial profiling, unlawful searches or

21

seizures, or unlawful immigration enforcement exist, the MCSO shall take appropriate

22

steps at the agency level, in addition to initiating corrective and/or disciplinary measures

23

against the appropriate Supervisor(s) or Command Staff. All interventions shall be

24

documented in writing.

25 71. In addition to the underlying collected data, the Monitor and Plaintiffs’ representatives

26

shall have access to the results of all Supervisor and agency level reviews of the traffic

27

stop and patrol data.

28

- 33 -

IX. EARLY IDENTIFICATION SYSTEM (“EIS”)
1
a. Development and Implementation of the EIS
2
72. MCSO shall work with the Monitor, with input from the Parties, to develop, implement
3
and maintain a computerized EIS to support the effective supervision and management of
4
MCSO Deputies and employees, including the identification of and response to
5
potentially problematic behaviors, including racial profiling, unlawful detentions and
6
arrests, and improper enforcement of Immigration-Related Laws within one year of the
7
Effective Date. MCSO will regularly use EIS data to promote lawful, ethical and
8
professional police practices; and to evaluate the performance of MCSO Patrol
9
Operations Employees across all ranks, units and shifts.
10
73. Within 180 days of the Effective Date, MCSO shall either create a unit, which shall
11
include at least one full-time-equivalent qualified information technology specialist, or
12
otherwise expand the already existing role of the MCSO information technology
13
specialist to facilitate the development, implementation, and maintenance of the EIS.
14
MCSO shall ensure that there is sufficient additional staff to facilitate EIS data input and
15
provide Training and assistance to EIS users. This unit may be housed within Internal
16
Affairs (“IA”).
17
74. MCSO shall develop and implement a protocol setting out the fields for historical data,
18
deadlines for inputting data related to current and new information, and the individuals
19
responsible for capturing and inputting data.
20
75. The EIS shall include a computerized relational database, which shall be used to collect,
21
maintain, integrate, and retrieve:
22
a. all misconduct Complaints or allegations (and their dispositions), excluding those
23
made by inmates relating to conditions of confinement or conduct of detention
24
officers (i.e,, any complaint or allegation relating to a traffic stop shall be collected
25
and subject to this Paragraph even if made by an inmate);
26
b. all internal investigations of alleged or suspected misconduct;
27
28
- 34 -

1

c. data compiled under the traffic stop data collection and the patrol data collection

2

mechanisms;

3

d. all criminal proceedings initiated, as well as all civil or administrative claims filed

4

with, and all civil lawsuits served upon, the County and/or its Deputies or agents,

5

resulting from MCSO Patrol Operations or the actions of MCSO Patrol Operation

6

Personnel;

7

e. all arrests;

8

f. all arrests in which the arresting Deputy fails to articulate probable cause in the arrest

9

report, or where an MCSO Supervisor, court or prosecutor later determines the arrest

10

was not supported by probable cause to believe a crime had been committed, as

11

required by law;

12

g. all arrests in which the individual was released from custody without formal charges

13

being sought;

14

h. all Investigatory Stops, detentions, and/or searches, including those found by the

15

Monitor, an MCSO supervisor, court or prosecutor to be unsupported by reasonable

16

suspicion of or probable cause to believe a crime had been committed, as required by

17

law;

18

i. all instances in which MCSO is informed by a prosecuting authority or a court that a

19

decision to decline prosecution or to dismiss charges, and if available, the reason for

20

such decision;

21

j. all disciplinary action taken against employees;

22

k. all non-disciplinary corrective action required of employees;

23

l. all awards and commendations received by employees;

24

m. Training history for each employee; and

25

n. bi-monthly Supervisory observations of each employee.

26 76. The EIS shall include appropriate identifying information for each involved Deputy (i.e.,

27

name, badge number, shift and Supervisor) and civilian (e.g., race and/or ethnicity).

28

- 35 -

1 77. MCSO shall maintain computer hardware, including servers, terminals and other

2

necessary equipment, in sufficient amount and in good working order to permit

3

personnel, including Supervisors and commanders, ready and secure access to the EIS

4

system to permit timely input and review of EIS data as necessary to comply with the

5

requirements of this Order.

6 78. MCSO shall maintain all personally identifiable information about a Deputy included in

7

the EIS for at least five years following the Deputy’s separation from the agency.

8

Information necessary for aggregate statistical analysis will be maintained indefinitely in

9

the EIS. On an ongoing basis, MCSO shall enter information into the EIS in a timely,

10

accurate, and complete manner, and shall maintain the data in a secure and confidential

11

manner. No individual within MCSO shall have access to individually identifiable

12

information that is maintained only within EIS and is about a deputy not within that

13

individual’s direct command, except as necessary for investigative, technological, or

14

auditing purposes.

15 79. The EIS computer program and computer hardware will be operational, fully

16

implemented, and be used in accordance with policies and protocols that incorporate the

17

requirements of this Order within one year of the Effective Date. Prior to full

18

implementation of the new EIS, MCSO will continue to use existing databases and

19

resources to the fullest extent possible, to identify patterns of conduct by employees or

20

groups of Deputies.

21

b. Training on the EIS

22 80. MCSO will provide education and training to all employees, including Deputies,

23

Supervisors and commanders regarding EIS prior to its implementation as appropriate to

24

facilitate proper understanding and use of the system. MCSO Supervisors shall be trained

25

in and required to use EIS to ensure that each Supervisor has a complete and current

26

understanding of the employees under the Supervisor’s command. Commanders and

27

Supervisors shall be educated and trained in evaluating and making appropriate

28

comparisons in order to identify any significant individual or group patterns. Following

- 36 -

1

the initial implementation of the EIS, and as experience and the availability of new

2

technology may warrant, MCSO may propose to add, subtract, or modify data tables and

3

fields, modify the list of documents scanned or electronically attached, and add, subtract,

4

or modify standardized reports and queries. MCSO shall submit all such proposals for

5

review by the Monitor pursuant to the process described in Section IV.

6

c. Protocol for Agency and Supervisory Use of the EIS

7 81. MCSO shall develop and implement a protocol for using the EIS and information

8

obtained from it. The protocol for using the EIS shall address data storage, data retrieval,

9

reporting, data analysis, pattern identification, identifying Deputies for intervention,

10

Supervisory use, Supervisory/agency intervention, documentation and audit. Additional

11

required protocol elements include:

12

a. comparative data analysis, including peer group analysis, to identify patterns of

13

activity by individual Deputies and groups of Deputies;

14

b. identification of warning signs or other indicia of possible misconduct, including, but

15

not necessarily limited, to:

16

i. failure to follow any of the documentation requirements mandated pursuant to

17

this Order;

18

ii. racial and ethnic disparities in the Deputy’s traffic stop patterns, including

19

disparities or increases in stops for minor traffic violations, arrests following a

20

traffic stop, and immigration status inquiries, that cannot be explained by

21

statistical modeling of race neutral factors or characteristics of Deputies’

22

specific duties, or racial or ethnic disparities in traffic stop patterns when

23

compared with data of a Deputy’s peers;

24

iii. evidence of extended traffic stops or increased inquiries/investigations where

25

investigations involve a Latino driver or passengers;

26

iv. a citation rate for traffic stops that is an outlier when compared to data of a

27

Deputy’s peers, or a low rate of seizure of contraband or arrests following

28

searches and investigations;

- 37 -

1

v. Complaints by members of the public or other officers; and

2

vi. other indications of racial or ethnic bias in the exercise of official duties;

3

c. MCSO commander and Supervisor review, on a regular basis, but not less than bi-

4

monthly, of EIS reports regarding each officer under the commander or Supervisor’s

5

direct command and, at least quarterly, broader, pattern-based reports;

6

d. a requirement that MCSO commanders and Supervisors initiate, implement, and

7

assess the effectiveness of interventions for individual Deputies, Supervisors, and

8

units, based on assessment of the information contained in the EIS;

9

e. identification of a range of intervention options to facilitate an effective response to

10

suspected or identified problems. In any cases where a Supervisor believes a Deputy

11

may be engaging in racial profiling, unlawful detentions or arrests, or improper

12

enforcement of Immigration-Related Laws or the early warning protocol is triggered,

13

the MCSO shall notify the Monitor and Plaintiffs and take reasonable steps to

14

investigate and closely monitor the situation, and take corrective action to remedy the

15

issue. Interventions may include but are not limited to counseling, Training,

16

Supervisor ride-alongs, ordering changes in practice or procedure, changing duty

17

assignments, Discipline, or other supervised, monitored, and documented action plans

18

and strategies designed to modify activity. All interventions will be documented in

19

writing and entered into the automated system;

20

f. a statement that the decision to order an intervention for an employee or group using

21

EIS data shall include peer group analysis, including consideration of the nature of

22

the employee’s assignment, and not solely on the number or percentages of incidents

23

in any category of information recorded in the EIS;

24

g. a process for prompt review by MCSO commanders and Supervisors of the EIS

25

records of all Deputies upon transfer to their supervision or command;

26

h. an evaluation of whether MCSO commanders and Supervisors are appropriately using

27

the EIS to enhance effective and ethical policing and reduce risk; and

28

- 38 -

1

i. mechanisms to ensure monitored and secure access to the EIS to ensure the integrity,

2

proper use, and appropriate confidentiality of the data.

3

X. SUPERVISION AND EVALUATIONS OF OFFICER PERFORMANCE

4 82. MCSO and the County shall ensure that an adequate number of qualified first-line

5

Supervisors are available to provide the effective supervision necessary to ensure that

6

Deputies are following the Constitution and laws of the United States and State of

7

Arizona, MCSO policy, and this Order. First-line Supervisors shall ensure that Deputies

8

are policing actively and effectively, are provided with the instruction necessary to

9

correct mistakes, and are held accountable for misconduct. To achieve these outcomes,

10

MCSO shall undertake the following duties and measures:

11

a. General Duties of Supervisors

12 83. MCSO Supervisors shall provide the effective supervision necessary to direct and guide

13

Deputies. Effective supervision requires that Supervisors: respond to the scene of certain

14

arrests; review each field interview card and incident report; confirm the accuracy and

15

completeness of Deputies’ daily activity reports; respond to each Complaint of

16

misconduct; ensure Deputies are working actively to engage the community and increase

17

public trust and safety; provide counseling, redirection, support to Deputies as needed,

18

and are held accountable for performing each of these duties.

19 84. Within 120 days of the Effective Date, all patrol Deputies shall be assigned to a single,

20

consistent, clearly identified Supervisor. First-line field Supervisors shall be assigned to

21

supervise no more than twelve Deputies.

22 85. First-line field Supervisors shall be required to discuss individually the stops made by

23

each Deputy they supervise with the respective Deputies no less than one time per month

24

in order to ensure compliance with this Order. This discussion should include, at a

25

minimum, whether the Deputy detained any individuals stopped during the preceding

26

month, the reason for any such detention, and a discussion of any stops that at any point

27

involved any immigration issues.

28

- 39 -

1 86. On-duty field Supervisors shall be available throughout their shift to provide adequate

2

on-scene field supervision to Deputies under their direct command and, as needed, to

3

provide Supervisory assistance to other units. Supervisors shall be assigned to and shall

4

actually work the same days and hours as the Deputies they are assigned to supervise,

5

absent exceptional circumstances.

6 87. MCSO shall hold Commanders and Supervisors directly accountable for the quality and

7

effectiveness of their supervision, including whether commanders and Supervisors

8

identify and effectively respond to misconduct, as part of their performance evaluations

9

and through non-disciplinary corrective action, or through the initiation of formal

10

investigation and the disciplinary process, as appropriate.

11 b.

Additional Supervisory Measures

12 88. To ensure compliance with the terms of this Order, first-line Supervisors in any

13

Specialized Units enforcing Immigration-Related Laws shall directly supervise the law

14

enforcement activities of new members of the unit for one week by accompanying them

15

in the field, and directly supervise the in-the-field-activities of all members of the unit for

16

at least two weeks every year.

17 89. A Deputy shall notify a Supervisor before initiating any immigration status investigation,

18

as discussed in Paragraph 28. Deputies shall also notify Supervisors before effectuating

19

an arrest following any immigration-related investigation or for an Immigration-Related

20

Crime, or for any crime related to identity fraud or lack of an identity document. The

21

responding Supervisor shall approve or disapprove the Deputy’s investigation or arrest

22

recommendation based on the available information and conformance with MCSO

23

policy. The Supervisor shall take appropriate action to address any deficiencies in

24

Deputies’ investigation or arrest recommendations, including releasing the subject,

25

recommending non-disciplinary corrective action for the involved Deputy, and/or

26

referring the incident for administrative investigation.

27 90. MCSO Deputies shall submit documentation of all stops and Investigatory Detentions

28

conducted to their Supervisors by the end of the shift in which the action occurred.

- 40 -

1

Absent exceptional circumstances, within 72 hours of receiving such documentation, a

2

Supervisor shall independently review the information. Supervisors shall review reports

3

and forms for Boilerplate or conclusory language, inconsistent information, lack of

4

articulation of the legal basis for the action, or other indicia that the information in the

5

reports or forms is not authentic or correct. Appropriate disciplinary action should be

6

taken where Deputies routinely employ Boilerplate or conclusory language.

7 91. As part of the Supervisory review, the Supervisor shall document any Investigatory Stops

8

and detentions that appear unsupported by reasonable suspicion or are otherwise in

9

violation of MCSO policy, or stops or detentions that indicate a need for corrective action

10

or review of agency policy, strategy, tactics, or Training. The Supervisor shall take

11

appropriate action to address all violations or deficiencies in Investigatory Stops or

12

detentions, including recommending non-disciplinary corrective action for the involved

13

Deputy, and/or referring the incident for administrative or criminal investigation.

14 92. Supervisors shall use EIS to track each subordinate’s violations or deficiencies in

15

Investigatory Stops or detentions and the corrective actions taken, in order to identify

16

Deputies needing repeated corrective action. Supervisors shall notify IA. The Supervisor

17

shall ensure that each violation or deficiency is documented in the Deputy’s performance

18

evaluations. The quality and completeness of these Supervisory reviews shall be taken

19

into account in the Supervisor’s own performance evaluations. MCSO shall take

20

appropriate corrective or disciplinary action against Supervisors who fail to conduct

21

complete, thorough, and accurate reviews of Deputies’ stops and Investigatory

22

Detentions.

23 93. Absent extraordinary circumstances, MCSO Deputies shall complete all incident reports

24

before the end of shift. MCSO field Supervisors shall review incident reports and shall

25

memorialize their review of incident reports within 72 hours of an arrest, absent

26

exceptional circumstances.

27 94. As part of the Supervisory review, the Supervisor shall document any arrests that are

28

unsupported by probable cause or are otherwise in violation of MCSO policy, or that

- 41 -

1

indicate a need for corrective action or review of agency policy, strategy, tactics, or

2

Training. The Supervisor shall take appropriate action to address violations or

3

deficiencies in making arrests, including notification of prosecuting authorities,

4

recommending non-disciplinary corrective action for the involved Deputy, and/or

5

referring the incident for administrative or criminal investigation.

6 95. Supervisors shall use EIS to track each subordinate’s violations or deficiencies in the

7

arrests and the corrective actions taken, in order to identify Deputies needing repeated

8

corrective action. The Supervisor shall ensure that each violation or deficiency is noted

9

in the Deputy’s performance evaluations. The quality of these supervisory reviews shall

10

be taken into account in the Supervisor’s own performance evaluations, promotions, or

11

internal transfers. MCSO shall take appropriate corrective or disciplinary action against

12

Supervisors who fail to conduct reviews of adequate and consistent quality.

13 96. A command-level official shall review, in writing, all Supervisory reviews related to

14

arrests that are unsupported by probable cause or are otherwise in violation of MCSO

15

policy, or that indicate a need for corrective action or review of agency policy, strategy,

16

tactics, or Training. The commander’s review shall be completed within 14 days of

17

receiving the document reporting the event. The commander shall evaluate the corrective

18

action and recommendations in the Supervisor’s written report and ensure that all

19

appropriate corrective action is taken.

20 97. MCSO Commanders and Supervisors shall periodically review the EIS reports and

21

information, and initiate, implement, or assess the effectiveness of interventions for

22

individual Deputies, Supervisors, and units based on that review. The obligations of

23

MCSO Commanders and Supervisors in that regard are described above in Paragraphs

24

81(c)–(h).

25

d. Regular Employee Performance Review and Evaluations

26 98. MCSO, in consultation with the Monitor, shall create a system for regular employee

27

performance evaluations that, among other things, track each officer’s past performance

28

- 42 -

1

to determine whether the officer has demonstrated a pattern of behavior prohibited by

2

MCSO policy or this Order.

3 99. The review shall take into consideration all past Complaint investigations; the results of

4

all investigations; Discipline, if any, resulting from the investigation; citizen Complaints

5

and commendation; awards; civil or administrative claims and lawsuits related to MCSO

6

operations; Training history; assignment and rank history; and past Supervisory actions

7

taken pursuant to the early warning protocol.

8 100. The quality of Supervisory reviews shall be taken into account in the Supervisor’s own

9

performance evaluations.

10 101. Within 180 days of the Effective Date, MCSO shall develop and implement eligibility

11

criteria for assignment to Specialized Units enforcing Immigration-Related Laws. Such

12

criteria and procedures shall emphasize the individual’s integrity, good judgment, and

13

demonstrated capacity to carry out the mission of each Specialized Unit in a

14

constitutional, lawful, and bias-free manner. Deputies assigned to a Specialized Unit

15

who are unable to maintain eligibility shall be immediately re-assigned.

16

17

18

19

20

21

22

23

24

25

26

27

28

- 43 -

1

XI. MISCONDUCT AND COMPLAINTS

2 a.

Internally-Discovered Violations

3 102. MCSO shall require all personnel to report without delay alleged or apparent misconduct

4

by other MCSO Personnel to a Supervisor or directly to IA that reasonably appears to

5

constitute: (i) a violation of MCSO policy or this Order; (ii) an intentional failure to

6

complete data collection or other paperwork requirements required by MCSO policy or

7

this Order; (iii) an act of retaliation for complying with any MCSO policy; (iv) or an

8

intentional provision of false information in an administrative investigation or any

9

official report, log or electronic transmittal of information. Failure to voluntarily report or

10

document apparent misconduct described in this Paragraph shall be an offense subject to

11

Discipline.

12 b.

Audit Checks

13 103. Within one year of the Effective Date, MCSO shall develop a plan for conducting

14

regular, targeted, and random integrity audit checks to identify and investigate Deputies

15

possibly engaging in improper behavior, including: Discriminatory Policing; unlawful

16

detentions and arrests; improper enforcement of Immigration-Related Laws; and failure

17

to report misconduct.

18

c. Complaint Tracking and Investigations

19 104. Subject to applicable laws, MCSO shall require Deputies to cooperate with administrative

20

investigations, including appearing for an interview when requested by an investigator

21

and providing all requested documents and evidence. Supervisors shall be notified when

22

a Deputy under their supervision is summoned as part of an administrative investigation

23

and shall facilitate the Deputy’s appearance, absent extraordinary and documented

24

circumstances.

25 105. Investigators shall have access to, and take into account as appropriate, the collected

26

traffic stop and patrol data, Training records, Discipline history, and any past Complaints

27

and performance evaluations of involved officers.

28

- 44 -

1 106. Records of Complaints and investigations shall be maintained and made available,

2

unredacted, to the Monitor and Plaintiffs’ representatives upon request. The Monitor and

3

Plaintiffs’ representatives shall maintain the confidentiality of any information therein

4

that is not public record. Disclosure of records of pending investigations shall be

5

consistent with state law.

6

XII. COMMUNITY ENGAGEMENT

7 a.

Community Outreach Program

8 107. To rebuild public confidence and trust in the MCSO and in the reform process, the

9

MCSO shall work to improve community relationships and engage constructively with

10

the community during the period that this Order is in place. To this end, the MCSO shall

11

create the following district community outreach program.

12 108. Within 180 days of the Effective Date, MCSO shall develop and implement a

13

Community Outreach and Public Information program in each MCSO District.

14 109. As part of its Community Outreach and Public Information program, the MCSO shall

15

hold a public meeting in each of MCSO’s patrol Districts within 90 days of the Effective

16

Date, and at least one meeting in each District annually thereafter. These meetings shall

17

be used to inform community members of the policy changes or other significant actions

18

that the MCSO has taken to implement the provisions of this Order. Summaries of audits

19

and reports completed by the MCSO pursuant to this Order shall be provided. The MCSO

20

shall clarify for the public at these meetings that it does not enforce immigration laws

21

except to the extent that it is enforcing Arizona and federal criminal laws.

22 110. The meetings present an opportunity for MCSO representatives to listen to community

23

members’ experiences and concerns about MCSO practices implementing this Order,

24

including the impact on public trust. MCSO representatives shall make reasonable

25

efforts to address such concerns during the meetings and afterward.

26 111. English- and Spanish-speaking MCSO Personnel shall attend these meetings and be

27

available to answer questions from the public. At least one MCSO Supervisor with

28

extensive knowledge of the agency’s implementation of the Order, as well as the

- 45 -

1

Community Liaison Officer (described below) shall participate in the meetings.

2

Plaintiffs’ representatives shall be invited to attend.

3 112. The meetings shall be held in locations convenient and accessible to the public. At least

4

one week before such meetings, the MCSO shall widely publicize the meetings using

5

English and Spanish-language television, print media and the internet.

6

b. Community Liaison Officer

7 113. Within 90 days of the Effective Date, MCSO shall select or hire a Community Liaison

8

Officer (“CLO”) who is a sworn Deputy fluent in English and Spanish. The hours and

9

contact information of the CLO shall be made available to the public including on the

10

MCSO website. The CLO shall be directly available to the public for communications

11

and questions regarding the MCSO.

12 114. The CLO shall have the following duties:

13

a. to coordinate the district community meetings described above in Paragraphs 109 to

14

112;

15

b. to provide administrative support for, coordinate and attend meetings of the

16

Community Advisory Board described in Paragraphs 117 to 118;

17

c. to compile any Complaints, concerns and suggestions submitted to CLO by members

18

of the public about the implementation of this Order and the Court’s order of

19

December 23, 2011, and its findings of fact and conclusions of law dated May 24,

20

2013, even if they don’t rise to the level of requiring formal action by IA or other

21

component of the MCSO, and to respond to Complainants’ concerns;

22

d. to communicate concerns received from the community at regular meetings with the

23

Monitor and MCSO leadership; and

24

e. to compile concerns received from the community in a written report every 180 days

25

and share the report with the Monitor and the Parties.

26

c. Community Advisory Board

27 115. MCSO and Plaintiffs’ representatives shall work with community representatives to

28

create a Community Advisory Board (“CAB”) to facilitate regular dialogue between the

- 46 -

1

MCSO and community leaders, and to provide specific recommendations to MCSO about

2

policies and practices that will increase community trust and ensure that the provisions of

3

this Order and other orders entered by the Court in this matter are met.

4 116. The CAB shall have six members, three to be selected by the MCSO and three to be

5

selected by Plaintiffs’ representatives. Members of the CAB shall not be MCSO

6

Employees or any of the named class representatives, nor any of the attorneys involved in

7

this case. However, a member of the MCSO Implementation Unit and at least one

8

representative for Plaintiffs shall attend every meeting of the CAB. The CAB shall

9

continue for at least the length of this Order.

10 117. The CAB shall hold public meetings at regular intervals of no more than four months.

11

The meeting space shall be provided by the MCSO. The CLO shall coordinate the

12

meetings and communicate with Board members, and provide administrative support for

13

the CAB.

14 118. During the meetings of the CAB, members will relay or gather concerns from the

15

community about MCSO practices that may violate the provisions of this Order and the

16

Court’s previous injunctive orders entered in this matter and make reasonable efforts to

17

address such concerns. Members will also hear from MCSO Personnel on matters of

18

concern pertaining to the MCSO’s compliance with the orders of this Court.

19
XIII. INDEPENDENT MONITOR AND OTHER PROCEDURES REGARDING
20
ENFORCEMENT
21
a. Selection of the Monitor
22
119. The Court shall appoint an Independent Monitor to assist with implementation of, and
23
assess compliance with, this Order. Within 60 days of the Effective Date, the Parties shall
24
agree on the selection of a Monitor to be appointed by the Court.
25
120. The Parties shall have an opportunity to separately interview prospective candidates if
26
they choose, as well as request additional information about prospective candidates’
27
background and experience, proposed annual fees and costs, proposed annual budget,
28

- 47 -

1

including references and a list of recent consulting or monitoring work and the fees and

2

costs from that prior consulting or monitoring work as well as information as to whether

3

the candidate meet or exceeded any budgets for that prior consulting or monitoring work.

4 121. If the Parties are unable to agree on a Monitor or an alternative method of selection

5

within 60 days of the Effective Date, each Party shall, no later than 70 days from the

6

Effective Date, submit the names and resumes of three candidates with experience as law

7

enforcement practices experts or monitors to the Court, and the Court shall select a

8

Monitor from among the qualified candidates.

9 122. The Monitor shall be appointed for the term of this Order. In the event a Monitor is to be

10

replaced, the Parties shall select a new Monitor by the same process as above. The Court

11

may order the removal of the Monitor for any reason sua sponte, or upon Motion by any

12

party.

13 123. Defendants shall provide the Monitor with permanent office space and reasonable office

14

support such as office furniture, secure internet access, telephones, secure document

15

storage, and photocopying, faxing and scanning equipment. Defendants shall bear all

16

reasonable fees and costs of the Monitor. However, the Parties recognize the importance

17

of ensuring that the fees and costs borne by Defendants are reasonable. In the event that

18

any dispute arises regarding the reasonableness or payment of the Monitor’s fees and

19

costs, Defendants, Plaintiffs, and the Monitor shall attempt to resolve such dispute

20

cooperatively prior to seeking the assistance of the Court. All Parties shall be included in

21

any communications related to such a dispute.

22 124. The Monitor, at any time after his or her initial selection, may request authorization from

23

the Court to be allowed to hire or employ or contract with such additional persons or

24

entities as are reasonably necessary to perform the tasks assigned to the Monitor by this

25

Order or by the Court. The Monitor shall submit to the Court the task to be performed by

26

the proposed additional person or entity, the scope of the work to be performed, the

27

project fees and expenses associated with such work, the expected length of time for such

28

work, and the reasons the Monitor is unable to perform such work and requires the

- 48 -

1

assistance of the additional person or entity and why existing MCSO personnel cannot

2

perform the task requested by the Monitor. Any person or entity hired or otherwise

3

retained by the Monitor to assist in furthering any provision of this Order shall be subject

4

to the provisions of this Order. The Monitor shall notify the Defendants and Plaintiffs’

5

representatives in writing if the Monitor wishes to hire such additional persons or entities.

6

The notice shall identify and describe the qualifications of the person or entity to be

7

hired, the monitoring tasks to be performed, the estimated cost and length of time of the

8

task, and explain why existing MCSO personnel cannot perform the task requested or

9

desired by the Monitor. If the County and Plaintiffs agree to the Monitor’s proposal, the

10

Monitor shall be authorized to hire or employ such additional persons or entities. The

11

County or Plaintiffs have 15 business days to state any disagreement with the proposal.

12

If the County and Plaintiffs are unable to reach agreement within 15 business days of

13

receiving notice of the disagreement by the other Party, the Court shall resolve the

14

dispute.

15 125. Should any Party determine that the Monitor’s individual members, agents, employees, or

16

independent contractors have exceeded their authority or failed to satisfactorily perform

17

the duties required by this Order, the Party may petition the Court for such relief as the

18

Court deems appropriate, including replacement of the Monitor, and/or any individual

19

members, agents, employees, or independent contractors. The Party or Parties, as the case

20

may be, shall attempt to resolve such disputes cooperatively prior to seeking the

21

assistance of the Court. All Parties shall be included in any communications related to

22

such a dispute.

23

b. Role of the Monitor

24 126. The Monitor shall be subject to the supervision and orders of the Court, consistent with

25

this Order. The Monitor shall have the duties, responsibilities and authority conferred by

26

the Court and this Order, including, but not limited to: (1) reviewing the MCSO Patrol

27

Operations Policies and Procedures provided for by this Order and making

28

recommendations to the Court regarding the same; (2) reviewing a protocol with the

- 49 -

1

Parties to ensure that any Significant Operations conducted by the MCSO are conducted

2

in a race-neutral fashion; (3) reviewing the curriculum, materials and proposed instructors

3

for Training required by this Order; (4) reviewing the collected traffic stop data and the

4

collected Saturation Patrol data to determine whether the data required to be gathered by

5

this Order is, in fact, being collected by the MCSO; (5) reviewing protocols regarding the

6

collection, analysis, and use of such data and determining whether the MCSO is in

7

compliance with those protocols; (6) reviewing the collected data to determine whether,

8

in the opinion of the Monitor, MCSO is appropriately reviewing the collected data to

9

determine possible isolated or systemic racial profiling occurring, and if so, reporting the

10

factual basis supporting that judgment to the Parties and the Court; (7) evaluating the

11

effectiveness of the MCSO’s changes in the areas of supervision and oversight and

12

reporting the same to the parties and the Court; (8) reviewing the corrective action taken

13

by the MCSO concerning any possible violations of this Order or MCSO policy and

14

procedures and reporting the same to the parties and the Court; (9) evaluating the

15

MCSO’s engagement with the communities affected by its activities as set forth by this

16

Order; and (10) assessing the MCSO’s overall compliance with the Order.

17 127. To assess and report on the Defendants’ implementation of this Order and whether

18

implementation is resulting in the constitutional and professional treatment of individuals

19

by MCSO, the Monitor shall conduct the audits, compliance reviews and outcome

20

assessments specified below, and such additional audits and assessments as the Monitor

21

or the Parties deem appropriate.

22 128. The ultimate arbiter of compliance is the Court and Parties may make their own

23

submissions regarding compliance separate from the Monitor’s reports. In any areas

24

where the Parties are not able to resolve issues with the Monitor—including those areas

25

where the Order provides for input from the Monitor—the Parties may submit their

26

grievances directly to the Court for resolution.

27 129. In carrying out these duties, the Monitor shall be permitted to have ex parte

28

communications with the Parties.

- 50 -

1

c. Monitoring Plan and Review Methodology

2 130. The Monitor shall file with the Court quarterly written, public reports covering the

3

reporting period that shall include:

4

a. a description of the work conducted by the Monitor during the reporting period;

5

b. a listing of each Order requirement which indicates whether each requirement has

6

been addressed by the MCSO, is the subject of sufficient Training, and whether the

7

MCSO is in compliance with that requirement of the Order in the judgment, opinion,

8

and experience of the Monitor;

9

c. the methodology and specific findings for each audit or review conducted;

10

d. for any requirements that were audited and reviewed and found not to have been fully

11

implemented in practice in the judgment, opinion, and experience of the Monitor, the

12

Monitor’s recommendations to the Court regarding necessary steps to achieve

13

compliance;

14

e. in the judgment, opinion, and experience of the Monitor an assessment of MCSO’s

15

progress in achieving the desired outcomes for each area covered by the Order, noting

16

issues of concern or particular achievement;

17

f. the methodology and specific findings for each outcome assessment conducted; and

18

g. a projection of the work to be completed during the upcoming reporting period and

19

any anticipated challenges or concerns related to implementation of the Order.

20 131. The Monitor’s reports shall be public except for information covered by privacy laws or

21

that is otherwise confidential. If any information is redacted from the Monitor’s report, an

22

unredacted version shall be filed under seal with the Court and provided to the Parties.

23

The underlying data for each audit, review or assessment need not be made publicly

24

available but shall be retained by the Monitor and provided to either or both Parties upon

25

request.

26 132. The Monitor shall provide a copy of quarterly reports to the Parties in draft form at least

27

21 business days prior to filing them with the Court to allow the Parties to provide written

28

comment on the reports. The Monitor shall consider the Parties’ responses and make any

- 51 -

1

changes the Monitor deems appropriate before issuing the report. The Monitor shall

2

attach to his or her report copies of any comments submitted by the Parties.

3 133. Within 60 days of his or her appointment, the Monitor shall develop a plan for

4

conducting the above audits, reviews and outcome assessments, and shall submit this plan

5

to the Parties for review and approval. In the event that the Parties cannot agree, the plan

6

will be submitted to the Court for final approval. This plan shall:

7

a. clearly delineate the requirements of the Order to be assessed for compliance,

8

indicating which requirements will be assessed together;

9

b. set out a schedule for conducting an initial audit or review of each requirement of the

10

Order, and periodic audits and reviews thereafter;

11

c. set out a schedule for conducting initial outcome assessments for each area of the

12

Order, and periodic assessments thereafter.

13 134. Where the Monitor recommends and the Parties agree, the Monitor may refrain from

14

conducting an audit or review of a requirement previously found to have been fully

15

implemented in practice by the Monitor, or refrain from conducting an outcome

16

assessment if previous assessments indicate that the outcome intended by a requirement

17

has been achieved.

18 135. At least 30 days prior to the initiation of any audit, review or assessment, the Monitor

19

shall submit a proposed methodology to the Parties. The Parties shall submit any

20

comments or concerns regarding the proposed methodology to the Monitor within 15

21

days of the proposed date of the assessment, review or audit. The Monitor shall modify

22

the methodology as necessary to address any concerns or shall inform the Parties in

23

writing of the reasons it is not modifying its methodology as proposed. If Parties do not

24

agree with the proposed methodology, the Monitor shall then file with the Court the

25

proposed methodology for approval.

26 136. In conducting the outcome assessments, the Monitor should measure not only the

27

MCSO’s progress in implementing the provisions of this Order, but the effectiveness of

28

- 52 -

1

the reforms. To do so, the Monitor shall take into account the following performance-

2

based metrics and trends:

3

a. Deputies’ awareness and comprehension of issues addressed by departmental policies

4

and Training;

5

b. data relating to the race and ethnicity of individuals stopped, detained and arrested by

6

the MCSO, including the rate at which investigations result in a citation or arrest;

7

c. data related to the documented reasonable suspicion or probable cause to stop, detain

8

or arrest individuals encountered on traffic stops, broken down by the actual or

9

perceived race or ethnicity of the person(s) stopped/arrested;

10

d. the use and deployment of Specialized Units;

11

e. the execution of any significant operations, including planning and site selection,

12

tactics employed, staffing and units involved, and the intended and actual results of

13

such operations;

14

f. the amount and quality of supervision provided by the MCSO’s chain of command;

15

g. the prevalence of civilian Complaints regarding biased policing or unlawful

16

detentions and arrests by MCSO Patrol Operation deputies;

17

h. the number and rate of Complaints that are accepted, sustained and not sustained,

18

overall and broken down by type, unit, geographic area and the actual or perceived

19

race or ethnicity of Complainants;

20

i. disciplinary outcomes for any violations of departmental policy;

21

j. whether any Deputies are the subject of repeated misconduct Complaints, civil suits,

22

or criminal charges, including for off-duty conduct; and

23

k. the level of MCSO engagement and participation with the community advisory board;

24 137. To facilitate the Monitor’s outcome assessments, the Monitor may also conduct his or her

25

own periodic analysis of the traffic stop and Significant Operations data collected by the

26

MCSO pursuant to this Order, subject to the terms of this Order as to the Monitor’s

27

proposed hiring of assistance. The Monitor shall retain an individual or entity with

28

- 53 -

1

expertise in social science research and statistics to conduct the survey if the Monitor

2

does not have this expertise him/herself.

3 138. The Monitor shall conduct a comprehensive re-assessment each year after the Effective

4

Date to determine whether and to what extent the outcomes intended by this Order have

5

been achieved, and any modifications to the Order that he/she believes are necessary for

6

continued achievement in light of changed circumstances or unanticipated impact (or lack

7

of impact) of a requirement. This re-assessment shall also address areas of greatest

8

achievement and the requirements that appear to have contributed to this success, as well

9

as areas of greatest concern, including strategies for accelerating Full and Effective

10

Compliance. Based upon this comprehensive re-assessment, the Monitor may

11

recommend to the parties and the Court modifications to the Order that he/she believes

12

are necessary to achieve and sustain intended outcomes.

13

d. Monitor Recommendations and Technical Assistance

14 139. The Monitor may make additional recommendations to the Parties regarding measures

15

necessary to ensure timely, Full and Effective Compliance with this Order and its

16

underlying objectives. Such recommendations may include a recommendation to change,

17

modify, or amend a provision of the Order, a recommendation for additional Training in

18

any area related to this Order, or a recommendation to seek technical assistance. In

19

addition to making recommendations, the Monitor may also, at the request of the Parties,

20

provide technical assistance directly to the MCSO consistent with the Monitor’s

21

responsibilities under this Order. In the event that full and effective implementation of

22

this Order requires technical assistance beyond the scope of what the Monitor can

23

provide, Defendants shall reasonably arrange for prompt initiation of such technical

24

assistance consistent with the terms of this Order.

25

e. Communication between Monitor and Parties

26 140. The Monitor shall maintain regular contact with the Parties in order to ensure effective

27

and timely communication regarding the status of Defendants’ implementation of and

28

compliance with this Order.

- 54 -

1

f. Public Statements, Testimony, Records, and Conflicts of Interest

2 141. Except as required or authorized by the terms of this Order or the Parties acting together:

3

neither the Monitor, nor any agent, employee, or independent contractor thereof, shall

4

make any public statements, outside of statements to the Court as contemplated in this

5

Order, with regard to any act or omission of the Defendants, or their agents,

6

representatives, or employees; or disclose non-public information provided to the

7

Monitor pursuant to the Order. Any press statement made by the Monitor regarding its

8

employment or monitoring activities under this Order shall first be approved by the

9

Parties.

10 142. Unless such conflict is waived by the Parties, the Monitor shall not accept employment or

11

provide consulting services that would present a conflict of interest with the Monitor’s

12

responsibilities under this Order, including being retained (on a paid or unpaid basis) by

13

any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in

14

connection with a claim or suit against Maricopa County or its departments, Deputies,

15

agents or employees.

16 143. The Monitor is not a state or local agency, or an agent thereof, and accordingly the

17

records maintained by the Monitor shall not be deemed public records subject to public

18

inspection.

19 144. The Monitor shall not be liable for any claim, lawsuit, or demand arising out of the

20

Monitor’s performance pursuant to this Order.

21

g. Access and Confidentiality

22 145. Defendants shall ensure that the Monitor has timely, full and direct access to all

23

personnel, documents, facilities and Order-related Trainings and meetings that the

24

Monitor reasonably deems necessary to carry out its duties. The Monitor shall cooperate

25

with the Defendants to access people and facilities in a reasonable manner that, consistent

26

with the Monitor’s responsibilities, minimizes interference with daily operations. To

27

facilitate his or her monitoring responsibilities, the Monitor may conduct On-Site

28

- 55 -

1

Observations, visits and assessments without prior notice to the Defendants absent

2

Exigent Circumstances.

3 146. Defendants may withhold from the Monitor any documents or data protected by the

4

attorney-client privilege. Should the Defendants decline to provide the Monitor access to

5

documents or data based on attorney-client privilege, the Defendants shall inform the

6

Monitor and Plaintiffs that it is withholding documents or data on this basis and shall

7

provide the Monitor and Plaintiffs with a log describing the documents or data.

8 147. Defendants shall ensure that Plaintiffs’ representatives and their consultative experts and

9

agents shall have full and direct access to all Defendants’ staff, employees, facilities,

10

documents and data relevant to this Order upon reasonable notice. Plaintiffs’

11

representatives and their consultative experts and agents shall cooperate with the

12

Defendants to access involved personnel, facilities, and documents in a reasonable

13

manner that, consistent with Plaintiffs’ responsibilities to enforce this Order, minimizes

14

interference with regular duties.

15 148. The Monitor and Plaintiffs shall provide the Defendants with reasonable notice of a

16

request for copies of documents. Upon such request, the Defendants shall provide in a

17

timely manner copies (electronic, where readily available) of the requested documents.

18 149. The Monitor shall have access to all records and information relating to criminal

19

investigations relevant to this Order as permissible by law. The Monitor shall treat such

20

records as confidential and shall not disclose the same to any third party. The Monitor

21

and Plaintiffs shall have access to all documents in concluded or closed MCSO criminal

22

investigation files. The Monitor shall also have reasonable access to all arrest reports,

23

warrants, and warrant applications whether or not contained in open criminal

24

investigation files absent Exigent Circumstances.

25 150. The Parties may make use of protective orders or agreements to ensure the confidentiality

26

of any non-public information as appropriate and necessary. Other than as expressly

27

provided herein, this Order shall not be deemed a waiver of any privilege or right the

28

Defendants may assert, including those recognized at common law or created by statute,

- 56 -

1

rule or regulation, against any other person or entity with respect to the disclosure of any

2

document.

3

h. Modification and Enforcement of the Order

4 151. Where the Parties agree with the Monitor’s recommendations to change a provision of

5

the Order, the Parties may apply to the Court via stipulated Motion or other appropriate

6

filing to make the desired change.

7 152. Plaintiffs’ representatives may seek enforcement of this Order if they determine that the

8

Defendants have failed to fully comply with any provision contained herein. Plaintiffs’

9

representatives are not required to prove that the MCSO is engaged in racial profiling in

10

order for the Court to find that Defendants have failed to fully comply. Plaintiffs may

11

demonstrate that the MCSO has failed to fulfill a particular obligation under this Order or

12

failed to make sustained and continuing progress on applicable performance-based

13

metrics.

14 153. The Parties shall first attempt to resolve any dispute informally by notification and

15

conferral. If a dispute cannot be resolved informally, Plaintiffs’ representatives may

16

apply to the Court for appropriate relief, up to and including the imposition of contempt

17

sanctions. Interventions short of an imposition of contempt sanctions may include, but are

18

not limited to, additional oversight, further restrictions on agency activities, and

19

additional Training or reporting requirements.

20 154. Defendants may move the Court for a protective order and/or other appropriate relief if

21

they reasonably believe Plaintiffs’ representative is abusing its rights under this Order or

22

acting solely to annoy or harass Defendants. Prior to moving for any such protective

23

order or other relief, Defendants shall be required to provide Plaintiffs with notice of their

24

intent to do so and shall confer with Plaintiffs in good faith to resolve any such dispute.

25 155. The Parties shall notify each other of any court or administrative challenge to this Order.

26

In the event any provision of this Order is challenged in any local or state court, removal

27

to a federal court shall be sought by the Parties and transfer of venue to this District will

28

be sought.

- 57 -

1 156. The Defendants agree to promptly notify Plaintiffs if any term of this Order becomes

2

subject to collective bargaining consultation and to consult with Plaintiffs in a timely

3

manner regarding the implications of any collective bargaining consultation in relation to

4

this Order.

5 157. Defendants shall pay reasonable fees and costs incurred as a result of having to initiate

6

litigation to secure enforcement, should Plaintiffs prevail in such litigation. Nothing in

7

this provision affects the right of Plaintiffs to seek fees and costs for work performed in

8

the case prior to the Effective Date or in connection with any appeal taken by Defendants

9

of the Court’s May 24, 2013 Findings of Fact, Conclusions of Law and Order.

10 158. Defendants reserve the right to move the Court to alter, amend, modify, or terminate this

11

Order at any time based on an adverse decision of an appellate court of competent

12

jurisdiction ruling on the Court’s Order dated December 23, 2011 and its Findings of

13

Fact, Conclusions of Law, and Order dated May 24, 2013.

14 159. Nothing in this Section, nor in this Order is intended to, nor shall, constitute a waiver,

15

termination, abrogation, or ending of the appeal rights of the Defendants to challenge the

16

Court’s Order dated December 23, 2011 and its Findings of Fact, Conclusions of Law,

17

and Order dated May 24, 2013.

18

IT IS THEREFORE ORDERED that the Court’s injunc tion of December 23, 2011 is

19 made permanent. The Court’s injunction of Ma y 24, 2013 shall rem ain permanent. For rem oval

20 of doubt, both the December 23, 2011 injunction and the May 24, 2013 injunction shall survive

21 the termination of this Order unt il and unless s pecifically dissolved or modified by the Court or

22 an appellate court of competent jurisdiction.

23

IT IS FURTHER ORDERED that this Order is an appealable final judgment. The Clerk

24 of Court is directed to enter judgment accordingly.

25 / / /

26 / / /

27 / / /

28

- 58 -

1

IT IS FURTHER ORDERED that th is Court retains jurisdiction over this case for the

2 purposes of implementing this Order.

3

Dated this 2nd day of October, 2013.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 59 -

 </s> Case 2:07-cv-02513-GMS Document 649 Filed 01/17/14 Page 1 of 6

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9

Manuel de Jesus Ortega Melendres, on behalf of him self and all others similarly

10 situated; et al.

11

Plaintiffs,

12 v.

13

Joseph M. Arpaio, i n his indi vidual and official capacity as Sheriff of Maricopa

14 County, AZ; et al.

No. CV-07-2513-PHX-GMS ORDER APPOINTING MONITOR

15

Defendants.

16

Pending before the Court is the selection of a monitor to administer this Court’s

17 Supplemental Perm anent Injunction/Judgm ent Order. (Doc. 606.) In the process of

18 researching, interviewing and selecting mon itor candidates, the Co urt obtained some

19 information and drew som e conclusions ab out the interpretation of the Supplemental

20 Permanent Injunction/Judgment Order, which, absent objection of the parties, it will

21 implement goi ng f orward. It therefore sets forth the backgr ound th at resulted in those

22 facts and conclusions and indicates the monitor selected.

23

BACKGROUND

24

After this Court issued its Findings of Fact and Conclusions of Law (Doc. 579) in

25 late May 2013, it held a status conference w ith the parties on June 14, 2013 ( Doc. 582).

26 At that tim e, bot h par ties indicated their de sire to agree upon the terms of a mutually

27 satisfactory consent decree to implement the order rather than havi ng the C ourt impose

28 an order of its ow n. ( Doc. 586 a t 6–8, 18–21.) F urther the Defenda nts expressed their

Case 2:07-cv-02513-GMS Document 649 Filed 01/17/14 Page 2 of 6
commitment “to proceed with m aking meaningful, positive changes for the betterment of 1
the community and for the law enforcement operations.” (Id. at 6–8.) 2
Subsequently, on A ugust 16, 2013, the parties filed a joint report in which the 3
parties avowed to the Co urt that although they were unabl e to consent to all of the terms 4
of such an order, the y were “able to reach agreement on a substanti al number of term s.” 5
(Doc. 592. at 4:8–10.) The pa rties included a Proposed Cons ent Order that illustrated the 6
agreed upon provisions in black print. (Doc. 592-1.) Those areas of substantial agreement 7
included, among other things: establishing a MCSO Implementation Unit and performing 8
an internal agency -wide assessment ( Id. at 11–12), the implementation of specific 9
policies, procedures and training to ensure constitutional policing and to comply with the 10
Order ( Id. at 13–32), the documentation of tra ffic stops a nd the natur e of other 11
specifically identified data to be collected to ensure that the MCSO was com plying with 12
the terms of the Court’s injunctive order ( Id. at 33–40), t he vi deo-monitoring of all 13
MCSO stops, and pr ocedures for the a dequate supe rvision a nd evaluation of officer 14
performance, including t he creation, im plementation and supervisor y use of an early 15
identification system (Id. at 40–51) t o alert supervis ors of possibly unaccept able deputy 16
conduct together with periodic evaluation sessions. 17
The parties also identified a dozen to pics on w hich the y ha d not arrived at 18
agreement. (Doc. 592 at 4–10.) Principal areas of disagreement included whether a 19
monitor should be appointed to implement the terms of the or der to which the parties had 20
otherwise agreed, whether or not the Court would require the MCSO to establish and 21
implement more effective in ternal com plaint intake proces sing, and whether a 22
community advisory board shoul d be appointed, and, if so, the extent of that Board’s 23
authority. Further, even though the parties were able to ag ree on the need for a number 24
of detailed prescriptive measures to be entered by the order, there remained disagreement 25
as to a num ber of the necessary details of such m easures, for exam ple the am ount of 26
training hours neede d, or the num bers of de puties that an indi vidual sergeant coul d 27
supervise within the MCSO. The parties indicated their respective proposals on each area 28
- 2 -

Case 2:07-cv-02513-GMS Document 649 Filed 01/17/14 Page 3 of 6
of the proposed order on which they could not agree by color-coding the provisions of the 1
proposed decree which were separately proposed or objected to by one of the parties. 2
The Court granted the parties leave to file briefs regarding the remaining contested 3
provisions, (Doc. 593) , and on August 30, 2013 , the Court held a status conf erence with 4
the parties to address those issues in a hear ing t hat lasted m ost of the da y ( Doc. 603) 5
during which the Court in quired into the details of the agreem ents and disagreem ents of 6
the parties as represented by the propose d or der. Am ong ot her things, during this 7
hearing, the MCSO indicated that it was prep aring to implement an E-ticket system an d 8
already had an Intergraph system in place that would record traffic stop data fr om the E9
ticketing system once it was procured. MCSO suggested that from that system, as well as 10
its current CAD operating system , it could obtain much if not all of the traffic stop data 11
called for by t he propose d orde r. It furthe r indicated that the EIS system that was 12
required by the or der could be operated by using an a vailable software system identified 13
as IA-Pro. Plaintiffs noted at least tentat ively that t hey did no t take a position with 14
respect to MCSO’s assessme nt that the se progra ms might provide t he basic tools 15
necessary to accomplish the categories of data collection and early intervention analysis 16
to which they had agreed. Tr. 30-44. 17
Further, at that hearing, the C ourt note d that the parties had agreed in their 18
proposed order that the MCSO would mount cameras in its vehicles that conducted traffic 19
stops involved in e nforcing immigration-related laws within specified time periods after 20
the effective date of the order. But the prov ision proposed by the parties asked the C ourt 21
to consider the necessity of obtai ning fu nding for the vehicle-m ount cam eras from the 22
Maricopa County B oard of Supervisors. The Court noted that requiring the use of lapel 23
or body-mount cameras would be less expensive for the parties, and, it appeared to the 24
Court, such cameras might be as effective for accomplishing the purposes of the order. It 25
further not ed ot her m ethods of f inancing th e cam eras and calcula ted the tot al am ount, 26
given the estimates of the parties, for pr oviding a camera to each MCSO unit. The Court 27
then indicated to the parties that it was willing to include w ithin the order the potential 28
- 3 -

Case 2:07-cv-02513-GMS Document 649 Filed 01/17/14 Page 4 of 6

acceptability of the use of the less expensive lapel or body mount cameras, but it was not 1
inclined to get involved in funding battles between the MCSO and the Maricopa County 2
Supervisors. Whe n both parties advised th e Court that they preferred that the order 3
require the more expensive vehicle-mounted cameras, the Court agreed to do so, but tol d 4
the parties that its order would not be contingent on funding from the MCSO supervisors. 5
Both parties acknowledged their understanding of such a limitation. Tr. at 97-101. 6
After the hearing, the Court subsequent ly m ade the decisions pertaining t o the 7
matters of disagreem ent betwee n the partie s and entered its Supplemental Permanent 8
Injunction/Judgment Order on October 2, 2013. (Doc. 606.) The parties’ Proposed 9
Consent Order (Doc. 592- 1) formed the basi s and provi ded the exact language for m ost 10
of this Court’s Order, though at times the proposed order’s provisions were re-arranged 11
for organizational clarity. F or the m ost part, this Court adopted the “substantial number 12
of terms” to w hich the parties had bot h agreed. The C ourt decided the rem aining issues 13
on w hich t here was disagreem ent based on th e C ourt’s previous rulings, the parties’ 14
briefings, and the information presented at the status conference. 15
After the Order was promulgated, the parties could not agree on the selection of a 16
monitor. Pursuant to the term s of the Order, it was thus le ft to the Court to select a 17
monitor from the six candidates, three of whom were submitted by each party. In 18
selecting the monitor, the Court interviewe d the four candidates that it determined 19
merited further inquiry.1 In conducting t he interview, and to assess the preparedness and 20
general knowledge of the candidates, the Court, among other things, inquired about some 21
of the terms of both its May injunction and its October Order, a nd the various software 22

23

24

1 The writ ten proposal of one of the ca ndidates did not co rrectly identify the

25

parties to this lawsuit, and seemed to misst ate the terms of the Order. Thus, while the candidate had a good reputation in the industry, the Court did not deem that the candidate

26

merited further inquiry. Further, after cons ideration of the partie s’ objections, the Court concurred that, despite an otherwise meritorious reputation, it would be inappropriate for

27

the monitor team to include a member of the former law firm for th e Plaintiffs in this action. While it considered the other objections to various candidates submitted by the

28

parties, it did not de em any of them sufficien t to preclude further investigation of t he remaining candidates. Each of the remaining four merited serious consideration.

- 4 -

Case 2:07-cv-02513-GMS Document 649 Filed 01/17/14 Page 5 of 6
and system s that the parties had indicated to the Court coul d be us ed to implement the 1
Order. 2
In that process the Court learned that virtually all of the candidates who were 3
familiar with IA-Pro, regardless of the party that sugge sted the candi date, were of the 4
opinion that the off-the-shelf product would likel y require significant customization to 5
provide t he data anal ysis required by the Ea rly Intervention System agreed to by the 6
parties, and entered in the Court’s Order. The Court so advises the parties. 7
Second, the Court learned that while the views of the monitor candidates varied on 8
the question, all agreed that there were signi ficant competing merits in both body-mount 9
and traffic m ount cam eras in accom plishing th e pur poses set forth in this Court’s May 10
Order. In l ight of the views of t he parties clearly expressed to th e Court on August 30, 11
2013, the Court will not change the terms of th e October Supplemental Order at this time 12
without t he further i nput of th e parties. The C ourt a cknowledges that the parties, and 13
subsequently the C ourt, worked to arrive, wh ere it was possible, at order pr ovisions that 14
had the parties’ agreement so as to enha nce the possibility for efficient and economical 15
implementation of the Order ev en in a case involv ing significant disagreem ents. The 16
Court appreciates the efforts the parties made to come to agreement, believes that such 17
effort justifies the time take n in providing the parties such an opportunity, and continues 18
to expect the good faith efforts by the parties in the implementation of the Order that they 19
have had a substantial role in creating. 20
Nevertheless, the Court informs the partie s that, as with the other terms of the 21
Order, if alternative methods can be demonstr ated as similarly effective in accomplishing 22
the terms of this Order which are more cost-e ffective or have other advantages, the Court 23
will consider amending the Or der to incorporate needed fl exibility upon receiving the 24
recommendation of the parties and the monitor. Provisions for such amendments already 25
exist in the Order. 26
Further, during the time that the Court was interviewing the monitor candidates, 27
the MCSO sought from the Mari copa County Board of Superv isors additional funding to 28
- 5 -

Case 2:07-cv-02513-GMS Document 649 Filed 01/17/14 Page 6 of 6
implement the terms of the Or der. As the Court has previ ously indicated, it woul d be 1
inappropriate for the Court to in sert itself into the question of what, if any, additi onal 2
amounts should be budgeted t o the MC SO by t he Board of S upervisors to effectuate the 3
terms of the Court’s October Order. Neverthe less, the County has apparently allocated 4
the necessary funding. To th e extent that the County Admi nistration believes that it has 5
recommendations that m ight m ore efficiently implement the terms of the Court’s May 6
injunction that are separate from those of the MCSO, the monitor is authorized to receive 7
and evaluate such suggestions. 8
After the Court’s evaluati on of the monitor candidates submitted by the parties, 9
the Court selects Robert Warshaw and his corpor ation as the monitor in this action. The 10
parties have his conta ct information and are directed to contact hi m directly to pr oceed 11
with the implementation of the Order. 12
IT IS THEREF ORE ORDERED that Robert Wars haw of Warsha w and 13
Associates, Inc. is appoi nted as Monitor in this matter. The parties have his contact 14
information and are directed to contact him directly to proceed wi th the implementation 15
of the Order(s). 16
Dated this 17th day of January, 2014. 17
18
19
20
21
22
23
24
25
26
27
28
- 6 -

 </s> 1 WO

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6 Manuel de Jesus Ortega Melendres, on

7

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

8

Plaintiffs,

9 v.

10 Joseph M. Arpaio, i n his indi vidual and
11 official capacity as Sheriff of Maricopa County, AZ; et al.,
12 Defendants.
13

No. CV-07-02513-PHX-GMS AMENDMENTS TO THE SUPPLEMENTAL PERMANENT INJUNCTION/JUDGMENT ORDER

14

At the status conference held on March 24, 2014, and in a pre vious or der (Doc.

15 663 A pp. A) this C ourt pr oposed am endments to t he Supplemental Perm anent Injunction/

16 Judgment Order (Doc. 606). The parties were given an opportunity to respond in writing and at

17 the April 2, 2014, status conference. As a result of those conferences, the Court orders the

18 following amendments to the Supplemental Permanent Injunction/Judgment Order (Doc. 606).

19

This amendment order presents only th e paragraphs with c hanges. All other

20 paragraphs not m entioned shall rem ain the same. Unchanged la nguage is presented in

21 normal font. Additions are indic ated by unde rlined font. Deletions are indicated by

22 crossed-out font. W here an e ntire paragra ph ha s been rem oved, that is indicated with

23 brackets, but the numbering remains unchanged. For example: “108. [REMOVED]”.

24 25 . . . .

PROPOSED AMENDMENTS

26

REMEDIES

27

I. DEFINITIONS

28 1. The following terms and definitions shall apply to this Order:

1

. . . .

2

r. “Full and Effective Compliance” means compliance with all relevant provisions of

3

this Order. The Defendants shall begin to be in Full and Effective Compliance with

4

this Order when all of the following have been both completed and consistently

5

maintained:

6

. . . .

7

xvii. [REMOVED] The MCSO has developed and implemented a

8

community outreach program pursuant to Paragraphs 107–112 of this

9

Order.

10

xviii. [REMOVED] The MCSO has selected or hired a Community Liaison

11

Officer pursuant to Paragraphs 113–114 of this Order.

12

xix. [REMOVED] The MCSO has worked with Plaintiffs’ representatives

13

and community representatives and created a Community Advisory Board

14

pursuant to Paragraphs 115–116 of this Order.

15

. . . .

16

VI. PRE-PLANNED OPERATIONS

17

. . . .

18 38. If the MCSO conducts any Significant Operations or Patrols involving 10 or more MCSO

19

Personnel excluding posse members, it shall create the following documentation and

20

provide it to the Monitor and Plaintiffs within 30 10 days after the operation:

21

. . . .

22 39. The MCSO Monitor shall hold a community outreach meeting no more than 30 40 days

23

after any Significant Operations or Patrols in the affected District(s). MCSO shall work

24

with the Community Advisory Board to ensure that the community outreach meeting

25

adequately communicates information regarding the objectives and results of the

26

operation or patrol. The Monitor shall communicate the operational details provided to it

27

by the MCSO and shall hear any complaints or concerns raised by community members.

28

- 2 -

1

The Monitor may investigate and respond to those concerns. The community outreach

2

meeting shall be advertised and conducted in English and Spanish.

3

. . . .

4

XII. COMMUNITY ENGAGEMENT

5 a.

Community Outreach Program

6 107. To rebuild public confidence and trust in the MCSO and in the reform process, the

7

MCSO Monitor shall work to improve community relationships and engage

8

constructively with the community during the period that this Order is in place. To this

9

end, the MCSO shall create the following district community outreach program.

10 108. [REMOVED] Within 180 days of the Effective Date, MCSO shall develop and

11

implement a Community Outreach and Public Information program in each MCSO

12

District.

13 109. As part of its Community Outreach and Public Information program, the MCSO The

14

Monitor shall hold a public meeting in each of MCSO’s patrol Districts within 90 180

15

days of the Effective Date issuance of this amendment to the Order, and at least between

16

one and three meetings in each of MCSO’s patrol Districts annually thereafter. The

17

meetings shall be under the direction of the Monitor and/or his designee. These meetings

18

shall be used to inform community members of the policy changes or other significant

19

actions that the MCSO has taken to implement the provisions of this Order. Summaries

20

of audits and reports completed by the MCSO pursuant to this Order shall be provided.

21

The MCSO Monitor shall clarify for the public at these meetings that it the MCSO does

22

not lacks the authority to enforce immigration laws except to the extent that it is

23

enforcing Arizona and federal criminal laws.

24 110. The meetings present an opportunity for MCSO representatives the Monitor to listen to

25

community members’ experiences and concerns about MCSO practices implementing

26

this Order, including the impact on public trust. MCSO representatives shall make

27

reasonable efforts to address such concerns during the meetings and afterward. The

28

Monitor may investigate and respond to those concerns. To the extent that the Monitor

- 3 -

1

receives concerns at such meetings that are neither within the scope of this order nor

2

useful in determining the Defendants’ compliance with this order, it may assist the

3

complainant in filing an appropriate complaint with the MCSO.

4 111. English- and Spanish-speaking MCSO Monitor Personnel shall attend these meetings and

5

be available to answer questions from the public about its publicly available reports

6

concerning MCSO’s implementation of this Order and other publicly-available

7

information. At least one MCSO Supervisor with extensive knowledge of the agency’s

8

implementation of the Order, as well as the Community Liaison Officer (described

9

below) shall participate in the meetings. The Monitor may request Plaintiffs’ and/or

10

Defendants’ representatives shall be invited to attend such meetings and assist in

11

answering inquiries by the community. The Defendants are under no obligation to attend

12

such meetings, but to the extent they do not attend such meetings after being requested by

13

the Monitor to do so, the Monitor may report their absence to the public and shall report

14

their absence to the Court.

15 112. The meetings shall be held in locations convenient and accessible to the public. At least

16

one week ten days before such meetings, the MCSO Monitor shall widely publicize the

17

meetings using English and Spanish-language television, print media and the internet.

18

The Defendants shall either provide a place for such meetings that is acceptable to the

19

Monitor, or pay the Monitor the necessary expenses incurred in arranging for such

20

meeting places. The Defendants shall also pay the reasonable expenses of publicizing the

21

meetings as required above, and the additional reasonable personnel and other expenses

22

that the Monitor will incur as a result of performing his obligations with respect to the

23

Community Outreach Program. If the Monitor determines there is little interest or

24

participation in such meetings among community members, or that they have otherwise

25

fulfilled their purpose, he can file a request with the Court that this requirement be

26

revised or eliminated.

27

b. Community Liaison Officer Monitor

28

- 4 -

1 113. [REMOVED] Within 90 days of the Effective Date, MCSO shall select or hire a

2

Community Liaison Officer (“CLO”) who is a sworn Deputy fluent in English and

3

Spanish. The hours and contact information of the CLO shall be made available to the

4

public including on the MCSO website. The CLO shall be directly available to the public

5

for communications and questions regarding the MCSO.

6 114. In addition to the duties set forth in Title XIII of this order, The CLO the Monitor shall

7

have the following duties in relation to community engagement:

8

a. to coordinate the district community meetings described above in Paragraphs 109 to

9

112;

10

b. to provide administrative support for, coordinate and attend meetings of the

11

Community Advisory Board described in Paragraphs 117 to 118; and

12

c. to compile any Complaints, concerns and suggestions submitted to CLO him by

13

members of the public about the implementation of this Order and the Court’s order

14

of December 23, 2011, and its findings of fact and conclusions of law dated May 24,

15

2013, even if they don’t rise to the level of requiring formal action by IA or other

16

component of the MCSO, and to respond to Complainants’ concerns;

17

d. [REMOVED] to communicate concerns received from the community at regular

18

meetings with the Monitor and MCSO leadership; and

19

e. [REMOVED] to compile concerns received from the community in a written report

20

every 180 days and share the report with the Monitor and the Parties.

21

c. Community Advisory Board

22 115. MCSO The Monitor and Plaintiffs’ representatives shall work with community

23

representatives to create a Community Advisory Board (“CAB”) to facilitate regular

24

dialogue between the MCSO Monitor and community leaders, and to provide specific

25

recommendations to MCSO about policies and practices that will increase community

26

trust and ensure that the provisions of this Order and other orders entered by the Court in

27

this matter are met.

28

- 5 -

1 116. The CAB shall have six three members, three to be selected by the MCSO and three to be

2

selected by Plaintiffs’ representatives. Members of the CAB shall not be MCSO

3

Employees or any of the named class representatives, nor any of the attorneys involved in

4

this case. However, a member of the MCSO Implementation Unit and at least one

5

representative for Plaintiffs shall attend every meeting of the CAB. The CAB shall

6

continue for at least the length of this Order.

7 117. The CAB shall hold public meetings at regular intervals of no more than four months.

8

The meetings may be either public or private as the purpose of the meeting dictates, at the

9

election of the Board. The Defendants shall either provide a suitable place for such

10

meetings that is acceptable to the Monitor, or pay the Monitor the necessary expenses

11

incurred in arranging for such a meeting place. The Defendants shall also pay to the

12

Monitor the additional reasonable expenses that he will incur as a result of performing his

13

obligations with respect to the CAB including providing the CAB with reasonably

14

necessary administrative support. The meeting space shall be provided by the MCSO.

15

The CLO Monitor shall coordinate the meetings and communicate with Board members,

16

and provide administrative support for the CAB.

17 118. During the meetings of the CAB, members will relay or gather concerns from the

18

community about MCSO practices that may violate the provisions of this Order and the

19

Court’s previous injunctive orders entered in this matter and make reasonable efforts to

20

address such concerns. and transmit them to the Monitor for his investigation and/or

21

action. Members will may also hear from MCSO Personnel on matters of concern

22

pertaining to the MCSO’s compliance with the orders of this Court.

23

24

XIII. INDEPENDENT MONITOR AND OTHER PROCEDURES REGARDING

25

ENFORCEMENT

26

. . . .

27

b. Role of the Monitor

28

- 6 -

1 126. The Monitor shall be subject to the supervision and orders of the Court, consistent with

2

this Order. The Monitor shall have the duties, responsibilities and authority conferred by

3

the Court and this Order, including, but not limited to: (1) reviewing the MCSO Patrol

4

Operations Policies and Procedures provided for by this Order and making

5

recommendations to the Court regarding the same; (2) reviewing a protocol with the

6

Parties to ensure that any Significant Operations conducted by the MCSO are conducted

7

in a race-neutral fashion; (3) reviewing the curriculum, materials and proposed instructors

8

for Training required by this Order; (4) reviewing the collected traffic stop data and the

9

collected Saturation Patrol data to determine whether the data required to be gathered by

10

this Order is, in fact, being collected by the MCSO; (5) reviewing protocols regarding the

11

collection, analysis, and use of such data and determining whether the MCSO is in

12

compliance with those protocols; (6) reviewing the collected data to determine whether,

13

in the opinion of the Monitor, MCSO is appropriately reviewing the collected data to

14

determine possible isolated or systemic racial profiling occurring, and if so, reporting the

15

factual basis supporting that judgment to the Parties and the Court; (7) evaluating the

16

effectiveness of the MCSO’s changes in the areas of supervision and oversight and

17

reporting the same to the parties and the Court; (8) reviewing the corrective action taken

18

by the MCSO concerning any possible violations of this Order or MCSO policy and

19

procedures and reporting the same to the parties and the Court; (9) evaluating the

20

MCSO’s providing engagement with the communities affected by its the activities as set

21

forth by this Order; and (10) assessing the MCSO’s overall compliance with the Order.

22

. . . .

23

c. Monitoring Plan and Review Methodology

24

. . . .

25 136. In conducting the outcome assessments, the Monitor should measure not only the

26

MCSO’s progress in implementing the provisions of this Order, but the effectiveness of

27

the reforms. To do so, the Monitor shall take into account the following performance-

28

based metrics and trends:

- 7 -

1

. . . .

2

i. disciplinary outcomes for any violations of departmental policy; and

3

j. whether any Deputies are the subject of repeated misconduct Complaints, civil suits,

4

or criminal charges, including for off-duty conduct; and

5

k. [REMOVED] the level of MCSO engagement and participation with the community

6

advisory board;

7

. . . .

8

f. Public Statements, Testimony, Records, and Conflicts of Interest

9 141. Except as required or authorized by the terms of this Order or the Parties acting together:

10

neither the Monitor, nor any agent, employee, or independent contractor thereof, shall

11

make any public statements, outside of statements to the Court as contemplated in this

12

Order, with regard to any act or omission of the Defendants, or their agents,

13

representatives, or employees; or disclose non-public information provided to the

14

Monitor pursuant to the Order. As required and authorized, the Monitor shall conduct the

15

public community outreach meetings provided in this order and the CAB meetings. Any

16

press statement made by the Monitor regarding its employment or monitoring activities

17

under this Order shall first be approved by the Parties.

18

. . . .

19 End of amendments.

20

IT IS THEREFORE ORDERED

a mending the Supplem ental Perm anent

21 Injunction/Judgment Order (Doc. 606) as indicated above. T he Court’s injunctions of Dece mber

22 23, 2011; May 24, 2013; and October 2, 2013 shall rem ain permanent as amended by this Order

23 until and u nless sp ecifically dissolved or m odified by the Court o r an appe llate cou rt o f

24 competent jurisdiction.

25

IT IS FURTHER ORDERED that this Order is an appealable final judgment. The Clerk

26 of Court is directed to enter judgment accordingly.

27

28

- 8 -

1

IT IS FURTHER ORDERED that th is Court retains jurisdiction over this case for the

2 purposes of im plementing the October 2, 2013, Supplemental Perm anent Injunction/Judgm ent

3 Order (Doc. 606) and these amendments to it.

4

Dated this 4th day of April, 2014.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 9 -

 </s> Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 1 of 7

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Manuel de Melendres, et al.,

No. CV-07-02513-PHX-GMS

10

Plaintiffs,

ORDER

11 v.

12 Maricopa, County of, et al.,

13

Defendants.

14

Pending before this Court is Plaintiffs ’ Motion for A ward of Attor neys’ Fees and

15 Related Non-Ta xable Expe nses (Doc. 608). As prevailing parties on their civil rights

16 claims, Plaintiffs qualify for an attorneys’ fe es award under the st atute. Defenda nts do

17 not contest that the Plaintiffs are so entitled. Further, both Plaintiffs and Defendants

18 acknowledge that the “lodestar ” method is the customary means used to calculate a

19 reasonable fee award. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996).

20 Under that m ethod of calcula tion, however, Defenda nts contest the hourly rates charge d

21 by Plaintiffs’ attorneys. They further challenge the number of hours for which Plaintiffs’

22 attorneys seek to recover contending that they were not “reasonably expended” on the

23 case.

24 1.

Hourly Rates

25 “Generally,

when determining a reasonable hourly rate, the relevant community is

26 the forum in which the district court sits. . . . ‘[R ]ates outside the forum may be used i f

27 local counsel was unavailable, either becaus e they are unwilling or unable to perform

28 because they lack the degree of experience, expertise, or specialization required to handle

Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 2 of 7

1 properly the case.’” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008)

2 (quoting Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1 997)). Defendants contend that

3 in determ ining a nd awarding a reasona ble hourly r ate this C ourt s hould a pply t he

4 Economics of Law Practice published in 2013 concerni ng prevailing billing rates in

5 Maricopa County, Arizona.

6 a.

Covington & Burling

7

Upon the withdrawal of Steptoe & Johnson from the Plaintiffs’ representation, the

8 local ACLU and t he ACLU F oundation Im migration Project (“the Project”) m ade a

9 number of uns uccessful efforts to enga ge la w firm s in Maricopa County a nd souther n

10 California to take over the Plainti ffs’ representation. Yet, as no pa rty seems to contest,

11 and as no party could credibly contest, taking on a laws uit of this s ize required a firm to

12 venture a large amount of resources to preparation and trial. No local law firm either was

13 able or willing to undertake that level of commitment. Hence, the closest firm both

14 capable and willing to undertake such an endeavor that Plai ntiffs could locate was the

15 Silicon Valley, California office of Covington & Bu rling. Thus, in this case, the Court

16 will base its award to Covington & Burling on what the Court believes to be Silicon

17 Valley rates that are reasonable under the circumstances.

18

The Court recognizes that Covington i ncurred a s ubstantial risk of receiving no

19 reimbursement for its services in agreeing to undertake this case. Covington also frankl y

20 avowed, however, that it does, on occasion, charge c lients ra tes that are lower than its

21 standard bi lling rates for matters in whic h si gnificant amounts will be billed. This i s

22 certainly such a case. Covington further acknowledged that it us ed this lawsuit to

23 provide its younger lawyers with experience in trial preparation and at trial, and that it

24 might not have always passed on such expens e to a paying client at standard billable

25 rates. While the Cour t commends Covington for providing training to young attorneys,

26 and is convinced that the services of thos e attorneys pr ovided va lue that should be

27 compensated in this matter, th e Court has m ade som e slight downward a djustments in

28 Covington’s billing r ates to reflect the above realities. Unders tandably, because the

- 2 -

Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 3 of 7

1 representation lasted for a considerable time, the timekeeper’s rates often rose as did their

2 level of experience. The C ourt in setting th e rates of reim bursement, took into account

3 the value of experience and the rising rates of the attorneys, but also for the reasons

4 reflected above, did not always make a correspondingly concomitant raise in rates. Thus,

5 the Court assigned to Covington’s timekeeper s billable rates at the following rates of 6 pay1:

7

Employee Year(s)

Rate

8

Stanley Young 2012–2013

2010–2011 $630 $650

9

Andrew C. Byrnes 2010–2012

$550

10

2012–2013 Lesli A. Rawles Gallagher 2010

$570 $350

11

2010–2011

$375

2012

12

2013

$400 $425

13

David R. Hults

2012–2013 $375

Precilla C. Mandujano 2012–2013 $175

14

Seth F. Kalman

2010–2012 $175

15

Tammy Albarrán

2010–2011 $500

2012–2013

$550

16

Krzysztof Bebenek

2011–2012 $300

17

Stephen C. Chien

2010–2011 $450

Kevin J. Hickey

2010

$300

18

2010–2011

$330

19

Bhanu K. Sadasivan 2012

2010–2011 $430 $475

20

Matthew J. Steilen

2010

$310

21

2010–2011 Paul N. Watkins

2010

$340 $350

22

2011

$360

23

Romeo B. Berana Ellen D. Chiulos

2010 2010

$175 $175

24

Rohna R. Houston

2010–2012 $175

Julie R. Romanow

2010–2013 $175

25

26

1 The chart in Exhibit G also includes time entries from timekeepers Joel M.

27

Frozena, P aul C. Saunders, Jeannie Lieu, a nd Jos hua Hur wit that appear to have bee n included in the total fee requested. These we re all small entries for a few hours per

28

individual. Covington did not list these individuals in its brief or explain their role, and it indicated it was only seeking recover for fees from the described members. (Doc. 639-5.)

Therefore, the fees for these four individuals are not awarded.

- 3 -

Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 4 of 7

1

Kim M. Sydorak

2011–2012 $175

2

Emily D. Doan Jacqueline K. Trinh

2010–2011 $175

2010

$175

3

Daisy Chen

2010

$110

4

Cheryl A. Lam Maria Chavez

2012 2012

$50 $135

5

Pierre E. Kressmann

2011

$175

6

Benjamin E. Suess Anthony V. Pazelt

2010–2013 $175

2010

$175

7

b. The ACLU Foundation Immigrant Rights Project

8

Considerations of a somewhat different nature apply to considering the appropriate

9 legal rate of the ACLU Immigrant Rights Pr oject (‘the Project”) and its lead counsel

10 Cecillia Wang. The Project is based in San Francisco and has discre tion in the cases in

11 which it chooses to in tervene nationwide. The Pr oject, of course, did not nee d t o

12 intercede in Arizona if it did not believe the rates it would likely be awarded justified the

13 intervention. Nevertheless, the Court doubt s that the Project determines whether to

14 provide representation in a case prim arily with reference to the am ount of a possible fee

15 award. This case presented issues of immigrants’ rights in which the Project has acquired

16 demonstrated experience, expertise and spec ialization at a level that is otherwise

17 unavailable in Maricopa County. It provided significant value to the Plaintiff, both at and

18 before trial. The Court will thus award the Pr oject’s attorneys’ fees based on the Court’s

19 determination of what is a reasonable San Fr ancisco rate which will be slightly adjusted

20 for the comparative experience and rates of other attorneys on the Plaintiffs’ team, and

21 the value that the Court determined was provided by the Project’s Counsel.

22

Employee Year(s)

Rate

23

Cecillia D. Wang 2009

$600

2010–2011

24

2012–2013

$620 $650

25

Adjusted

Average2 $635

26

27

2 The Adjusted Average is th e rate the Court used to multiply by the total of Ms. Wang’s hours for all years. Although t he Court has assigne d hourly rates per year, the

28

Project did not provide subtotals of the hours spent in each ye ar. The Adju sted Average was determined by calculating the average proposed hourly rate from the total fee and

hours submitted, and then creating the Adjust ed Average based on th e adjusted yearly

- 4 -

Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 5 of 7

1

Andre I. Segura 2011–2013

$350

2

c. Mexican American Legal Defense and Educational Fund

3

Plaintiffs were also represented in th is action by attorneys from the Los Angeles

4 Regional Office of the Mexic an Am erican Le gal Defense a nd Educati onal F und

5 (“MALDEF”). MALDEF is a national nonprof it legal organization that specializes in

6 civil rights impact litigation on be half of Latinos in the areas of education, em ployment,

7 political access and immigrants’ rights. It was, therefore, unders tandably interested in

8 this lawsuit as it pertained to areas of MALDEF’s special inte rest. MALDEF has

9 represented the Plaintiffs fro m the inception of this case. While the expertise that

10 MALDEF brought t o the benef it of the Pl aintiff class may be in many respects

11 duplicative of the benefit provide d to the Pla intiffs by the attorneys of the Project to the

12 extent that it related to immigrants’ rights, Defendants do not conte st that MALD EF has

13 expertise representing the political rights of La tinos, nor do they contes t that this lawsuit

14 presented important issues related to the disp arate treatment of members of the Plaintiff

15 class due to their ethnicity. Any adj ustments in the overall fe e to be paid to all of the

16 attorneys made by the Court due to their overlapping expe rtise, will be deducted in

17 considering the overall reasonableness of the hours billed by th e Plaintiffs’ attorneys, and

18 not i n shar ply a djusting le gal rates. It is appr opriate under thes e circumstances for the

19 Court to award MA LDEF’s fees based on its determination of w hat is a reasona ble Los

20 Angeles rate, especially whe n the rates sought by MALDEF are lower than those sought

21 by the Northern California firms.

22

Employee Year(s)

Rate

23

Nancy Ramirez 2011

2010

$500 $525

24

2012–2013

$550

25

Martha Torres

2010

$125

26 d.

ACLU Foundation of Arizona

27

The ACLU Foundation of Arizona is a small operation and was unable t o handle

28 rates actually awarded.

- 5 -

Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 6 of 7

1 this lawsuit without the assistance of other counsel. Nevertheless, it did have counsel that

2 provided significant and valuable work on this case. Those counsel will be reimbursed at

3 Maricopa County rates.

4

Employee Year(s)

Rate

5

Dan J. Pachoda Kelly J. Flood

2008–2013 2012

$350 $300

6

Anne Lai

2008–2009

$175

7

2010 2011

$260 $275

8

2012

$300

2013

$310

9

James Duff Lyall

2011–2012

$175

10

Gloria A. Torres

2011–2013

$150

11

2. Reasonableness of Hours Billed

12

With multiple attorneys fro m multiple entities representin g the plaintiffs on this

13 case, there was som e significant overlap among t he various counsel in Plaintiffs’

14 preparation and litigation of this case. As several examples o ffered by the Defendants

15 demonstrate, the participation of multiple parties in the trial proceedings, and some of the

16 significant matters proceeding to trial, resulted in expe nses that while, perhaps

17 understandable, were more than is reas onable and m ore than shoul d be borne by

18 Defendants. For exa mple, despite the limited number of witnesses in this case, nine

19 different attorneys appeared at trial for the Plaintiffs. Fu rther, expenses on t he pre-trial

20 briefings were excessive even given the desire to obtain the expertise of various attorneys

21 on this matter. Further, there w as some dup lication of expense that occurred within

22 Covington & B urling, whic h dur ing t he course of this lawsuit intr oduced a number of

23 different attorneys to this case.

24

It is appropriate for a court to redu ce the lodestar for duplicative work. Chemical

25 Bank v. City of Seattle (In re Was h. Publ. Power Supply Sys. Sec. Litig.) , 19 F.3d 1291,

26 1298 (9th Cir. 1994). The parties indicated at oral argument that th e request is a joint

27 one, and that they should all bear the expens e of any excessive duplication. The Court,

28 therefore has reviewed the invoices and made its best calculation of the amount of the

- 6 -

Case 2:07-cv-02513-GMS Document 742 Filed 09/11/14 Page 7 of 7

1 overlap and has reduced by 20 % the hours billed by all counse l to account for excessive

2 or duplicative work.

3

3. Costs

4

The costs sought are similarly reduced by 20% to avoid unnecessary duplication in

5 the fee caused by the mu ltiple counsel involved i n the l itigation for the same reasons as

6 set forth above.

7

This award covers fees incurred by the parties up and through October 2, 2013 and

8 is without prejudice to further requests by Plaintiffs as was further set forth at the hearing

9 on this Motion. For the reasons stated above the Court grants Plaintiffs’ Motion.

10

IT IS THEREFORE ORDERED gra nting the Moti on for Att orney Fees and

11 Related Non-Taxable Expenses (Doc. 608) and awards the following amounts to the four

12 Plaintiffs’ counsel as follows:

13 1. Covington & Burling, $3, 304,038.80 in attor ney’s fees and $150,036.16 in
14 non-taxable expenses for a total of $3,454,074.96;
15

16

2. The Projec t, $420, 331.92 in attor ney’s fees and $8, 954.78 in non- taxable

17 expenses for a total of $429,286.70;

18 3. MALDEF, $159,678. 00 i n attorney’s fees and $7, 670.62 in non-taxable
19 expenses for a total of $167,348.62;
20

21

4. ACLU of Arizona, $383 ,356.40 in attorn ey’s fees and $5, 174.98 i n non-

22 taxable expenses for a total of $388,531.38.

23

Dated this 11th day of September, 2014.

24

25

26

27

28

- 7 -

 </s> Case 2:07-cv-02513-GMS Document 748 Filed 10/10/14 Page 1 of 3

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9

Manuel de Jesus Ortega Melendres, on behalf of him self and all others similarly

10 situated; et al.

11

Plaintiffs,

12 v.

13

Joseph M. Arpaio, i n his indi vidual and official capacity as Sheriff of Maricopa

14 County, AZ; et al.

No. CV-07-2513-PHX-GMS ORDER GRANTING STIPULATION TO AMEND SUPPLEMENTAL/ PERMANENT INJUNCTION/ JUDGMENT ORDER

15

Defendants.

16

17

The C ourt, having reviewed the Stipul ation to Amend Supplemental/Permanent

18 Injunction/Judgment Order (Doc. 747) and good cause appearing,

19

IT IS HEREBY ORDERED that the Stipulation is granted as follows:

20

1. Paragraph 61 of the Court’s Octobe r 2, 2013 S upplemental/Permanent

Injunction/Judgment Order (Doc. 606) is amended as follows: 21

22

The MCSO will installissue functional vide o and audio recording equipment to all

23

patrol deputies and se rgeants w ho i n all tr affic patrol vehicles that m ake traffic

24

stops, and shall comm ence regular operati on and maintenance of such vide o and

25

audio recording equi pment. MCSO shall prioritiz e the installation of such

26

equipment Specialized Units that enforce I mmigration-Related Laws, and S uch

27

installation issuance must be complete w ithin 120 da ys of the appr oval of the

28

policies and proce dures for the operation, maintenance, and data storage for such

Case 2:07-cv-02513-GMS Document 748 Filed 10/10/14 Page 2 of 3

on-person body cam eras and approval of t he purchas e of such equi pment and 1

related contracts by the Maricopa C ounty Boar d of Supervis ors. MCSO shall 2

3

equip all t raffic patrol ve hicles that make traffic stops wi th video and a udio

4

recording e quipment w ithin 2 years of the Effectiv e Date. Subject to Maricopa

5

County code and the State of Ar izona’s procurement law, the Court shall choose

6

the ve ndor for the vi deo a nd audio rec ording equipm ent if the Parties and the

7

Monitor cannot agree on one.

8

2. In addition, the word “in-vehicle” shou ld be struck from the first sentence

9 of Paragraph 62 of the Court’s October 2, 2013, Order.

10

3. The first sentence of Pa ragraph 57 of the Court’ s Oc tober 2, 2013, Or der

11 should be amended to replace the term “in-vehicle” with “on-person.”

12

4. Paragraph 1(r)(xv) of the Court’s October 2, 2013 , Order is amended as

13 follows:

14

The MC SO has de veloped and im plemented a s ystem for the audi o a nd vide o

15

recording of traffic stops and a protocol for reviewing the recordings pursuant to

16

Paragraphs 61–63 of this Order with the understanding that Full and Effective

17

Compliance m ay be achieved once all traffi c patrol vehicles patrol deputies and

18

sergeants who that make traffic stops used by Specialized Units ha ve been

19

mounted w ith the issued on-pers on a udio and vide o e quipment, so long as the

20

remaining vehicles are tim ely equipped with the a udio and vide o equipment and

21 have been properly trained on the use of suc h e quipment according to the

22 requirements of those Paragraphs.

23 5. The last sentence of Paragraph 63 of the Court’s October 2, 2013 i s
24 substituted as follows:

25 MCSO sha ll develop a form al policy, to be reviewed by the M onitor and the
26 Parties pursuant to the process described in Section I V and subj ect to review by
27 the District Court, to govern proper us e of the on-person cameras; accounta bility

28

- 2 -

Case 2:07-cv-02513-GMS Document 748 Filed 10/10/14 Page 3 of 3
measures to ensure comp liance with the C ourt’s orde rs, including m andatory 1
activation of vide o c ameras for traffic st ops; review of t he ca mera recordings; 2
responses to public records requests in accordance with the Order and governing 3
law; and pr ivacy protections. The MCS O shall subm it such proposed policy for 4
review by the Monitor and Plaintiffs’ counsel within 60 days of the C ourt’s 5
issuance of an order appr oving the use of on-body cameras as set forth in this 6
stipulation. The MCSO shall submit a request for funding to the Maricopa County 7
Board of S upervisors within 45 days of the approval by the C ourt or the Monitor 8
of such policy and the equipment and vendor(s) for such on-body cameras.” 9
Dated this 10th day of October, 2014. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
- 3 -

 </s> Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 1 of 30
APPEAL,PROTO
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CRIMINAL DOCKET FOR CASE #: 2:16−cr−01012−SRB All Defendants

Case title: USA v. Arpaio et al
Other court case number: 17−71094 Ninth Circuit Court of Appeals

Date Filed: 08/19/2016 Date Terminated: 10/04/2017

Assigned to: Senior Judge Susan R Bolton
Appeals court case number: 17−10448 Ninth Circuit

Defendant (1)
Joseph M Arpaio Sheriff TERMINATED: 10/04/2017

represented by Andrew Melvin McDonald , Jr. Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7847 Email: melmcdonald2@gmail.com TERMINATED: 04/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Ira Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: diw@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Douglas Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Email: jackw@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
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 TERMINATED: 01/09/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Justin Michael Ackerman Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 2 of 30
Phoenix, AZ 85004 602−263−1740 Email: jackerman@jshfirm.com TERMINATED: 01/09/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Linda Kim Tivorsak Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7831 Email: ltivorsak@jshfirm.com TERMINATED: 04/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Jeffrey Sinclair Surdakowski Goldman & Zwillinger PLLC 17851 N 85th St., Ste. 175 Scottsdale, AZ 85255 480−626−8483 Fax: 480−502−7500 Email: jsurdakowski@gzlawoffice.com ATTORNEY TO BE NOTICED Designation: Retained
Mark David Goldman Goldman & Zwillinger PLLC 17851 N 85th St., Ste. 175 Scottsdale, AZ 85255 480−626−8483 Email: mgoldman@gzlawoffice.com ATTORNEY TO BE NOTICED Designation: Retained
Vincent Rene Mayr Goldman & Zwillinger PLLC 17851 N 85th St., Ste. 175 Scottsdale, AZ 85255 480−626−8483 Fax: 480−502−7500 Email: vmayr@gzlawoffice.com ATTORNEY TO BE NOTICED

Pending Counts None

Disposition

Highest Offense Level (Opening) None

Terminated Counts
18:401 − Criminal Contempt (1)

Disposition

Highest Offense Level (Terminated) Felony

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 3 of 30

Complaints None Assigned to: Senior Judge Susan R Bolton Defendant (2) Gerard Sheridan Chief Deputy TERMINATED: 12/13/2016
Pending Counts 18:401 − Criminal Contempt (1) Highest Offense Level (Opening) Felony Terminated Counts None Highest Offense Level (Terminated) None Complaints None Assigned to: Senior Judge Susan R Bolton Defendant (3) Steven R Bailey Captain TERMINATED: 12/13/2016

Disposition
represented by Barry D Mitchell Mitchell Stein Carey Chapman PC 1 Renaissance Sq. 2 N Central Ave., Ste. 1450 Phoenix, AZ 85004 602−358−0293 Fax: 602−358−0291 Email: barry@mscclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Lee David Stein Mitchell Stein Carey Chapman PC 1 Renaissance Sq. 2 N Central Ave., Ste. 1450 Phoenix, AZ 85004 602−358−0292 Fax: 602−358−0291 Email: lee@mscclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Disposition
Disposition
Disposition
represented by Barry D Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 4 of 30
Designation: Retained
Lee David Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pending Counts
18:401 − Criminal Contempt (1)

Disposition

Highest Offense Level (Opening) Felony

Terminated Counts None

Disposition

Highest Offense Level (Terminated)
None

Complaints None

Disposition

Assigned to: Senior Judge Susan R Bolton

Defendant (4)
Michele M Iafrate Attorney TERMINATED: 12/13/2016

represented by Dale A Danneman Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−5311 Fax: 602−734−3744 Email: ddanneman@lrrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Pending Counts
18:401 − Criminal Contempt (1)

Disposition

Highest Offense Level (Opening) Felony

Terminated Counts None

Disposition

Highest Offense Level (Terminated)
None

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 5 of 30

Complaints None

Disposition

Movant Timothy Casey

represented by Karen Ann Clark Adams & Clark PC 520 E Portland St., Ste. 200 Phoenix, AZ 85004 602−258−3542 Fax: 602−258−1377 Email: assistant@adamsclark.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Roderick & Solange MacArthur Justice Center

represented by David M Shapiro Roderick & Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E Chicago Ave., 8th Fl. Chicago, IL 60611−3069 312−503−0711 Fax: 312−503−1272 Email: david.shapiro@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Locke E Bowman Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E Chicago Ave., 8th Fl. Chicago, IL 60611−3069 312−503−0844 Fax: 312−503−1272 Email: l−bowman@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus
Coalition to Preserve Protect and Defend

represented by Dennis Aftergut Renne Sloan Holtzman Sakai LLP 350 Sansome St., Ste. 300 San Francisco, CA 94104 415−678−3800 Fax: 415−678−3838 Email: da1.cppd@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Louise H Renne Renne Sloan Holtzman Sakai LLP 350 Sansome St., Ste. 300 San Francisco, CA 94104

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 6 of 30
415−678−3800 Fax: 415−678−3838 Email: lrenne@publiclawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Michael L Piccarreta Piccarreta Davis Keenan Fidel PC 2 E Congress St., Ste. 1000 Tucson, AZ 85701 520−622−6900 Fax: 520−622−0521 Email: mlp@pd−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald A Fein Free Speech for People 1340 Centre St., Ste. 209 Newton, MA 02459 617−244−0234 Fax: 206−260−3031 Email: rfein@freespeechforpeople.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus
Protect Democracy Project Incorporated

represented by Ian Bassin Protect Democracy Project Incorporated 2020 Pennsylvania Ave. NW, Ste. 163 Washington, DC 20006 202−599−0466 Fax: 929−777−8248 Email: ian.bassin@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Jean−Jacques Cabou Perkins Coie LLP − Phoenix, AZ P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7000 Email: jcabou@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Florence Protect Democracy Project Incorporated 2020 Pennsylvania Ave. NW, Ste. 163 Washington, DC 20006 202−599−0466 Fax: 929−777−8428 Email: justin.florence@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Katherine Elizabeth May Perkins Coie LLP − Phoenix, AZ

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 7 of 30
P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7045 Email: kmay@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Phil Michael Spector Messing & Spector LLP − Baltimore MD 1200 Steuart St., Ste. 1112 Baltimore, MD 21230 202−277−8173 Email: ps@messingspector.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Shane R Swindle Perkins Coie LLP P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7184 Email: SSwindle@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus Erwin Chemerinsky

represented by Joshua David R Bendor Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Email: jbendor@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Larry A Hammond Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Fax: 602−640−9050 Email: lhammond@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Michael E Tigar

represented by Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Larry A Hammond (See above for address) LEAD ATTORNEY

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 8 of 30 ATTORNEY TO BE NOTICED

Amicus Jane B Tigar

represented by Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Larry A Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Martin Redish

represented by Dennis Aftergut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Louise H Renne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Michael L Piccarreta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Free Speech for People

represented by Dennis Aftergut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Louise H Renne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Michael L Piccarreta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald A Fein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 9 of 30

Ortega Melendres Plaintiffs

represented by Cecillia D Wang ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Julia Alejandra Gomez Hernandez MALDEF − Los Angeles, CA 634 S Spring St., 11th Fl. Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: jgomez@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Kathleen E Brody ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: kbrody@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katrina Leigh Eiland ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: keiland@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Stanley Young Covington & Burling LLP 333 Twin Dolphin Dr Ste 700 Redwood Shores, CA 94065 650−632−4704 Fax: 650−632−4804 Email: syoung@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus Marin Redish

represented by Ronald A Fein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 10 of 30

Amicus
Certain Members of Congress of the United States

represented by R Bradley Miller Guttman Buschner & Brooks PLLC 2000 P St. NW, Ste. 300 Washington, DC 20036 202−800−3001 Fax: 202−827−0041 Email: bmiller@gbblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Spencer Garrett Scharff Goddard Law Office PLC 502 W Roosevelt St. Phoenix, AZ 85003 602−739−4417 Email: scharff@goddardlawplc.com ATTORNEY TO BE NOTICED

Plaintiff USA

represented by John Dixon Keller US Dept of Justice Public Integrity Section 10th & Constitution Ave. Washington, DC 20530 202−514−1412 Email: John.Keller2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Victor R Salgado US Dept of Justice − Public Integrity Section, 1400 New York Ave. NW, 12th Fl. Washington, DC 20005 202−353−4580 Email: victor.salgado@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Simon Joseph Cataldo US Dept of Justice 1400 New York Ave., 12th Fl. Washington, DC 20005 202−616−2464 Email: simon.cataldo@usdoj.gov ATTORNEY TO BE NOTICED Designation: Assistant US Attorney

Date Filed 08/19/2016

# Docket Text
1 ORDER re Criminal Contempt as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate − IT IS THEREFORE ORDERED that pursuant to Rule 42(a) (1) of the Federal Rules of Criminal Procedure, the Court refers Sheriff Joseph M. Arpaio, Chief Deputy Gerard Sheridan, Captain Steven R. Bailey, and Attorney Michelle M. Iafrate to another Judge of this Court to determine whether they should be held in criminal contempt for the matters detailed above. IT IS FURTHER ORDERED directing the Clerk of Court to refer the criminal contempt proceedings, by random lot,

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 11 of 30

08/19/2016
08/26/2016 09/06/2016 09/06/2016 09/06/2016 09/06/2016
09/07/2016 09/07/2016 09/07/2016 09/07/2016 09/08/2016 09/09/2016 09/13/2016 09/13/2016

to another Judge in the District of Arizona. IT IS FURTHER ORDERED directing the Clerk of Court to promptly notify the United States Attorney for the District of Arizona regarding this Order. (See document for further details). Signed by Judge G Murray Snow on 8/19/16. (LAD) (Entered: 08/19/2016)
2 ORDER OF RECUSAL in case as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate: ORDERED this matter be reassigned, by lot, to another judge in the District of Arizona. FURTHER ORDERED that this matter has been reassigned by random lot to the Honorable Susan R. Bolton. All future pleadings and papers submitted for filing shall bear the following complete case number: CR−16−01012−PHX−SRB. Signed by Judge John J Tuchi on 8/19/16.(SJF) (Entered: 08/19/2016)
3 NOTICE OF RECUSAL with attached formal notice from EOUSA by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Strange, Elizabeth) (Entered: 08/26/2016)
4 NOTICE OF ATTORNEY APPEARANCE: John D. Keller appearing for USA . (Keller, John) (Entered: 09/06/2016)
5 NOTICE OF ATTORNEY APPEARANCE: Victor R. Salgado appearing for USA . (Salgado, Victor) (Entered: 09/06/2016)
6 MOTION for Status Conference by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Keller, John) (Entered: 09/06/2016)
7 ORDER as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey and Michele M Iafrate: On September 6, 2016, Government's counsel filed a Motion for Status Conference Doc. 6 . The certificate of service on Page 3 of the Government's motion states "....on this date, I electronically filed the foregoing filing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the attorneys of record for the defendant." No counsel having yet appeared in this criminal case for Defendants, IT IS ORDERED directing Government's counsel to mail a copy of the motion to the attorney known to represent each of the Defendants and notify the Court in writing that Government's counsel has complied. IT IS FURTHER ORDERED that the motion will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 9/6/16.(MAW) (Entered: 09/06/2016)
8 NOTICE OF ATTORNEY APPEARANCE: Andrew Melvin McDonald, Jr appearing for Joseph M Arpaio . (McDonald, Andrew) (Entered: 09/07/2016)
9 NOTICE of No Objection to Status Conference by Joseph M Arpaio re: 6 MOTION for Status Conference . (McDonald, Andrew) (Entered: 09/07/2016)
10 NOTICE OF ATTORNEY APPEARANCE: Lee David Stein appearing for Gerard Sheridan, Steven R Bailey . (Stein, Lee) (Entered: 09/07/2016)
11 NOTICE OF COMPLIANCE by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Salgado, Victor) (Entered: 09/07/2016)
12 NOTICE OF ATTORNEY APPEARANCE: Dale A Danneman appearing for Michele M Iafrate . (Danneman, Dale) (Entered: 09/08/2016)
13 ORDER granting 6 Motion for Status Conference as to Joseph M Arpaio (1), Gerard Sheridan (2), Steven R Bailey (3) and Michele M Iafrate (4). IT IS FURTHER ORDERED setting Status Conference on October 11, 2016, at 10:00 a.m. Signed by Judge Susan R Bolton on 9/9/16.(MAW) (Entered: 09/09/2016)
14 MOTION for Leave to Appear Telephonic at October 11, 2016 Status Conference as to attorney Barry Mitchell by Gerard Sheridan. (Attachments: # 1 Text of Proposed Order)(Mitchell, Barry) (Entered: 09/13/2016)
15 MOTION for Leave to Appear Telephonic at October 11, 2016 Status Conference as to attorney Barry Mitchell by Steven R Bailey. (Attachments: # 1 Text of Proposed Order)(Mitchell, Barry) (Entered: 09/13/2016)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 12 of 30

09/16/2016
10/05/2016 10/05/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016
10/11/2016
10/13/2016 10/13/2016 10/17/2016

16 ORDER granting 14 and 15 Motions for Leave to Appear Telephonically as to Gerard Sheridan (2) and Steven R Bailey (3) and allowing counsel Barry Mitchell to participate telephonically for the Status Conference set for Tuesday, October 11, 2016, at 10:00 a.m. Counsel is directed to call the Court at 602−322−7570 at the time of the scheduled hearing. No cell phones or speaker phones are permitted. Signed by Judge Susan R Bolton on 9/16/16.(MAW) (Entered: 09/16/2016)
17 NOTICE of Joint Representation by Gerard Sheridan. (Stein, Lee) (Entered: 10/05/2016)
18 NOTICE of Joint Representation by Steven R Bailey. (Stein, Lee) (Entered: 10/05/2016)
19 TRANSCRIPT REQUEST by Michele M Iafrate for proceedings held on 10/11/16, Judge Susan R Bolton hearing judge(s). (Danneman, Dale) (Entered: 10/11/2016)
20 STIPULATION Stipulation of Michele Iafrate by Michele M Iafrate. (Danneman, Dale) (Entered: 10/11/2016)
21 NOTICE Defendant Arpaio's Notice Re: Tolling of Statute of Limitations Under 18 U.S.C. 402 by Joseph M Arpaio. (McDonald, Andrew) (Entered: 10/11/2016)
22 NOTICE Re Tolling of the Statute of Limitations by Gerard Sheridan. (Stein, Lee) (Entered: 10/11/2016)
23 NOTICE Re Tolling of the Statute of Limitations by Steven R Bailey. (Stein, Lee) (Entered: 10/11/2016)
24 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Status Conference as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey and Michele M Iafrate held on 10/11/2016. IT IS ORDERED directing Defense counsel to advise the Court in writing no later than 2:00 p.m., October 11, 2016, whether their clients agree to a tolling of the statute of limitations under 18 U.S.C. §3285 effective this date. IT IS FURTHER ORDERED directing Government's counsel to submit to the Court no later than 5:00 p.m., October 12, 2016, an Order to Show Cause regarding the preliminary injunction violation. The Order shall include the essential facts constituting the charged criminal contempt and the date and time for Trial, which will be set for December 6, 2016, at 9:00 a.m. as to Defendant Joseph Arpaio. IT IS FURTHER ORDERED directing Defense counsel to file their briefs no later than October 25, 2016, regarding the applicability of the statute of limitations and possible tolling with respect to the contempt findings related to the Montgomery documents and the identification documents [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 10:04 AM to 11:07 AM.(MAW) (Entered: 10/12/2016)
27 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE proceedings as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, and Michele M Iafrate held on 10/11/2016, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/1/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/9/2017. (RAP) (Entered: 10/13/2016)
25 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 10−11−16, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 10/13/2016)
26 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on October 11, 2016, Judge Susan R Bolton hearing judge(s). (Ackerman, Justin) (Entered: 10/13/2016)
28 *NOTICE of Filing Proposed Order re: 24 Minute Entry by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Attachments: # 1 Proposed Order)(Keller, John) *Modified text and document number on 10/18/2016 (EJA). (Entered: 10/17/2016)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 13 of 30

10/17/2016 10/17/2016 10/17/2016
10/18/2016 10/19/2016 10/24/2016 10/24/2016 10/25/2016
10/25/2016 10/25/2016 10/28/2016 10/28/2016 10/31/2016 10/31/2016 11/01/2016
11/01/2016

29 *OBJECTION to: 28 Notice (Other) Defendant Arpaio's Objection to the United State's Notice of Lodged Document by Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit A)(McDonald, Andrew) *Modified to correct event type on 10/18/2016 (EJA). (Entered: 10/17/2016)
30 *RESPONSE to 29 OBJECTION to Proposed Order to Show Cause by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Keller, John) *Modified to correct event type on 10/18/2016 (EJA). (Entered: 10/17/2016)
31 MINUTE ORDER as to Joseph M Arpaio: At the Court's direction, Government's counsel filed its lodged proposed Order to Show Cause, Defendant Arpaio filed his Objection and the Government filed its Response. Defendant may file a reply no later than 5:00PM, 10/18/2016. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 10/17/2016)
32 REPLY re: 30 Reply Defendant Arpaio's Reply in support of his Objection to the United States' Lodged Order to Show Cause by Joseph M Arpaio. (McDonald, Andrew) (Entered: 10/18/2016)
33 TRANSCRIPT REQUEST by Daniel R. Ortega, Jr. of the Ortega Law Firm as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, and Michele M Iafrate for Status Hearing proceedings held on 10/11/2016, Judge Susan R Bolton hearing judge(s). (RAP) (Entered: 10/19/2016)
34 MEMORANDUM by Steven R Bailey Regarding Expiration of Statute of Limitations Under 18 U.S.C. Sec. 3285. (Stein, Lee) (Entered: 10/24/2016)
35 MEMORANDUM by Gerard Sheridan Regarding Expiration of Statute of Limitations Under 18 U.S.C. Sec. 3285. (Stein, Lee) (Entered: 10/24/2016)
36 ORDER TO SHOW CAUSE as to Joseph M. Arpaio: The Court issues a notice to show cause as to whether Joseph M. Arpaio should be held in criminal contempt for willful disobedience of Judge Snow's preliminary injunction of December 23, 2011. IT IS FURTHER ORDERED that Trial for this matter is set for December 6, 2016 at 9:00 a.m. in the Sandra Day O'Connor U.S. Courthouse, 401 W. Washington Street, Courtroom 502, Phoenix, Arizona 85003 [see attached Order for details]. Signed by Judge Susan R Bolton on 10/25/16.(MAW) (Entered: 10/25/2016)
37 MEMORANDUM by Joseph M Arpaio Defendant Sheriff Arpaio's Brief regarding the Statute of Limitations Applicable to 18 U.S.C. Section 402. (McDonald, Andrew) (Entered: 10/25/2016)
38 MEMORANDUM by Michele M Iafrate Re Statute of Limitations Bar. (Danneman, Dale) (Entered: 10/25/2016)
39 NOTICE OF INTENT TO FILE WAIVER of Defendant's Appearance At Arraignment by Joseph M Arpaio filed 10/28/2016. (McDonald, Andrew) (Entered: 10/28/2016)
40 MOTION to Continue Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance, MOTION to Continue Trial by Joseph M Arpaio. (McDonald, Andrew) (Entered: 10/28/2016)
41 EX PARTE MOTION for Third Party Ex Parte by Ramon Gomez as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (KGM) (Entered: 10/31/2016)
42 NOTICE re: Request by Non−Prisoner Pro Se Party for Electronic Noticing by Ramon Gomez. (KGM) (Entered: 10/31/2016)
43 ORDER as to Joseph M. Arpaio: On October 28, 2016, Defense counsel for Joseph M. Arpaio filed a Waiver of Speedy Trial Rights and Request for Continuance (Doc. 40 ). IT IS ORDERED that the request will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 11/1/16.(MAW) (Entered: 11/01/2016)
44 Additional Attachments to Main Document re: 40 MOTION to Continue Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance MOTION to

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 14 of 30

11/01/2016 11/01/2016 11/01/2016 11/02/2016
11/04/2016
11/09/2016 11/09/2016
11/17/2016 11/22/2016
11/28/2016 11/29/2016
12/01/2016 12/05/2016 12/06/2016
12/06/2016 12/13/2016

Continue Trial (Proposed Order) by Joseph M Arpaio. (McDonald, Andrew) (Entered: 11/01/2016)
45 NOTICE of Service by Ramon Gomez as to Gerard Sheridan, Steven R Bailey re: 41 MOTION for Third Party Ex Parte. (KGM) (Entered: 11/02/2016)
46 NOTICE of service by Ramon Gomez as to Michele M Iafrate re: 41 MOTION for Third Party Ex Parte. (KGM) (Entered: 11/02/2016)
47 NOTICE of service by Ramon Gomez as to Joseph M Arpaio re: 41 MOTION for Third Party Ex Parte. (KGM) (Entered: 11/02/2016)
48 ORDER as to Joseph M Arpaio: IT IS ORDERED denying Defendant's Request/Motion to Continue Trial (Doc. 40 ) with leave to re−file said Motion in compliance with LRCiv 7.3(a) and (b). Signed by Judge Susan R Bolton on 11/2/16.(MAW) (Entered: 11/02/2016)
49 *RESPONSE to Defendants' Memoranda on Statute of Limitations re: 34 Memorandum, 35 Memorandum, 37 Memorandum and 38 Memorandum, by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate . (Keller, John) *Modified to correct event on 11/4/2016 (ATD). (Entered: 11/04/2016)
50 MOTION to Continue Trial Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(McDonald, Andrew) (Entered: 11/09/2016)
51 RESPONSE in Opposition by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: 50 MOTION to Continue Trial Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance . (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 11/09/2016)
52 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 50 MOTION to Continue Trial Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance . (McDonald, Andrew) (Entered: 11/17/2016)
53 ORDER denying 41 Ramon Gomez's Motion for Third Party Ex Parte as to Joseph M Arpaio (1), Gerard Sheridan (2), Steven R Bailey (3) and Michele M Iafrate (4) [see attached Order for details]. Signed by Judge Susan R Bolton on 11/22/16.(MAW) (Entered: 11/22/2016)
54 MOTION for Protective Order Governing Discovery by USA as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 11/28/2016)
55 ORDER granting in part and denying in part 50 Request for Continuance filed as to Joseph M Arpaio (1). IT IS FURTHER ORDERED continuing Trial from December 6, 2016, to April 4, 2017, at 9:00 a.m. [see attached Order for details]. Signed by Judge Susan R Bolton on 11/29/16.(MAW) (Entered: 11/29/2016)
56 RESPONSE to Motion by Joseph M Arpaio re: 54 MOTION for Protective Order Governing Discovery . (McDonald, Andrew) (Entered: 12/01/2016)
57 MOTION to Continue Trial (Unopposed) by USA as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 12/05/2016)
58 ORDER denying as premature 57 Government's Motion to Continue Trial filed as to Joseph M Arpaio (1). The Court intends to schedule a Pretrial Conference in early 2017 to discuss the parties' readiness for trial and if an adjustment of the trial date is required a motion can be filed at that time. Signed by Judge Susan R Bolton on 12/6/16.(MAW) (Entered: 12/06/2016)
59 ORDER granting 54 Motion for Protective Order as to Joseph M Arpaio (1) [see attached Order for details]. Signed by Judge Susan R Bolton on 12/6/16.(MAW) (Entered: 12/06/2016)
60 ORDER: 18 U.S.C. § 3285 provides a one year statute of limitations for criminal contempt that is also a crime and the contumacious conduct at issue ended more than one year ago, the Court dismisses Defendants Sheridan, Bailey, and Iafrate from the criminal contempt proceedings and will proceed against Defendant Arpaio only for those allegations of criminal contempt in the Order to Show Cause (Doc. 36 ) [see

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 15 of 30

12/15/2016 12/27/2016 01/03/2017 01/06/2017 01/09/2017 01/09/2017 01/25/2017 01/25/2017
01/27/2017 01/27/2017
01/31/2017 02/03/2017 03/01/2017

attached Order for details]. Signed by Judge Susan R Bolton on 12/13/16.(MAW) (Entered: 12/13/2016)
61 MOTION for Bench Trial by USA as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 12/15/2016)
62 *RESPONSE to Motion by Joseph M Arpaio re: 61 MOTION for Bench Trial and CROSS MOTION Requesting Jury Trial. (McDonald, Andrew) *Modified to add motion part on 12/28/2016 (KGM). (Entered: 12/27/2016)
63 REPLY TO RESPONSE to Motion by USA as to Joseph M Arpaio re: 62 MOTION . (Keller, John) (Entered: 01/03/2017)
64 ORDER as to Joseph M Arpaio: IT IS ORDERED setting Pretrial Conference on January 25, 2017, at 10:30 a.m. Defendant Joseph M. Arpaio is directed to be present for the hearing. Signed by Judge Susan R Bolton on 1/6/17.(MAW) (Entered: 01/06/2017)
65 *NOTICE of Attorney Appearance/Association − Defendant by Joseph M Arpaio. (McDonald, Andrew) *Modified to correct event type on 1/10/2017 (KGM). (Entered: 01/09/2017)
66 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 62 MOTION Reply in Support of Arpaio's Request for Jury Trial. (McDonald, Andrew) (Entered: 01/09/2017)
69 *SUPPLEMENT to 66 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 62 MOTION Supplement to Government's Response re Arpaio Request for Jury Trial. (McDonald, Andrew) *Modified to correct event type on 1/25/2017 (KGM). (Entered: 01/25/2017)
71 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Pretrial Conference as to Joseph M Arpaio held on 1/25/2017. Argument held regarding Government's Request/Motion for Bench Trial (Doc. 61 ) and Defendant's Cross Motion Requesting Jury Trial (Doc. 62 ). The Court will issue its ruling in a separate Order. At the request of the parties, IT IS ORDERED continuing Trial from April 4, 2017, to April 25, 2017, at 9:00 a.m. Discussion held re: pretrial motions. The Court sets the motions deadline for March 24, 2017 [see attached Order for details]. (Court Reporter Liz Lemke) Hearing held 10:40 AM to 11:34 AM.(MAW) (Entered: 01/27/2017)
70 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio for proceedings held on 1−25−17, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 01/27/2017)
74 NOTICE OF FILING OF OFFICIAL REDACTED TRANSCRIPT of PRETRIAL CONFERENCE proceedings as to Joseph M Arpaio held on 01/25/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/17/2017. Redacted Transcript Deadline set for 2/27/2017. Release of Transcript Restriction set for 4/27/2017. (RAP) (Entered: 01/30/2017)
75 NOTICE OF ATTORNEY APPEARANCE: Simon Joseph Cataldo appearing for USA . (Cataldo, Simon) (Entered: 01/31/2017)
79 ORDER denying Defendant's 77 Motion to Seal Amended Response as to Joseph M Arpaio (1). Signed by Judge Susan R Bolton on 02/03/2017. (ATD) (Entered: 02/03/2017)
80 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 1−25−17, Judge Susan R Bolton hearing judge(s). (McDonald, Andrew) (Entered: 03/01/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 16 of 30

03/01/2017
03/01/2017 03/01/2017
03/17/2017 03/17/2017 03/20/2017 03/20/2017
03/21/2017 03/22/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/24/2017 03/24/2017

81 NOTICE TO FILER OF DEFICIENCY re: AO435 80 Transcript Request filed by Joseph M Arpaio. Item 18 − ORDER: (CATEGORY) A box under FIRST COPY was incorrectly checked. An original has not yet been ordered and prepared and e−mail address was not provided where e−mail copy should be sent. FOLLOW−UP ACTION REQUIRED: Please refile with the appropriate box checked under the ORIGINAL +1 column and provide an email address for delivery. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 03/01/2017)
82 AMENDED TRANSCRIPT REQUEST pursuant to 81 Notice of Deficiency by Joseph M Arpaio for proceedings held on 1−25−17, Judge Susan R Bolton hearing judge(s). (McDonald, Andrew) (Entered: 03/01/2017)
83 ORDER as to Joseph M Arpaio (1): IT IS ORDERED granting the Government's Brief in Support of Request for Bench Trial (Doc. 61 ). IT IS FURTHER ORDERED denying Defendant's Cross−Motion Requesting Jury Trial (Doc. 62 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 3/1/17.(MAW) (Entered: 03/01/2017)
85 NOTICE OF ATTORNEY APPEARANCE: Mark David Goldman appearing for Joseph M Arpaio . (Goldman, Mark) (Entered: 03/17/2017)
86 MOTION to Continue Trial by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Goldman, Mark) (Entered: 03/17/2017)
87 RESPONSE in Opposition by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: 86 MOTION to Continue Trial . (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Keller, John) (Entered: 03/20/2017)
88 ORDER as to Joseph M Arpaio: The Court is in receipt of Defendant Joseph M. Arpaio's Motion to Continue Trial (Doc. 86 ). The Government filed its response at Doc. 87. IT IS ORDERED directing Defense counsel to file a reply no later than Noon, March 23, 2017. IT IS FURTHER ORDERED denying Defendant's request to extend the pretrial motions deadline and disclosure of Defendant's witness and exhibit lists contained within the motion to continue trial. Signed by Judge Susan R Bolton on 3/20/17.(MAW) (Entered: 03/20/2017)
89 *MOTION to Seal Document by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Proposed Order)(McDonald, Andrew) *Modified on 3/24/2017 to Unseal Pursuant to Doc. 100 (MAP)*. (Entered: 03/21/2017)
91 NOTICE of Service of Subpoena to Maricopa County Sheriff's Office by Joseph M Arpaio. (McDonald, Andrew) (Entered: 03/22/2017)
92 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 86 MOTION to Continue Trial . (Goldman, Mark) (Entered: 03/23/2017)
93 NOTICE OF ERRATA re: 92 Reply to Response by Joseph M Arpaio.. (Goldman, Mark) (Entered: 03/23/2017)
94 NOTICE OF ERRATA re: 91 Notice (Other) Notice of Service of Subpoena to Maricopa County Sheriff's Office by Joseph M Arpaio.. (McDonald, Andrew) (Entered: 03/23/2017)
95 NOTICE OF ATTORNEY APPEARANCE: Karen Ann Clark appearing for Timothy J Casey as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Clark, Karen) Modified on 3/23/2017 (REW). (Entered: 03/23/2017)
96 MOTION to Quash Subpoena by Timothy J Casey as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Clark, Karen) (Entered: 03/23/2017)
97 *WITHDRAWN pursuant to Doc. 131 −− MOTION Preclude Testimony of Timothy Casey by Joseph M Arpaio. (McDonald, Andrew) Modified on 4/11/2017 (KGM). (Entered: 03/24/2017)
98 MOTION Preclude Alleged "Victim" Testimony by Joseph M Arpaio. (McDonald, Andrew) (Entered: 03/24/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 17 of 30

03/24/2017 03/24/2017
03/24/2017 03/24/2017 03/24/2017
03/24/2017 03/24/2017
03/24/2017 03/28/2017 03/29/2017 03/29/2017 03/29/2017 03/30/2017 03/31/2017 03/31/2017
03/31/2017

99 Additional Attachments to Main Document re: 96 MOTION to Quash Subpoena by Timothy J Casey as to Joseph M Arpaio. (Clark, Karen) (Entered: 03/24/2017)
100 ORDER denying 89 Motion to Seal as to Joseph M Arpaio (1). The Court's review of Defendant Arpaio's Supplement in Support of Second Motion to Continue does not disclose any privileged information nor can the Court discern any legal basis justifying the sealing. FURTHER ORDERED that Defendant's Motion to Seal, Defendant's Supplement in Support of Second Motion to Continue and this Order shall be placed on the public docket. Signed by Judge Susan R Bolton on 3/24/17.(MAP) (Entered: 03/24/2017)
101 SUPPLEMENT In Support by Joseph M Arpaio to 86 MOTION to Continue Trial filed by Joseph M Arpaio. (MAP) (Entered: 03/24/2017)
102 MOTION Clarify Background and History of the "Civil Contempt" Admission by Joseph M Arpaio. (McDonald, Andrew) (Entered: 03/24/2017)
103 MOTION to Continue Trial Motion for Continuance or to Exclude Documents Disclosed by the Government after March 1, 2017 by Joseph M Arpaio. (Attachments: # 1 Exhibit January 25, 2017 Pretrial Conference Transcript, # 2 Exhibit March 21, 2017 Email, # 3 Exhibit March 22, 2017 Email, # 4 Text of Proposed Order)(Goldman, Mark) (Entered: 03/24/2017)
104 MOTION to Exclude − Defendant Arpaios Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Goldman, Mark) (Entered: 03/24/2017)
105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission by Joseph M Arpaio. (Attachments: # 1 Exhibit 04−23−2015 Evidentiary Hearing Transcript, # 2 Exhibit 02−26−2015 Status Conference Hearing transcript, # 3 Text of Proposed Order)(Goldman, Mark) (Entered: 03/24/2017)
106 * MOTION to Stay Proceedings by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Goldman, Mark) *Modified to correct event type on 3/27/2017 (KGM). (Entered: 03/24/2017)
107 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 103 MOTION to Continue Trial Motion for Continuance or to Exclude Documents Disclosed by the Government after March 1, 2017 . (Attachments: # 1 Exhibit A)(Keller, John) (Entered: 03/28/2017)
108 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 104 MOTION to Exclude − Defendant Arpaios Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements . (Salgado, Victor) (Entered: 03/29/2017)
109 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 98 MOTION Preclude Alleged "Victim" Testimony . (Keller, John) (Entered: 03/29/2017)
110 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 106 MOTION . (Keller, John) (Entered: 03/29/2017)
111 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 96 MOTION to Quash Subpoena, 97 MOTION Preclude Testimony of Timothy Casey . (Attachments: # 1 Exhibit A)(Keller, John) (Entered: 03/30/2017)
112 ORDER denying 86 Motion to Continue Trial filed as to Joseph M Arpaio (1) [see attached Order for details]. Signed by Judge Susan R Bolton on 3/31/17.(MAW) (Entered: 03/31/2017)
113 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 102 MOTION Clarify Background and History of the "Civil Contempt" Admission , 105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission . (Keller, John) (Entered: 03/31/2017)
114 NOTICE OF ERRATA re: 105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission by Joseph M Arpaio.. (Goldman, Mark)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 18 of 30

04/03/2017 04/03/2017 04/03/2017 04/03/2017 04/03/2017 04/04/2017
04/04/2017 04/05/2017
04/05/2017 04/05/2017 04/05/2017 04/06/2017
04/07/2017 04/10/2017

(Entered: 03/31/2017)
115 MOTION to Withdraw as Attorney as to attorney A. Melvin McDonald, Linda K. Tivorsake, Jones Skelton & Hochuli by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Proposed Order Granting JSH Application to Withdraw)(McDonald, Andrew) (Entered: 04/03/2017)
116 MOTION to Expedite Consideration of Jones Skelton & Hochuli Application to Withdraw as Counsel for Defendant Joseph Arpaio by Joseph M Arpaio. (McDonald, Andrew) (Entered: 04/03/2017)
117 NOTICE OF ATTORNEY APPEARANCE: Jeffrey Sinclair Surdakowski appearing for Joseph M Arpaio . (Surdakowski, Jeffrey) (Entered: 04/03/2017)
118 WITNESS LIST by Joseph M Arpaio. (McDonald, Andrew) (Entered: 04/03/2017)
119 EXHIBIT LIST by Joseph M Arpaio. (McDonald, Andrew) (Entered: 04/03/2017)
120 ORDER granting 116 Motion for Accelerated Consideration of Jones, Skelton & Hochuli's Application to Withdraw as Counsel as to Joseph M Arpaio (1). IT IS FURTHER ORDERED setting Hearing re: Jones, Skelton & Hochuli's Application to Withdraw as Counsel for Defendant Joseph M. Arpaio (Doc. 115 ) on April 6, 2017, at 2:00 p.m. (Arizona time). IT IS FURTHER ORDERED that Defense counsel McDonald and Goldman and Defendant Arpaio are to be personally present in the courtroom for said hearing [see attached Order for details]. Signed by Judge Susan R Bolton on 4/4/17.(MAW) (Entered: 04/04/2017)
121 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 103 MOTION to Continue Trial Motion for Continuance or to Exclude Documents Disclosed by the Government after March 1, 2017 . (Surdakowski, Jeffrey) (Entered: 04/04/2017)
122 *Emergency MOTION for Extension of Time to File Replies for Certain Pretrial Motions by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order [Proposed] Order Granting Emergency Motion to Continue Reply Deadlines for Pretrial Motions)(McDonald, Andrew) *Modified to correct event type on 4/5/2017 (KGM). (Entered: 04/05/2017)
123 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 98 MOTION Preclude Alleged "Victim" Testimony . (McDonald, Andrew) (Entered: 04/05/2017)
124 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 106 MOTION TO STAY PROCEEDINGS. (Attachments: # 1 Exhibit Melendres v. Arpaio Opening Brief)(Surdakowski, Jeffrey) (Entered: 04/05/2017)
125 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 104 MOTION to Exclude − Defendant Arpaios Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements . (Goldman, Mark) (Entered: 04/05/2017)
126 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing as to Joseph M Arpaio held on 4/6/2017. Discussion held. IT IS ORDERED granting Jones, Skelton & Hochuli's Application to Withdraw as Counsel for Defendant Joseph M. Arpaio (Doc. 115 ). Upon oral request of Defense counsel Goldman, the reply deadline regarding Defendant's Motion to Preclude Testimony of Timothy Casey (Doc. 97 ) is extended to April 10, 2017. IT IS ORDERED setting Hearing re: Defendant's Motion to Stay Proceedings (Doc. 106 ) on April 12, 2017, at 10:30 a.m. At the request of Defense counsel, Defendant may supplement his witness and exhibit lists prior to April 12, 2017. LATER: IT IS ORDERED denying as moot Defendant's Emergency Motion to Continue Reply Deadlines for Certain Pretrial Motions (Doc. 122 ) [see attached minute entry for details].(Court Reporter Liz Lemke) Hearing held 2:03 PM to 2:51 PM.(MAW) (Entered: 04/07/2017)
127 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission . (Surdakowski, Jeffrey) (Entered: 04/07/2017)
128 NOTICE OF ATTORNEY APPEARANCE: Dennis Ira Wilenchik appearing for Joseph M Arpaio . (Wilenchik, Dennis) (Entered: 04/10/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 19 of 30

04/10/2017 04/10/2017 04/10/2017 04/11/2017 04/11/2017 04/11/2017 04/12/2017 04/12/2017
04/14/2017 04/17/2017 04/17/2017 04/19/2017 04/23/2017

129 Fourth MOTION to Continue Trial by Joseph M Arpaio. (Attachments: # 1 Exhibit Attachment, # 2 Text of Proposed Order Order)(Wilenchik, Dennis) (Entered: 04/10/2017)
130 * MOTION to Dismiss and/or MOTION for Trial by Jury by Joseph M Arpaio. (Wilenchik, Dennis). *Added MOTION on 4/11/2017 (KGM). (Entered: 04/10/2017)
131 *WITHDRAWAL OF MOTION re: 97 MOTION to Preclude Testimony of Timothy Casey by Joseph M Arpaio . (Surdakowski, Jeffrey) *Modified to correct event type on 4/11/2017 (KGM). (Entered: 04/10/2017)
132 ORDER as to Joseph M Arpaio: IT IS ORDERED denying Defendant's Motion to Dismiss or in the Alternative Motion for Trial by Jury (Doc. 130 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 4/11/17.(MAW) (Entered: 04/11/2017)
133 * MOTION for Reconsideration re: 132 Order Denying Motion to Dismiss or in the Alternative for Jury Trial by Joseph M Arpaio. (Wilenchik, Dennis) *Modified to add document number on 4/12/2017 (KGM). (Entered: 04/11/2017)
134 MOTION Staying Proceedings to Allow for the Filing of A Writ of Mandamus Regarding Defendants Motion to Dismiss, or in the Alternative, Motion for Trial by Jury re: 130 MOTION to Dismiss by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Staying Proceedings)(Goldman, Mark) (Entered: 04/11/2017)
135 *AMENDED WITNESS LIST by Joseph M Arpaio. (Goldman, Mark) *Modified to add "amended" on 4/13/2017 (KGM). (Entered: 04/12/2017)
136 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing as to Joseph M Arpaio held on 4/12/2017. Defendant's Motion to Stay Proceedings (Doc. 106 ) is argued to the Court. For reasons as stated on the record, IT IS ORDERED denying Defendant's Motion. Defendant's Fourth Motion to Continue Trial (Doc. 129 ) is discussed. IT IS ORDERED granting Defendant's Motion to Continue. Counsel request additional time to consult their calendars regarding the proposed trial dates. The Court directs counsel to confer and advise the Court no later than 5:00 p.m., April 12, 2017, the trial date that is agreeable to both parties. Defense counsel agrees that in light of the grant of the trial continuance the Motion to Stay Proceedings to Allow For the Filing of a Writ of Mandamus Regarding Defendant's Motion to Dismiss, or in the Alternative, Motion for Trial by Jury (Doc. 134 ) is moot. LATER: Counsel having consulted their calendars and advised the Court of the same, IT IS ORDERED continuing Bench Trial from April 25, 2017, to June 26, 2017, at 9:00 a.m. Trial will be held on June 26 through June 30, 2017, and July 5 through July 7, 2017. (Court Reporter Liz Lemke) Hearing held 10:36 AM to 11:32 AM.(MAW) (Entered: 04/13/2017)
137 NOTICE of Service re: Petition of Writ of Mandamus (filed at the Ninth Circuit) by Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit A)(Wilenchik, Dennis) Modified to add omitted text on 4/17/2017 (REW). (Entered: 04/14/2017)
138 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 04.06.2017 and 04.12.2017, Judge Susan R Bolton hearing judge(s). (Cataldo, Simon) (Entered: 04/17/2017)
139 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 4−6−17, 4−12−17, Judge Susan R Bolton hearing judge(s). (Wilenchik, Dennis) (Entered: 04/17/2017)
140 ORDER of USCA re 17−71094 as to Joseph M Arpaio − The petition for a writ of mandamus raises issues that warrant an answer; within 14 days after the date of this order, the real party in interest shall file an answer. The district court, within 14 days after the date of this order, may address the petition if it so desires. (LSP) (Entered: 04/19/2017)
141 NOTICE OF FILING OF OFFICIAL REDACTED TRANSCRIPT of MOTION HEARING proceedings as to Joseph M Arpaio held on 04/06/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 20 of 30

04/23/2017
05/02/2017 05/18/2017 05/19/2017 05/26/2017 05/31/2017 05/31/2017 05/31/2017 05/31/2017 06/13/2017
06/13/2017
06/14/2017 06/14/2017

Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/15/2017. Redacted Transcript Deadline set for 5/24/2017. Release of Transcript Restriction set for 7/24/2017. (RAP) (Entered: 04/28/2017)
142 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING proceedings as to Joseph M Arpaio held on 04/12/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/15/2017. Redacted Transcript Deadline set for 5/24/2017. Release of Transcript Restriction set for 7/24/2017. (RAP) (Entered: 04/28/2017)
144 USCA Case Number re Writ of Mandamus, Ninth Circuit Case number 17−71094. (LSP) (Entered: 05/02/2017)
145 NOTICE Rule 12.3 Notice of Public Authority Defense by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 05/18/2017)
146 ORDER of USCA denying the Writ of Mandamus as to Joseph M Arpaio re: 17−71094. (LSP) (Entered: 05/19/2017)
147 MOTION to Quash by Timothy Casey as to Joseph M Arpaio. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Clark, Karen) (Entered: 05/26/2017)
148 ORDER denying 104 Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements as to Joseph M Arpaio (1) [see attached Order details]. Signed by Judge Susan R Bolton on 5/31/17.(MAW) (Entered: 05/31/2017)
149 ORDER denying 133 Motion for Reconsideration of Order Denying "Motion to Dismiss, or in the Alternative for Jury Trial" as to Joseph M Arpaio (1). Signed by Judge Susan R Bolton on 5/31/17.(MAW) (Entered: 05/31/2017)
150 ORDER of USCA denying Petition for Rehearing as to Joseph M Arpaio re: 17−71094. (LSP) (Entered: 05/31/2017)
151 ORDER denying 98 Defendant's Motion to Preclude Alleged "Victim" Testimony as to Joseph M Arpaio (1) [see attached Order for details]. Signed by Judge Susan R Bolton on 5/31/17.(MAW) (Entered: 05/31/2017)
152 ORDER as to Joseph M. Arpaio: IT IS ORDERED granting in part and denying in part Defendant Arpaio's Motion to Clarify Background and History of the "Civil Contempt" Admission (Doc. 102 ). IT IS FURTHER ORDERED denying Motion Requesting a Voluntariness Hearing and Supplement in Support of Defendant Arpaio's Motion to Clarify Background and History of the "Civil Contempt" Admission (Doc. 105 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 6/13/17.(MAW) (Entered: 06/13/2017)
153 *LODGED Proposed Trial Subpoena by Joseph M Arpaio. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Attachments: # 1 Supplement Trial Subpoena, # 2 Supplement Trial Subpoena, # 3 Supplement Trial Subpoena, # 4 Supplement Trial Subpoena, # 5 Supplement Trial Subpoena, # 6 Supplement Trial Subpoena, # 7 Supplement Trial Subpoena, # 8 Supplement Trial Subpoena, # 9 Supplement Trial Subpoena, # 10 Supplement Trial Subpoena, # 11 Supplement Trial Subpoena)(Wilenchik, Dennis) Modified on 6/16/2017 − CD notified attorney's office of procedure − not to issue (MAW). (Entered: 06/13/2017)
154 First MOTION for Leave to Supplement Exhibit List by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Cataldo, Simon) (Entered: 06/14/2017)
155 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio for proceedings held on 6−26−17 − End of Trial, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 06/14/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 21 of 30

06/15/2017
06/15/2017 06/16/2017 06/16/2017
06/16/2017 06/19/2017 06/19/2017 06/20/2017 06/20/2017
06/20/2017 06/20/2017
06/21/2017 06/21/2017 06/22/2017 06/22/2017

156 NOTICE TO FILER OF DEFICIENCY re: AO435 155 Transcript Request filed by USA. Item 18 − ORDER: (CATEGORY) No category box was checked. FOLLOW−UP ACTION REQUIRED: Please refile with the appropriate box checked under the ORIGINAL + 1 column. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 06/15/2017)
157 AMENDED TRANSCRIPT REQUEST pursuant to 156 Notice of Deficiency by USA as to Joseph M Arpaio for proceedings held on 6−26−17 −− End of Trial, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 06/15/2017)
158 STIPULATION by USA as to Joseph M Arpaio. (Keller, John) (Entered: 06/16/2017)
159 ORDER as to Joseph M Arpaio: IT IS ORDERED denying Special Appearance of Non−Party Timothy J. Casey and Motion to Quash Subpoena (Doc. 96 ). IT IS FURTHER ORDERED denying Non−Party Timothy J. Casey's Renewed Motion to Quash Subpoena (Doc. 147 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 6/16/17.(MAW) (Entered: 06/16/2017)
160 ORDER granting 154 Government's Motion for Leave to Supplement Exhibit List as to Joseph M Arpaio (1). Signed by Judge Susan R Bolton on 6/16/17.(MAW) (Entered: 06/16/2017)
161 MOTION to Quash Subpoena of U.S. Attorney General by USA as to Joseph M Arpaio. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Keller, John) (Entered: 06/19/2017)
162 TRIAL BRIEF by USA as to Joseph M Arpaio. (Keller, John) (Entered: 06/19/2017)
163 NOTICE OF ATTORNEY APPEARANCE: Vincent Rene Mayr appearing for Joseph M Arpaio . (Mayr, Vincent) (Entered: 06/20/2017)
164 ORDER as to Joseph M Arpaio: The Court is in receipt of the Government's Motion to Quash Defendant's Trial Subpoena to U.S. Attorney General Jefferson Beauregard Sessions (Doc. 161 ). IT IS ORDERED directing Defense counsel to file a response no later than 5:00 p.m., June 21, 2017. The Government shall file its reply no later than Noon, June 23, 2017. Signed by Judge Susan R Bolton on 6/20/17.(MAW) (Entered: 06/20/2017)
165 MOTION for Leave to File Motion to Strike United States Trial Memorandum by Joseph M Arpaio. (Attachments: # 1 Exhibit)(Wilenchik, Dennis) (Entered: 06/20/2017)
166 MOTION for Leave to File Motion to Stay District Court Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the United States of America by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Order Granting Motion for Leave to File Motion to Stay District Court Proceedings, # 2 Text of Proposed Order Order Staying Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the U.S.A.)(Mayr, Vincent) (Entered: 06/20/2017)
167 RESPONSE to Motion by Joseph M Arpaio re: 161 MOTION to Quash Subpoena of U.S. Attorney General Defendants Response to Government's Motion to Quash Defendant's Trial Subpoena to US Attonrney General Jefferson Beauregard Sessions. (Wilenchik, Dennis) (Entered: 06/21/2017)
168 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 165 MOTION for Leave to File Motion to Strike United States Trial Memorandum . (Keller, John) (Entered: 06/21/2017)
169 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on June 26, 2017, Judge Susan R Bolton hearing judge(s). (Wilenchik, Dennis) (Entered: 06/22/2017)
170 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 166 MOTION for Leave to File Motion to Stay District Court Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the United States of America . (Cataldo, Simon) (Entered: 06/22/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 22 of 30

06/22/2017 06/22/2017 06/23/2017 06/26/2017 06/26/2017 06/27/2017
06/27/2017
06/27/2017 06/27/2017 06/28/2017

171 MOTION for Leave to File Motion for Change of Venue by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Granting Defendant's Motion for Leave to File Motion for Change of Venue, # 2 Text of Proposed Order Granting Motion for Change of Venue)(Mayr, Vincent) (Entered: 06/22/2017)
172 REPLY TO RESPONSE to Motion by USA as to Joseph M Arpaio re: 161 MOTION to Quash Subpoena of U.S. Attorney General . (Cataldo, Simon) (Entered: 06/22/2017)
173 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 171 MOTION for Leave to File Motion for Change of Venue . (Keller, John) (Entered: 06/23/2017)
174 Additional Attachments to Main Document re: 170 Response in Opposition by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Cataldo, Simon) (Entered: 06/26/2017)
177 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 1] begun on 6/26/2017 as to Joseph M Arpaio (1). Evidence entered. Trial continued to 6/27/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.]/ Linda Schroeder [p.m.]) Hearing held 9:02 AM to 4:26 PM. (MAW) (Entered: 06/27/2017)
175 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #1 − A.M. SESSION (Pages 1 through 122, Inclusive.) proceedings as to Joseph M Arpaio held on 06/26/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/18/2017. Redacted Transcript Deadline set for 7/28/2017. Release of Transcript Restriction set for 9/25/2017. (RAP) (Entered: 06/27/2017)
176 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 1 − P.M. SESSION (Pages 123 through 264, inclusive.) proceedings as to Joseph M Arpaio held on 06/26/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/18/2017. Redacted Transcript Deadline set for 7/28/2017. Release of Transcript Restriction set for 9/25/2017. (RAP) (Entered: 06/27/2017)
178 ORDER as to Joseph M Arpaio (1): IT IS ORDERED granting Government's Motion to Quash Defendant's Trial Subpoena to U.S. Attorney General Jefferson Beauregard Sessions (Doc. 161 ). IT IS FURTHER ORDERED quashing Defendant's Trial Subpoena to U.S. Attorney General Jefferson Beauregard Sessions [see attached Order for details]. Signed by Judge Susan R Bolton on 6/27/17.(MAW) (Entered: 06/27/2017)
179 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 2] as to Joseph M Arpaio held on 6/27/2017. Evidence entered. Trial continued to 6/28/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.] / Linda Schroeder [p.m.]) Hearing held 9:01 AM to 4:19 PM.(MAW) Modified on 6/28/2017 to reflect names of both court reporters (MAW). (Entered: 06/28/2017)
180 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #2 − A.M. SESSION (Pages 265 through 405, Inclusive.) proceedings as to Joseph M Arpaio held on 06/27/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/19/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/26/2017. (RAP) (Entered: 06/28/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 23 of 30

06/28/2017
06/28/2017 06/28/2017 06/28/2017 06/28/2017 06/29/2017
06/29/2017
06/29/2017 06/29/2017
06/30/2017

181 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 2 − P.M. SESSION (Pages 406 through 534, inclusive.) proceedings as to Joseph M Arpaio held on 06/27/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/19/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/26/2017. (RAP) (Entered: 06/28/2017)
182 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 165 MOTION for Leave to File Motion to Strike United States Trial Memorandum DEFENDANTS REPLY TO GOVERNMENTS RESPONSE TO DEFENDANTS MOTION TO STRIKE UNITED STATES TRIAL MEMORANDUM AND FOR CURATIVE MEASURES. (Mayr, Vincent) (Entered: 06/28/2017)
183 NOTICE of Submission of Specific Objections and Counter−Designations re MacIntyre by Joseph M Arpaio. (Attachments: # 1 Exhibit)(Wilenchik, Dennis) (Entered: 06/28/2017)
186 ORAL MOTION for Directed Verdict by Joseph M Arpaio. (MAW) (Entered: 06/29/2017)
187 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 3] as to Joseph M Arpaio held on 6/28/2017. IT IS ORDERED taking under advisement 186 Oral Motion for Directed Verdict as to Joseph M Arpaio (1). Evidence entered. Trial continued to 6/29/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.] / Linda Schroeder [p.m.]) Hearing held 9:01 AM to 4:15 PM.(MAW) (Entered: 06/29/2017)
184 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #3 − A.M. SESSION (Pages 535 through 659, Inclusive.) proceedings as to Joseph M Arpaio held on 06/28/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/27/2017. (RAP) (Entered: 06/29/2017)
185 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 3 − P.M. SESSION (Pages 660 through 791, inclusive.) proceedings as to Joseph M Arpaio held on 06/28/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/27/2017. (RAP) (Entered: 06/29/2017)
188 MOTION for Acquittal re Statute of Limitations, Section 402 by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 06/29/2017)
190 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 4] as to Joseph M Arpaio held on 6/29/2017. IT IS ORDERED granting Defendant's Motion for Leave to File Motion to Stay 166 . IT IS FURTHER ORDERED denying Defendant's Motion to Stay District Court Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the United States of America 166 . Trial continued to 7/6/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.] / Linda Schroeder [p.m.]) Hearing held 9:01 AM to 2:44 PM.(MAW) (Entered: 06/30/2017)
189 ORDER as to Joseph M Arpaio (1): IT IS ORDERED granting Defendant's Motion for Leave to File Motion for Change of Venue (Doc. 171 ). IT IS FURTHER ORDERED

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 24 of 30

06/30/2017
06/30/2017
07/05/2017
07/05/2017 07/05/2017 07/05/2017 07/05/2017 07/05/2017 07/06/2017
07/06/2017 07/06/2017

denying Defendant's Motion for Change of Venue (Doc. 171 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 6/30/17.(MAW) (Entered: 06/30/2017)
191 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #4 − A.M. SESSION (Pages 792 through 896, Inclusive.) proceedings as to Joseph M Arpaio held on 06/29/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/28/2017. (RAP) (Entered: 06/30/2017)
192 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 4 − P.M. SESSION (Pages 897 through 958, inclusive.) proceedings as to Joseph M Arpaio held on 06/29/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/28/2017. (RAP) (Entered: 06/30/2017)
193 ORDER as to Joseph M Arpaio: On June 29, 2017 (Doc. 190 ) Defense counsel requested permission to file written objections to the Government's offer of Exhibits 37A through 37T.1 in lieu of making his objections orally. The request was granted, and Defense counsel was ordered to file the written objections prior to July 5, 2017. Defense counsel having filed no written objections, IT IS ORDERED admitting Exhibits 37A through 37T.1. Signed by Judge Susan R Bolton on 7/5/17.(MAW) (Entered: 07/05/2017)
194 *RESPONSE to Minute Entry 190 Defendants Notice Objections to Exhibits 37a−t by Joseph M Arpaio. (Wilenchik, Dennis) *Modified to correct event type on 7/6/2017 (KAS). (Entered: 07/05/2017)
195 NOTICE Defendants Notice of Submission of Specific Objections and Counter Designations re Defendants Prior Statements by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 07/05/2017)
196 *AMENDED NOTICE Defendants Amended Noticeof Submission of Specific Objections and Counter Designations re Defendants Prior Statements by Joseph M Arpaio. (Attachments: # 1 Exhibit)(Wilenchik, Dennis) *Modified text on 7/6/2017 (KAS). (Entered: 07/05/2017)
197 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio for proceedings held on 6/26/2017 − 6/29/2017, Judge Susan R Bolton hearing judge(s). (Cataldo, Simon) (Entered: 07/05/2017)
198 MOTION for Reconsideration re: 193 Order by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 07/05/2017)
199 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 5] as to Joseph M Arpaio completed on 7/6/2017.IT IS ORDERED taking this matter under advisement. At the request of counsel for the Government, counsel may file simultaneous briefs regarding legal authorities (not to exceed 7 pages) no later than 5:00 p.m., (Mountain Standard Time) on July 21, 2017. No responses or replies may be filed. For reasons as stated on the record, IT IS ORDERED denying Defendant's Motion for a Judgment of Acquittal re: Statute of Limitations, Section 402 (Doc. 188 ) [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 9:01 AM to 2:09 PM.(MAW) (Entered: 07/06/2017)
200 WITNESS LIST by USA as to Joseph M Arpaio. (MAW) (Entered: 07/07/2017)
201 WITNESS LIST by Joseph M Arpaio. (MAW) (Entered: 07/07/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 25 of 30

07/06/2017 07/06/2017 07/06/2017 07/06/2017
07/21/2017 07/21/2017 07/25/2017 07/27/2017 07/31/2017 08/01/2017
08/01/2017
08/03/2017

202 EXHIBIT LIST by USA as to Joseph M Arpaio. (MAW) (Entered: 07/07/2017)
203 EXHIBIT LIST by Joseph M Arpaio. (MAW) (Entered: 07/07/2017)
204 MINUTE ORDER RE EXHIBITS as to Joseph M Arpaio: IT IS HEREBY ORDERED that the exhibits marked but not admitted in the above−entitled case at the time of the trial/hearing are returned to respective counsel. Counsel/agents are directed to retain custody of the exhibits until the case has been completely terminated, including all appeals. (MAW) (Entered: 07/07/2017)
205 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #5 (Pages 959 through 1112, Inclusive.) proceedings as to Joseph M Arpaio held on 07/06/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/27/2017. Redacted Transcript Deadline set for 8/7/2017. Release of Transcript Restriction set for 10/4/2017. (RAP) (Entered: 07/18/2017)
206 MEMORANDUM by Joseph M Arpaio re: 199 Order on Motion for Acquittal, Bench Trial − Completed . (Wilenchik, Dennis) (Entered: 07/21/2017)
207 MEMORANDUM by USA as to Joseph M Arpaio . (Cataldo, Simon) (Entered: 07/21/2017)
208 ORDER as to Joseph M Arpaio: IT IS ORDERED denying as moot Defendant's Motion for Leave to File Motion to Strike "United States' Trial Memorandum" (Doc. 165 ). IT IS FURTHER ORDERED denying as moot Defendant's Motion to Strike "United States' Trial Memorandum" (Doc. [165−1]) [see attached Order for details]. Signed by Judge Susan R Bolton on 7/25/17.(MAW) (Entered: 07/25/2017)
209 TRANSCRIPT REQUEST by Richard K. Walker of Walker & Peskind, PLLC as to Joseph M Arpaio for proceedings held on 06/26/2017−06/29/2017, Judge Susan R Bolton hearing judge(s). (RAP) (Entered: 07/27/2017)
210 ORDER as to Joseph M Arpaio: IT IS ORDERED finding Defendant guilty of criminal contempt. IT IS FURTHER ORDERED setting Sentencing for October 5, 2017 at 10:00 a.m. IT IS FURTHER ORDERED directing the Probation Department to prepare a presentence investigation report [see attached Order for details]. Signed by Judge Susan R Bolton on 7/31/17.(MAW) (Entered: 07/31/2017)
211 ORDER as to Joseph M Arpaio (1): At the bench trial held in this matter the Court took Government's offer of Exhibit 38 and Defendant's offer of Exhibit 183 under advisement. IT IS ORDERED admitting Exhibit 183. IT IS FURTHER ORDERED sustaining Defense counsel's objection to the admission of Exhibit 38. IT IS FURTHER ORDERED denying Defendant's oral Rule 29 Motion for Judgment of Acquittal (Doc. 186 ). Signed by Judge Susan R Bolton on 8/1/17.(MAW) (Entered: 08/01/2017)
212 MINUTE ORDER as to Joseph M Arpaio: On July 31, 2017, an e−mail was sent to all the Assistant United States Attorneys and Defense attorneys who appeared in this case to inquire about counsels' availability for a telephonic conference. AUSA John Keller and Defense counsel Dennis Wilenchik have responded to the e−mail advising of their availability on Thursday, August 3, 2017, at 9:00 am. IT IS ORDERED setting Telephonic Conference on August 3, 2017, at 9:00 a.m. before Judge Susan R. Bolton. The Court will initiate the telephonic conference call. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 08/01/2017)
213 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Telephonic Conference as to Joseph M Arpaio held on 8/3/2017. Discussion held. If Defendant wishes to waive the presentence investigation report, IT IS ORDERED that a waiver, signed by both counsel and Defendant, shall be filed no later than August 10, 2017. If no waiver is filed, the presentence investigation report process will proceed. The parties are advised of General Order 15−12, which states that no more than 10 character letters shall be submitted by defense counsel in a criminal case, IT IS ORDERED that if the Government was intending to offer letters for sentencing the

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 26 of 30

08/03/2017 08/03/2017 08/07/2017
08/10/2017 08/14/2017 08/14/2017 08/28/2017 08/28/2017
08/29/2017
09/08/2017

Government is also limited to 10 letters. All letters shall be submitted to the Court [not filed electronically] by September 29, 2017. IT IS FURTHER ORDERED that any motions for upward departure or downward departure and any sentencing memoranda shall be filed no later than September 29, 2017. IT IS ORDERED that not later than September 29, 2017, the following information shall be filed with the Court: the name(s) of the witness(es) either party intends to call at sentencing and the number of other individuals each party intends to have make a statement at sentencing. Each party is limited to 10 individuals who will address the Court either by a statement or through testimony at sentencing [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 9:20 AM to 9:44 AM.(MAW) (Entered: 08/03/2017)
214 ORDER as to Joseph M Arpaio: IT IS ORDERED denying 198 Defendant's Motion for Reconsideration of Court's Order Dated July 5, 2017 [Doc. 193] [see attached Order for details]. Signed by Judge Susan R Bolton on 8/3/17.(MAW) (Entered: 08/03/2017)
215 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on 08/03/2017, Judge Susan R Bolton hearing judge(s). (Goldman, Mark) (Entered: 08/03/2017)
219 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC CONFERENCE proceedings as to Joseph M Arpaio held on 08/03/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/28/2017. Redacted Transcript Deadline set for 9/7/2017. Release of Transcript Restriction set for 11/6/2017. (RAP) (Entered: 08/16/2017)
216 NOTICE Defendant's Waiver of Presentence Investigation Report by Joseph M Arpaio. (Goldman, Mark) (Entered: 08/10/2017)
217 MOTION for New Trial Defendants Motion for New Trial and/or to Vacate the Judgment by Joseph M Arpaio. (Wilenchik, John) Modified on 10/5/2017 (MAW). (Entered: 08/14/2017)
218 MOTION for Acquittal Defendants Motion for a Judgment of Acquittal by Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit A)(Wilenchik, John) Modified on 10/5/2017 (MAW). (Entered: 08/14/2017)
220 MOTION for Vacatur and Dismissal With Prejudice by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Wilenchik, Dennis) Modified on 10/5/2017 (MAW). Modified on 10/5/2017 (MAW). (Entered: 08/28/2017)
221 Executive Grant of Clemency (Full and Unconditional Pardon) by President Donald J. Trump on 8−25−17 issued as to Joseph M. Arpaio for his conviction of Section 401(3), Title 18, United States Code (Docket No. 2:16−CR−1012−SRB) and for any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio (Docket No. 2:07−CV−02513−GMS). (SJF) (Entered: 08/28/2017)
222 ORDER as to Joseph M Arpaio: IT IS ORDERED vacating the October 5, 2017 sentencing and the September 29, 2017 deadline for filing sentencing memoranda, motions for departure, letters, and the names of witnesses to testify or make statements. IT IS FURTHER ORDERED that the Government shall not file any response to the pending Motions for New Trial and For a Judgment of Acquittal (Docs. 217 & 218 ) pending further Order of the Court. IT IS FURTHER ORDERED setting oral argument on Defendant's Motion for Vacatur and Dismissal With Prejudice (Doc. 220 ) on Wednesday, October 4, 2017, at 10:00 a.m. [see attached Order for details]. Signed by Judge Susan R Bolton on 8/29/17.(MAW) (Entered: 08/29/2017)
***Remark as to Amicus party Roderick & Solange MacArthur Justice Center re: pro hac vice motions granted for David M Shapiro and Locke E Bowman on behalf of Amicus party. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/08/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 27 of 30

09/11/2017 09/11/2017 09/11/2017
09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017
09/11/2017
09/12/2017

223 *First MOTION for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon by Roderick & Solange MacArthur Justice Center as to Joseph M Arpaio. (Attachments: # 1 (PROPOSED) Amicus Brief of Roderick and Solange MacArthur Justice Center in Opposition to Arpaio's Motion to Vacate Conviction)(Shapiro, David) *Modified on 9/12/2017 to correct motion type (ATD). (Entered: 09/11/2017)
***Remark as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: Pro hac motions for admission granted on behalf of Louise Renne and Dennis Aftergut on behalf of amicus party Coalition to Preserve Protect and Defend: (BAS) (Entered: 09/11/2017)
224 ORDER as to Joseph M Arpaio: On September 11, 2017, counsel for Amicus Curiae Roderick and Solange MacArthur Justice Center filed a Motion for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon (Doc. 223 ). IT IS ORDERED that the motion will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 9/11/17.(MAW) (Entered: 09/11/2017)
225 RESPONSE to Motion by USA as to Joseph M Arpaio re: 220 MOTION to Dismiss Complaint . (Keller, John) (Entered: 09/11/2017)
226 *Additional Attachments to Main Document re: 223 First MOTION for Leave to FileAmicus Curiae Brief Regarding Arpaio Pardon (Proposed Order) by Roderick & Solange MacArthur Justice Center as to Joseph M Arpaio. (Shapiro, David) *Modified on 9/12/2017 to clarify defendant the filing pertains to (ATD). (Entered: 09/11/2017)
227 *MOTION to File Amicus Brief Brief of Amici Curiae and Coalition to Preserve, Protect and Defend In Opposition to Motion of Defendant Joseph Arpaio for Vacatur and Dismissal With Prejudice by Martin Redish, Free Speech for People, Coalition to Preserve Protect and Defend as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Piccarreta, Michael) *Modified on 9/12/2017 to correct motion type and add additional filers (ATD). (Entered: 09/11/2017)
228 MOTION to File Amicus Brief as to attorney Jean−Jacques Cabou by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Text of Proposed Order Proposed Order)(Cabou, Jean−Jacques) (Entered: 09/11/2017)
229 *MOTION to File Amicus Brief ERWIN CHEMERINSKY, MICHAEL E. TIGAR AND JANE B. TIGAR'S MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Hammond, Larry) *Modified on 9/12/2017 to correct motion type (ATD). (Entered: 09/11/2017)
230 *FILED at (Doc. 245 ) LODGED Proposed Memorandum of Amici Curiae Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio re: 229 MOTION for Leave to File ERWIN CHEMERINSKY, MICHAEL E. TIGAR AND JANE B. TIGAR'S MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Hammond, Larry) Modified on 10/5/2017 (DXD). (Entered: 09/11/2017)
231 *MOTION to File Supplemental Amicus Brief in Support of Appointment of a Private Attorney to Prosecute Defendant's Criminal Contempt as to attorney Jean−Jacques Cabou by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Motion for Leave to File Supplemental Brief of Amici Curiae in Support of Appointment of Private Attorney to Prosecute Defendant's Criminal Contempt, # 2 Proposed Order)(Cabou, Jean−Jacques) *Modified text for clarification on 9/12/2017 (ATD). (Entered: 09/11/2017)
232 RESPONSE to Motion by Joseph M Arpaio re: 229 MOTION to File Amicus Brief, 223 MOTION for Leave to File Amicus Brief, 231 MOTION to File Amicus Brief as to attorney Jean−Jacques Cabou, 228 MOTION to File Amicus Brief as to attorney Jean−Jacques Cabou, 227 MOTION to File Amicus Brief Defendants Response to Motions for Leave or in the Alternative Motion to Strike. (Wilenchik, Dennis) (Entered: 09/12/2017)

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 28 of 30

09/13/2017 09/14/2017
09/14/2017 09/15/2017
09/20/2017 09/21/2017 09/25/2017 09/27/2017 09/27/2017
09/28/2017 09/28/2017 10/04/2017 10/04/2017 10/04/2017

233 MOTION to File Amicus Brief as to attorney Kathleen E. Brody by Ortega Melendres Plaintiffs as to Joseph M Arpaio. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Text of Proposed Order)(Brody, Kathleen) (Entered: 09/13/2017)
234 ORDER as to Joseph M Arpaio: IT IS ORDERED that the Government file a Supplemental Response, not to exceed five pages in length, addressing the extent to which vacatur should be granted, if at all, given both the absence of an entry of judgment and the authority provided in this Order. The Government shall file and serve its Supplemental Response no later than September 21, 2017. Defendant may file a Reply [see attached Order for details]. Signed by Judge Susan R Bolton on 9/14/17.(MAW) (Entered: 09/14/2017)
235 RESPONSE to Motion by Joseph M Arpaio re: 233 MOTION to File Amicus Brief as to attorney Kathleen E. Brody Defendants Response to Motion for Leave By Ortega Melendres Plaintiffs. (Wilenchik, Dennis) (Entered: 09/14/2017)
***Remark as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: Pro hac vice motion granted for Ronald A Fein on behalf of amici curiae parties Martin Redish, Free Speech for People and CPPD: This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/15/2017)
***Remark as to amicus party Certain Members of Congress of the United States re: Pro hac admission granted for R Bradley Miller on behalf of amicus party. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/20/2017)
236 RESPONSE to Motion by USA as to Joseph M Arpaio re: 220 MOTION to Dismiss Complaint . (Keller, John) (Entered: 09/21/2017)
237 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 220 MOTION to Dismiss Complaint Defendants Reply in Support of Motion for Vacatur and Dismissal with Prejudice. (Wilenchik, John) (Entered: 09/25/2017)
238 MOTION to File Amicus Brief by Certain Members of Congress of the United States as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Proposed Order)(Scharff, Spencer) (Entered: 09/27/2017)
239 *FILED at (Doc. 246 ) LODGED Proposed Memorandum of Amici Curiae Certain Members of Congress in Opposition to Defendants Motion for Vacatur and Dismissal with Prejudice by Certain Members of Congress of the United States as to Joseph M Arpaio re: 238 MOTION to File Amicus Brief . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Scharff, Spencer) Modified on 10/5/2017 (DXD). (Entered: 09/27/2017)
***Remark as to Pro hac vice motion granted for Stanley Young on behalf of Amici Melendres Ortega: This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/28/2017)
240 RESPONSE to Motion by Joseph M Arpaio re: 238 MOTION to File Amicus Brief Defendants Response to Certain Members of Congress on the United States Motion for Leave to Participate as Amici Curaie. (Wilenchik, Dennis) (Entered: 09/28/2017)
NOTICE OF REQUEST FOR E−NOTICES by Stephen Montoya. (Montoya, Stephen) (Entered: 10/04/2017)
241 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on October 4, 2017, Judge Susan R Bolton hearing judge(s). (Cabou, Jean−Jacques) (Entered: 10/04/2017)
243 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing as to Joseph M. Arpaio held on 10/4/2017 Re: 220 Defendant's Motion for Vacatur and Dismissal With Prejudice. IT IS ORDERED granting the Motions to File Briefs as Amici Curiae (Docs. 227 , 228 , 229 , 233 and 238 ). IT IS ORDERED granting the Motion for Leave to File Supplemental Brief of Amici Curiae in Support of Appointment of a Private Attorney to Prosecute Defendant's Criminal Contempt (Doc. 231 but denying the request to appoint a private attorney. For the reasons stated on the record, the Court finds that the pardon is valid. Argument held on Defendant's motion.

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 29 of 30

10/04/2017 10/04/2017
10/05/2017 10/05/2017 10/05/2017 10/06/2017 10/10/2017 10/12/2017 10/16/2017
10/16/2017
10/16/2017 10/19/2017 10/19/2017

IT IS ORDERED that this action for criminal contempt is dismissed with prejudice. IT IS FURTHER ORDERED taking under advisement whether the Court will enter any further orders [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 10:01 AM to 10:31 AM.(MAW) (Entered: 10/05/2017)
244 MINUTE ORDER RE: EXHIBITS as to Joseph M Arpaio: IT IS HEREBY ORDERED that the exhibits marked and admitted in the above−entitled case at the time of the trial/hearing are returned to respective counsel [see attached minute order for details]. (MAW) (Entered: 10/05/2017)
247 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING proceedings as to Joseph M Arpaio held on 10/04/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/25/2017. Redacted Transcript Deadline set for 11/6/2017. Release of Transcript Restriction set for 1/2/2018. (RAP) (Entered: 10/10/2017)
242 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on October 4, 2017, Judge Susan R Bolton hearing judge(s). (Brody, Kathleen) (Entered: 10/05/2017)
245 AMICUS Brief and Memorandum by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio. (DXD) (Entered: 10/05/2017)
246 AMICUS Brief of Certain Members of Congress in Opposition to Defendant's Motion for Vacatur and Dismissal with Prejudice by Joseph M Arpaio. (DXD) (Entered: 10/05/2017)
***Remark as to Amici Curaie Ortega Melendres, et al. − Pro hac vice motion granted for Cecillia Wang on behalf of Amici Curaie. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/06/2017)
***Remark as to Amicai Curi Ortega Melendres − Pro hac vice motion granted for Julia A Gomez Hernandez on behalf of amicai curi. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/10/2017)
248 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 10/04/2017, Judge Susan R Bolton hearing judge(s). (Cataldo, Simon) (Entered: 10/12/2017)
249 *MOTION for Leave to File Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(May, Katherine) *Modified to remove Ex−Parte designation per attorney's request on 10/16/2017 (EJA). (Entered: 10/16/2017)
250 *FILED at Doc. 256 *LODGED Proposed Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal by Protect Democracy Project Incorporated as to Joseph M Arpaio re: 249 MOTION for Leave to File Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (May, Katherine) *Modified on 11/1/2017 (MAP).* (Entered: 10/16/2017)
***Remark as Pro hac vice motion granted for Katrina L Eiland on behalf of Amici Curaie Ortega Melendres. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/16/2017)
251 ORDER as to Joseph M Arpaio (1): IT IS ORDERED denying Defendant's Motion for Vacatur and Dismissal with Prejudice (Doc. 220 ) insofar as it seeks relief beyond dismissal with prejudice [see attached Order for details]. Signed by Judge Susan R Bolton on 10/19/17.(MAW) (Entered: 10/19/2017)
252 *NOTICE OF APPEAL to 9th Circuit Court of Appeals by Joseph M Arpaio as to Joseph M Arpaio re: 251 Order on Motion to Vacate. Filing fee received: $ 505.00, receipt number 0970−14778025. (Wilenchik, John) *Modified to reflect document

Case: 2:16-cr-1012 As of: 02/12/2019 12:52 PM MST 30 of 30

10/20/2017 10/24/2017 11/01/2017
11/01/2017 11/02/2017 01/18/2018 04/06/2018

filed as to incorrect defendants on 10/20/2017 (DXD). (Entered: 10/19/2017)
253 USCA Case Number as to Joseph M Arpaio re: 252 Notice of Appeal. Case number 17−10448, Ninth Circuit. (DXD) (Entered: 10/20/2017)
254 TRANSCRIPT REQUEST Oral Argument by Joseph M Arpaio for proceedings held on 10/04/2017, Judge Susan R Bolton hearing judge(s). (Goldman, Mark) (Entered: 10/24/2017)
255 ORDER as to Joseph M Arpaio: IT IS ORDERED granting Amici's Motion for Leave to File a Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal (Doc. 249 ). IT IS FURTHER ORDERED denying Amici's Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal (Doc. 250 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 11/1/17.(MAW) (Entered: 11/01/2017)
256 Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal by Protect Democracy Project Incorporated as to Joseph M Arpaio. (MAP) (Entered: 11/01/2017)
***Remark as to Amicus party Protect Democracy Project Incorporated − re: Pro hac vice motion granted on behalf of Justin G Florence: This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/02/2017)
***Remark as to Protect Democracy Project Incorporated re: Pro hac vice motion granted for Phil Spector. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/18/2018)
***Remark as to Amicus party Protect Democracy Project Incorporated re: Ian M Bassin − pro hac vice motion granted. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 04/06/2018)

 </s> Case 2:07-cv-02513-GMS Document 580 Filed 06/13/13 Page 1 of 5

1 Roy L. Austin, Jr. (DC Bar #980360) Deputy Assistant Attorney General

2 Jonathan M. Smith (DC Bar #396578)

3

Edward G. Caspar (MA Bar #650566) Sergio Perez (CA Bar #274798)

4 Jennifer L. Mondino (NY Bar #4141636)

5

Paul Killebrew (LA Bar #32176) U.S. Department of Justice, Civil Rights Division

6 950 Pennsylvania Avenue, N.W.

7 Washington, D.C. 20530

8 Attorneys for the United States

9

10

IN THE UNITED STATES DISTRICT COURT FOR THE

11

DISTRICT OF ARIZONA

12 Manuel de Jesus Ortega Melendres, on

13

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

14

Plaintiffs

15 v.

16 Joseph M. Arpaio, in his individual and
17 official capacity as Sheriff of Maricopa County, Arizona; et al.,
18 Defendants.
19

No. PHX-CV-07-02513-GMS STATEMENT OF INTEREST BY THE UNITED STATES

20

21

Pursuant to its authority under 28 U.S.C. § 517, the United States respectfully

22 submits this Statement of Interest concerning the appropriate form of relief in this case.

23 The United States has a broad interest in ensuring that identified unconstitutional police

24 conduct is adequately remedied. It is responsible for enforcing several federal civil rights

25 statutes that prohibit law enforcement agencies such as the Maricopa County Sheriff’s

26 Office (MCSO) from depriving persons of rights under the United States Constitution and

27 federal laws. The Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §

28 14141, authorizes the Attorney General to file lawsuits seeking court orders to reform

Case 2:07-cv-02513-GMS Document 580 Filed 06/13/13 Page 2 of 5

1 police departments engaging in patterns or practices of civil rights violations. The United

2 States also enforces the anti-discrimination provisions of the Omnibus Crime Control and

3 Safe Streets Act of 1968, 42 U.S.C. § 3789d, and Title VI of the Civil Rights Act of

4 1964, 42 U.S.C. § 2000d, which prohibit discrimination on the basis of race, color, sex,

5 or national origin by police departments receiving federal funds. Pursuant to these

6 statutes, the United States has worked to remedy violations of the Constitution and other

7 federal laws and to achieve sustainable reform in numerous law enforcement agencies

8 throughout the country. See, e.g., United States v. Puerto Rico, 12-cv-2039 (D.P.R. filed

9 Dec. 21, 2012); United States v. Town of East Haven, 12-cv-1652 (D. Conn. filed Nov.

10 20, 2012); United States v. City of Seattle, 12-cv-1282 (W.D. Wash. filed July 27, 2012);

11 United States v. City of New Orleans, 12-cv-1924 (E.D. La. filed July 24, 2012); United

12 States v. Territory of the Virgin Islands, 08-cv-158 (D.V.I. filed Dec. 23, 2008); United

13 States v. City of Detroit, 03-72258 (E.D. Mich. filed June 12, 2003); United States v. City

14 of Los Angeles, 00-cv-11769 (C.D. Cal. filed Nov. 3, 2000); United States v. City of

15 Pittsburgh, 97-cv-354 (W.D. Pa. filed Feb. 26, 1997).

16

In its May 24, 2013 Findings of Fact and Conclusions of Law, this Court asked the

17 parties to consider three previous stipulations of settlement in other jurisdictions,

18 including two secured by the United States. See Doc. 579, Findings of Fact and

19 Conclusions of Law, at 141 (referencing stipulations of settlement in United States v. Los

20 Angeles (2001) and United States v. New Jersey (1999)). Additionally, the United States

21 invites the attention of the Court and parties to the very recent Consent Decree in United

22 States v. City of New Orleans, which the United States District Court for the Eastern

23 District of Louisiana formally approved after a contested evidentiary fairness hearing.

24 See Ex. A (Consent Decree Regarding the New Orleans Police Department); United

25 States v. City of New Orleans, 2013 WL 2351266, No. 12-1924 (E.D. La. May 23, 2013)

26 (denying motion to vacate decree).

27

As this Court is aware, the United States also has brought suit against Sheriff

28 Arpaio seeking relief from patterns or practices of constitutional violations, including

2

Case 2:07-cv-02513-GMS Document 580 Filed 06/13/13 Page 3 of 5

1 widespread discrimination in policing activities such as traffic stops, workplace

2 enforcement operations, and jail operations; systemic violations of persons’ rights under

3 the Fourth Amendment, including during traffic stops and workplace enforcement

4 operations; and retaliation against critics of Arpaio in violation of the First Amendment.

5 See Complaint, United States v. Maricopa County, et al., No. 2:12-cv-981 (May 10,

6 2013) (attached hereto as Ex. B). The United States’ claims in that suit encompass, but

7 are broader than, the unconstitutional discriminatory conduct that this Court has found

8 MCSO to have engaged in concerning its immigration-enforcement-related traffic stops.

9 In seeking a pre-suit resolution of the constitutional violations that the United States

10 found after a three-year investigation of MCSO, the United States proposed to MCSO an

11 agreement informed by the United States’ experience securing relief from constitutional

12 violations by law enforcement agencies. The provisions of the proposed agreement are

13 consistent with what the United States—often in partnership with the law enforcement

14 agencies themselves—has found to be effective in remedying systemic constitutional

15 violations, enhancing police services, and restoring the trust of the community in their 16 law enforcement officers. A copy of the proposed agreement is attached as Exhibit C.1

17 The United States drafted the proposal in February 2012. The evidence heard by the

18 Court during the trial in this case several months later and the Court’s detailed factual

19 findings may require additional relief not addressed in the 2012 proposal.

20

In this case, given the nature of the violations in which the Court has found the

21 Sheriff to have engaged, and the resistance he has demonstrated to lawful checks on his

22 power, effective relief would include, but not be limited to, the following ingredients:

23 • An independent monitor to assess and report on MCSO’s compliance with the

24

remedial measures ordered by the Court;

25

26 1 The proposed agreement is marked as privileged and confidential. News media previously obtained a copy of the
proposal in April 2012, See Nick R. Martin & Ryan J. Reilly, “Feds Want Sheriff Joe Arpaio To Rein In His
27 Famous Posses,” TPMMuckrakder, April 19, 2012, available at http://tpmmuckraker.talkingpointsmemo.com/
2012/04/arpaio_posse_justice_department.php, and counsel for MCSO previously released portions of it to the
28 public, see Matthew Hendley, “Joe Arpaio/MCSO Lawyer Explains Some Actual Objections to Justice Department
Monitor,” Phoenix New Times, May 14, 2012, available at http://blogs.phoenixnewtimes.com/valleyfever/2012/05/
joe_arpaiomcso_lawyer_explains.php. The United States includes it here in its entirety.

3

Case 2:07-cv-02513-GMS Document 580 Filed 06/13/13 Page 4 of 5

1 • Reformed policies and procedures to ensure bias-free policing and practices that

2

are consistent with Fourth Amendment protections;

3 • Adequate training to ensure the compliance of all MCSO personnel;

4 • Reforms to ensure appropriate supervision of MCSO personnel, including the

5

deployment of sufficient numbers of qualified MCSO supervisors in the field to

6

ensure deputies’ compliance;

7 • Requirements to collect data sufficient to measure the effect of any racial bias on

8

MCSO’s traffic enforcement, data relating to such factors as the perceived race of

9

each person stopped, the reasons for each stop, and the time and duration of each

10

stop;

11 • Provisions for language assistance in policing operations, particularly among those

12

subjected to stops;

13 • Public meetings on MCSO’s reform initiatives, and the ability to adopt or modify

14

measures that take into account public feedback;

15 • Sustained community outreach so that MCSO can hear and appropriately respond

16

to community concerns;

17 • The monitor’s use of performance metrics to measure MCSO’s progress in

18

implementing reforms;

19 • Appropriate accountability and oversight measures within MCSO, such as an

20

“early identification system” to identify and respond to potentially problematic

21

behaviors as early as possible; and policies and procedures that encourage the

22

reporting of potential misconduct, ensure that such reports are appropriately

23

investigated, and that any misconduct is appropriately addressed; and

24 • Reporting requirements to keep apprised the monitor, the parties, the Court, and

25

the community on MCSO’s reform efforts.

26

27

The United States has engaged in preliminary conversations with plaintiffs in this

28 case and would welcome the opportunity to participate more directly with the parties in

4

Case 2:07-cv-02513-GMS Document 580 Filed 06/13/13 Page 5 of 5

1 negotiations aimed at reaching an agreement on the form of appropriate relief. The

2 United States believes that such talks appropriately could address the possibility of a

3 global settlement encompassing the United States’ claims against the Sheriff in United

4 States v. Maricopa County, et al. Such an agreement would be in the interests of all of

5 the parties, the Court, and the people of Maricopa County. The United States respectfully

6 requests that the Court provide the parties and the United States with an opportunity to

7 further discuss mutually acceptable measures.

8

Respectfully submitted,

9

Roy L. Austin, Jr.

10

Deputy Assistant Attorney General

11

/s/ Edward G. Caspar

12

Jonathan M. Smith (DC Bar #396578) Edward G. Caspar (MA Bar #650566)

13

Sergio Perez (CA Bar #274798)

14

Jennifer L. Mondino (NY Bar #4141636) Paul Killebrew (LA Bar #32176)

15

U.S. Department of Justice, Civil Rights Division

16

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

17

Tel. (202) 514-2000/Fax (202) 514-6273

18

edward.g.caspar@usdoj.gov ATTORNEYS FOR THE UNITED STATES

19

20

21

22

23

CERTIFICATE OF SERVICE

24

I certify that on or about June 13, 2013, I used the Court’s CM/ECF system to

25

serve a true and correct copy of the foregoing on counsel of record.

26

/s/ Edward G. Caspar

27

EDWARD G. CASPAR

28

5

Case 2:07-cv-02513-GMS Document 580-1 Filed 06/13/13 Page 1 of 43
EXHIBIT A

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege21ofo4f 3129

IN THE UNITED STATES DISTRlCT COURT FOR THE EASTERN DISTRlCT OF LOUISIANA

UNITED STATES OF AMERICA,
Plaintiff, vs.

• 12-1924 •
SECt E MAG. 2

CITY OF NEW ORLEANS,

Defendant.

CONSENT DECREE REGARDING THE NEW ORLEANS POLICE DEPARTMENT

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege32ofo4f 3129
CONTENTS I. INTRODUCTION ........ .................................................................. .... .............................. ... 1
A. Background ..... ................ ..................... ............................... ...... .............................. 1 B. General Provisions ................................. ................................................................. 2 C. Definitions/Abbreviations.......... .................. .......... ............... .................................. 4 II. POLICIES AND TRAINING GENERALLy ....................................................... ............ 11 A. Policy Development, Review, and Implementation ............................................. 11 B. Training on Revised Policies, Procedures, and Practices ................................ ..... 14 III. USE OF FORCE .................................................................. .............................................. 14 A. Use of Force Principles .......................................... ............................... ................ 14 B. General Use of Force Policy ................................................................................. 15 C. Vehicle Pursuits .................................................................................................... 16 D. Use of Firearms .......... ................................ ............... ............................................ 16 E. Use of Canines ..................................................... ................................................. 17 F. Electronic Control Weapons ........................................ ......................................... 20 G. Oleoresin Capsicum Spray .................................................................................... 22 H. SWAT Teams........................................................................................................ 22 1. Use of Force Reporting Policy and Use of Force Report ........... .......................... 23 J. Use of Force Supervisory Investigations ............... ............... ................................ 24 K. Force Investigation Team ..................................................................................... 28 1. Use of Force Review Board ................................................ .................................. 32 M. Use of Force Training ........................................................................................... 33 IV. CRISIS INTERVENTION TEAM ...................................................... ......... ..................... 34 A. Crisis Intervention Planning Comrnittee.............................. .. ............................... 35 B. Program Development .. ....................................................... ................................. 35 C. CIT and First Responder Training ................................. ......... .............................. 36 D. Maintenance of CIT Program ................................................. ............................. . 37 V. STOPS, SEARCHES, AND ARRESTS ...................... ...................................................... 38 A. Investigatory Stops and Detentions ...................................................................... 38 B. Searches ................. ................................................ ............................................... 38 C. Arrests ...... ........ .......................................................... ........................................... 40 D. Stop and Search Data Collection and Review ...... ................................................ 42 E. First Amendment Right to Observe and Record Officer Conduct........................ 44 F. Stop, Search, and Arrest Training....................... .................................................. 45 VI. CUSTODIAL INTERROGATIONS .................. ............................... .. .............. .. ........... .. . 46

----- .- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _.._._-
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege43ofo4f 3129
A. Interrogation Restrictions and Equipment ............................................................ 46 B. Detective Selection and Interrogation Training .................................................... 47 VII. PHOTOGRAPHIC LINE-UPS .......................................................................................... 47 VIII. BIAS-FREE POLICING.................................................................................................... 48 A. Bias-Free Policing Training .................................................................................. 48 B. Ensuring Bias-Free Policing ................................................................................. 49 C. Language Assistance.................................. ........................................................... 51 IX. POLICING FREE OF GENDER BIAS ..................... ........................................................ 54 A. Sexual Assault. ...................................................................................................... 54 B. Domestic Violence ................................................................................................ 58 X. COMMUNITY ENGAGEMENT...................................................................................... 60 A. Community and Problem Oriented Policing ......................................................... 60 B. Biennial Community Survey................................................................................. 62 Xl. RECRUITMENT ............................................................................................................... 63 A. Comprehensive Recruitment Program .................................................................. 63 XII. ACADEMY AND IN-SERVICE TRAINING .................................................................. 65 A. Training Coordination and Planning..................................................................... 65 B. Curriculum Development.. .................................................................................... 67 C. Instructor Selection .................................... .. ......................................................... 68 D. Training Evaluation .............................................................................................. 69 E. Recruit Training Academy .................................................................................... 69 F. Field Training Program......................................................................................... 71 G. In-Service Training ............................................................................................... 72 H. Training Records................................................................................................... 73 XIII. OFFICER ASSISTANCE AND SUPPORT...................................................................... 73 A. Department-Wide Health and Wellness Program ................................................. 73 XIV. PERFORMANCE EVALUATIONS AND PROMOTIONS ............................................ 75 A. Performance Evaluations ...................................................................................... 75 B. Promotions ............................................................................................................ 76 XV. SUPERVISION.................................................................................................................. 77 A. Duties of Supervisors ............................................................................................ 77 B. Supervisor and Command-Level Training............................................................ 79 C. Early Warning System .......................................................................................... 80 D. Visual and Audio Documentation of Police Activities......................................... 83 XVI. SECONDARY EMPLOYMENT SySTEM...................................................................... 84 A. Secondary Employment Coordinating Office ....................................................... 85
II

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege54ofo4f 3129
B. Coordinating Office Responsibilities............................ ........................................ 86 C. Secondary Employment Compensation ................................................................ 88 D. Limitations on Secondary Employment Work ..................................................... 88 E. Secondary Employment Employee Responsibilities ................................ ............ 92 F. Secondary Employment Supervision.................................................................... 92 XVII. MISCONDUCT COMPLAINT INTAKE, INVESTIGATION, AND
ADJUDiCATION......................... .......................................... ........................................ 94 A. Reporting Misconduct... ........................................................................................ 94 B. Response to Internally Discovered Infractions ..................................................... 94 C. Preventing Retaliation........................................................................................... 95 D. Staffmg, Selection, and Training Requirements ................................................... 95 E. Complaint Information..... ..................................................................................... 96 F. Complaint Intake, Classification, Assignment, and Tracking .............................. 97 G. Investigation Timeframe ........... .......................................................................... 100 H. Collection of Evidence........................................................................................ 101 I. Analysis of Evidence .......................................................................................... 102 J. Integrity ofInvestigative File and Evidence ....................................................... 103 K. Communication with Complainant .......... ........................................................... 104 L. Discipline Process and Transparency ................................................................. 104 M. Annual Report ..................................... ........................................ ........................ 105 XVIII. TRANSPARENCY AND OVERSIGHT ..................................................................... 105 A. Data Collection and Public Reporting ................................................................ 105 B. United States Attorney Criminal Justice Coordination Group ...... ..................... 106 C. District Community Outreach Programs and Meetings ...................................... 106 D. Police-Community Advisory Board ................................................................... 107 E. Community-Based Restorative Justice Project.. ................................................. 108 F. Office of the Independent Police Monitor .......................................................... 108 XIX. AGREEMENT IMPLEMENTATION AND ENFORCEMENT.................................... 108 A. Role of the Monitor............................. ................................................................ 108 B. Compliance Reviews and Audits .................... .................................................... 109 C. Outcome Assessments ........................................................................................ 109 D. Monitoring Plan and Review Methodology........................................................ 112 E. Review of Use of Force and Misconduct Investigations .................................... 113 F. Monitor Recommendations and Technical Assistance ............ ........................... 113 G. Comprehensive Re-Assessment................................ .......................................... 114 H. Monitor Reports ....................................................................... ........................... 114
III

_._-_ - - - - - - - - - - - - - -- - -- _ .. .......... .
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege65ofo4f 3129 L Coordination with IPM .......................................... ......................... .................... II S J. Communication between Monitor, Parties, and Public ...................................... liS K. Public Statements, Testimony, Records, and Conflicts ofinterest..................... liS L. NOPD Consent Decree Implementation Unit......... ............................................ 116 M. Implementation Assessment and Report............................... .............................. 116 N. Access and Confidentiality ................................................................................. 117 O. Selection and Compensation of the Monitor ...................................................... 118 P. Court Jurisdiction, Modification of the Agreement, and Enforcement .............. 120 Q. Termination of the Agreement............................................................................ 121
iv

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege76ofo4f 3129
The City ofNew Orleans ("City"), including the New Orleans Police Department ("NOPD" or "Department"), and the United States of America (collectively, "the Parties") enter into this agreement ("Agreement") with the goal of ensuring that police services are delivered to the people of New Orleans in a manner that complies with the Constitution and laws of the United States. The Parties have a shared recognition that the ability of a police department to protect the community it serves is only as strong as the relationship it has with that community. Public safety, constitutional policing, and the community's trust in its police force are thus interdependent. The full and sustained implementation of this Agreement is intended to protect the constitutional rights of all members of the community, improve the safety and security of the people of New Orleans, and increase public confidence in the New Orleans Police Department.
To achieve these goals, NOPD agrees to fundamentally change the way it polices throughout the New Orleans Community. This Agreement thus requires the City and the Department to implement new policies, training, and practices throughout the Department, including in the areas of: use of force; stops, searches, seizures, and arrests; photographic lineups; custodial interrogations; discriminatory policing; community engagement; recruitment; training; performance evaluations; promotions; officer assistance and support; supervision; secondary employment; and misconduct-complaint intake, investigation, and adjudication.
Noting the general principle that settlements are to be encouraged, particularly settlements between goverrunent entities, and having considered the terms of the measures set forth herein, and that the Defendant agrees to resolve the United States' claims without resort to adversariallitigation, it is ORDERED, ADJUDGED, AND DECREED that Judgment shall be entered in this matter pursuant to the following terms and conditions:
I. INTRODUCTION A. Background
In May 2010, the United States Department of Justice ("DOl") formally notified the City that it was initiating an investigation of the New Orleans Police Department for an alleged pattern or practice of unlawful misconduct, pursuant to the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141 ("Section 14141"); the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d
1

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege87ofo4f 3129
("Safe Streets Act"); and Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d ("Title VI").
As part of its investigation, DOl, in conjunction with its police-practices consultants, conducted a detailed fact-finding review, including numerous tours ofNOPD facilities; interviews with New Orleans officials, NOPD command staff, supervisors, and police officers; review of more than 36,000 pages of documents; and meetings with residents, community groups, and other stakeholders within the City. In addition, DO] participated in detailed exit interviews between its police-practices consultants and NOPD officials following each investigatory tour.
DO] issued a written report of its findings ("Report") on March 16, 2011. The Report documents DO]' s finding of a number of patterns or practices of unconstitutional conduct and details DOl's concerns about a number ofNOPD policies and practices.
DOl's investigation was conducted with the full cooperation of the City and NOPD. This Agreement is the product of a cooperative effort built on the Parties' mutual commitment to constitutional policing. The Parties acknowledge the many NOPD officers who perform their difficult jobs diligently and with integrity. B. General Provisions 1. This Agreement is effectuated pursuant to the authority granted to DO] under Section 14141, the Safe Streets Act, and Title VI to seek declaratory or equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or federal law. 2. Nothing in this Agreement is intended to undermine the lawful authority ofNOPD police officers to use reasonable and necessary force, effect arrests, conduct searches or make seizures, or otherwise fulfill their law enforcement obligations to the people of New Orleans in a manner consistent with the requirements of the Constitutions and laws of the United States and the State of Louisiana 3. Nothing in this Agreement, the United States' Complaint, or the negotiation process shall be construed as an admission or evidence of liability under any federal, state, or municipal law including, but not limited to, 42 U.S.C. § 1983. Nor is the City's entry into this Agreement an admission by the City, NOPD, or any officer or employee of either entity, that they have engaged in any unconstitutional, illegal, or otherwise improper activities or conduct.
2

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege98ofo4f 3129
4. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. The United States is authorized to initiate this action pursuant to 42 U.s.C. § 14141 and 42 U.S.C. § 3789d. Venue is proper in the Eastern District of Louisiana pursuant to 28 U.S.C. § 1391 , because the Defendant is located in and the claims arose in the Eastern District of Louisiana. 5. The Parties enter into this Agreement jointly for the purpose of avoiding the burdens of litigation and to support vigorous and constitutional law enforcement. Moreover, joint entry of this Agreement is in the public interest since it provides for the expeditious implementation of corrective measures, promotes the use of the best available policing practices and procedures, and avoids the diversion of federal and City resources to adversarial actions by the Parties. 6. This Agreement resolves all claims in the United States' Complaint filed in this case. This Agreement also constitutes a full and complete settlement of any and all civil claims the United States may have as of the Effective Date against the City and its officers, employees, or agents, regarding any alleged pattern or practice of conduct by New Orleans police officers in carrying out their law enforcement responsibilities. 7. This Agreement shall constitute the entire integrated agreement of the Parties. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. 8. This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, and successors. If the City establishes or reorganizes a government agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing the operations ofNOPD or any aspect thereof, the City agrees to ensure these functions and entities are consistent with the terms of this Agreement and shall incorporate the terms of this Agreement into the oversight, regulatory, accreditation, investigation, or review functions of the government agency or entity as necessary to ensure consistency. 9. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
10. In the event of any public-records request, requesting drafts of this Agreement or
communications among the Parties leading to this Agreement, the Court wiIl maintain continuing
3

CaCsaes2e:122:0-7cv-c-0v-10922541-3S-MG-MJCSWDoDcoucmuemnetn5t8105-91-1FilFeidle0d60/13/1/13/13PaPgaeg1e09ooff41329
jurisdiction over any such request. Further, the Parties may assert in any action, motion, subpoena, or request for disclosure of information the ongoing applicability of a settlement privilege to all such drafts or communications among the Parties leading to this Agreement. 11. This Agreement is not intended to limit or expand the right of any person or organization to seek relief against the City, NOPD, or any officer or employee thereof, for their conduct or the conduct ofNOPD officers; accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from city, state, or federal law. This Agreement does not expand, nor will it be construed to expand, access to any City, NOPD, or DO] documents, except as expressly provided by this Agreement, by persons or entities other than DOJ, the Defendant, and the Monitor. 12. The City is responsible for providing necessary support and resources to NOPD to enable NOPD to fulfill its obligations under this Agreement. 13. The Defendant, by and through its officials, agents, employees, and successors, is enjoined from engaging in conduct that deprives persons of rights, privileges, or immunities secured or protected by the laws of the United States. C. Definitions/Abbreviations 14. The following terms and definitions shall apply to this Agreement:
a) "Active resistance" means a subject attempts to attack or does attack an officer; exhibits aggressive behavior (e.g., lunging toward the officer, striking the officer with hands, fists, kicks or any instrument that may be perceived as a weapon such as knife or stick); or exhibits defensive resistance (e.g., attempts to leave the scene, flee, hide from detection, or pull away from the officer's grasp). Verbal statements, bracing, or tensing alone do not constitute active resistance. b) "Apprehension" means the arrest, capture, or taking into custody of a person. c) "Arrest" is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him. An arrest is a restraint of greater scope or duration than an investigatory stop or detention. An arrest is lawful when supported by probable cause. d) "AVL" means "Automatic Vehicle Locator," a device that automatically tracks the geographic position of a vehicle and transmits that information to a receiver.
4

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege110ofo4f 3129
e) "Bilingual staff" means a staff person who has demonstrated and verified proficiency, pursuant to generally accepted objective criteria, in both spoken English and at least one other language as authorized by NOPD. f) "Bite ratio" means the number of canine apprehensions that result in a bite, divided by the number of canine apprehensions. Accidental and/or unintentional bites shall be included in the numerator. g) "Body cavity search" means any visual or physical inspection ofa person's genital or anal region with or without any physical contact with or intrusion into a body cavity. h) "Canine apprehension" means any time a canine is deployed and plays a clear and welldocumented role in the capture of a person. The mere presence of a canine at the scene of an arrest shall not count as a canine apprehension. i) "Canine deployment" means any situation, except one involving an on-leash article search only, in which a canine is brought to the scene and used in an attempt to locate or apprehend a suspect, whether or not a suspect actually is located or apprehended. j) "CCMS" means Criminal Case Management System. k) "Civilian Employee" means any non-sworn personnel employed by NOPD, on either a temporary or permanent basis, in either a paid or unpaid capacity. I) "City" means the City of New Orleans, including its agents, officers, and employees. m) "CIT' means Crisis Intervention Team. n) "Clearance" means an arrest leading to prosecution for an offense is made or an offense is cleared by exception. Offenses cleared by exception must be supported by all of the following factors: 1) the identity of the offender is known; 2) probable cause exists to support arrest and prosecution of the offender; and 3) the exact location of the offender is known, but something prevents the immediate arrest, such as the death of the offender, including suicide, or the offender is currently in custody at a correctional facility in another jurisdiction. 0) "Complainant" means any person, including an NOPD officer or employee, who makes a complaint against NOPD or an officer or employee of NOPD. p) "Complaint" means any complaint regarding NOPD services, policy or procedure, any claim for damages, or any criminal matter that alleges possible misconduct by an NOPD officer or employee. For purposes ofthis Agreement, the term "complaint" does not include
5

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1211ofo4f 3129
any allegation of employment discrimination. q) "Court" means the United States District Judge for the Eastern District of Louisiana presiding over this case. r) "Critical firearm discharge" means a discharge of a firearm by an NOPD officer, including discharges where no person or animal is struck. Range and training firings, destruction of animals, and off-duty hunting discharges where no person is struck are not critical firearms discharges. s) "Custodial Interrogation" means words or actions on the part of an officer that the officer knows or should know are reasonably likely to elicit an incriminating response, after a person has been taken into custody. t) "DA" means the Orleans Parish District Attorney's Office. u) "Demographic Category" means age, race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, or gender identity. v) "Discipline" means a personnel action for violation of an established law, regulation, rule, or NOPD policy, including an admonishment, written reprimand, suspension, demotion, or dismissal. w) "Discriminatory Policing" means selective enforcement or non-enforcement of the law, including the selecting or rejecting of particular policing tactics or strategies based on membership in a demographic category specified in this Agreement. Discriminatory policing does not include using race, ethnicity, or any other status in any reliable and.recent suspect-specific description. x) "District" means one of the eight police service areas ofNOPD located throughout New Orleans that is led through the chain of command by a District Commander. y) "DOJ" means the United States Department of Justice's Civil Rights Division and its agents and employees. z) "DVU" means Domestic Violence Unit. aa) "ECW" means Electronic Control Weapon, a weapon designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and overrides the subject's voluntary motor responses. bb) "ECW application" means the contact and delivery of electrical impulse to a subject with an Electronic Control Weapon.
6

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1312ofo4f 3129
cc) "Effective Date" means the day this Agreement is entered by the Court. dd) "EWS" means Early Warning System. ee) "FBI" means the Federal Bureau ofInvestigation. fi) "Firearm" means a pistol, revolver, shotgun, carbine, or machine gun, as well as any instrument capable of discharging a bullet or shot. gg) "Flr'means Force Investigation Team, the NOPD unit tasked with conducting investigations of serious uses of force; uses of force indicating apparent criminal conduct by an officer; uses of force by NOPD personnel of a rank higher than sergeant; and uses of force reassigned to FIT by the Superintendant, the Superintendant's designee, or PIB. FIT shall also investigate all instances where an individual has died while in, or as an apparent result of being in, the custody of NOPD. hh) "Force Statement" means a written statement documenting a use of force as required by this Agreement. ii) "FTO" means Field Training Officer. jj) "IACP" means International Association of Chiefs of Police. kk) "ICO" means Integrity Control Officer. II) "Implement" or "implementation" means the development or putting into place of a policy or procedure, including the appropriate training of all relevant personnel, and the consistent and verified performance ofthat policy or procedure in actual practice.
mm) "Including" means "including, but not limited to."
nn) "Interpretation" means the act of listening to a communication in one language (source language) and orally converting it into another language (target language), while retaining the same meaning. 00) "Interview" means questioning for the purpose of eliciting facts or information. pp) "Investigatory stop" or "investigatory detention" means a temporary restraint where the subject of the stop or detention reasonably believes that slhe is not free to leave. An investigatory stop or detention may be a pedestrian, vehicle, or bicycle stop. qq) "IPM" means the Independent Police Monitor. rr) "Less-lethal force" means force employed that is neither likely nor intended to cause death or serious injury. ss) "Less-lethal weapon" means any apprehension or restraint tool that, when used as
7

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1413ofo4f 3129
designed and intended, is less likely to cause death or serious injury than a conventional lethal weapon (e.g., fIrearm). tt) "Lethal force" means any use of force likely to cause death or serious physical injury, (e.g., the use of a fIrearm, neck hold, or strike to the head, neck, or throat with a hard object). uu) " LEP" means Limited English ProfIcient, and refers to a person who does not speak English as hislher primary language and has a limited ability to read, write, speak, or understand English. LEP individuals may be competent in certain types of communication (e.g., speaking or understanding), but still be LEP for other purposes (e.g., reading or writing). vv) "LGBT' means Lesbian, Gay, Bisexual, and Transgender. ww) "Major Special Events" include Mardi Gras; Jazz Fest; Essence Music Festival; French Quarter Festival; Voodoo Fest; college bowl and college championship events; professional sporting events; and other events as designated by the Mayor, Chief Administrative Officer, the Deputy Mayor for Public Safety, the City Attorney, City Council, or the Superintendent of Police as a "Major Special Event." xx) "MCTU" means Mobile Crisis Transportation Unit. yy) "Monitor" means a person or team of people who shall be selected to monitor and report on implementation of this Agreement. zz) "Neck hold" means one of the following types of holds: (I) arm-bar control hold, a hold that inhibits breathing by compression of the airway in the neck; (2) carotid restraint hold, a hold that inhibits blood flow by compression of the blood vessels in the neck; (3) a lateral vascular neck constraint; or (4) a hold with a knee or other object to the back of a prone subject's neck. A neck hold shall be considered lethal force. aaa) "NOFJC" means the New Orleans Family Justice Center. bbb) "Non-disciplinary corrective action" means action other than discipline taken by an NOPD supervisor to enable or encourage an officer to improve his or her performance. ccc) "NOPD" means the New Orleans Police Department and its agents, officers, supervisors, and employees (both sworn and unsworn). ddd) "NOPD unit" means any designated organization of officers within NOPD, including districts and specialized units. eee) "NOPDAI" means NOPD Authorized Interpreter, a bilingual NOPD employee, who has
8

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1514ofo4f 3129
been authorized to interpret for others in certain situations, such as interviews, interrogations, or taking and responding to citizen complaints. fff) "NOPDAI List" means a list ofNOPD personnel who are bilingual and are authorized to act as volunteer interpreters. ggg) "Passive Resistance" means behavior that is unresponsive to police verbal communication or direction (e.g., ignoring or disregarding police attempts at verbal communication or control; going limp; or failing to physically respond or move) and verbal resistance (e.g., verbally rejecting police verbal communication or direction; telling the officer that he or she will not comply with police direction, to leave alone, or not bother him or her). Bracing, tensing, linking arms, or verbally signaling an intention to avoid or prevent being taken into custody constitutes passive resistance. hhh) "PCAB" means Police-Community Advisory Board. iii) "Personnel" means NOPD officers and employees.
iii) "PIB" means the Public Integrity Bureau, the NOPD unit charged with conducting
internal and administrative investigations ofNOPD officers and employees. kick) "Police officer" or "officer" means any law enforcement agent employed by NOPD, including supervisors and cadets. Ill) "Policies and Procedures" means written regulations or directives, regardless of the name of the regulation or directive, describing the duties, functions, and obligations ofNOPD officers and/or employees, and providing specific direction in how to fulfill those duties, functions, or obligations. mmm) "POST" means the Louisiana Police Officer Standards and Training Council. nnn) "Probable cause" means that the facts and circumstances known to the officer at the time would justify a prudent person in believing that the suspect committed or was committing an offense. 000) "Reasonable Force" means force that is objectively reasonable under the circumstances and the minimum amount of force necessary to effect an arrest or protect the officer or other person. ppp) "Reasonable suspicion" means articulable facts that, within the totality of the circumstances, lead an officer to reasonably suspect that criminal activity has been or is about to be committed.
9

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1615ofo4f 3129
qqq) "RSE" means Recurring Secondary Employment. m) "SART" means Sexual Assault Response Team. sss) "Seizure" or "detention" occurs when an officer's words or actions would convey to a reasonable person that he or she is not free to leave. m) "Serious physical injury" means physical injury that creates a substantial risk of death; causes death or serious and protracted disfigurement; or causes impairment of the function of any bodily organ or limb. uuu) "Serious use offorce" means: (1) all uses oflethal force by an NOPD officer; (2) all critical firearm discharges by an NOPD officer; (3) all uses offorce by an NOPD officer resulting in serious physical injury or requiring hospitalization; (4) all neck holds; (5) all uses of force by an NOPD officer resulting in a loss of consciousness; (7) all canine bites; (8) more than two applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, and whether the applications are by the same or different officers, or ECW application for longer than 15 seconds, whether continuous or consecutive; and (9) any strike, blow, kick, ECW application, or similar use of force against a handcuffed subject. vvv) "Service firearm" means any firearm issued to sworn personnel by the Department. www) "Shall" or "Agrees to" means that the provision imposes a mandatory duty. xxx) "Specialized unit" means a temporary or permanent organization of officers within NOPD, whose operational objectives are focused on a specific law enforcement purpose beyond general patrol or criminal investigations, and that require enhanced training on police tactics, strategies, or techniques. yyy) "Strip search" means any search of an individual requiring the removal or rearrangement of some or all clothing to permit visual inspection of the suspect's groin/genital area, buttocks, female breasts, or undergarments covering these areas. zzz) "Superintendent" means the Superintendent of NOPD. aaaa) "Supervisor" means a sworn NOPD employee at the rank of sergeant or above (or anyone acting in those capacities) and non-sworn NOPD personnel with oversight responsibility for other officers. bbbb) "Translation" means the replacement of written text from one language (source language) with an equivalent written text in another language (target language).
10

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1716ofo4f 3129
cccc) "Use offorce" means physical effort to compel compliance by an unwilling subject above unresisted handcuffing, including pointing a firearm at a person. A reportable use of force is any force above hand control or escort techniques applied for the purposes of handcuffing, or escort techniques that are not used as pressure point compliance techniques, do not result in injury or complaint of injury, and are not used to overcome resistance. dddd) "Use of force indicating apparent criminal conduct by an officer" means force that a reasonable and trained supervisor would conclude could result in criminal charges due to the apparent circumstances of the use of force, such as the level of the force used as compared to the resistance encountered, or discrepancies in the use of force as described by the officer and the use of force as evidenced by any resulting injuries, witness statements, or other evidence. eeee) "Use of Force Report" means a written report documenting a supervisor's investigation of a use of force as required by this Agreement. fill) "UFRB" means Use of Force Review Board. gggg) "USAO" means the United States Attorney's Office for the Eastern District of New Orleans. hhhh) "VAW" means violence against women. iiii) "Vehicle stop" means any instance where an NOPD officer directs a civilian operating a motor vehicle of any type to stop and the driver is detained for any length of time.
II. POLICIES AND TRAINING GENERALLY NOPD agrees that its policies and procedures shall reflect and express the Department's core values and priorities, and provide clear direction to ensure that officers and civilian employees enforce the law effectively and constitutionally. NOPD and the City agree to ensure that all NOPD officers and employees are trained to understand and be able to fulfill their duties and responsibilities pursuant to NOPD policies and procedures. To achieve these outcomes, NOPD agrees to implement the requirements below. A. Policy Development, Review, and Implementation 15. NOPD agrees to develop comprehensive and agency-wide policies and procedures that ensure consistency with, and full implementation of, this Agreement. Unless otherwise noted, NOPD agrees that all policies, procedures, and manuals shall be developed within 365 days of the Effective Date.
11

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1817ofo4f 3129
16. NOPD agrees that its policies and procedures shall define tenus clearly, comply with applicable law and the requirements of this Agreement, and comport with best practices. 17. NOPD agrees to apply policies unifonuly and hold officers accountable for complying with NOPD policy and procedure. 18. NOPD agrees to review each policy or procedure 365 days after it is implemented and annually thereafter, to ensure that the policy or procedure provides effective direction to NOPD personnel and remains consistent with the Agreement, best practices, and current law. NOPD also agrees to review and revise policies and procedures as necessary upon notice of a significant policy deficiency during audits or reviews. NOPD agrees that Department-wide policies and procedures shall be collected in a Department-level policy and procedure manual, and unit-wide policies and procedures shall be collected in unit-level policy and procedure manuals. NOPD agrees to develop and implement policy and procedure manuals for, at a minimum, the following NOPD functions:
a) Field operations, including patrol, task forces, and special operations; b) Supervisory Procedural Manual; c) PIB, including case and records management, administrative investigations, confidential investigations, parallel criminal and administrative investigations, audits, and officer drug testing; d) Use of Force Reporting, Investigation, and Review, including both Supervisory and FIT investigations; e) Criminal investigations, including sub-units assigned to investigate homicides, sexual assaults, domestic violence, narcotics, vice, and illegal firearms; and f) Recruitment and Training, including Academy and In-Service training. 19. NOPD agrees that these manuals shall incorporate and otherwise be consistent with the requirements of this Agreement. 20. Within 90 days of the Effective Date, NOPD shall set out a schedule for completing all policies, procedures, and manuals within 365 days of the Effective Date. 21. NOPD agrees to submit new and revised policies, procedures, and manuals related to: Use, Reporting, and Review of Force; Crisis Intervention Team; Stop, Searches, and Arrest; Custodial Interrogations; Biased Policing; Community Engagement; Academy and In-service Training; Supervision; and Misconduct Investigations ("the specified provisions"), to the
12

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege1918ofo4f 3129
Monitor and DOJ for review and comment prior to publication and implementation. If the Monitor or DOJ object that the proposed new or revised policy, procedure, or manual does not incorporate the requirements of this Agreement, or is inconsistent with this Agreement or the law, it shall note this objection in writing to all parties within 15 business days of the receipt of the policy from NOPD. If neither the Monitor nor DO] object to the new or revised policy, procedure, or manual, NOPD agrees to implement it within 30 days of it being provided to DO] and the Monitor. 22. NOPD shall have 15 days to resolve any objections to the new or revised policies, procedures, and manuals implementing the specified provisions. If, after this IS-day period has run, DOJ maintains its objection, then the Monitor shall have an additional 15 days to resolve the objection. If either party disagrees with the Monitor's resolution of the objection, either Party may ask the Court to resolve the matter. The Monitor shall determine whether in some instances an additional amount of time is necessary to ensure full and proper review of policies. Factors to consider in making this determination include: I) complexity of the policy; 2) extent of disagreement regarding policy; 3) number of policies provided simultaneously; and 4) extraordinary circumstances delaying review by DOJ or the Monitor. In determining whether these factors warrant additional time for review, the Monitor shall fully consider the importance of prompt implementation of policies, and shall allow additional time for policy review only where it is clear that additional time is necessary to ensure full and proper review. Any extension to the above time1ines by the Monitor shall also toll NOPD's deadline for policy completion. 23. For all other new and revised policies, procedures, and manuals related to this Agreement, NOPD agrees to provide the policy, procedure, or manual to DOJ and the Monitor for review and comment. Within 30 days of receipt, DOJ or the Monitor may notify NOPD of any concerns that it has regarding the policy's compliance with this Agreement or the law. If concerns are expressed, NOPD agrees to review the policy, procedure, or manual and modify as necessary to ensure full implementation of, and compliance with, this Agreement and the law. If DO] or the Monitor believes that the policy, procedure, or manual remains inconsistent with this Agreement or the law, it may ask the Court to resolve the matter.
13

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2019ofo4f 3129
B. Training on Revised Policies. Procedures. and Practices 24. Within 60 days of the Effective Date, NOPD agrees to provide an opportunity for each officer and employee to learn about this Agreement and the responsibilities of each officer and employee pursuant to it. 25. Within 90 days of issuing a policy or procedure pursuant to this Agreement, NOPD agrees to ensure that all relevant NOPD personnel have received and read their responsibilities pursuant to the policy or procedure, including the requirement that each officer or employee report violations of policy; that supervisors of all ranks be held accountable for identifYing and responding to policy or procedure violations by personnel under their command; and that personnel be held accountable for policy and procedure violations. NOPD agrees to document that each relevant NOPD officer or other employee has received and read the policy. Training beyond roll call, or similar training, will be necessary for many new policies to ensure officers understand and can perform their duties pursuant to the policy. 26. Unless otherwise noted, the training required pursuant to this Agreement shall be delivered within 365 days of the Effective Date, and annually thereafter. Within 180 days of the Effective Date, NOPD shall set out a schedule for delivering all training required by this Agreement within 365 days of the Effective Date.
III. USE OF FORCE NOPD agrees to develop and implement force policies, training, and review mechanisms that ensure that force by NOPD officers is used in accordance with the rights secured or protected by the Constitution and laws of the United States, and that any unreasonable uses of force are identified and responded to appropriately. NOPD agrees to ensure that officers use non-force techniques to effect compliance with police orders whenever feasible; use force only when necessary, and in a manner that avoids unnecessary injury to officers and civilians; and deescalate the use of force at the earliest possible moment. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Use of Force Principles 27. Use of force by NOPD officers, regardless of the type of force or weapon used, shall abide by the following requirements: a) officers shall use advisements, warnings, and verbal persuasion, when possible, before resorting to force;
14

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2120ofo4f 3129
b) force shall be de-escalated immediately as resistance decreases; c) when feasible based on the circwnstances, officers will use disengagement; area containment; surveillance; waiting out a subject; summoning reinforcements; and/or calling in specialized units, in order to reduce the need for force and increase officer and civilian safety; d) officers shall allow individuals time to submit to arrest before force is used wherever possible; e) NOPD shall explicitly prohibit neck holds, except where lethal force is authorized; f) NOPD shall explicitly prohibit head strikes with a hard object, except where lethal force is authorized; g) NOPD shall explicitly prohibit using force against persons in handcuffs, except as objectively reasonable to prevent imminent bodily harm to the officer or another person or persons, or, as objectively reasonable, where physical removal is necessary to overcome passive resistance; h) NOPD shall explicitly prohibit the use of force above unresisted handcuffing to overcome passive resistance, except that physical removal is permitted as necessary and objectively reasonable; i) unholstering a firearm and pointing it at a person constitutes a use of force, and shall accordingly be done only as objectively reasonable to accomplish a lawful police objective; j) officers shall not use force to attempt to effect compliance with a command that is unlawful. Any use of force by an officer to subdue an individual resisting arrest or detention is unreasonable when the initial arrest or detention of the individual was unlawful; k) immediately following a use of force, officers and, upon arrival, a supervisor shall inspect and observe subjects for injury or complaints of pain resulting from the use offorce, and immediately obtain any necessary medical care. This may require an officer to provide emergency first aid until professional medical care providers are on scene. B. General Use of Force Policy 28. NOPD agrees to develop and implement an overarching agency-wide use offorce policy that complies with applicable law and comports with best practices and current professional standards. The comprehensive use of force policy shall include all force techniques, technologies, and weapons, both lethal and less-lethal, that are available to NOPD officers,
15

. ... _ ..._ - - -- -- - -
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege221ofo4f 3129
including standard-issue weapons that are made available to all officers, and weapons that are made available only to specialized units. The comprehensive use of force policy shall clearly define and describe each force option and the circumstances under which use of such force is appropriate. The general use of force policy will incorporate the use of force principles articulated above, and shall specify that the unreasonable use of force will subject officers to discipline, possible criminal prosecution, and/or civil liability. 29. In addition to a primary agency-wide use offorce policy, NOPD agrees to develop and implement policies and protocols for each authorized weapon, including each of the types of force addressed below. No officer shall carry any weapon, or use force, that is not authorized by the Department. NOPD use of force policies shall include training and certification requirements that each officer must meet before being permitted to carry and use the authorized weapon. C. Vehicle Pursuits 30. NOPD agrees to prohibit vehicle pursuits, except where an officer obtains express supervisory approval, and the officer and supervisor have considered multiple factors and determined that the immediate danger to the public created by the pursuit is less than the immediate or potential danger to the public should the suspect remain at large. NOPD agrees to strictly prohibit the creation of roadblocks (i.e., completely blocking the roadway with vehicles or any obstructions, with the exception of approved devices designed to demobilize the pursued vehicle's movement) during a vehicle pursuit, intentionally positioning oneself in the path of the pursued vehicle, boxing in a violator with moving vehicles, and ramming a violator. 31. NOPD agrees to track and analyze vehicle pursuit, including the violation that prompted the pursuit; the officer(s) involved in the pursuit; the supervisor approving the pursuit; the outcome of the pursuit; any officer, suspect, or bystander injuries or deaths; property damage; and related criminal or civil legal actions. This data and analysis shall be included in the EWS and in NOPD's Use of Force Annual report. D. Use of Firearms 32. Officers shall not possess or use unauthorized firearms or ammunition while on-duty. 33. All officers' firearms shall be filled with the capacity number of rounds while on-duty. 34. Critical firearm discharges by officers on- or off-duty shall be reported and investigated. 35. Officers shall not discharge a firearm from a moving vehicle or at a moving vehicle unless the occupants of the vehicle are using deadly force, other than the vehicle itself, against
16

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2322ofo4f 3129
the officer or another person, and such action is necessary for self defense or to protect the other person; shall not intentionally place themselves in the path of, or reach inside, a moving vehicle; and, where possible, shall attempt to move out of the path of a moving vehicle before discharging their weapon. 36. Officers shall not draw or exhibit a firearm unless the circumstances surrounding the incident create a reasonable belief that a situation may escalate to the point where lethal force would be authorized. NOPD policy and training shall require and teach proper techniques for unholstering, drawing, or exhibiting a firearm. 37. Officers shall be required at least once each year to successfully qualify with each firearm they are authorized to use or carry while on-duty. Officers who fail to qualify shall immediately relinquish NOPD issued firearms on which they failed to qualify. Those officers who still fail to qualify after remedial training within a reasonable time shall be subject to disciplinary action, up to and including termination of employment. Critical firearms discharge related data and analysis shaH be tracked in the EWS and in NOPD's Use of Force Annual Report.
E. Use of Canines
38. DO] acknowledges that NOPD has implemented an interim canine policy and has initiated significant improvements in its canine operations, including improvements in the quality and amount oftraining of canine teams, improvements in handler control of canines, personnel changes, and equipment procurement. Building on these steps, NOPD agrees to finalize and implement canine policies and procedures that comply with applicable law and the requirements of this Agreement, and that comport with best practices and current professional standards. 39. Canine handlers shall limit off-leash canine deployments, searches, and other instances where there is an increased risk of a canine bite to a suspect to instances in which the suspect is wanted for a violent felony or is reasonably suspected to be armed based upon individualized information specific to the subject. 40. A canine handler shall keep his or her canine within visual and auditory range during deployments at all times, except when a canine clears a threshold (e.g., rounding a corner, entering a room, ascending/descending a stairweH). 41. A canine supervisor shall be on call or on-duty at all times. A canine handler shall have approval from a canine supervisor (sergeant or higher) prior to deployment. If the handler is unable to contact a canine-Wlit supervisor, the handler shall seek approval from the watch
17

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2423ofo4f 3129
commander before the canine can be deployed. The approving supervisor shall not serve as a canine handler in the deployment. 42. Canine handlers shall issue three loud and clear warnings that a canine will be deployed and advise the suspect to surrender, unless such warnings impose an imminent threat of danger to the canine handler or other officers on scene. A canine handler shall allow a sufficient period of time between each warning to provide a suspect an opportunity to surrender. These warnings shall be given in either Spanish or Vietnamese if the suspect is reasonably believed to be a Latino or Vietnamese LEP individual. 43. Canine handlers will only allow their canines to engage a suspect by biting if the handler is in visual and auditory range of a suspect and the suspect's actions pose a risk of imminent danger to the handler or others, risk of serious harm to the canine, or if the suspect is actively resisting (active resistance does not include concealment and refusal to surrender without more) or escaping. Handlers will not allow their canine to engage a suspect by biting if a lower level of force could reasonably be expected to control the suspect or allow for the apprehension. 44. In instances where a canine apprehends a suspect by biting, the handler will call the canine off at the fIrst moment the canine can be safely released, taking into account that the average person will struggle if seized or confronted by a canine. 45. Whenever an individual sustains a canine bite, the handler or an on-scene officer shall immediately contact an NOPD dispatcher to request Emergency Medical Services response. If additional medical attention is required, the individual shall be transported to a medical facility for treatment. 46. For each canine apprehension, the involved handler, as well as all other officers who used or observed force, shall complete a Force Statement before the end of shift. In addition to the information that must be included in all Force Statements, a canine handler's Force Statement documenting a canine apprehension shall include the following: (1) whether there was contact between the canine and the subject, including contact with the subject's clothing; (2) documentation of the duration of the canine's contact with a subject; and (3) the approximate distance of the canine from the handler at time of apprehension. In addition, in all apprehensions where there is canine contact, visible injury to a suspect, or a complaint of injury, an uninvolved supervisor shall be summoned to the scene for the purpose of completing a Use of Force Report consistent with investigative requirements established under this Agreement.
18

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2524ofo4f 3129
47. An uninvolved canine supervisor shall evaluate each canine deployment for compliance with NOPD policy and state and federal law, and document this evaluation. 48. NOPD agrees to establish and maintain a canine certification program that ensures that: (l) canines and their handlers demonstrate control and proficiency in specific, widely accepted obedience and criminal apprehension exercises; (2) canines and their handlers receive a minimum of 16 hours of training every four weeks; (3) the trainer keeps detailed records of whether each canine team has met specific control criteria for each control exercise, and what remedial training was given if a canine team was deficient in any area; and (4) the trainer reports all deficiencies to the unit supervisor. The program shall ensure that canines are certified annually by a nationally recognized trainer or organization, and that a canine is not deployed unless its certification is current. NOPD agrees to ensure that the certifying agency's standards are consistent with NOPD policy and standards. 49. NOPD agrees to employ the services of a qualified trainer who is capable of providing certified canine training, and who delivers such training and maintains training records in accordance with NOPD policy and this Agreement. 50. NOPD agrees to centrally record and track each canine team's training records, certification records, and health records, regardless of whether individual handlers also maintain records. 51. NOPD agrees to track canine deployments and canine apprehensions, and to calculate and track canine bite ratios on a monthly basis to assess its canine unit and individual canine teams. 52. NOPD agrees to include canine bite ratios as an element of the EWS, and to provide for the review, pursuant to the protocol for that system, of the performance of any handler whose bite ratio exceeds 20 percent during a six-month period, or the entire unit if the unit's bite ratio exceeds that threshold, and to require interventions as appropriate. Canine data and analysis shall be included in NOPD's Use of Force Annual Report. 53. NOPD agrees not to request or use the services of any canine, whether owned by NOPD or any other jurisdiction, without first ensuring that the canine is controllable and otherwise able to meet the standards required by NOPD policy.
19

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2625ofo4f 3129
F. Electronic Control Weapons 54. Officers shall use ECWs only when such force is necessary to protect the officer, the subject, or another party from physical harm, and other less intrusive means would be ineffective. Officers shall be authorized to use ECWs to control a violent suspect when attempts to subdue the suspect by other tactics have been, or will likely be, ineffective and there is a reasonable expectation that it will be unsafe for officers to approach the suspect within contact range. 55. Unless doing so would place any person at risk, officers shall issue a verbal warning to the subject that the ECW will be used prior to its use. Where feasible, the officer will defer ECW application for a reasonable time to allow the subject to comply with the warning. 56. ECWs will not be used where such deployment may cause serious injury or death from situational hazards, including falling, drowning, losing control of a moving vehicle, or igniting a potentially explosive or flammable material or substance, except where lethal force would be permitted. 57. After one standard ECW cycle (5 seconds), the officer shall reevaluate the situation to determine if subsequent cycles are necessary. Officers shall be trained in the risks of prolonged or repeated ECW exposure, including that exposure to the ECW for longer than 15 seconds, whether due to multiple applications or continuous cycling, may increase the risk of death or serious injury. Officers shall independently justifY each cycle used against a subject in written Force Statements. 58. Officers shall not intentionally activate more than one ECW at a time against a subject. 59. ECWs shall not be used in drive-stun mode as a pain compliance technique. ECWs shall be used in drive-stun mode only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the subject, so that officers can consider another force option. 60. ECWs shall not be used against visibly pregnant women, elderly persons, young children, or visibly frail persons, except where lethal force would be permitted, or where the officer has reasonable cause to believe there is an imminent risk of serious physical injury. Officers shall determine the reasonableness ofECW use based upon all circumstances, including the subject's age, size, physical condition, and the feasibility of lesser force options. Officers shall be trained in the increased risks that ECWs may present to the above-listed vulnerable popUlations.
20

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2726ofo4f 3129
61. ECWs may not be applied to a subject's head, neck, or genitalia, except where lethal force would be permitted, or where the officer has reasonable cause to believe there is an imminent risk of serious physical injury. 62. ECWs shall not be used on handcuffed subjects, unless doing so is necessary to prevent them from causing serious physical injury to themselves or others, and if lesser attempts of control have been ineffective. 63. Officers shall keep ECWs in a weak-side holster to reduce the chances of accidentally drawing and/or firing a firearm. 64. Officers shall receive annual ECW certifications, which should consist of physical competency; weapon retention; NOPD policy, including any policy changes; technology changes; and scenario-based training. 65. Officers shall be trained in and follow protocols developed by NOPD, in conjunction with medical professionals, on their responsibilities following ECW use, including:
a) the removal of ECW probes, including requiring medical or specially trained NOPD personnel to remove probes that are embedded in a subject's skin, except for probes that are embedded in a subject's head, throat, groin, or other sensitive area, which should be removed by medical personnel only; b) the risk of positional asphyxia, and training officers to use a restraint technique that does not impair the subject's respiration following an ECW application; c) the transportation to a hospital for evaluation of all subjects who: have been exposed to prolonged application (more than 15 seconds); are a member of one of the vulnerable popUlations listed above; or had an ECW used against them in circumstances presenting a heightened risk of harm, such as subjects under the influence of drugs and/or exhibiting symptoms associated with excited delirium; or were kept in prone restraint after ECW use; and d) the monitoring of all subjects who have received ECW application while in police custody. 66. Officers shall report all ECW discharges (except for training discharges), laser painting, and/or arcing of weapons to their supervisor and the communications command center as soon as possible.
21

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2827ofo4f 3129
67. NOPD agrees to develop and implement integrity safeguards on the use of ECWs to ensure compliance with NOPD policy, including conducting random and directed audits ofECW deployment data. The audits should compare the downloaded data to the officer's Force Statement. Discrepancies within the audit should be addressed and appropriately investigated. 68. NOPD agrees to include the number of ECWs in operation, and the number ofECW uses, as elements of the EWS. Analysis of this data shall include a determination of whether ECWs result in an increase in the use of force, and whether officer and subject injuries are affected by the rate of ECW use. In addition, the analysis shall include laser painting and arcing of weapons to measure the prevention/deterrence effectiveness associated with the use of ECWs. ECW data and analysis shall be included in NOPD's Use of Force Annual Report. G. Oleoresin Capsicum Spray 69. NOPD agrees to prohibit the use or possession of Oleoresin Capsicum Spray by on-duty officers, including officers working secondary employment. H. SWAT Teams 70. The mission of SOD's Tactical Platoons (currently known as "SWAT' Teams) shall be limited to providing a specialized response to critical situations where a tactical response is required, such as hostage rescue, barricaded subjects, high-risk warrant service and high-risk apprehension, and terrorism response. The policy shall prohibit SWAT tactics and equipment from being deployed or used for routine or "proactive" patrol functions or crime prevention, or for the service of non-high-risk warrants, unless approved in writing by a Deputy Superintendent. This provision does not prohibit SWAT Team members from providing uniformed policing services. 71. NOPD agrees to provide written guidance on what types of warrants may be considered "high-risk," and what tactics are permissible for the service of high-risk warrants. Barring emergency circumstances, the SWAT Tearn shall have the primary responsibility for execution of any high-risk warrant utilizing tactical team officers equipped with special equipment, training, and weapons. 72. In addition to any Use of Force Reports, the SWAT Team shall document its activities in detail, including by preparing written operational plans in consistent formats, and written afteraction reports subsequent to call-outs and deployments to critical situations, such as hostage rescue, barricaded subjects, high-risk warrant service, high-risk apprehension, and terrorism
22

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege2928ofo4f 3129
· response. After-action reports shall address any areas of concern related to policy, training, equipment, or tactics. 73. Supervisory review of SWAT Team deployments shall be conducted by an uninvolved, command-level supervisor possessing the requisite knowledge and expertise to analyze and critique specialized response protocols, and shall identifY any policy, training, equipment, or tactical concerns raised by the action. Command staff shall identify areas of concern or particular successes, and shall implement the appropriate response, including modifications to policy, training, equipment, or tactics. 74. No NOrD personnel shall serve on the SWAT Team for more than five consecutive years (or three consecutive years from the Effective Date, whichever is later), unless they provide a specialized-service function (e.g., negotiator, bomb technician). After this period of service, all personnel shall be reassigned for a period of three years before they may return to SWAT 75. NOrD agrees to track and analyze the number of SWAT Team deployments. The analysis shall include the reason for each activation, the legal authority, type of warrant (if applicable), and the result of each deployment, including: (1) the location; (2) the number of arrests; (3) the type of evidence or property seized; (4) whether a forcible entry was required; (5) whether a weapon was discharged by a SWAT Team member; and (6) whether a person or domestic animal was injured or killed. This data analysis shall be entered into the EWS and included in NOPD' s annual Use of Force Report. I. Use of Force Reporting Policy and Use of Force Report 76. NOPD agrees to develop and implement a uniform reporting system pursuant to a Use of Force Reporting policy, using a uniform, supervisor Use of Force Report, which will include individual officer Force Statements. NOPD uses offorce shall be divided into four levels: a) Level I uses of force include pointing a firearm at a person and hand control or escort techniques (e.g., elbow grip, wrist grip, or shoulder grip) applied as pressure point compliance techniques or that result in injury or complaint of injury. b) Level 2 uses of force include use of an ECW (including where an ECW is fired at a person but misses); use of an impact weapon to strike a person but where no contact is made; use of a baton for non-striking purposes (e.g., prying limbs, moving or controlling a person); and weaponless defense techniques (e.g., elbow strikes, kicks, leg sweeps, and takedowns).
23

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3029ofo4f 3129
c) Level 3 uses of force include any strike to the head (except for a strike with an impact weapon); use of impact weapons where contact is made (except to the head), regardless of injury; or the destruction of an animal. d) Level 4 uses of force include all serious uses of force, as defined by this Agreement, and shall be investigated by NOPD's Force Investigation Team. 77. Hand control or escort techniques applied for the purposes of handcuffing or escorts that are not used as pressure point compliance techniques, do not result in injury or complaint of injury, and are not used to overcome resistance, are not reportable uses of force. 78. All officers using a Level I through 4 use of force, and officers observing a Level 2, Level 3, or Level 4 use of force, shall write a Force Statement before the end of shift, which shall be included in the Use of Force Report. The officer's Force Statement shall include: (I) a detailed account of the incident from the officer's perspective; (2) the reason for the initial police presence; (3) a specific description of the acts that led to the use offorce; (4) the level of resistance encountered; and (5) a description of every type of force used. 79. Officers' Force Statements shall completely and accurately describe the force used or observed. The use of force reporting policy shall explicitly prohibit the use of conclusory statements without supporting detail, including "boilerplate" or "pat" language (e.g., "furtive movement" or "fighting stance") in all statements and reports documenting use of force. Officers shall be subject to disciplinary action for material omissions or inaccuracies in their Force Statements. 80. Officers who use or observe force shall notify their supervisors immediately following any use of force incident or upon receipt of an allegation of unreasonable or unreported use of force by any officer. Officers who use or observe force and fail to report it shall be subject to disciplinary action, up to and including termination. 81. Use of Force Reports, including Force Statements, shall be maintained centrally by PIB. 82. At least annually, NOPD agrees to analyze the year's force data, including the forcerelated outcome data listed in section XIX.C. below, to determine significant trends; identify and correct deficiencies revealed by this analysis; and document its findings in a public report. J. Use of Force Supervisory Investigations 83. The direct supervisor of the officer using a Level I use of force shall review and approve in writing the Level I use of force before the end of the shift during which the Level I force was
24

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3130ofo4f 3129
used. Supervisors shall elevate and investigate any use of force that appears to have been inappropriately categorized as a Level 1 use of force. 84. The direct supervisor of the officer(s) using force, upon notification of a Level 2, Level 3, or Level 4 use of force incident or allegation of excessive force, shall respond to the location of occurrence. The direct supervisor of the officer(s) involved in the reportable use offorce incident shall investigate all uses offorce, with the exception of:
a) those incidents involving a serious use of force (Level 4 uses offorce); b) uses of force indicating apparent criminal conduct by an officer, as defined in this Agreement; c) a use of force incident by NOPD personnel of a rank higher than the supervisor assigned to investigate the incident; or d) a use of force investigation reassigned to FIT by the Superintendant or his designee or pm. 85. A supervisor who was involved in a reportable incident, including by participating in or ordering the force being investigated, shall not investigate the incident or review the Force Statements for approval. 86. For all Level 2 and Level 3 uses of force, the investigating supervisor shall: a) respond to the scene, examine the subject of the force for injury, interview the subject for complaints of pain after advising the subject of hislher rights, and ensure that the subject receives medical attention from an appropriate medical provider; b) notify pm immediately of the use of force and obtain a use of force tracking number; c) identify and collect all relevant evidence and evaluate that evidence to determine whether the use offorce: (I) was consistent with NOPD policy and/or (2) raises any policy, training, tactical, or equipment concerns; d) ensure that all evidence to establish material facts related to the use offorce, including audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected; e) ensure that a canvass for, and interview of, civilian witnesses is conducted. In addition, civilian witnesses should be encouraged to provide and sign a written statement in their own words; f) ensure that all officers witnessing a use of force incident by another officer provide a Force
25

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3231ofo4f 3129
Statement. Officers involved in a use of force incident shall be separated until interviewed. Group interviews shall be prohibited. Supervisors shall ensure that all Use of Force Reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred. Supervisors shall not ask officers or other witnesses leading questions that improperly suggest legal justifications for the officers' conduct, where such questions are contrary to appropriate law enforcement techniques. Investigating supervisors shall record all interviews with civilian witnesses and all follow-up interviews with officers, and shall record all interviews with subjects, after advising them of their rights and that they seek to question them only about the use of force. The recording requirements set out in Custodial Interrogations do not apply to subject interviews regarding the use of force. g) review all Force Statements and ensure that all reports include the information required by this Agreement and NOPD policy; and h) consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate, and make credibility determinations, if feasible. Supervisors will make all reasonable efforts to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force claimed by the officer and the subject's injuries. NOPD will train all of its supervisors on the factors to consider when evaluating credibility, incorporating credibility instructions provided to jurors. Where a reasonable and trained supervisor would determine that there may have been misconduct, the supervisor shall irurnediately notify FIT to respond to the scene. 87. Each supervisor shall provide a written gist to the Division Commander by the end of the shift documenting the supervisor's preliminary determination of the appropriateness of the use of force, including whether the force was reasonable and within policy; whether the injuries appear proportionate to the use offorce described; and summaries of subject, witness, and officer statements. 88. Each supervisor shall complete and document a use of force supervisory investigation using a supervisor's Use of Force Report within 72 hours oflearning of the use of force. Any extension to this 72-hour deadline must be authorized by a Division Commander. This Report shall include: a) the supervisor'S narrative description of the incident, including a precise description of the evidence that either justifies or fails to justify the officer's conduct based on the supervisor's
26

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege332ofo4f 3129
independent review of the facts and circumstances of the incident; b) documentation of all evidence that was gathered, including names, phone numbers, and addresses of witnesses to the incident. In situations in which there are no known witnesses, the report shall specifically state this fact. In situations in which witnesses were present but circumstances prevented the author of the report from determining the identification, phone number or address of those witnesses, the report shall state the reasons why. The report should also include all available identifying information for anyone who refuses to provide a statement; c) the names of all other NOPD employees witnessing the use of force; d) the investigating supervisor's evaluation of the use of force, based on the supervisor's review ofthe evidence gathered, including a determination of whether the officer's actions appear to be within NOPD policy and consistent with state and federal law; and an assessment of the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options; and e) documentation of any non-disciplinary corrective action taken. 89. Upon completion of the supervisor's Use of Force Report, the investigating supervisor shall forward the report through their chain of command to the ICO (if applicable) and/or Division Commander, who shall review the report to ensure that it is complete and that the fmdings are supported using the preponderance of the evidence standard. The Division Commander and/or ICO shall order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings. 90. Where the findings of the Use of Force Report are not supported by a preponderance of the evidence, the investigating supervisor's chain of command shall document the reasons for this determination and shall include this documentation as an addendum to the original investigation. The investigating supervisor's superior shall counsel the investigating supervisor regarding the inadequately supported determination and of any investigative deficiencies that led to it. The Division Commander and/or ICOs shall be responsible for the accuracy and completeness ofUse of Force Reports prepared by supervisors under their command.
27

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3433ofo4f 3129
91. Where an investigating supervisor repeatedly conducts deficient investigations, the supervisor shall receive the appropriate corrective action, including training, demotion, and/or removal from a supervisory position in accordance with performance evaluation procedures and/or Civil Service Rules. 92. Whenever an investigating supervisor, reviewing supervisor, ICO, or Division Commander finds evidence of a use of force indicating apparent criminal conduct by an officer, he or she shall suspend the force investigation immediately and notify PIB. PIB shall immediately notify FIT, which will take over the investigation. 93. When the Division Commander finds that the investigation is complete and the findings are supported by the evidence, the investigation file shall be forwarded to PIB. PIB shall review the investigation to ensure that it is complete and that the findings are supported by the evidence. 94. At the discretion of the Superintendent, his designee, or PIB, a use offorce investigation may be assigned or re-assigned for investigation to FIT or to another supervisor, whether within or outside of the District in which the incident occurred, or may be returned to the Unit for further investigation or analysis. This assignment or re-assignment shall be explained in writing. 95. Where, after investigation, a use offorce is found to be out of policy, the Superintendent shall direct and ensure appropriate discipline. Where the use offorce indicates policy, training, tactical, or equipment concerns, the Superintendent shall ensure also that necessary training is delivered and that policy, tactical, or equipment concerns are resolved. K. Force Investigation Team 96. NOPD agrees to establish a single, uniform reporting and investigation/review system for all Level 4 uses of force (i.e., serious uses offoree, including critical firearm discharges), as defined by this Agreement. 97. NOPD agrees to ensure that all serious uses of force are investigated fully and fairly by individuals with appropriate expertise, independence, and investigative skills to ensure that uses of force that are contrary to law or policy are identified and appropriately resolved; that policy, training, equipment, or tactical deficiencies related to the use of force are identified and corrected; and that investigations of sufficient quality to ensure that officers are held accountable, as necessary are conducted. To achieve this outcome, NOPD agrees to:
a) create a FIT to conduct investigations of serious uses offorce, uses of force indicating apparent criminal conduct by an officer, uses of force by NOPD personnel of a rank higher
28

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3534ofo4f 3129
than sergeant, or uses of force reassigned to FIT by the Superintendant or his designee or PIB. FIT also shall investigate all instances where an individual has died while in, or as an apparent result of being in, the custody of NOPD. FIT shall be comprised of personnel who are specially trained in both criminal and administrative force investigations. Members of FIT shall be assigned to PIB and shall not be assigned to any District. FIT investigations may result in criminal charges, administrative action, or both. b) Within 280 days from the Effective Date, NOPD agrees to recruit, assign, and train a sufficient number of personnel to FIT to fulfill the requirements of this Agreement. Prior to performing FIT duties, FIT members shall receive 40 hours of FIT-specific training in FIT procedures; callout and investigative protocols; proper roles of on-scene counterparts such as crime scene technicians, the Monitor, the DA, the IPM, and the City Attorney's Office; and investigative equipment and techniques. FIT members shall also receive FIT-specific annual in-service training. c) NOPD agrees to create a FIT procedural manual. The procedural manual shall include:
(I) definitions of all relevant terms; (2) clear statements of the mission and authority of FIT; (3) procedures on report writing; (4) procedures for collecting and processing evidence; (5) procedures to ensure appropriate separation of criminal and administrative investigations in the event of compelled subject officer statements; (6) procedures for consulting with the DA, including ensuring that administrative investigations are not unnecessarily delayed while a criminal investigation is pending; (7) scene management procedures; and (8) management procedures. 98. Where appropriate to ensure the fact and appearance of impartiality, for investigations of serious uses of force or force indicating apparent criminal conduct by an officer, NOPD may refer the incident for investigation by an independent and highly competent entity outside NOPD. 99. NOPD's Homicide Section shall not investigate any NOPD officer-involved serious use offorce as defined by this Agreement, or any in-custody death.
29

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3635ofo4f 3129
100. In every incident involving a serious use of force, or any use of force indicating apparent criminal conduct by an officer, the supervisor shall immediately notify FIT. Unless it can verify that the supervisor has already done so, FIT shall immediately notify PIB of the use offorce and obtain a use of force tracking number. 101. FIT shall respond to the scene of every incident involving a serious use of force, any use offorce indicating apparent criminal conduct by an officer, any use of force by an officer of a rank higher than sergeant, and incident where an individual has died while in, or as an apparent result of being in, the custody ofNOPD, or as ordered by the Superintendent or his designee or PIB. 102. The Commander ofPIB shall immediately notify and consult with the DA, IPM, FBI, and the USAO regarding any use of force indicating apparent criminal conduct by an officer, evidence of apparent criminal conduct by an officer discovered during a misconduct investigation, any use offorce in which an officer discharged his firearm, or where an individual has died while in, or as an apparent result of being in, the custody of NOPD. 103. If the case may proceed criminally, or where NOPD requests a criminal prosecution, any compelled interview of the subject officers shall be delayed. No other part of the investigation shall be held in abeyance unless specifically authorized by the Superintendent in consultation with the agency conducting the criminal investigation. 104. NOPD agrees to make good faith efforts to work with the Orleans Parish Coroner's Office in requesting that that Office provide a completed Coroner's report within 30 days regarding a death proximate to a use of force and with the DA or other investigating agency regarding any criminal declination within 60 days after the use of force . 105. In conducting its investigation, FIT shall:
a) review all Force Statements to ensure that these statements include the information required by this Agreement and NOPD policy; b) respond to the scene, examine the subject for injury, interview the subject for complaints of pain after advising the subject of his or her rights, and ensure that the subject receives medical attention from an appropriate medical provider; c) ensure that all evidence to establish material facts related to the use of force, including but not limited to audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected;
30

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3736ofo4f 3129
d) ensure that a canvass for, and interview of, civilian witnesses is conducted. In addition, civilian witnesses should be encouraged to provide and sign a written statement in their own words; e) ensure, consistent with applicable law, that all officers witnessing a serious use offorce incident by another officer provide a Force Statement regarding the incident. Officers involved in a use of force incident shall be separated until interviewed. Group interviews shall be prohibited. FIT shall ensure that all FIT investigation reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred. FIT shall not ask officers or other witnesses leading questions that improperly suggest legal justifications for the officers' conduct, when such questions are contrary to appropriate law enforcement techniques. FIT shall record all interviews; and f) consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate, and make credibility determinations, iffeasible. FIT will make all reasonable efforts to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force claimed by the officer and the subject's injuries. NOPD will train all of its FIT members on the factors to consider when evaluating credibility, incorporating credibility instructions provided to jurors. 106. FIT shall complete a preliminary report that shall be presented to the Superintendent or the Superintendent's designee as soon as possible, but in no circumstances later than 24 hours after learning of the use of force. 107. FIT shall complete its administrative use offorce investigation within 30 days from the use of force. Any request for an extension to this time limit must be approved by the Deputy Superintendent ofPIB through consultation with the Superintendent. At the conclusion of each use of force investigation, FIT shall prepare an investigation report. The report shall include: a) a narrative description of the incident, including a precise description of the evidence that either justifies or fails to justify the officer's conduct based on FIT's independent review of the facts and circumstances of the incident; b) documentation of all evidence that was gathered, including names, phone numbers, and addresses of witnesses to the incident. In situations in which there are no known witnesses, the report shall specifically state this fact. In situations in which witnesses were present but circumstances prevented the author of the report from determining the identification, phone
31

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3837ofo4f 3129
number, or address of those witnesses, the report shall state the reasons why. The report should also include all available identifying information for anyone who refuses to provide a statement; c) the names of all other NOPD employees witnessing the use of force; d) FIT's evaluation of the basis for the use offorce, based on FIT's review of the evidence gathered, including a determination of whether the officer's actions appear to be within NOPD policy and consistent with state and federal law; and an assessment of the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options; e) if a weapon was used, documentation that the officer's certification and training for the weapon are current; and f) documentation of any disciplinary and/or non-disciplinary corrective action recommended. L. Use of Force Review Board 108. NOPD agrees to develop and implement a Use of Force Review Board to review all serious uses of force and other FIT investigations. The UFRB shall be comprised of the Deputy Superintendent of the Public Integrity Bureau, the Deputy Superintendent of the Field Operations Bureau, and the Deputy Superintendent of the Investigations & Support Bureau. The UFRB shall conduct timely, comprehensive, and reliable reviews. The UFRB shall: a) review each FIT investigation within 30 days of receiving the FIT investigation report to ensure that it is complete and that the findings are supported by a preponderance of the evidence; b) hear the case presentation from the lead investigator and discuss the case as necessary with the investigator to gain a full understanding of the facts of the incident. The officer(s) who used the force subject to investigation, or who are otherwise the subject(s) of the FIT investigation, shall not be present; c) order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the [mdings. Where the findings are not supported by a preponderance ofthe evidence, the UFRB shall document the reasons for this determination, which shall be included as an addendum to the original investigation, including the specific evidence or analysis supporting their conclusions;
32

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege3938ofo4f 3129
d) detennine whether the force violated NOPD policy. If the force violated NOPD policy, the UFRB shall refer it to PIB for disciplinary action; e) determine whether the incident raises policy, training, equipment, or tactical concerns, and refer such incidents to the appropriate unit within NOPD to ensure they are resolved; f) direct District supervisors to take and document non-disciplinary corrective action to enable or encourage an officer to improve his or her performance; and g) document its fmdings and recommendations in a UFRB Report within 45 days of receiving the FIT investigation and within 15 days of the UFRB case presentation.
M. Use of Force Training 109. NOPD shall provide all NOPD officers with 40 hours of use offorce training within 365
days of the Effective Date, and 24 hours of use of force training on at least an annual basis thereafter, including, as necessary, developments in applicable law and NOPD policy. NOPD shall coordinate and review all use offorce training to ensure quality, consistency, and compliance with the Constitution, Louisiana law, this Agreement and NOPD policy. NOPD's use of force training shall include the following topics:
a) NOPD's use of force model, as described in this Agreement; b) proper use of force decision-making; c) use of force reporting requirements; d) the Fourth Amendment and related law; e) role-playing scenarios and interactive exercises that illustrate proper use offorce decision-making, including training on the importance and impact of ethical decision making and peer intervention; f) the proper deployment and use of all intermediate weapons or technologies, including batons, canines, and ECWs; g) de-escalation techniques that encourage officers to make arrests without using force, and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, calling in specialized units, or delaying arrest may be the
appropriate response to a situation, even when the use of force would be legally justified;
h) threat assessment; i) basic crisis intervention and interacting with people with mental illnesses, including instruction by mental health practitioners and an emphasis on de-escalation strategies (the
33

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege4039ofo4f 3129
Crisis Intervention Training provided to all new and current officers pursuant to this Agreement may be combined with this training); j) factors to consider in initiating or continuing a pursuit; k) appropriate training on conflict management; and I) for supervisors of all ranks, as part of their initial and annual in-service supervisory training, additional training in conducting use of force investigations; strategies for effectively directing officers to minimize uses of force and to intervene effectively to prevent or stop unreasonable force; and supporting officers who report unreasonable or unreported force, or who are retaliated against for using only reasonable force or attempting to prevent unreasonable force. 110. Included in the use of force training set out above, NOPD shall deliver firearms training to all officers within 365 days of the Effective Date and at least yearly thereafter. NOPD firearms training shall: a) require officers to complete and satisfactorily pass firearm training and to qualifY for regulation and other service firearms, as necessary, on an annual basis; b) require recruits, officers in probationary periods, and officers who return from unarmed status to complete and satisfactorily pass firearm training and to qualifY for regulation and other service firearms before such personnel are permitted to carry and use firearms; c) incorporate professional night training, stress training (e.g., training in using a firearm after undergoing physical exertion), and proper use of force decision-making training, including continuous threat assessment techniques, in the annual in-service training program; and d) ensure that firearm instructors critically observe students and provide corrective instruction regarding deficient firearm techniques and failure to utilize safe gun handling procedures at all times.
IV. CRISIS INTERVENTION TEAM NOPD agrees to minimize the necessity for the use of force against individuals in crisis due to mental illness or a diagnosed behavioral disorder. To achieve this outcome, NOPD agrees to implement the requirements set out below.
34

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege4140ofo4f 3129
A. Crisis Intervention Planning Committee 111. Within 180 days of the Effective Date, NOPD and the City agree to implement a Crisis Intervention Planning Committee ("Planning Committee") to direct the development and implementation of the CIT. The Planning Committee shall analyze and recommend appropriate changes to policies, procedures, and training methods regarding police contact with persons who may be mentally ill with the goal of de-escalating the potential for violent encounters. 112. The Planning Committee shall include representation from NOPD command leadership and City-contracted mental health professionals. NOPD shall also seek representation from the civilian leadership of the MCTU, local municipal government, the New Orleans Metropolitan Human Services District, community mental health professionals, professionals from emergency health care receiving facilities, members of the local judiciary, the Orleans Parish Criminal Sheriff's Office, homeless service agencies, and mental health professionals and advocates. B. Program Development 113. NOPD and the City agree to implement a comprehensive first responder CIT program to develop and maintain specially trained CIT officers. This program shall incorporate the following:
a) Within 270 days of the Effective Date, an operations subcommittee, appointed by and reporting to the Plaoning Committee, shall develop policies and procedures for the transfer of custody or voluntary referral of individuals between NOPD, receiving facilities, and local mental health and social service agencies. These policies and procedures shall clearly describe the existing roles and responsibilities of the existing MCTU and NOPD patrol officers, and of CIT officers. b) NOPD agrees to continue using the MCTU and to continue staffing it with well-trained and dedicated community volunteers, to assist NOPD patrol units in the management and transportation of persons suffering a mental health crisis or from a diagnosed behavioral disorder. MCTU shall retain its duties and responsibilities in providing transportation for individuals experiencing a mental health or behavioral crisis. c) Within 365 days of the Effective Date, the Planning Committee shall select CIT officer
volunteers, based upon supervisor recommendations, pm records, and interviews.
Preference should be given to officers with at least three years of field experience. d) CIT officers shall be assigned to the patrol division and maintain their standard patrol
35

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege4241ofo4f 3129
duties, except when called to respond to potential behavioral or mental health crisis events outside of their assigned patrol district. e) CIT officers who are dispatched to a crisis event shall have the responsibility for the scene and discretion to determine strategies for resolving the event unless an appropriate supervisor is present and affirmatively assumes the scene responsibility. t) NOPD shall track CIT use through data provided by the CIT officer or MCTU after each response. NOPD shall gather and track the following data at a minimum:
(1) Date, time, and location of the incident; (2) Subject's name, age, gender, and address;
(3) Whether the subject was armed, and the type of weapon;
(4) Whether the subject is a U.S. military veteran; (5) Complainant's name and address; (6) Name and badge number of CIT officer on the scene; (7) Whether a supervisor responded to the scene; (8) Techniques or equipment used; (9) Any injuries to officers, subject, or others; (10) Disposition; and (11) Brief narrative ofthe event (if not included in any other document). g) NOPD shall publicly report this data, aggregated as necessary to protect privacy.
c. CIT and First Responder Training
114. NOPD shall require officers selected for the CIT program to undergo a 40-hour initial
comprehensive training prior to being assigned CIT duties, and eight hours of in-service training annually thereafter.
115. Within three years, NOPD shall train at least 20% of its patrol division in the CIT
program to ensure that NOPD can provide a CIT-trained officer in each shift in each District.
116. Within 270 days of the Effective Date, a curriculum subcommittee of the Planning
Committee shall develop a 40-hour curriculum and in-service training for first responders based on the national CIT model. The curriculum subcommittee may adapt MCTU's existing training curriculum for this purpose. CIT training faculty should include volunteer local area professionals and advocates to the greatest extent possible. This crisis intervention training shall
36

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-91-1 FFileilded060/11/31/11/313 PPagaege4342ofo4f 3129
emphasize mental health-related topics, crisis resolution skills, de-escalation training, and access to community-based services. 117. Training for all newly selected CIT officers shall begin within 365 days of the Effective Date and shall be completed within three years. This training shall include not only lecturebased instruction, but also on-site visitation and exposure to mental health facilities, intensive interaction with individuals with a mental illness, and scenario-based de-escalation skills training. 118. In addition to the more extensive training for CIT officers set out above, NOPD agrees to provide all new recruits at least 16 hours of training on responding to persons in behavioral or mental health crisis, and four hours of in-service training annually thereafter. NOPD and the City further agree to provide all current officers with eight hours oftraining on responding to persons in behavioral or mental crisis within 365 days of the Effective Date, and four hours ofinservice training annually thereafter. 119. Within 365 days of the Effective Date, NOPD agrees to offer the 40-hour crisis intervention training to all new and current dispatchers to enable them to identify calls for service that involve behavioral or mental health crisis events. NOPD agrees to offer to provide this training to new dispatchers within 90 days of their start date. NOPD agrees to offer crisis intervention in annual in-service training for dispatchers. D. Maintenance of CIT Program 120. NOPD agrees to maintain the CIT Planning Committee after the CIT program is operational. The Planning Committee shall serve as a problem-solving forum for interagency issues and shall monitor ongoing outcome indicators collected by each agency. These indicators may include data such as NOPD CIT use, NOPD CIT behavioral event disposition data, Orleans Parish Prison booking data, the number of individuals with a mental health diagnosis at the jail, and the transfer of custody and voluntary referral rates between NOPD, emergency receiving facilities, and community agencies. 121. NOPD agrees to review the outcome data generated through the process described above to: determine whether to recognize individual CIT officer performance that deserves commendation; develop new response strategies for repeat calls for service; identify training needs for the annual CIT in-service; make CIT curriculum changes; and identify other NOPD issues to allow NOPD to provide an appropriate response to a behavioral crisis event.
37

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee14o3fo9f3129
V. STOPS, SEARCHES, AND ARRESTS NOPD agrees to ensure that all NOPD investigatory stops, searches, and arrests are conducted in accordance with the rights secured or protected by the Constitution and laws of the United States. NOPD agrees to ensure that investigatory stops, searches, and arrests are part of an effective overall crime prevention strategy; are consistent with community priorities for enforcement; and are carried out with fairness and respect. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Investieatory Stops and Detentions 122. NOPD officers may only conduct investigatory stops or detentions where the officer has reasonable suspicion that a person has been, is, or is about to be engaged in the commission of a crime. 123. NOPD officers shall use accurate and specific descriptive language and not rely solely on "boilerplate" or "pat" language in any reports documenting investigatory stops, detentions, or searches. Articulation of reasonable suspicion and probable cause shall be specific and clear. 124. NOPD officers shall not use or rely on information known to be materially false or incorrect in effectuating an investigatory stop or detention. 125. NOPD officers shall not use race, color, ethnicity, national origin, religion, gender, disability, or sexual orientation as a factor, to any extent or degree, in establishing reasonable suspicion or probable cause, except as part of an actual and apparently credible description of a specific suspect or suspects in any criminal investigation. 126. NOPD officers shall continue to require reasonable suspicion to conduct field interviews, and document investigatory field contacts, including field interviews, in accordance with the stop and search data collection requirements of this Agreement. B. Searches 127. NOPD officers shall not use race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, or gender identity in exercising discretion to conduct a warrantless search or to seek a search warrant, except as part of an actual and apparently credible description of a specific suspect or suspects in any criminal investigation. 128. An officer shall immediately notify a supervisor when considering a search based on consent, and the supervisor shall approve the search before it is conducted.
38

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee24o4fo9f3129
129. Where an officer seeks consent for a search, the officer shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, and document the subject's consent on a written form that explains these rights. 130. NOPD officers shall only conduct searches of individuals on probation or parole where legal authority for the search has been established. 131. NOPD agrees to ensure that the consent to search form includes separate signature lines for civilians to affIrm that they understand they have a right to refuse, and for officers to certify that they have read and explained the right to refuse to the civilian. 132. NOPD agrees to ensure that officers understand how strip and body cavity searches are different than regular searches and are trained on how to conduct proper field strip searches. NOPD shall ensure that field strip searches of arrestees are performed only in the rarest of circumstances under exigent circwnstances where the life of officers or others may be placed at risk, under conditions that provide privacy and with the explicit approval of a supervisory officer. NOPD agrees to ensure that strip searches are only performed when the officer has articulable probable cause that a subject is concealing a weapon or contraband. 133. When approval to conduct a strip search is requested, the supervisor shall immediately respond to the scene to approve the strip search. In situations where strip searches are legally justified, necessary under NOPD policy, and authorized by a supervisor, the search shall be conducted in a professional manner by trained personnel; include the least nwnber of personnel necessary; be performed only by those of the same sex as the identified sex of the individual; and under conditions that provide privacy from all but those authorized to conduct the search. 134. NOPD agrees to ensure that body cavity searches are performed only after obtaining a search warrant and by specially trained medical personnel. 135. An affidavit or sworn declaration supporting an application for a search warrant shall provide an accurate and clear description of the reasons for the request for the search, the place or thing to be searched, and items or possible evidence that are the purpose of the search. 136. A supervisor shall review each request for a search or arrest warrant, including each affidavit or declaration, before it is filed by an officer in support of a warrant application, for appropriateness, legality, and conformance with NOPD policy and this Agreement. The supervisor shall assess the information contained in the warrant application and supporting
39

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee34o5fo9f3129
documents for authenticity, including an examination for "boilerplate" or "pat" language, inconsistent information, and lack of articulation of a legal basis for the warrant. 137. As part ofthe supervisory review, the supervisor shall document in an auditable format those warrant applications that are legally unsupported, are in violation of NOPD policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The supervisor shall take appropriate action to address violations or deficiencies, including recommending non-disciplinary corrective action for the involved officer, and/or referring the incident for administrative or criminal investigation. The quality and accuracy of search warrants and supportive affidavits or declarations shall be taken into account in officer performance evaluations. 138. A supervisor shall assist in developing an operational plan for the execution ofa search warrant, be present for execution of the search warrant, and review and document the search in an after-action report within 24 hours ofthe execution of the warrant. 139. NOPD officers shall not detain non-occupants present at the location where a search warrant is executed for longer than reasonably necessary to secure the area, or to determine whether they are occupants of the premises being searched, or where the officer has individualized reasonable suspicion that the non-occupant is involved in criminal activity or poses a danger to officer safety. 140. NOPD shall maintain, centrally and in each NOPD District and specialized unit, a log listing each search warrant, the case file where a copy of such warrant is maintained, the officer who applied for the search warrant, and each supervisor who reviewed the application for a search warrant.
c. Arrests
141. An NOPD officer shall only arrest an individual where the officer has probable cause. 142. In effectuating an arrest, NOPD officers shall not rely on information known to be materially false or incorrect. Officers may not consider race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, or gender identity in effecting an arrest, except as part of an actual and apparently credible description(s) of a specific suspect or suspects in any criminal investigation. 143. An officer shall immediately notify a supervisor when effectuating a felony arrest; an arrest where the officer used force; an arrest for obstructing or resisting an officer; a custodial
40

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee44o6fo9f3129
arrest where the most serious violation was a vehicle infraction, simple drug possession, or, outside the French Quarter and Central Business District, any of the following city or state laws: Disturbing the Peace (City Code 54-103; LSA-R.S. 14:103); Criminal Trespass (City Code 54-153; LSA-R.S. 14:63); Obstructing Public Passages (City Code 54-40; LSA-R.S. 14: I 00.1); or BeggingfVagrancy (City Code 54-411; 14:107). Upon notification, the supervisor shall respond to the scene. 144. The responding supervisor shall approve or disapprove the officer's arrest recommendation based on the existence of probable cause and NOPD policy. The supervisor shall take appropriate action to address violations or deficiencies in the officer's arrest recommendation, including releasing the subject, recommending non-disciplinary corrective action for the involved officer, and/or referring the incident for administrative or criminal investigation. 145. NOPD patrol officers shall complete all arrest reports before the end of shift. NOPD field supervisors shall review each arrest report of officers under their command and shall memorialize their review in writing within 12 hours of receiving the report, absent exceptional circumstances. Supervisors shall review reports and forms for "boilerplate" or "pat" language, inconsistent information, lack of probable cause, or other indications that the information in the reports or forms is not authentic or correct. 146. As part of the supervisory review, the supervisor shall document in an auditable format those arrests that are unsupported by probable cause, are in violation ofNOPD policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The supervisor shall take appropriate action to address violations or deficiencies in making arrests, including recommending non-disciplinary corrective action for the involved officer, and/or referring the incident for administrative or criminal investigation. For each subordinate, the supervisor shall track each violation or deficiency and the corrective action taken, to identify officers needing repeated corrective action. The supervisor shall ensure that each violation or deficiency is noted in the officer's performance evaluations. The quality of these supervisory reviews shall be taken into account in the supervisor's own performance evaluations. NOPD shall take appropriate corrective or disciplinary action against supervisors who fail to conduct reviews of adequate and consistent quality.
41

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee54o7fo9f3129
147. A command·level official shall review, in writing, all supervisory reviews related to arrests that are unsupported by probable cause, are in violation ofNOPD policy, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The commander's review shall be completed within seven days of receiving the document reporting the event. The commander shall evaluate the corrective action and recommendations in the supervisor's written report and ensure that all appropriate corrective action is taken, including referring the incident to PIB for investigation, if appropriate. 148. NOPD shall track centrally and at the District level the DA's acceptance and refusal rates of arrests made by NOPD and reasons for refusals, when made available by the DA, including those factors and information indicating that a failure to prosecute was due to the quality of officer arrests or concerns regarding officer conduct. Each District Commander shall be held accountable for referring ·to PIB for investigation any information regarding specific incidents of possible officer misconduct related to officer arrests noted in the DA's refusal reasons. D. Stop and Search Data Collection and Review 149. Within 270 days of the Effective Date, NOPD shall develop a written or electronic report format to collect data on all investigatory stops and searches, whether or not they result in an arrest or issuance of a citation. This system shall allow for summarization and searches and also shall be integrated into the EWS. NOPD's stop and search data collection system shall be subject to the review and approval of the Monitor and DOJ, and shall require officers to document the following:
a) officer' s name and badge number; b) date and time of the stop; c) location of the stop; d) duration of the stop; e) subject's apparent race, ethnicity, gender, and apparent age; f) if a vehicle stop, presence and number of any passengers and the apparent race, ethnicity, gender, and age of each passenger; if a non-vehicle stop (e.g., pedestrian or bicycle), number of individuals stopped and race, ethnicity, gender, and age of each person; g) reason for the stop, including a description of the facts creating reasonable suspicion; h) if a vehicle stop, whether the driver or any passenger was required to exit the vehicle, and reason;
42

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee64o8fo9f3129
i) whether any individual was asked to consent to a search and whether such consent was given; j) whether a probable cause search was perfonned on any individual, including a brief description ofthe facts creating probable cause; k) whether a pat-and-frisk or other search was perfonned on any individual, including a description of the facts justifying the pat-and-frisk or other search; I) whether any contraband or evidence was seized from any individual, and nature of the contraband or evidence; and m) disposition of the stop, including whether a citation or summons was issued to, or an arrest was made of, any individual. 150. Officers shall document investigatory stops and detentions, and any searches resulting from or proximate to the stop or detention. In all instances where property or evidence is seized, the officer shall immediately complete a police incident report documenting a complete and accurate inventory of the property or evidence seized, and submit the property or evidence seized to Central Property and Evidence before the end of shift. All documentation of stops, detentions, searches, and seizures shall be submitted to the officer's supervisor by the end of shift. Absent exceptional circumstances, field supervisors shall review investigatory stops and detention or search reports by field officers within 12 hours of receiving this report. Supervisors shall report and shall document: (1) those investigatory stops and detentions that appear unsupported by reasonable suspicion; (2) those searches that appear to be without legal justification; (3) stops or searches in violation ofNOPD policy or this Agreement, or (4) stops or searches that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. 151. The supervisor shall take appropriate action to address all violations or deficiencies in investigatory stops, detentions, or executions of searches, including recommending nondisciplinary corrective action for the involved officer, and/or referring the incident for administrative or criminal investigation. For each subordinate, the supervisor shall track each violation or deficiency and the corrective action taken, if any, in order to identify officers needing repeated corrective action. The supervisor shall ensure that each violation or deficiency is noted in the officer's perfonnance evaluations. The quality and completeness of these supervisory reviews shall be taken into account in the supervisor's own perfonnance evaluations. NOPD shall take appropriate corrective or disciplinary action against supervisors who fail to
43

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee74o9fo9f3129
conduct complete, thorough, and accurate reviews of officers' investigatory detentions and searches. 152. NOPD shall develop a protocol for comprehensive analysis, on at least an annual basis, of the stop and search data collected. This protocol shall be subject to the review and approval of the Monitor and DO], and shall identify and incorporate appropriate benchmarks for comparison. 153. On at least an annual basis, NOPD shall issue a report summarizing the stop and search data collected, the analysis of that data, and the steps taken to correct problems and build on successes. The report shall be publicly available. 154. NOPD shall ensure that all databases containing individual-specific data comply fully with federal and state privacy standards governing personally identifying information. NOPD shall develop a process to restrict database access to authorized, identified users who are accessing the information for a specific and identified purpose. E. First Amendment Right to Observe and Record Officer Conduct 155. NOPD shall ensure that, in accordance with their rights secured or protected by the Constitution and laws of the United States, onlookers or bystanders may witness, observe, record, and/or comment on officer conduct, including stops, detentions, searches, arrests, or uses of force. Officers shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and NOPD shall ensure that officers understand that exercising this right serves important public purposes. 156. Individuals observing stops, detentions, arrests, and other incidents shall be permitted to remain in the proximity of the incident unless one of the conditions in paragraph 160 is met. 157. Individuals shall be permitted to record police officer enforcement activities by camera, video recorder, cell phone recorder, or other means, unless one of the conditions in paragraph 160 is met. 158. Officers shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording police officer enforcement activities. 159. Officers shall not detain, prolong the detention of, or arrest an individual for remaining in the proximity of, recording, or verbally commenting on officer conduct directed at the individual or a third party, unless one of the conditions in paragraph 160 is met. 160. Officers shall take appropriate law enforcement action against a bystander only if a bystander's presence would jeopardize the safety of the officer, the suspect, others in the vicinity
44

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee85o0fo9f3129
or crime scene integrity; the bystander violates the law; or the bystander incites others to violate the law. 161. Officers shall not seize or otherwise coerce production of recorded sounds or images without obtaining a warrant, or order an individual to destroy such recordings. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony, the officer may secure such evidence for no longer than required to obtain a legal subpoena, search warrant, or other valid order. F. Stop. Search. and Arrest Training 162. NOPD shall provide all officers with at least 24 hours within 365 days of the Effective Date, and at least four hours on at least an annual basis thereafter, of training on stops, searches, and arrests, including the requirements of this Agreement. Such training shall be taught by a qualified legal instructor with significant experience in Fourth Amendment issues, and shall:
a) address Fourth Amendment and related law, NOPD policies, and requirements in this Agreement regarding searches and seizures; b) address First Amendment and related law, NOPD policies, and requirements in this Agreement on the rights of individuals to verbally dispute, observe, and record officer conduct; and c) address the difference between various police contacts by the scope and level of police intrusion; between probable cause, reasonable suspicion, and mere speculation; and between voluntary consent and mere acquiescence to police authority; d) provide guidance on the facts and circumstances that should be considered in initiating, conducting, terminating, and expanding an investigatory stop or detention; e) provide guidance on the level of permissible intrusion when conducting searches, such as "pat-downs" or "frisks"; f) provide guidance on the legal requirements for conducting searches, with and without a warrant; g) provide guidance on the permissible nature and scope of searches based on the level of intrusion on an individual's privacy interests, including searches conducted pursuant to probation or parole release provisions; h) specify the procedures for executing searches, including handling, recording, and taking custody of seized property or evidence;
45

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee95o1fo9f3129
i) provide guidance on effecting an arrest with and without an arrest warrant; and j) provide guidance regarding the nature and scope of searches incident to an arrest.
VI. CUSTODIAL INTERROGATIONS NOPD agrees to ensure that officers conduct custodial interrogations in accordance with the subjects' rights secured or protected by the Constitution and laws of the United States, including the rights to counsel and against self-incrimination. NOPD agrees to ensure that custodial interrogations are conducted professionally and effectively, so as to elicit accurate and reliable information. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Interrogation Restrictions and Equipment 163. Officers shall not use physical violence or make threats to carry out harm to the individual or the individual's family during custodial interrogations. 164. All custodial interrogations that take place in a police facility, and all interrogations that involve suspected homicides or sexual assaults, shall be video and audio recorded. All recorded custodial interrogations will be recorded in their entirety. NOPD rejects the concept ofa "preinterview" and prohibits any decision not to record any portion of the interrogation based on such categorization. The recording equipment shall not be turned off unless the suspect states that he/she does not want the interview to be recorded. If the suspect requests that he/she does not want the interview to be recorded, the interviewer will record the subject making this request and shall document this request in the case report. 165. If the interrogation is not able to be video and audio recorded because of equipment failure or malfunction, detectives shall record the interrogation by means of a digital or cassette recorder. Any equipment failure shall be explained and documented in the case report, the case file, and in a memo to the Deputy Chief of the Investigation & Support Bureau. 166. All officers shall maintain in the case file their notes taken during interviews and interrogations. 167. Within 270 days from the Effective Date, NOPD shall designate interview rooms for all Districts and specialized units, and ensure that interview rooms are equipped with functioning audio and video recording technology that allows for recording and maintenance of all phases of interrogations.
46

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1052ofo9f 3129
168. Within 270 days from the Effective Date, NOPD shall use qualified interpreters for any interrogation of an LEP individual, and Miranda warnings shall be provided to the subject in his or her primary language. Because of the dual role bilingual NOPD employees may have when conducting an interrogation and simultaneously acting as an interpreter, they should only be used as an interpreter during an interrogation if they have identified themselves as officers or employees of the Department, are authorized as NOPD interpreters, and are trained in using interpretation protocols consistent with best practices, as required by this Agreement and NOPD's language assistance policy and plan. B. Detective Selection and Interrogation Training 169. NOPD shall post all detective openings throughout the Department and shall revise eligibility criteria for detectives in Districts and specialized units to require appropriate experience, writing samples, supervisor recommendations, and an interview. 170. Within 365 days of the Effective Date, NOPD shall develop and deliver at least 24 hours offormal training for newly assigned detectives on interrogation procedures and methods. This training shall include legal standards, ethics, the mechanics of conducting effective and constitutional investigations, and causes for investigative failures and false confessions. NOPD shall provide regular, and at least annual, in-service training to all detectives on updates and changes to the law regarding interrogations and confessions.
vn. PHOTOGRAPIDC LINE-UPS
NOPD agrees to ensure that photographic line-ups are conducted effectively and in accordance with the rights secured or protected by the Constitution and laws of the United States, so as to elicit accurate and reliable information. To achieve this outcome, NOPD agrees to implement the requirements set out below. 171. No officer who is involved in the investigation shall participate in administering the photographic lineup. The individual who administers the lineup shall not have any knowledge as to which photograph depicts the suspect in the investigation. 172. NOPD agrees that, before any lineup is administered, eyewitnesses shall be admonished that the suspect might or might not be present in the lineup. 173. NOPD agrees to select "filler" photographs-those that do not depict the suspect-{)f individuals who generally fit the witness's description of the perpetrator. When there is a limited or inadequate description of the perpetrator provided by the witness, or when the description of
47

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1153ofo9f 3129
the perpetrator differs significantly from the appearance of the suspect, fillers should resemble the suspect in significant features. 174. NOPD agrees to keep a complete record of each display procedure and results. The record shall include the time, date, location, identity of the viewing person, photograph numbers, and name of the administrator of the line-up. 175. NOPD agrees to document other information pertinent to the display procedure, including any statements made by the viewing individual and identities of other persons present during the procedure. 176. If a suspect selection is made, NOPD agrees to mark and maintain as evidence the photographs used in the lineup, including a copy of the photo array if one was used. It shall be kept as evidence until the final disposition of the case, at which time it shall become a part ofthe permanent case file.
VIII. BIAS-FREE POLICING NOPD agrees to deliver police services that are equitable, respectful, and bias-free, in a manner that promotes broad community engagement and confidence in the Department. In conducting its activities, NOPD agrees to ensure that members of the public receive equal protection of the law, without bias based on race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, or gender identity, and in accordance with the rights secured or protected by the Constitution and laws of the United States. To achieve these outcomes, NOPD agrees to implement the requirements below. A. Bias-Free Policing Training 177. NOPD agrees to provide all officers with four hours of comprehensive training on bias-free policing within 365 days of the Effective Date, and four hours annually thereafter, based on developments in Louisiana or federal law and NOPD policy. Such training shall emphasize that discriminatory policing in the form of either selective enforcement or nonenforcement of the law, including the selection or rejection of particular tactics or strategies based upon stereotypes or bias, is prohibited by policy and will subject officers to discipline. This training shall address: a) methods and strategies for more effective policing that rely upon non-discriminatory factors; b) police and community perspectives related to discriminatory policing;
48

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1254ofo9f 3129
c) Constitutional and other legal requirements related to equal protection and unlawful discrimination, including the requirements of this Agreement; d) the protection of civil rights as a central part of the police mission and as essential to effective policing; e) the existence and impact of arbitrary classifications, stereotyping, and implicit bias; f) instruction in the data collection protocols required by this Agreement; g) identification of key decision points where prohibited discrimination can take effect at both the incident and strategic-planning levels; and h) methods, strategies, and techniques to reduce misunderstanding, conflict, and complaints due to perceived bias or discrimination, including problem-oriented policing strategies. B. Ensuring Bias-Free Policing 178. NOPD agrees to apply and administer programs, initiatives, and activities without discrimination on the basis of race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, or gender identity. 179. NOPD agrees to provide clear guidance on prohibited conduct, including selective enforcement or non-enforcement of the law and the selection or rejection of particular tactics or strategies based upon stereotypes or bias. 180. NOPD leadership and supervising officers shall consistently reinforce to subordinates that discriminatory policing is an unacceptable tactic, including in making decisions to use particular police tactics in particular communities based upon stereotypes or bias. 181. NOPD agrees to incorporate the following elements in its training of officers: 1) introducing themselves at the initiation of contact with a civilian; 2) stating the reason for a investigatory stop or detention as soon as practicable; 3) ensuring that an investigatory stop or detention is no longer than necessary to take appropriate action; and 4) acting with professionalism and courtesy throughout the interaction regardless of any provocation. 182. Within 365 days of the Effective Date, NOPD agrees to incorporate requirements regarding bias-free policing and equal protection into its hiring, promotion, and performance assessment processes, including giving significant weight to an individual's history of sustained bias-related violations, as well as using interviews and other methods to assess the individual's ability to effectively practice bias-free policing.
49

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1355ofo9f 3129
183. Within 365 days of the Effective Date, NOPD agrees to develop and implement a plan to provide all individuals within the City essential police services regardless of immigration status, in order to build and preserve trust among community members, and to more effectively prevent and solve crime. As part of this plan:
a) Officers shall not take law enforcement action on the basis of actual or perceived immigration status, including the initiation of stops or other field contacts; b) Officers shall not question victims of, or witnesses to, crime regarding their immigration status. Nothing in this provision shall prohibit NOPD from assisting nonimmigrant victims/witnesses in obtaining U-Visa / T-Visas, where appropriate; c) Officers shall not enforce La. R.S.l4:100.l3, which the Court of Appeals of Louisiana, Fourth Circuit, has found to unlawfully pre-empt federal regulations; and d) NOPD shall seek the assistance of community advocates in widely disseminating to the public, in English and in Spanish, NOPD's written policy incorporating these requirements. 184. NOPD agrees to develop and implement a specific policy to guide officers' interactions with members of the LGBT community, which shall prohibit discrimination based on sexual orientation, gender identity, or gender expression. 185. NOPD agrees that officers will treat LGBT individuals with courtesy, professionalism, and respect, and that officers are specifically prohibited from using harassing, intimidating, or derogatory language regarding or toward LGBT individuals. This shall include addressing transgender individuals with their chosen name, title, and pronoun. 186. NOPD agrees that officers shall not construe sexual orientation, gender identity, or gender expression as reasonable suspicion or probable cause that an individual is or has engaged in any crime, and that officers shall not request identification from or otherwise initiate a contact solely on the basis of sexual orientation or gender identity/expression. 187. NOPD agrees that officers will not subject transgender individuals to more invasive or more frequent frisk procedures due to transgender status. Officers shall not frisk any person for the purpose of determining that person's gender or to view or touch the person's genitals. Where same-gender searches are required by law or NOPD policy, the officer shall respect the gender identification expressed by the individual. Where the individual does not self-identifY and the gender identity is not clear to a reasonable person or the officer is uncertain, the officer will take
50

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1456ofo9f 3129
reasonable, non-invasive steps to determine the gender identity, such as asking the individual how the individual would like to be addressed. 188. Within 365 days of the Effective Date, and at least annually thereafter, NOPD agrees to assess all NOPD programs, initiatives, and activities to ensure that no program, initiative, or activity is applied or administered in a manner that discriminates against individuals on the basis of race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, or gender identity. As part of its assessment, NOPD agrees to specifically include an assessment of misconduct complaints involving discrimination, use of force, motor vehicle and pedestrian stops, and arrests, including the selection or rejection of particular geographic deployment tactics or strategies based upon stereotypes or bias. NOPD shall base its assessment of programs, initiatives, and activities on accurate, complete, and reliable data, including data contained in the EWS, stop and detention data, use of force analyses, crime trend analysis in relation to population demographics, enforcement practices based on community concerns, operations plans, and after-action reports. NOPD agrees to make this assessment publicly available. C. Language Assistance 189. NOPD agrees to effectively communicate with and provide timely and meaningful access to police services to all members of the community, regardless of their national origin or limited ability to speak, read, write, or understand English. To achieve this outcome, NOPD shall:
a) develop and implement a language assistance plan and policy that complies, at a minimum, with Title VI of the Civil Rights Act of 1964, as amended, (42 U.S.C. § 2000d et seq.) and other applicable law, and that comports with best practices and current professional standards; b) ensure that all NOPD personnel take reasonable steps to provide timely, meaningful language assistance services to LEP individuals they encounter and whenever an LEP individual requests language assistance services; c) identify and assess demographic data, specifically the number ofLEP individuals within its jurisdiction and the number of LEP victims and witnesses who seek NOPD services; d) use collected demographic and service data to identify and meet hiring needs for bilingual staff; e) regularly assess the proficiency and qualifications of bilingual staff to become an NOPD Authorized Interpreter;
51

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege157ofo9f 3129
f) create and maintain an NOPDAI List and provide that list to the Orleans Parish Communication District 911 Communications Center; g) ensure that Orleans Parish Communications District 911 calJ takers are trained to recognize the need for a NOPDAI to respond to an incident involving an LEP individual and dispatch a NOPDAI as appropriate. If no NOPDAi is available, the personnel shall contact a telephonic interpretation service provider. The call taker shall note in information to the radio dispatch that the 911 caller is an LEP individual and indicate the language; h) develop protocols for interpretation for interrogations and interviews ofLEP individuals to ensure a qualified interpreter is used for the taking of any formal statement from a suspect or witness in order to protect their legal rights; i) develop and implement a process for taking, responding to, and tracking citizen complaints and resolutions of complaints filed by LEP individuals; j) identify official and vital documents that are subject to public dissemination, and require translation of such documents into Spanish and Vietnamese, at a minimum. Such vital documents include: consent to search forms; witness and victim statement forms; citation forms; victim rights notification forms; citizen complaint forms; and notices advising LEP persons offree language assistance in connection with NOPD activities; k) implement a process for recruiting qualified bilingual personnel to meet demonstrated service needs. As part of this process, NOPD agrees to establish meaningful relationships with local and state-wide institutions and community organizations that can serve as the source of qualified bilingual applicants and facilitate outreach to such advocates; and I) implement incentives for bilingual employees to become NOPDAIs, such as pay differentials, consideration in performance evaluations, or assignments. 190. NOPD agrees to translate the language assistance plan and policy into Spanish and Vietnamese, and if it becomes appropriate, other languages, and post the English and translated versions in a public area of the police department building, District police stations, and the PIB building, as well as online, and in any other locations throughout the City where individuals go to seek police assistance. NOPD agrees to distribute the language assistance plan and policy to a variety ofcommunity organizations serving LEP communities encountered by NOPD.
52

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1658ofo9f 3129
191. NOPD agrees to distribute its language assistance plan and policy to all staff and police personnel, and, within 365 days of the Effective Date, provide training to all personnel on providing language assistance services to LEP individuals. This training shall include:
a) NOPD's LEP plan and policies; and the requirements of Title VI and this Agreement; b) how to access NOPD-authorized telephonic and in-person interpreters; c) how to work with interpreters in the field; d) cultural diversity; and e) how to communicate with LEP individuals in commonly encountered scenarios; and basic command of Spanish or Vietnamese, for officers assigned to Districts with significant LEP populations. 192. Within 180 days of Effective Date, NOPD agrees to designate a language access coordinator who shall coordinate and monitor compliance with its language assistance plan. The language access coordinator shall assess the effectiveness and efficiency of the plan on an ongoing basis and shall report to the Superintendent or his designee regarding needed improvements and any accountability concerns. The Superintendent or his designee shall consider the information provided by the coordinator and respond as necessary to ensure that NOPD's language assistance plan is effective. 193. Within 180 days of the Effective Date, NOPD agrees to develop and implement a process of consultation with representatives of the LEP community to develop and at least annually review: implementation of the language assistance plan, including areas of possible collaboration to ensure its effectiveness; identification of additional languages that would be appropriate for translation of materials; accuracy and quality of NOPO language assistance services; and concerns, ideas, and strategies for ensuring language access. 194. Within 270 days of the Effective Date, NOPD agrees to develop a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals. As part of this process NOPD shall: a) document the number of LEP persons requiring NOPD services and their primary language; b) collect data regarding the number of times an interpreter has been used, listed by language and type of interpreter (telephonic or in-person); c) document the number of bilingual staff who have been evaluated for language proficiency,
53

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1759ofo9f 3129
by language, job title, and level of proficiency; and d) document use of translators, vital documents translated, and languages into which vital documents are translated.
IX. POLICING FREE OF GENDER BIAS NOPD agrees to respond to and investigate reports of sexual assault and domestic violence professionally, effectively, and in a manner free of gender-based bias, in accordance with the rights secured or protected by the Constitution and laws of the United States. NOPD agrees to appropriately classify and investigate reports of sexual assault and domestic violence, collaborate closely with the DA arid community partners, including the NOFJC, and apply a victim-centered approach at every stage of its response. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Sexual Assault 195. NOPD agrees to develop and implement clear policies and procedures governing its response to reports of sexual assault. NOPD agrees to ensure its policies and procedures on sexual assault comply with applicable law and comport with best practices and current professional standards. NOPD agrees to clearly delineate in policy the respective duties of patrol officers/first responders, sex crimes detectives, and supervisors, and to provide clear and detailed guidelines for steps at each stage ofNOPD's response to a reported sexual assault, including dispatch response, initial officer response, and on-scene and follow-up investigation. 196. Patrol officers or other first responders shall document their observations and any actions taken, including any statements of victims, witnesses, and reporting persons, in calls for service related to sexual assaults. 197. NOPD protocols for conducting initial and follow-up victim interviews shall reflect the special needs of victims who may be in crisis or suffering from trauma. 198. NOPD agrees to provide clear and detailed guidelines for on-scene and follow-up investigation, including identifying, locating, and interviewing witnesses and suspects; collaborating with victim advocates; collecting evidence; special procedures for drug-facilitated sexual assaults; and documentation. 199. NOPD agrees to establish protocols for forensic examinations of both victims and suspects, as well as evidence preservation and crime scene management in the sexual assault context. These protocols shall be established in collaboration with the New Orleans SART and
54

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1860ofo9f 3129
shall incorporate the recommendations of the National Protocol for Sexual Assault Medical Forensic Examination recommended protocols governing police procedure. 200. Through its on-going training, NOPD agrees to keep officers apprised, and shall inform victims, of available services, referrals, or other assistance. 201. Special Victims Section supervisors shall provide direct supervision of their subordinates by:
a) responding to assist officers investigating felony sexual assaults as defined under the Louisiana Criminal Code of Procedure: RS 14:42, Aggravated Rape; RS 14:42.1, Forcible Rape; RS 14:43, Simple Rape; RS 14:43.1, Sexual Battery; RS 14:43.2, Second Degree Sexual Battery; and RS 14:43.3, Oral Sexual Battery. b) building relationships and enhancing cooperation with victim advocates and forensic examination programs, both to respond to and reduce the risk of sexual assault; c) continually seeking and creating opportunities for training to enhance investigators' skills; d) closely reviewing investigative reports and dispositions; e) demonstrating a detailed understanding of victim issues and setting clear expectations of detectives regarding their treatment of victims; f) incorporating victim interactions and services into subordinates' performance evaluations; and g) following up all investigative leads generated from CaDIS hits developed as a result of testing of the evidence in the case. 202. NOPD agrees to track all CODIS hit outcomes with the CODIS Hit Outcome Program software provided by National Institute of Justice. This software will provide accountability and outcome data for review by appropriate bodies, and provide feedback to the DNA Database Unit maintained by the Louisiana State Police. 203. NOPD agrees to incorporate IACP recommendations for VAW Law Enforcement Best Practices into its training, and update procedural requirements annually, to reflect changes in policy and law and developments in research and best practice. 204. In addition to annual in-service training, NOPD agrees to provide initial training for sex crimes detectives of no fewer than 32 hours. This training shall include: a) realistic dynamics of sexual assault, including issues related to response to trauma and delayed reporting;
55

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege1961ofo9f 3129
b) overcoming the perception of false/unfounded allegations to successfully investigate nonstranger sexual assault; c) drug and alcohol facilitated sexual assault; d) skills-based training on interviewing, including taped mock victim interviews; e) report-writing; f) discovery; and g) collection, preservation, and submission of evidence in sexual assault cases, including selecting the evidence to be submitted for testing. 205. NOPD agrees to provide detailed initial and recruit training on responding to sexual assault for patrol officers and other first responders of no fewer than four hours, and ongoing annual in-service training. Additionally, NOPD agrees to incorporate fact-based scenarios involving stranger and non-stranger sexual assault into recruit and in-service training on topics such as general investigation, crime scene preservation, and report writing. NOPD's training on sexual assault shall include: a) realistic dynamics of sexual assault, including issues related to response to trauma and delayed reporting; b) report writing; c) victim interviewing; and d) initial assessment of victim and crime scene. 206. During the first year ofthis Agreement, neither patrol officers nor detectives shall code reported sexual assaults in a miscellaneous or non-criminal category without the express written approval of the ISB Special Victim Section Commander and the ISB Criminal Investigations Division Commander. Following this period, patrol officers shall not code reported sexual assaults in a miscellaneous or non-criminal category. Any decision by a detective to do so shall receive close secondary review and shall be approved in writing by an immediate Sex Crimes unit supervisor and the Division commander. 207. NOPD agrees to train supervisors and investigators in the Sex Crimes unit in the proper definitions and application of "unfounded," "false," and "baseless" classifications in the context of sexual assault. The immediate supervisor in the Sex Crimes Unit and the Special Victims Section Commander shall closely review and approve in writing any decision to classify a report
56

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2062ofo9f 3129
as "unfounded." NOPD agrees to track each of these conclusions separately in NOPD's CCMS and publicly report them on at least a semi-annual basis. 208. NOPD agrees to separately track all reports offelony sexual assault, including drugfacilitated sexual assault, sexual assaults involving persons with disabilities rendering them unable to consent, sodomy, and male victims of sexual assault. NOPD agrees to collect data on the final disposition of sexual assault investigations, including whether an arrest was made and whether the DA charged the suspect or rejected the case and, if so, the reason for the rejection if the DA provides a reason. NOPD agrees to track this data in NOPD's CCMS. NOPD further agrees to make a reasonable effort to enter into a Memorandum of Understanding with the DA to track information related to the outcomes of domestic violence cases including whether the case was ultimately dismissed, resulted in a plea agreement, or tried, and the final outcome of the trial. 209. NOPD agrees to track in its Justice Trax Laboratory Information Management System the evidence collected and whether it was submitted to a crime lab for testing. Where evidence is not submitted, NOPD agrees to record in this System the justification for this decision. 210. NOPD agrees to work with the DA, community service providers, and other stakeholders to develop and implement a SART and collaborative SART agreement within 180 days of the Effective Date, to provide a coordinated and victim-centered approach to sexual violence. NOPD agrees to comply with its obligations under the SART collaborative agreement. 211. Within 365 days of the Effective Date, NOPD agrees to develop a mechanism to select and permit a committee of representatives from the community, including rape crisis advocates, service providers, and/or legal providers, to review, on a semi-annual basis: (1) sexual assault investigations disposed of as "unfounded;" (2) a random sample of open sexual assault investigations with the approval of the DA; and (3) after the first year of this Agreement, reported sexual assaults placed in a miscellaneous or non-criminal category. NOPD agrees to develop a protocol to ensure that feedback and recommendations from this committee are incorporated into policies, general training, remedial training for specific officers or detectives, and the decision to re-examine and re-open investigations, if warranted. This mechanism shall include appropriate safeguards to protect ongoing criminal or administrative investigations, confidential or privileged information, or personal information that is protected from disclosure by applicable laws.
57

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2163ofo9f 3129
B. Domestic Violence 212. NOPD agrees to delineate the respective duties of communications staff, patrol officers/first responders, District-level detectives, domestic violence detectives, and supervisors in its domestic violence policies and procedures and agrees to provide clear and detailed guidelines for steps at each stage ofNOPD's response to a report of domestic violence, including dispatch response; initial officer response, including entry procedures; and on-scene and follow-up investigation. 213. NOPD agrees to prioritize victim safety and protection at each stage of its response to a report of domestic violence and provide, through the New Orleans Integrated Domestic Violence Protocol, clear guidelines for on-scene and follow-up investigation, including identifying, locating, and interviewing suspects and witnesses, including child witnesses; assessment of the crime scene; evidence collection, including documentation of victim injuries; and seizure of weapons. 214. NOPD agrees to discourage dual arrests ofoffenders and victims. NOPD agrees to provide guidance on when dual arrests are permissible and require supervisory approval to effectuate a dual arrest. NOPD policies shall require the custodial arrest of domestic violence offenders who violate the terms of a valid and outstanding protection order, and those the officer has probable cause to believe has committed a domestic violence offense. NOPD training shall include training on how to identify the primary aggressor. 215. NOPD agrees to continue to participate in the operation, development, and sustainability of the NOFJC; work in co-location with other civil and criminal agencies and community-based organizations; and support a centralized, multi-agency Family Justice Center model in the handling of domestic violence and sexual assault cases in New Orleans. 216. NOPD agrees to collaborate with and refer all victims to the NOFJC. 217. NOPD agrees to continue close collaboration with the DA and community providers to ensure that policies and protocols remain victim-centered and effective. To facilitate this collaboration, the Superintendent or a designee at the level of Commander or above shall meet with the Executive Committee of the NOFJC on at least a quarterly basis to discuss and coordinate policy, training, and other aspects ofNOPD's response to domestic violence. NOPD agrees also to designate, and include at this quarterly meeting, an NOPD employee at the rank of sergeant of above responsible for reviewing and coordinating NOPD's policies on domestic
58

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2264ofo9f 3129
violence. This designated officer shall review NOPD's domestic violence policies for internal consistency, and consistence with the Integrated Protocol developed by the NOFJC, the Blueprint for Safety, and any similar plan adopted by the City. He or she shall closely collaborate with NOFJC and the DA to strengthen the Integrated Protocol and/or the Blueprint for Safety to ensure that they comport with best practices, NOPD policies, and this Agreement, and to review and update policies at least annually, or as necessary. He or she also shall be responsible for identifying training needs with respect to implementing NOPD domestic violence policies, the Integrated Protocol, and/or the Blueprint for Safety. 218. NOPD agrees to assign sufficient staff to the DVU at the NOFJC to permit detectives to review, on a weekly basis, District-level reports on incidents of domestic violence, for the purpose of identifying training needs and tracking the Districts' response to domestic violence. The DVU shall have sufficient staff to conduct appropriate follow-up investigation on felony offenses, including incidents where a weapon was involved or the victim suffered serious bodily injury. This follow-up investigation shall include field work and coordination with the DA's Domestic Violence Prosecution Unit. NOPD shall assign sufficient detectives to the DVU based on the calls for service. 219. NOPD agrees to offer training on domestic violence that incorporates lACP recommendations for VAW Law Enforcement Best Practices and to annually update the training to reflect changes in policy, law, and developments in research and best practice. 220. NOPD agrees to provide at least 4 hours of initial and recruit training on domestic violence for all officers, and ongoing annual in-service training. Additionally, NOPD agrees to incorporate fact-based scenarios involving domestic violence into recruit and in-service training on such topics as general investigation, crime scene preservation, and report writing. NOPD's training on domestic violence shall include:
a) NOPD's policies and procedures on domestic violence, including the Integrated Protocol and/or Blueprint for Safety; b) dynamics of domestic violence; c) identifying the primary aggressor; d) responding to and investigating strangulation in the context of domestic violence; e) interviewing victims, witnesses and suspects;
59

- ----_. __.._- ----- ... - -----_._-- - - _ . _ - - - - -- - - -
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2365ofo9f 3129
f) report-writing; and g) discovery. 221. NOPD agrees to provide domestic violence detectives with initial training of no fewer than 32 hours, and ongoing annual in-service training. This training shall include advanced, skills-based instruction in evidence collection; victim assistance; interviewing, including taped mock victim interviews; and other topics. 222. NOPD agrees to track dispositions of domestic violence investigations, including arrests and acceptance or refusal by the DA. NOPD further agrees to make a reasonable effort to enter into Memoranda of Understanding with appropriate agencies to track information related to the outcomes of domestic violence cases, including whether the case was ultimately dismissed, resulted in a plea agreement, or tried, and the final verdict or outcome of the trial. NOPD agrees to track dual arrests and domestic violence arrests by gender. NOPD agrees to publicly report this data on at least an annual basis
x. COMMUNITY ENGAGEMENT
NOPD agrees to promote and strengthen partnerships within the community, and to engage constructively with the community, to ensure collaborative problem-solving and ethical and bias-free policing, and to increase community confidence in the Department. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Community and Problem Oriented Policing 223. Within 180 days of the Effective Date, NOPD agrees to reassess its staffing allocation and personnel deployment, including its use of specialized units and deployment by geographic area, to ensure that core operations support community policing and problem-solving initiatives, and shall agree to modify any deployment strategy found to be incompatible with effective and community-oriented policing. 224. NOPD agrees to deploy an adequate number and distribution of officers to ensure that all neighborhoods have a regularly assigned officer who is familiar with the geographic area, its issues, problems, and community leaders; engages in problem identification and solving activities with the community members around the community's priorities; works proactively with other city departments to address quality of life issues; and is not assigned to answer calls to service absent exigent circumstances.
60

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2466ofo9f 3129
225. NOPD agrees to ensure its mission statement reflects its commitment to community-oriented policing and agrees to integrate community and problem-oriented policing principles into its management, policies and procedures, recruitment, training, personnel evaluations, resource deployment, tactics, and accountability systems. 226. Within 365 days of the Effective Date and annually thereafter, NOPD agrees to provide 8 hours of structured annual in-service training on community policing and problem-oriented policing methods and skills for all officers, including supervisors, managers and executives. This training shall include:
a) methods and strategies to improve public safety and crime prevention through community engagement; b) scenario-based training that promotes the development of new partnerships between the police and community, targeting problem solving and prevention; c) leadership, ethics, and interpersonal skills; d) community engagement, including how to establish formal partnerships and actively engage community organizations, including youth, immigrant, and LGBT communities; e) problem-oriented policing tactics, including a review of the principles behind the problem solving framework developed under the "SARA Model" (Scanning, Analysis, Response, Assessment), which promotes a collaborative, systematic process to address issues of the community, including safety and quality of life; f) conflict resolution and verbal de-escalation of conflict; and g) cultural awareness and sensitivity training. Cultural awareness training shall be designed and delivered in cooperation with City Human Relations Commission staff and community representatives selected by the Commission. 227. NOPD agrees to continue to support community groups in each District (e.g., NONPACC) and to meet regularly with the communities each District serves. In addition, within 240 days of the Effective Date, NOPD agrees to develop and implement mechanisms to measure officer outreach to a broad cross-section of community members, with an emphasis on youth outreach, to establish extensive problem-solving partnerships and develop and implement cooperative strategies that build mutual respect and trusting relationships with this broader cross-section of stakeholders. NOPD agrees to develop and implement partnerships to provide immediate and ongoing support to families of victims of homicides and other serious crimes.
61

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2567ofo9f 3129
228. Within 240 days of the Effective Date, NOPD agrees to develop measurements to assess the effectiveness of its community partnerships and problem-solving strategies, including the effectiveness of the Community Coordinating Sergeant program. NOPD agrees to prepare a publicly available report on at least a quarterly baSis detailing its community policing efforts in each District, including developing community partnerships, participating in public meetings; and its problem-solving activities, including specific problems addressed and steps taken by NOPD and the community toward their resolution. This report also shall identify obstacles faced and recommendations for future improvement. At least annually, NOPD agrees to issue a publicly available report that summarizes these problem-solving and community policing activities. 229. Within 180 days of the Effective Date, NOPD agrees to remake the COMSTAT meeting. The COMSTAT meeting will use the underlying collection and reporting of accurate and meaningful data regarding crime trends and other public safety measures to drive discussion of community-policing successes and challenges. NOPD agrees to ensure the COMSTAT meeting includes discussion and analysis of trends in misconduct complaints and community priorities to identify areas of concern, and to better develop interventions to address them. NOPD agrees to use techniques such as spatial mapping and scientific deployment analysis to enable COMSTAT to better support and measure community and problem-solving policing efforts. B. Biennial Community Survey 230. Within 180 days of the Effective Date, and every two years thereafter, NOPD and the City agree to conduct a reliable, comprehensive, and representative survey of members of the New Orleans community regarding their experiences with and perceptions ofNOPD and of public safety. 231. To conduct the biennial community survey, the Monitor shall retain an individual or entity, to be approved by DOJ, that shall:
a) develop a baseline of measures on public satisfaction with policing, attitudes among police personnel, and the quality of police-citizen encounters; b) design, conduct, and analyze baseline and subsequent biennial surveys of a representative sample of City residents, police personnel, and detained arrestees; c) review and consider prior law enforcement surveys in New Orleans and other cities, as well as current or recent concerns in New Orleans, in designing the survey;
62

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege268ofo9f 3129
d) engage in informal conversations with New Orleans residents, NOPD officers and command staff, and DOJ representatives, and observe community meetings; e) ensure that the resident and arrestee surveys are designed to capture a representative sample of New Orleans residents, including members of each demographic category; f) conduct the survey in English, Spanish, and Vietnamese, as necessary, to ensure representation of the entire New Orleans community; and g) formally discuss the survey methodology with NOPD supervisors and DOJ and consider these opinions in the development of the initial survey and in making improvements to subsequent surveys. 232. NOPD and the City agree to cooperate with the design and conduct of the survey by, for example, helping to organize focus groups of officers and obtaining and providing previous survey instruments and data. 233. The report of the baseline survey and subsequent biennial surveys shall be publically distributed and available.
XI. RECRUITMENT NOPD and the City, working with the Civil Service, agree to develop and implement a comprehensive recruitment program that successfully attracts and hires a diverse group of highly qualified and ethical individuals to be NOPD police officers. NOPD and the City, working with the Civil Service, agree to ensure that NOPD's recruit program assesses each applicant in a manner that is valid, reliable, fair, and legally defensible. To achieve these outcomes, NOPD and the City agree to implement the requirements set out below. A. ComDrehensive Recruitment Program 234. Within 180 days of the Effective Date, NOPD, working with Civil Service, agrees to develop a written, strategic recruitment plan that includes clear goals, objectives. and action steps for attracting high-quality applicants. The strategic recruitment plan shall clearly identify the duties and goals ofNOPD's Recruitment Unit. The recruitment plan shall include specific strategies for attracting applicants with strategic thinking and problem-solving skills. interpersonal skills. emotional maturity. capacity to use technology, fluency in Spanish and Vietnamese (because these languages are spoken by a significant segment of the New Orleans Community), and the ability to collaborate with a diverse cross-section of the community.
63

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2769ofo9f 3129
235. The Recruitment Unit staff shall be publicly identified, shall work with Civil Service, and shall interact directly with candidates applying for NOPD positions. NOPD agrees to develop a protocol that includes specific criteria for assigning officers to the Recruitment Unit, including officers' work history, disciplinary history, length of employment at NOPD, and demonstrated commitment to community-oriented policing. 236. NOPD agrees to staff the Recruitment Unit sufficiently to permit the Unit to fulfill its responsibilities as set out in this Agreement, NOPD policy, and applicable law. 237. NOPD agrees to train all current and new staff assigned to the Recruitment Unit on recruiting a qualified and diverse workforce, including training on employment law. NOPD agrees to establish specific performance criteria to evaluate recruitment staff effectiveness in hiring increasing numbers of high quality recruits. 238. Within 180 days of the Effective Date, NOPD agrees to develop and implement a system for psychological screening and assessment of all NOPD recruit candidates, and to set criteria to ensure that only individuals suitable for policing are accepted into NOPD training academy. 239. The Recruitment Unit shall conduct affirmative outreach to a broad group of community members (e.g., college and university initiatives, military outreach, the PCAB, and community meetings in each District), and shall create and foster relationships with those organizations to enhance recruitment efforts. 240. NOPD and the City, working with Civil Service, agree to ensure that the dates and times of the officer recruit application period and testing dates are advertised widely. 241. Within 180 Days of Effective Date, NOPD and the City, working with Civil Service, agree to establish standardized qualifications and guidance for who may serve on a recruit applicant interview panel. Eligibility for serving on a recruit applicant interview panel shall include a review of the officer's internal disciplinary file and personnel file. 242. NOPD and the City, working with Civil Service, agree to ensure that interview panelists and all officials who interview potential NOPD recruits receive specialized training in the goals ofNOPD recruitment and hiring, including emphasis on integrity, community policing, and nondiscriminatory policing. 243. Within 180 days of the Effective Date, NOPD and the City agree to work with Civil Service to establish a standardized scoring system to be used by interview panelists. The scoring
64

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2870ofo9f 3129
system shall be used to assess recruit applicants immediately following the applicant's interview. These assessment forms shall be maintained by the Recruitment Unit. 244. The Recruitment Unit will annually report its recruiting activities and outcomes, including the number of applicants, interviewees, and selectees, and the extent to which the Recruitment Unit has been able to recruit applicants with needed skills, such as problem-solving abilities or fluency in Spanish or Vietnamese, and a discussion of any challenges to recruiting highly qualified applicants.
XII. ACADEMY AND IN-SERVICE TRAINING NOPD is committed to ensuring that all officers and employees receive adequate training to understand the law and NOPD policy and how to police effectively. NOPD training shall reflect and instill agency expectations that officers police diligently, have an understanding of and commitment to the constitutional rights of the individuals they encounter, and employ strategies to build community partnerships to more effectively increase public trust and safety. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Training Coordination and Planning 245. The Training Division shall be the central coordination point for all training, including: recruit training academy; field training; and all in-service training, including firearms and other use offorce training; roll-call training; supervisory training; tactical and task force training; and all elective training. 246. NOPD's Training Division Commander shall be responsible for overseeing all NOPD training, including recruit academy; field training; all in-service training, and for ensuring that training is delivered consistent with NOPD' s written training plan. 247. Within 90 days of the Effective Date, NOPD agrees to create a full-time DepartrnentWide Training Liaison position within the Training Division, and designate a single training coordinator in each District and central organizational unit to coordinate and document training. The Training Liaison shall establish and maintain communications with each District training coordinator to ensure that all officers complete training as required and that documentation of training is provided to the Training Division. 248. Within 120 days of the Effective Date, NOPD agrees to establish a Training Advisory Committee that shall include staff from the NOPD Training Division, NOPD field personnel, high-level NOPD command staff (Deputy Superintendent or above), a community representative
65

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege2971ofo9f 3129
from the Police-Community Advisory Board, two representatives from area colleges and universities, an outside police professional with expertise in model training practices, a representative from the FBI, the District Attorney's office, the USAO, and the City Attorney's Office. 249. Within 270 days of the Effective Date, NOPD's Training Advisory Committee shall develop a written training plan for NOPD's recruit academy, field, and in-service training, to ensure that recruits, officers, and civilian personnel are trained to effectively and lawfully carry out their duties in accordance with the Constitution and laws of the United States. The plan shall comport with best practices and the requirements of this Agreement and shall:
a) define responsibilities and authority of personnel involved in managing, supervising, and implementing training; b) identify training priorities and broad training goals; c) delineate an industry-recognized, systematic approach to training development that includes the following concepts: analysis, design, development, implementation, and evaluation. This approach should enable NOPD to identify and validate job tasks in sufficient detail to derive learning objectives, which, in turn, should drive the selection of instructional strategies and assessments; d) develop instructional strategies that incorporate active learning methods such as problem-solving and scenario-based activities, based on current theories of learning; e) address program administration policies, classroom/facility use, and instructor training and development; and f) establish the frequency and subject areas for recruit and in-service training. 250. Upon the Superintendent's approval of the training plan, NOPD shall submit the training plan to the Monitor and 001. The Monitor shall review the training plan and provide the Parties with written comments within 30 days of receipt thereof. 001 shall have 30 days from receipt of the Monitor's comments on the training plan to determine whether the training plan is consistent with the requirements of this Agreement and to make its decision on approval. 001 shall not unreasonably withhold approval. 251. The Training Advisory Committee shall annually review and update NOPD's training plan. To inform this update, the Training Advisory Committee shall conduct a needs assessment, taking into consideration: trends in misconduct complaints; problematic uses offorce; analysis ·
66

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3072ofo9f 3129
of officer safety issues; input from members at all levels ofNOPD; input from members of the community, including community concerns; court decisions; research reflecting the latest in law enforcement trends; individual District needs; and any changes to Louisiana or federal law or to NOPD policy. B. Curriculum Development 252. Within 365 days of the Effective Date, NOPD shall create and staff a full-time position of Curriculum Director to establish and oversee a formal training curriculum development and assessment process consistent with the training plan described above. The Curriculum Director shall ensure that curricula and related lesson plans are based on learning objectives that are directly linked to validated job tasks. 253. Within 365 days of the Effective Date, NOPD agrees to develop and implement a lesson plan template that will be used for all training courses at NOPD. At a minimum, each template shall include: course title; course overview; date lesson plan was created or updated; learning objectives; prerequisites (if any); course length; required materials, equipment, and facilities; safety measures required (if applicable); testing/certification, and reference list. The lesson plan shall describe content and instructional strategies in sufficient detail to ensure consistent delivery of instruction by different instructors. 254. Within 365 days of the Effective Date, NOPD agrees to develop and implement recruit academy curricula that comport with NOPD's training plan and comprehensively address the subject areas listed in paragraph XIX.E., below. 255. Within 365 days of the Effective Date, NOPD agrees to develop and implement inservice curricula that comport with NOPD's training plan and that comprehensively address each of the subject areas in which this Agreement requires in-service training. 256. The Curriculum Director shall review all training curricula, lesson plans, and procedures for consistency, quality, accuracy, currency, completeness, and compliance with applicable law and NOPD policy. The Curriculum Director shall ensure that a variety of adult learning techniques, scenario-based training, and problem-solving practices, in addition to traditional lecture formats, are incorporated into all training. The Curriculum Director shall also ensure that all curricula, lesson plans, instructor's qualifications, and testing materials are reviewed by the Training Advisory Committee and, where appropriate, persons external to NOPD with expertise in the relevant lesson areas.
67

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3173ofo9f 3129
257. NOPD shall submit all new or revised training curricula and lesson plans for training required by this Agreement to the Monitor and DO] for review and comment at least 90 days prior to the scheduled date of training delivery. The Monitor shall review the curricula or lesson plans and provide the Parties with written comments within 30 days of receipt thereof. Within 30 days of receipt of the Monitor's comments, DO] shall have the right to review and comment on whether the curricula and lesson plans are consistent with and incorporate the requirements of this Agreement and applicable law.
c. Instructor Selection
258. NOPD agrees to implement the Knowledge, Skills, and Ability Protocols for all staff assigned to the training division and all adjunct instructors within NOPD. NOPD agrees that minimum qualification requirements for Academy staff shall include:
a) Baccalaureate Degree or exceptional practical law-enforcement or subject matter expertise with at least six years of combined NOPD service; b) Successful completion of the FBI Instructor Development Course; and c) No 'sustained' PIB investigations within 24 months of applying for an Academy position or a pending 'open' investigation at time of application. 259. NOPD agrees to actively seek out and retain qualified instructors, including instructors from outside NOPD, with expertise in areas such as law and investigations, as necessary, to supplement the skills of in-house training staff and adjunct instructors. Additionally, NOPD agrees to incorporate experts and guest speakers such as judges, prosecutors, including representatives of the USAO, crime victims, and community members, to participate in courses at the Training Academy. 260. NOPD agrees to ensure that all new and current Training Division staff and NOPD adjunct instructors receive 40 hours of initial training, including training on effective teaching, adult-learning techniques, curriculum development, and annual in-service training. NOPD agrees to require and ensure that instructors use only curricula and lesson plans that have been approved by the Training Division. NOPD agrees to further require that instructors use a variety of adult learning techniques, scenario-based training, and problem-solving practices, in addition to traditional lecture formats. 261. Annually, NOPD agrees to evaluate the performance of Training Division staff and all adjunct or other training instructors and shall remove staff and instructors who do not meet
68

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3274ofo9f 3129
NOPD criteria. NOPD agrees to document each evaluation using an established set of criteria to be developed pursuant to this Agreement. D. Training Evaluation 262. Within 365 days of the Effective Date, NOPD agrees to develop and implement a process that provides for the collection, analysis, and review of data to document the effectiveness of training and to improve future instruction, course quality, and curriculum. This process shall measure and document student reaction to and satisfaction with the training they received; and student learning as a result of training, including the extent to which students are applying the knowledge and skills acquired in training to their jobs. 263. Within 365 days of the Effective Date, NOPD agrees to develop and implement documented and approved testing policies and procedures to ensure that that all testing is valid, reliable, and fair. Both knowledge-based and performance-based tests shall be designed, developed, administered, and scored according to established professional standards of practice. All tests shall be job-related, testing knowledge and skills required for successful job performance. E. Recruit Training Academy 264. Within 365 days of the Effective Date, NOPD agrees to develop and implement a recruit training program that comports with NOPD's written training plan described above, and that reflects the requirements of this Agreement. 265. NOPD agrees to modify the amount and content of recruit academy training to comport with its written training plan and the requirements of this Agreement. NOPD agrees to provide recruits with at least 880 hours of academy instruction. 266. In addition to the training requirements reflected in the substantive provisions of this Agreement, NOPD agrees to ensure sufficient recruit academy instructional hours in the following specific areas:
a) appropriate use of force; b) stops, searches, and arrests; c) bias-free policing and community/problem-solving policing; d) investigations, including crime scene investigations and investigative techniques; e) ethics, including preventing and reporting misconduct and peer intervention; f) crisis intervention;
69

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3375ofo9f 3129
g) crowd control, including consistent application of field-force tactics and crowd management; h) report writing; i) recognizing, taking, and responding to allegations of misconduct received in the field; j) statutory law, including definitions of specific offenses, and scenario-based exercises to determine the specific elements of offenses; and k) how to communicate with LEP individuals in commonly encountered scenarios. 267. NOPD agrees to structure the recruit training academy so that instruction is delivered in logical progression, to ensure that each skill or unit builds on previous skills or units. NOPD agrees to schedule training modules so that recruits become proficient in fundamental tasks before progressing to more advanced skills and activities. 268. In addition to inclusion in separate training modules, NOPD agrees to incorporate training on constitutional and statutory law; ethical decision making; community policing; deescalation of force; and bias-free policing throughout the course of the recruit training academy. NOPD agrees to reinforce legal concepts in the context of instruction on interviewing and interrogation, crime scene processing, and report writing. 269. NOPD agrees to use problem-based learning and scenario-based exercises throughout the course of the recruit academy. NOPD agrees to ensure that scenario-based exercises have specific training objectives, and to evaluate achievement in multiple areas, such as constitutional and statutory law, officer safety, NOPD procedures, and report writing. NOPD agrees to require recruits to produce actual reports and statements at the end of scenario-based exercises. 270. NOPD agrees to intersperse skills training in areas such as driving, firearms, and defensive tactics throughout the course of the recruit training academy, to allow recruits to develop and reinforce these skills over time. 271. NOPD agrees to not add recruit candidates after the first week of the recruit training academy. 272. To ensure continuity of training, NOPD agrees to minimize interruptions to recruit academy training for the purpose of staffmg special events and other functions. This does not preclude the use of recruits for Mardi Gras-related service functions or in case of emergencies. 273. Within 365 days of the Effective Date, NOPD agrees to ensure that the recruit academy is sufficiently staffed to effectively train recruits, and that the deployment of recruit academy staff
70

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3476ofo9f 3129
to cover patrol shifts or other duties does not disrupt training activities. This does not prohibit academy staff from working 'Mission' patrols. Recruit classes shall not exceed 30 candidates per class. 274. Within 365 days of the Effective Date, NOPD agrees to provide recruits and officers with appropriate training facilities to ensure adequate access to safe and effective training. The Parties agree that such training can be provided without constructing any new facilities. F. Field Training Program 275. Within 365 days of Effective Date, NOPD agrees to develop and implement a fieldtraining program for recruit academy graduates that comports with NOPD's written training plan and this Agreement. NOPD's field training program shall follow academy training and shall be at least 16 weeks. 276. NOPD's policies and procedures on field training shall delineate the criteria and methodology for selecting FTOs and Field Training Sergeants. Only highly qualified officers shall serve as FTOs and Field Training Sergeants. NOPD agrees to establish formal eligibility criteria for FTOs and Field Training Sergeants based on their performance evaluations, previous superior performance as police officers, and complaint and disciplinary histories. FTO appointments will be subject to review for reappointment at the Training Division Commander's discretion. District commanders will also have discretion, upon consultation with the Training Academy staff, to remove a field-training officer from the FTO program. 277. NOPD agrees to ensure that all current and new FTOs and Field Training sergeants receive at least 40 hours of initial supervisory-level training and annual in-service training in the following areas: management and supervision; community-oriented policing; effective problem solving techniques; and field communication. FTOs and Field Training sergeants shall be required to maintain, and demonstrate on a regular basis, their proficiency in managing recruits and subordinates, practicing and teaching community-oriented policing, and solving problems effectively. NOPD shall maintain current documentation ofFTOs' evaluations and training. 278. NOPD agrees to ensure that recruits in the field-training program are trained in a variety of geographic areas within New Orleans; in a variety of shifts; and with several FTOs. 279. Annually, NOPD agrees to review and evaluate the performance ofFTOs and Field Training Sergeants, with re-certification dependant on satisfactory prior performance and feedback from the Training Division staff.
71

.. ... . ... _ - -
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3577ofo9f 3129
280. Within 365 days ofthe Effective Date, NOPD agrees to create a mechanism for recruits to provide confidential feedback regarding the quality of their field training, including the extent to which their field training was consistent with what they learned in the Academy, and suggestions for changes to Academy training based upon their experience in the FTO program. NOPD agrees to consider feedback and to document its response, including the rationale behind any responsive action taken or decision to take no action. 281. Within 365 days of the Effective Date, NOPD agrees to review and revise its FTO participation policy to establish and implement a program that effectively attracts the best FTO candidates. 282. NOPD's training advisory committee shall conduct, within 365 days of the Effective Date, a study of the feasibility of implementing a Police Training Officer model that would incorporate community- and problem-oriented policing principles, and problem-based learning method of teaching. IfNOPD and the City find it feasible, NOPD and the City agree to implement this program. G. In-Service Training 283. Within 365 days of the Effective Date, NOPD agrees to develop and implement a mandatory annual in-service training program that comports with NOPD's written training plan and the requirements of this Agreement. NOPD agrees to provide at least 64 hours ofin-service training to each officer pursuant to this program within 365 Days of the Effective Date of this Agreement and annually thereafter. In-service training will be comprised of a 40-hour core curriculum and 24 hours of additional elective training. Specialized training for officers in certain units or assignments (such as the initial40-hour training for specialized CIT officers)) shall be considered additional elective training. 284. NOPD agrees to create core-training requirements for the following positions: officers; command staff; lieutenants and sergeants; detectives; narcotics investigators; and specialized units. 285. NOPD agrees to plan, develop, and implement a comprehensive roll-call training program. Roll-call training shall be provided at the beginning of each shift. Roll-call training shall include special topics selected by the Training Division Commander or District Commanders that address officer safety, readiness, community concerns, or departmental procedural matters.
72

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3678ofo9f 3129
H. Training Records 286. Within 365 days of the Effective Date, NOPD agrees to develop and implement a system that will allow the Training Division to electronically track, maintain, and report complete and accurate records of current curricula, lesson plans, training delivered, and other training materials in a centralized electronic file system. This system shall, at a minimum:
a) maintain training records for each recruit and each sworn member of the Department; b) record the course description, duration, curriculum, date and location of training, name of instructor, and the personnel who completed the training; and c) document officers who did not complete required training and all corrective actions taken. 287. Within 365 days of the Effective Date, NOPD agrees to develop and implement accountability measures, including disciplinary and non-disciplinary corrective action, to ensure that all officers successfully complete all required training programs in a timely manner. 288. NOPD agrees to document all training provided to or received by NOPD officers, whether required or otherwise. Officers shall sign an acknowledgement of attendance or digitally acknowledge completion of training. NOPD shall report training delivered and received annually. This report shall include a: a) description of each course, including a summary of the subject matter; the duration, date and location, the name of the instructor, and the number of persons who completed the training; and b) listing of all officers who completed in-service, recruit, specialized, or elective training; and c) listing of officers who did not complete required training and the corrective action taken for each officer.
XIII. OFFICER ASSISTANCE AND SUPPORT NOPD agrees to provide officers and employees ready access to the mental health and support resources necessary to facilitate effective and constitutional policing. To achieve this outcome, NOPD agrees to implement the requirements below. A. Department-Wide Health and Wellness Program 289. NOPD agrees to further develop and offer a centralized and comprehensive range of mental health services that comports with best practices and current professional standards, which include: readily accessible confidential counseling services with both direct and indirect
73

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege379ofo9f 3129
referrals; critical incident debriefings and crisis counseling; peer counseling; and stress management training. 290. Within 180 days, NOPD agrees to develop a department-wide mental and physical health and wellness program that:
a) provides and specifies access to mental health services for officers following trawnatic incidents; b) ensures that in situations where an officer is referred for a fitness-for-duty evaluation to assess psychological fitness, the evaluation is performed by a provider external to NOPD; c) ensures that the roles, duties, and responsibilities ofNOPD mental health professionals are properly delineated to avoid risk of conflict and increase officer confidence in NOPD provided mental health services; d) provides access to consistent counseling and treatment by mental health professionals; and e) fosters participation and compliance by ensuring confidentiality under federal and state privacy laws; and f) incorporates mental health services for NOPD officers and their families into NOPD's crisis response and emergency preparedness planning. 291. NOPD agrees to compile and distribute a list of internally and externally available mental health services to all officers and employees. NOPD should periodically consult with community and other outside service providers to maintain a current and accurate list of available providers. 292. NOPD agrees to train management and supervisory personnel in officer support services protocols to ensure wide availability and use of officer support services; and agrees to incorporate discussion of currently available officer support services, and how to access those services, into annual officer in-service training. 293. NOPD agrees to involve mental health professionals in developing and providing academy and in-service training on mental health stressors related to law enforcement and the mental health services available to officers. 294. NOPD agrees to involve mental health professionals in officer training on use offorce, to address such topics as: peer intervention by fellow officers to stop the use of excessive force; the interaction ofhwnan perception and threat assessment; decision making under highly charged conditions; psychological methods of situation control; patrol de-escalation and defusing
74

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege380ofo9f 3129
techniques that not only provide a tactical response, but also respond to the fear stimulated by confrontations; anger management programs; and training in verbal control and communication, including conflict resolution.
XIV. PERFORMANCE EVALUATIONS AND PROMOTIONS
NOPD agrees to ensure that officers who police effectively and ethically are recognized through the performance evaluation process, and that officers who lead effectively and ethically are identified and receive appropriate consideration for promotion. NOPD shall further ensure that poor performance or policing that otherwise undermines public safety and community trust is reflected in officer evaluations so that NOPD can identify and effectively respond. To achieve these outcomes, NOPD, working with Civil Service, agrees to implement the requirements set out below. A. Performance Evaluations 295. Within twelve months of the Effective Date, NOPD agrees to work with Civil Service to develop and implement an NOPD-specific system that comports with best practices and the requirements of this Agreement to accurately evaluate officer performance in areas related to integrity, community policing, and critical police functions, on both an ongoing and annual basis. 296. As part of this program, NOPD agrees to work with Civil Service to establish a formalized system documenting annual performance evaluations ofeach officer by the officer's direct supervisor that shall include assessment of:
a) community engagement and communication with the public as appropriate to assignment; b) use of community-policing and problem-solving strategies as appropriate to assignment; c) civilian commendations and complaints; d) disciplinary actions; e) compliance with policies on usage of sick leave and other leave; f) compliance with policies on secondary employment; g) safety (e.g., POST officer safety standards and vehicle operations); h) training; i) report writing; and j) decision-making skills;
75

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege3981ofo9f 3129
297. Annual perfonnance evaluations shall be based upon all work perfonned during the specific rating period. The officer's current direct supervisor shall complete the perfonnance evaluation. 298. Perfonnance evaluations shall include a narrative by the supervisor that discusses any areas in which the officer's perfonnance needs to improve, and areas of particular growth and achievement during the rating period. 299. As part of the annual perfonnance review process, supervisors shall meet with the employee whose perfonnance is being evaluated to discuss the evaluation. In addition, supervisors shall meet with their subordinates on an ongoing basis to discuss their perfonnance and shall document the supervisor's ongoing efforts and communications regarding officer perfonnance challenges and areas of growth. 300. Supervisors shall complete training consistent with best practices on how to effectively evaluate officer perfonnance. Within 365 days of the Effective Date, and as part of initial supervisory training, supervisors shall be required to complete at least four hours of training, focused on how to effectively evaluate officer perfonnance. This training is in addition to any training on the mechanics of how to complete employee perfonnance evaluations. The perfonnance evaluations for each supervisor (whether first-line or commander) shall include assessment of the supervisor's ability and effectiveness in conducting the supervisory reviews as required by this Agreement, including monitoring, deterring, and addressing misconduct by officers they supervise. 301. NOPD agrees to hold supervisors of all ranks accountable for conducting timely, accurate, and complete perfonnance evaluations of their subordinates. B. Promotions 302. Within twelve months of the Effective Date, NOPD agrees to work with Civil Service to develop and implement fair and consistent promotions practices that comport with best police practices and the requirements of this Agreement and result in the promotion of officers who are both ethical and effective. NOPD agrees to work with Civil Service to provide clear guidance on promotional criteria, and to prioritize effective, constitutional, and community-oriented policing as criteria for promotion. 303. NOPD agrees to request that Civil Service remove from the promotional eligibility list any officer whose history does not strongly indicate that the officer is likely to be ethical and
76

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4082ofo9f 3129
effective in the position to which he or she is being considered for promotion. Factors to be considered in making this assessment include:
a) effective use of community-policing strategies; b) number of sustained and not sustained complaints; c) number and circumstances of uses of force, including any found out of policy and use of force complaints; d) disciplinary history; e) problem-solving skills; f) interpersonal skills; g) education; and h) support for departmental integrity measures. 304. NOPD agrees to work with Civil Service to establish specific criteria for disciplinary findings , which shall make an officer presumptively ineligible for promotion for a certain time period. Officers with pending investigations or disciplinary action in a matter alleging serious misconduct shall not be eligible for promotion. 305. The City agrees to work with Civil Service to create opportunities to be placed on the promotional list at least every two years.
xv. SUPERVISION
NOPD and the City agree to ensure that an adequate number of qualified first-line supervisors are deployed in the field to allow supervisors to provide the close and effective supervision necessary for officers to improve and grow professionally; to police actively and effectively; and to identify, correct, and prevent misconduct. To achieve these outcomes, NOPD agrees to implement the requirements set out below. A. Duties of Supervisors 306. NOPD supervisors shall be held accountable for providing the close and effective supervision necessary to direct and guide officers. Close and effective supervision requires that supervisors: respond to the scene of certain arrests; review each arrest report; respond to the scene of uses of force as required by this Agreement; investigate each use of force (except those investigated by FIT); review the accuracy and completeness of officers' Daily Activity Reports; respond to each complaint of misconduct; ensure that officers are working actively to engage the community and increase public trust and safety; and provide counseling, redirection, and support
77

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4183ofo9f 3129
to officers as needed, and that supervisors are held accountable for performing each of these duties. 307. Within 270 days of the Effective Date, all Field Operations Bureau District officers (including patrol, task force, district investigative, and narcotics units) shall be assigned to a single, consistent, and clearly-defined supervisor. 308. Task force and narcotics supervisors shall actually work the same days and hours as the officers they are assigned to supervise absent unusual circumstance or when the supervisor is on vacation, in training, or ill. Investigative unit supervisors shall work generally the same days and hours as the officers they are assigned to supervise, taking into account that shift differences will not permit complete supervisory overlap. 309. District Platoon Patrol supervisors shall be assigned to the same platoon as the officers they supervise and shall actually work the same days and hours as the officers of that platoon absent unusual circumstances or when the supervisor is on vacation, training, or ill. 310. Within 270 days of the Effective Date, first-line patrol supervisors shall be assigned to supervise no more than eight officers. On duty patrol supervisors shall be available throughout their shift to respond to the field to provide supervision to officers under their direct command and, as needed, to provide supervisory assistance to other units. 311. Within 270 days of the Effective Date, NOPD agrees to develop and implement a program to identify and train acting patrol supervisors who can fill-in, on a temporary, as-needed basis, for assigned supervisors who are on vacation, in training, ill, or otherwise temporarily unavailable. NOPD shall ensure consistent supervision by acting supervisors for supervisors who are on extended leave, and shall reassign officers to a new permanent non-acting supervisor
when the currently assigned supervisor has been or is expected to be absent for an extended
period of over six weeks. 312. District commanders and platoon lieutenants shall be responsible for the close and effective supervision of officers under their command. All NOPD commanders and platoon lieutenants shall ensure that all subordinates under their direct command comply with NOPD policy, state and federal law, and the requirements of this Agreement. 313. NOPD shall hold commanders and supervisors directly accountable for the quality and effectiveness of their supervision, including whether commanders and supervisors identify and effectively respond to misconduct, as part of their performance evaluations and through non-
78

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4284ofo9f 3129
disciplinary corrective action, or through the initiation of formal investigation and the disciplinary process, as appropriate. B. Supervisor and Command-Level Training 314. NOPD agrees to develop and implement mandatory supervisory training for all new and current supervisors. All current supervisors shall receive 200 hours of mandatory supervisory training within two years of the Effective Date. NOPD shall receive credit for professional police leadership training being provided in 2012 to current NOPD supervisors. All officers becoming supervisors within two years of the Effective Date shall receive 160 hours of initial supervisory training before assuming supervisory duties. All officers becoming supervisors after two years of the Effective Date shall receive 80 hours of initial supervisory training before assuming supervisory duties. In addition to this initial supervisory training, NOPD agrees to require each supervisor to complete at least 40 hours of supervisor-specific training annually thereafter. In-service training for supervisors, including commanders, shall provide necessary updates and refreshers, as well as training in new skills. 315. NOPD's supervisory training program shall include instruction in the following topics:
a) techniques for effectively guiding and directing officers, and for promoting effective and ethical police practices; b) de-escalating conflict, including through peer intervention when necessary; c) evaluation of written reports, including what constitutes a fact-based description, and how to identify "pat," "boilerplate," or conclusory language that is not explained by specific facts; d) investigating officer uses of force; e) responding to and investigating allegations of officer misconduct; f) operation of supervisory tools such as the EWS, mobile recording equipment, and AVL; g) burdens of proof, interview techniques, and the factors to consider when evaluating officer, complainant, or witness credibility, to ensure that investigative findings, conclusions, and recommendations are unbiased, uniform and legally supported; h) evaluating officer performance as part ofNOPD's annual performance evaluation system; i) fostering positive career development and imposing appropriate disciplinary sanctions and non-disciplinary corrective action; j) building community partnerships and guiding officers on same; and k) incorporating integrity-related data into COMSTAT reporting.
79

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4385ofo9f 3129
C. Early Warning System 316. The City and NOPD agree to develop, implement, and maintain an EWS to support the effective supervision and management ofNOPD officers and employees, including the identification of and response to potentially problematic behaviors as early as possible. NOPD will regularly use EWS data to promote constitutional and professional police practices; to manage risk and liability; and to evaluate the performance ofNOPD employees across all ranks, units, and shifts. 317. Within 90 days ofthe Effective Date, the City and NOPD agree to create a plan for the implementation of the EWS, which shall include the hiring of at least one full-time-equivalent qualified information technology specialist within 270 days of the Effective Date, to facilitate the development, implementation, and maintenance of the EWS. The City and NOPD agree to maintain sufficient staffing to facilitate EWS data input and provide training and assistance to EWS users. 318. The City and NOPD agree to develop and implement a protocol setting out which fields shall include historical data; the historical start date for each field; deadlines for inputting data related to current and new information; and the individuals responsible for capturing and inputting data. NOPD is not expected to include any historical data prior to January 1,2006. 319. The City and NOPD agree to develop and implement a protocol for using the EWS and information obtained from it. The protocol for using the EWS shall address data storage, data retrieval, reporting, data analysis, pattern identification, identifying officers for intervention, supervisory use, supervisory/departmental intervention, documentation and audit. Among protocol requirements, the City and NOPD agree to include:
a) comparative data analysis, including peer group analysis, to identify patterns of activity by individual officers and groups of officers; b) NOPD commander and supervisor review, on a regular basis, of EWS reports regarding each officer under the commander or supervisor's direct command and, at least quarterly, broader, pattern-based reports; c) NOPD commander and supervisor initiation, implementation, and assessment ofthe effectiveness of interventions for individual officers, supervisors, and units, based on assessment of the information contained in the EWS; d) an array of intervention options to facilitate an effective response to identified problems.
80

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4486ofo9f 3129
Interventions may take the form of counseling or training, or of other supervised, monitored, and documented action plans and strategies designed to modify activity. NOPD agrees to seek the services of mental health professionals and others to ensure that interventions are appropriate and effective. All interventions will be documented in writing and entered into the automated system; e) specify that the decision to order an intervention for an employee or group using EWS data shall include peer group analysis, including consideration of the nature of the employee's assignment and appropriate thresholds, and not solely on the number or percentages of incidents in any category of information recorded in the EWS; f) prompt review by NOPD commanders and supervisors of the EWS system records, of all officers upon transfer to their supervision or command; g) evaluation ofNOPD commanders and supervisors based on their appropriate use of the EWS to enhance effective and constitutional policing and reduce risk; and h) mechanisms to ensure monitored and secure access to the EWS to ensure the integrity, proper use, and appropriate confidentiality of the data 320. The EWS shall include a computerized relational database, which shall be used to collect, maintain, integrate, and retrieve: a) all uses offorce, including critical firearm discharges, both on-duty and off-duty; b) the number ofECW units in use; c) each canine officer's canine bite ratio; d) all injuries to persons in-custody, including in-custody deaths; e) all instances in which force is used and a subject is charged with obstructing or resisting an officer, interfering with a law enforcement investigation, or similar charges; f) all misconduct complaints (and their dispositions); g) data compiled under the stop data collection mechanism; h) all criminal proceedings initiated against an officer, as well as all civil or administrative claims filed with, and all civil lawsuits served upon, the City andlor its officers or agents, resulting from NOPD operations or the actions ofNOPD personnel; i) all judicial proceedings where an officer is the subject of a protective or restraining order; j) all vehicle pursuits and traffic collisions involving NOPD equipment; k) all loss or theft ofNOPD property or equipment in the custody of the employee, including
81

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4587ofo9f 3129
currency, firearms, force instruments, and identification cards; I) all interviews or interrogations in violation ofNOPD policy; m) all instances in which NOPD learns or is informed by a prosecuting or judicial authority that a declination to prosecute any crime was based upon concerns about the credibility of an NOPD employee or that a motion to suppress evidence was granted on the grounds of a constitutional violation by an NOPD employee; n) all disciplinary action taken against employees; 0) all non-disciplinary corrective action required of employees; p) all awards and commendations received by employees; q) training history, including firearm qualification and other weapon certifications, for each employee; and r) sick leave usage. 321. The EWS shall include appropriate identifying information for each involved employee (i.e. , name, badge number, shift, and supervisor) and civilian (e.g., race, ethnicity, and gender). 322. The City and NOPD agree to maintain computer hardware, including servers, terminals, and other necessary equipment, in sufficient amount and in good working order to permit personnel, including supervisors and commanders, ready and secure access to the EWS system to permit timely input and review ofEWS data as necessary to comply with the requirements of this Agreement. 323. NOPD shall maintain all personally identifiable information about an officer included in the EWS for at least five years following the officer's separation from the agency except where prohibited by law. Information necessary for aggregate statistical analysis will be maintained indefinitely in the EWS. On an ongoing basis, NOPD will enter information into the EWS in a timely, accurate, and complete marmer, and shall maintain the data in a secure and confidential marmer. No individual within NOPD shall have access to individually identifiable information that is maintained only within the EWS and is about an officer not within that individual's direct command, except as necessary for investigative, technological, or auditing purposes. 324. The EWS computer program and computer hardware will be operational, fully implemented, and used in accordance with policies and protocols that incorporate the requirements of this Agreement pursuant to an interim schedule that includes full implementation within three years of the Effective Date. Prior to full implementation of the new EWS, NOPD
82

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4688ofo9f 3129
will continue to use existing databases and resources to the fullest extent possible, to identify patterns of conduct by employees or groups of officers. 325. NOPD agrees to provide in-service training to all employees, including officers, supervisors, and commanders regarding EWS protocols prior to its implementation, as required to facilitate proper understanding and use of the system. NOPD supervisors shall be trained in and required to use the EWS to ensure that each supervisor has a complete and current understanding ofthe employees under the supervisor's command. Commanders and supervisors shall be trained in evaluating and making appropriate comparisons in order to identify any significant individual or group patterns. 326. Following the initial implementation of the EWS, and as experience and the availability of new technology may warrant, the City and NOPD may add, subtract, or modify thresholds, data tables, and fields; modify the list of documents scanned or electronically attached; and add, subtract, or modify standardized reports and queries as appropriate. NOPD will submit all such proposals for review and approval to the Monitor and DO] before implementation to ensure it continues to comply with the intent of this Agreement. D. Visual and Audio Documentation of Police Activities 327. Within two years ofthe Effective Date, NOPD agrees to maintain and operate video cameras and AVL in all marked or unmarked vehicles that are assigned to routine calls for service, task forces, tactical units, prisoner transport, or SOD canine and shall repair or replace all non-functioning video cameras or AVL units, as necessary for reliable functioning. One-half ofthese vehicles will be equipped with video cameras and AVL within one year ofthe Effective Date. NOPD agrees to ensure that recordings are captured, maintained, and reviewed as
appropriate by supervisors, in addition to any review for investigatory or audit purposes, to
assess the quality and appropriateness of officer interactions, uses of force, and other police activities. 328. NOPD agrees to develop and implement policies and procedures regarding AVL, in-car cameras, ECWs, and similar equipment that require:
a) activation of in-car cameras for all traffic stops and pursuits until the motor vehicle stop is completed and the stopped vehicle departs, or until the officer's participation in the motor vehicle stop ends; b) activation of ECW cameras when the ECW's safety switch is turned off;
83

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4789ofo9f 3129
c) activation of in-car cameras, where vehicle is so-equipped, to record requests for consent to search a vehicle, deployment of drug- detection canines, and vehicle searches; d) activation of in-car cameras for incidents in which a prisoner being transported is violent or resistant; e) supervisors to review AVL, in-car camera recordings, and ECW recordings of all officers listed in any NOPD report regarding any incident involving injuries to a prisoner or an officer, uses of force, vehicle pursuits, or misconduct complaints; f) supervisors to review recordings regularly and to incorporate the knowledge gained from this review into their ongoing evaluation and supervision of officers; g) NOPD to retain and preserve recordings for at least two years, or, if a case remains under investigation or litigation longer than two years, at least three years after the final disposition of the matter, including appeals; and h) an officer to notify a supervisor immediately when an event was not recorded. 329. Within 90 days ofthe Effective Date, NOPD agrees to develop and implement a schedule for testing AVL, in-car camera, and ECW recording equipment to confirm that it is in proper working order. Officers shall be responsible for ensuring that recording equipment assigned to them or their car is functioning properly at the beginning and end of each shift and shall report immediately any improperly functioning equipment. 330. Supervisors shall be responsible for ensuring that officers under their command use in-car camera recording equipment, AVL equipment, ECW cameras, and similar equipment, as required by policy. Supervisors shall report equipment problems and seek to have equipment repaired as needed. Supervisors shall refer for investigation any officer found to fail to properly use or care for in-car camera recording, AVL, ECW camera, or similar equipment. 331. Within 365 days of the Effective Date, NOPD agrees to provide each supervisor with handheld digital recording devices and require that supervisors use these devices to record complainant and witness statements taken as part of use offorce or misconduct complaint investigations.
XVI. SECONDARY EMPLOYMENT SYSTEM The City shall completely restructure what is currently known as its Paid Detail system to ensure that officers' and other NOPD employees' off-duty secondary employment does not compromise or interfere with the integrity and effectiveness ofNOPD employees' primary work
84

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege4890ofo9f 3129
as sworn police officers serving the entire New Orleans community. To achieve this outcome, the City shall develop and implement an off-duty secondary employment system that comports with applicable law and current professional standards, and which shall include the requirements set out below. A_ Secondary Employment Coordinating Office 332_ The Secondary Employment Coordinating Office ("Coordinating Office") shall have sole authority to arrange, coordinate, arrange fully-auditable payment, and perform all other administrative functions related to NOPD employees' off-duty secondary law enforcement employment (historically referred to as paid details) and shall be operated in accordance with the requirements ofthis Agreement. 333. The Coordinating Office shall be directed by a civilian with no actual conflict of interest or appearance of conflict of interest. This Coordinating Office Director ("Director") shall not be a present or former NOPD employee. The Director shall be an unclassified civil servant appointed by and serving at the pleasure of the Mayor, shall remain independent from actual or perceived influence by NOPD. 334. The Coordinating Office shall employ a civilian in the role of "Major Special Events" Coordinator with no actual conflict of interest or appearance of conflict of interest. This Major Special Events Coordinator shall not be a present or former NOPD employee. This Coordinator will report to the Director.
a) Major Special Events include Mardi Gras, Jazz Fest, Essence Music Festival, French Quarter Festival, Voodoo Fest, college bowl and college championship events, professional sporting events, and other events as designated by the Mayor, Chief Administrative Officer, the Deputy Mayor for Public Safety, the City Attorney, City Council, or the Superintendent as a Major Special Event. 335. The Director's and all other Coordinating Office employees' salaries shall be independent ofthe number of off-duty secondary jobs worked or the amount ofrevenue generated by secondary employment. 336. The Coordinating Office shall be staffed with civilians with no actual conflict of interest or appearance of conflict of interest, and shall not have been NOPD employees within the previous two years.
85

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege491ofo9f 3129
337. The Coordinating Office shall not be located in, or immediately adjacent to, NOPD Headquarters, District Headquarters, or a District Substation. B. Coordinating Office Responsibilities 338. Within 365 days of the Effective Date, or as funding is established, the City shall develop and implement and the Coordinating Office shall maintain a searchable list of off-duty secondary employment opportnnities, which can be accessed through either the existing NOPD employee web site or another accessible database. 339. The Coordinating Office shall maintain a roster ofNOPD employees interested in working off-duty secondary employment. 340. The Coordinating Office shall establish a rotation system that provides a fair and equitable number of secondary employment opportnnities to all NOPD employees in consideration of preferences for assignment and availability. The Coordinating Office shall rotate NOPD employees working Recurring Secondary Employment positions at least every 365 days. The Director shall determine when NOPD employees may retnm to work for the same employer. This 365 day RSE rotation requirement shall not apply to those individual officers who regularly work recurring assignments at Major Special Event venues, schools, banks, churches, and hospitals. The Director may grant an exception to this rule if the secondary employment work being done requires unique or specialized knowledge or training. 341. The Coordinating Office shall fill all new secondary employment opportunities and temporary vacancies pursuant to written and consistently applied criteria. NOPD employees shall not be permitted to select substitutes or allow another employee to work an assigned secondary job in place ofthe employee. 342. The Coordinating Office shall establish an after-hours notification system, which provides them the capability of accepting information and making assignments 24 hours a day, 365 days per year. 343. The Coordinating Office shall remove NOPD employees from the secondary employment roster where the employees are performing unsatisfactorily, are under suspension, administrative reassignment, or have been charged with a crime. 344. Approval to work secondary employment is not automatically based on assignment through the Coordinating Office. Members shall also be required to comply with all NOPD
86

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5092ofo9f 3129
internal procedures governing off-duty secondary employment, including the completion of an NOPD Secondary Employment Authorization Form. 345. The Coordinating Office shall develop and implement a plan for working with NOPD to ensure that supervisors conduct in-person inspections of secondary employment sites based upon the frequency worked. Supervisory oversight at Major Special Events or larger venues, which meet minimum supervisor staffmg level requirements specified under this Agreement, shall be the responsibility of those ranking officers who were selected by the Coordinating Office to work the secondary employment assignment. The required number of supervisory officers specified under minimum staffing requirements for Major Special Events or larger venues must be present for the duration of the secondary employment assigrunent. 346. The Coordinating Office shall ensure that no NOPD employee is supervising another employee of higher rank. 347. The Coordinating Office shall be responsible for collecting and maintaining a searchable database of all secondary employment worked. This database shall be searchable by secondary employment assignment and by employee and shall identify the employee working the secondary employment, secondary employment hours, and assigrunent locations. This database shall maintain historic and current infonnation on all employees' secondary employment. 348. A schedule of fees will be established by the City to offset costs associated with the coordination and required support provided through the Coordinating Office to take into account costs, including but not limited to, administrative fees, hourly wage rates, and equipment usages. The schedule of fees shall be publicly available. 349. The Coordinating Office shall be responsible for the annual, public release of the following information:
a) The number ofNOPD employees who worked secondary employment by District and rank; b) The average number of secondary employment hours worked by District and rank; c) The salaries of Coordinating Office employees and the Coordinating Office's administrative operational costs; and d) The net and gross amounts of City income derived through secondary employment. 350. The Coordinating Office shall ensure that all potential employers are notified of their responsibilities, including:
87

- --_._---------------
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5193ofo9f 3129
a) Agreeing that individuals or entities seeking to employ off-duty NOPD employees to work secondary employment must work through the Coordinating Office; b) Making all payments in advance and acknowledgement that advanced payments may be subject to forfeiture or penalty assessment associated with late cancellations; c) Agreeing to have secondary employees sign in and sign out every work day; and d) Acknowledging that they are prohibited from providing any compensation, either cash or in-kind, including bonuses or gifts, beyond nominal compensation in the form of food or beverages, to an NOPD employee or the friend or relative of an NOPD employee in exchange for any secondary employment services provided. C. Secondary Employment Compensation 351. The Coordinating Office, working with NOPD and the City, shall develop and implement an auditable payment system that ensures that secondary employment pay is made to NOPD employees. 352. NOPD employees working secondary employment shall not be permitted to receive any compensation, either cash or in-kind, including bonuses or gifts, unless such compensation, bonus, or gift, is provided through and documented by the Coordinating Office and is in accordance with the Louisiana Ethics Code for public employees. Nominal compensation in the form of food or beverages is permitted in accordance with the Louisiana Ethics Code for public employees. 353. Travel time to and from secondary employment shall not be compensated, unless it involves specialized patrol services or use of specialized equipment. 354. NOPD employees are not permitted to solicit secondary compensation or employment. Individuals or entities seeking to employ NOPD employees to work secondary employment must work through the Coordinating Office. 355. NOPD shall advise all officers that attempting to circumvent or circumventing the secondary employment policy or the Coordinating Office shall subject officers to discipline as warranted, up to and including dismissal. D. Limitations on Secondary Employment Work 356. NOPD and the Coordinating Office shall establish a standard form by which NOPD employees can register to work secondary employment assignments. No employee shall be eligible to work secondary employment without first registering with the NOPD Compliance
88

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5294ofo9f 3129
Section and obtaining authorization from the employee's direct supervisor and unit commander. Secondary employment authorization shall be valid for one calendar year. When determining whether an NOPD employee qualifies for authorization to work secondary employment, NOPD and the Coordinating Office shall evaluate factors that include:
a) The quality of the employee's primary employment performance, assessed pursuant to written criteria; b) Whether the employee is an active member of the NOPD or grandfathered Reserve officer in good standing; c) The applicant's disciplinary record, complaint history, and work performance history; d) The applicant's level of experience; and e) Whether the employee is seeking a supervisory or non-supervisory position. Non-supervisory NOPD employees may not supervise secondary employment. 357. Only a POST certified commissioned member who has successfully completed his/her FTO training and has achieved permanent status as Civil Service "Police Officer I" may work police-related secondary employment assignments unsupervised. 358. POST certified commissioned members who completed FTO. training, but have not obtained permanent status of Civil Service "Police Officer I," may work secondary employment if supervised by a ranking officer at the grade of sergeant or above. 359. POST certified commissioned members hired as lateral transfers successfully completing FTO training may work authorized secondary employment unsupervised. 360. Regardless of prior approval, members shall not engage in secondary employment while absent in the following status: sick; Injured On-Duty; Worker's Compensation; Maternity Leave; Leave Without Pay; or Suspended or under Administrative Reassignment with a restricted police commission. Members must return to full duty status and have completed a full tour of duty prior to working a secondary employment opportunity. 361. Secondary employment for City departments and agencies shall be prohibited. Instead, departments and agencies shall cover compensation for employees through authorized City reimbursement procedures. 362. In addition to the secondary employment positions prohibited under current NOPD policy, the following types of work or services shall be prohibited as secondary employment: a) Work in or for Alcoholic Beverage Outlets as defined under NOPD policy;
89

_ ..... .... _ -- - - - -- -- -
CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5395ofo9f 3129
b) Private investigations; c) Chauffeur services; except where chauffeur services to public officials, executives or celebrities is secondary to a primary purpose of security. Notwithstanding the foregoing prohibition, motorcycle escorts for chauffeur services and limousines are permitted; d) Security at sexually oriented businesses; e) Employment requiring that the employee act as a civil process server; and f) Security at pawn shops. 363. NOPD employees are prohibited from working secondary employment that conflicts with the employee's NOPD duties and ethical obligations. Prohibitions include: a) Representing anyone before any court or agency of the City, with or without compensation, on a matter in which the City is a party or has a substantial interest; b) Serving as an expert witness in his or her private capacity in any civil or criminal proceeding in which the City is a party or has a substantial interest; c) Working secondary employment during court hours while the employee is under a conflicting subpoena; d) Disclosing confidential information acquired in an official capacity to any secondary employer; e) Using on-duty time to conduct investigations or take other law enforcement action on behalf of a secondary employer, where there would be an actual conflict of interest or appearance of a conflict of interest; f) Knowingly participating in, or soliciting the creation of, any corporation, company, trust, fund, or cooperative banking account for the purpose of billing, receiving compensation, or coordinating services of secondary employment; and g) Taking an assignment that will interrupt or occur during the employee's assigned on-duty NOPD shift. 364. Secondary employment by NOPD employees will be limited to a maximum of24 hours per seven day work week (Sunday through Saturday). Exceptions to the hour limitation may be granted for Major Special Events where manpower requirements are so intensive that sufficient resources may not be available for the safe operation of the event (e.g., Jazz Fest, Mardi Gras). Application for such an event exception will be made in advance via interoffice correspondence (NOPD Form 105) by an employee or event commander that estimates the number of hours an
90

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5496ofo9f 3129
employee can exceed the maximum threshold. The application will be forwarded through the appropriate chain of command for ftnal approval by the Superintendent. Secondary employment in excess of the 24-hour limitation cannot be worked unless approved in advance by the Superintendent. 365. No employee, including Reserve officers, shall work more than 16 hours within a 24-hour period. (The 24 hour period begins the ftrst time the employee reports for either regular duty or secondary employment allowing for a minimum of eight hours of rest within each 24-hour period.) These hours are cumulative and include normal scheduled work hours, overtime, off-duty secondary employment, and outside employment. 366. Commissioned Reserve officers are allowed to register for and work secondary employment assignments through the Coordinating Office ifthey are full time active duty officers in good standing or Commissioned Reserve Officers on the Effective Date. The following further limitations and restrictions shall apply to all Reserve members, however:
a) Plain clothes secondary employment coordinated through the Coordinating Office must be approved by the Superintendent or his designee prior to allowing any Reserve officer to work in plain clothes; b) Reserve officers shall not work secondary employment for their current employer or for anyone for whom they have worked full time during any period within two years of the Effective Date; c) Reserve officers shall not work secondary employment during the first year after graduation from the Reserve Police Academy; d) Reserve officers who volunteer a minimum of 36 hours in a calendar month are eligible to work a maximum of28 hours in secondary employment during the following calendar month (e.g., a reserve officer who volunteers 36 hours in August would be eligible to work a maximum of28 hours of secondary employment in September); e) Reserve officers who volunteer a minimum of 40 hours in a calendar month will be eligible to work a maximum of 32 hours of secondary employment during the following calendar month; t) Reserve ranking officers are not authorized to approve secondary employment. All request forms shall be submitted to the Commander of the Reserve Division for approval and forwarding through the chain of command;
91

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5597ofo9f 3129
g) Reserve officers shall attach a copy of their monthly time report to their secondary employment authorization request form; h) Reserve officers shall follow all policies and procedures ofNOPD, the NOPD Reserve Division and this Agreement while working secondary employment; and i) Reserve officers are prohibited from coordinating secondary employment for any member of the Department, either regular or reserve members. Reserve officers are also prohibited from individually or cooperatively coordinating secondary employment and the collection of fees for secondary employment contracted through the Coordinating Office. E. Secondary Employment Employee Responsibilities 367. NOPD employees seeking to work any secondary employment shall submit a signed Secondary Employment Registration Form ("Registration Form") initially and annually thereafter to the Coordinating Office. This Registration Form shall include acknowledgment that: a) the employee understands that working a secondary employment is a privilege subject to strict criteria; b) the employee represents NOPD while working secondary employment; c) the employee must abide by all NOPD policies while working secondary employment; and d) the employee may be disciplined by NOPD for policy violations committed while working secondary employment. 368. Employees working secondary employment shall have the same responsibility to carry appropriate departmental equipment (e.g. , police radios) and document their activities in the same manner as if they were on-duty, including completing incident, arrest, and use of force reports, and reporting allegations of misconduct or observed misconduct. F. Secondary Employment Snpervision 369. Working with NOPD, the Coordinating Office shall determine the number of employees and supervisors necessary to work a secondary job, considering factors that include: a) The anticipated number of people attending the function;
b) Whether alcoholic beverages will be served;
c) Whether the event is open to the public or is private/by invitation only; d) The location of the event; and e) The history of the event and employer.
92

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5698ofo9f 3129
370. The minimum supervisory requirements for any secondary employment assignment shall be:
a) Secondary employment requiring the simultaneous or overlapping schedule of one to four officers may be worked without a ranking officer. In these instances, the most senior officer accepts responsibility for secondary employment related notifications. Supervisory oversight shall be the responsibility of a patrol supervisor in the District of the secondary employment assignment, though officers engaged in secondary employment are expected to abide by general directions from the coordinating office; b) Secondary employment requiring the simultaneous or overlapping schedule of five to nine officers shall include at least one ranking officer of at least the grade of sergeant or lieutenant; c) Secondary employment requiring the simultaneous or overlapping schedule of 10 to 14 officers shall include at least two ranking officers of at least the grade of sergeant or lieutenant; d) Secondary employment requiring the simultaneous or overlapping schedule of 15 to 19 officers shall include at least two ranking officers of at least the grade of sergeant and one supervisor of at least the grade of lieutenant; e) Secondary employment requiring the simultaneous or overlapping schedule of 20 to 24 officers shall include at least three ranking officers of at least the grade of sergeant and one supervisor of at least the grade of lieutenant; f) Secondary employment requiring the simultaneous or overlapping schedule of 25 to 29 officers shall include at least three ranking officers of at least the grade of sergeant and two supervisors of at least the grade of lieutenant; g) Secondary employment requiring the simultaneous or overlapping schedule of 30 officers or more shall include supervisory coverage in addition to that specified above based on the following graduated scale:
(l) One sergeant or above for every five members; (2) One lieutenant or above for every two sergeants; (3) One captain or above for every three lieutenants. 371. Sergeants and lieutenants shall be allowed to back-fill a police officer opening, but those supervisors electing to fill such a vacancy are eligible for compensation at the hourly rate
93

CaCseas2e:122:-0c7v--c0v1-90245-1S3M-G-JMCSW DDocoucmumenetn5t 8105-92-1 FFileilded060/11/31/11/313 PPagaege5799ofo9f 3129
approved for the police officer position as negotiated between the Coordinating Office and the employer. Captains or above shall only be allowed to fill open vacancies at a supervisory staffing level equivalent to a captain's position. 372. Supervisors shall supervise NOPD employees working secondary employment in the same manner as if they were working their primary employment. 373. The Coordinating Office will implement a system so that on-duty NOPD patrol supervisors are aware of each secondary job within that supervisor's geographical coverage area and the identity of each employee working each secondary job. 374. The Coordinating Office will implement a system so that each District shall have a current and historical record of all secondary employment worked in the District.
xvn. MISCONDUCT COMPLAINT INTAKE, INVESTIGATION, AND
ADJUDICATION NOPD and the City agree to ensure that all allegations of officer misconduct are received and are fully and fairly investigated; that all investigative findings are supported using the preponderance of the evidence standard and documented in writing; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. To achieve these outcomes, NOPD and the City agree to implement the requirements set out below. A. Reporting Misconduct 375. NOPD agrees to continue to require any Department employee who observes or becomes aware of any act of misconduct by another employee to report the incident to a supervisor or directly to PIB for review and investigation. Where an act of misconduct is reported to a supervisor, the supervisor shall immediately document and report this information to PIB. Failure to report or document an act of misconduct or criminal behavior is an egregious offense and shall be grounds for discipline, up to and including termination of employment. B. Response to Internally Discovered Infractions 376. NOPD agrees to develop and establish protocols that require supervisors to take appropriate disciplinary or non-disciplinary corrective action when the supervisor becomes aware of an infraction committed by an officer that is not reported from outside the Department and does not require an immediate PIB notification (e.g., improper use of sick leave, improper attire). The infraction and the supervisor's response shall be reported to PIB within five business
94

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee5180o0fo9f3129
days. PIB shall review the report and supervisory response to determine whether additional investigation is required and to evaluate the imposed discipline or corrective action to determine whether the supervisory response was fair and consistent with NOPD disciplinary protocols. C. Preventing Retaliation 377. The City and NOPD agree to expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct. Within 270 days of the Effective Date, and annually thereafter, the City, through PIB, shall review NOPD's anti-retaliation policy and its implementation. This review shall consider the alleged incidents of retaliation that occurred or were investigated during the reporting period, the discipline imposed for retaliation, and the supervisors' performance in addressing and preventing retaliation. Following such review, the City shall modifY policy and practice as necessary to protect individuals, including other NOPD officers and employees and civilians, from retaliation for reporting misconduct. Retaliation for reporting misconduct or for cooperating with an investigation of misconduct is an egregious offense and shall be grounds for discipline, up to and including termination of employment. D. Staffing. Selection. and Training Requirements 378. NOPD agrees to continue to have a civilian serve as PIB commander. 379. NOPD and the City agree to ensure that a sufficient number of well-trained staff is assigned and available to complete and review thorough and timely misconduct investigations in accordance with the requirements of this Agreement. NOPD and the City further shall provide sufficient resources and equipment to ensure that thorough and timely criminal and administrative misconduct investigations are conducted. lCOs shall report directly to the PIB Commander on PIB-related matters. 380. Within 365 days of the Effective Date, NOPD agrees to review the staffmg ofPIB and ensure that misconduct investigators and commanders possess excellent investigative skills, a reputation for integrity, the ability to write clear reports, and the ability to be fair and objective in determining whether an officer committed misconduct. Officers with a sustained complaint of, or who have been disciplined for, excessive use of force, false arrest, unlawful search or seizure, sexual harassment, discrimination, or dishonesty shall be presumptively ineligible for assignment toPffi.
95

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee5190o1fo9f3129
381. Officers promoted to the rank of Lieutenant shall, within a reasonable time frame, serve a rotation in PIB. 382. All personnel conducting NOPD officer misconduct investigations, whether assigned to PIB, a District, or elsewhere, shall receive at least 40 hours of initial training in conducting officer misconduct investigations within 365 days of the Effective Date, and shall receive at least eight hours of training each year. This training shall include instruction in:
a) investigative skills, including proper interrogation and interview techniques; gathering and objectively analyzing evidence; surveillance; and data and case management; b) the particular challenges of administrative police misconduct investigations, including identifying alleged misconduct that is not clearly stated in the complaint or that becomes apparent during the investigation; properly weighing credibility of civilian witnesses against officers; using objective evidence to resolve inconsistent statements; and the proper application of the preponderance of the evidence standard; c) relevant state, local, and federal law, including state employment law related to officers and the rights of public employees, including but not limited to La. Rev. Stat. 40:2531, "Rights of Law Enforcement Officers While Under Investigation," and local Civil Service Commission requirements, as well as criminal discovery rules such as those set out in Garrity v. New Jersey, 385 U.S. 493 (1967), and Brady v. Maryland, 373 U. S. 83 (1963); and d) NOPD rules and policies, including the requirements of this Agreement, and protocols related to criminal and administrative investigations of alleged officer misconduct. 383. Within 365 days of the Effective Date, NOPD agrees to develop and implement a plan for conducting regular, targeted, and random integrity audit checks, or "sting" audits, to identify and investigate officers engaging in at-risk behavior, including: unlawful stops, searches, and seizures (including false arrests); discriminatory policing; use of excessive force; secondary employment abuse; failure to take a complaint failure to report misconduct or complaints; or other patterns of misconduct or potentially criminal behavior. E. Complaint Information 384. Within 365 days of the Effective Date, the City and NOPD agree to develop and implement a program to ensure broad knowledge throughout the New Orleans community about
96

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6100o2fo9f3129
how to make misconduct complaints, and the availability of effective mechanisms for making misconduct complaints. The requirements below shall be incorporated into this program. 385. The City and NOPD agree to make complaint forms and informational materials, including brochures and posters, available at appropriate government properties, including, at a minimum, NOPD headquarters, District stations, NOPD and City websites, City Hall, courthouses within New Orleans, all public libraries, the IPM, the Orleans Public Defenders, and at the offices or gathering places of commWlity groups. Individuals shall be able to submit misconduct complaints through NOPD and City websites and these websites shall include complaint forms and information regarding how to file misconduct complaints. 386. NOPD agrees to post and maintain a permanent placard at all police facilities describing the external complaint process. The placards shall include relevant contact information, such as telephone numbers, email addresses, and internet sites. Officers shall provide the officer's name and badge number upon request. If an individual indicates that he or she would like to make a complaint or requests a complaint form, the officer shall immediately inform his or her supervisor who will respond to the scene to assist the individual in providing appropriate forms and/or other available mechanisms for filing a misconduct complaint. 387. Complaint forms and related informational materials shall be made available and posted in Spanish, Vietnamese, and English. F. Complaint Intake, Classification, Assignment, and Tracking 388. NOPD agrees to, within 365 days of the Effective Date, revise policy and train all officers and supervisors to ensure that they properly handle complaint intake, including how to properly provide complaint materials and information and the consequences for failing to take complaints. 389. The refusal to accept a misconduct complaint, discouraging the filing of a misconduct complaint, or providing false or misleading information about filing a misconduct complaint, shall be groWlds for discipline, up to and including termination. 390. NOPD agrees to accept all misconduct complaints, including anonymous and third-party complaints, for review and investigation. Complaints may be made in writing or verbally, in person or by mail, telephone (or TDD), facsimile, or electronic mail. Any LEP individual who wishes to file a complaint about an NOPD officer or employee shall be provided with a complaint form in English, Spanish, or Vietnamese, as appropriate, and the appropriate
97

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6110o3fo9f3129
translation services required to file a complaint, and such complaints will be investigated in accordance with this Agreement. 391. All officers and employees who receive a misconduct complaint in the field shall immediately inform a supervisor of the misconduct complaint so that the supervisor can ensure proper intake of the complaint. All misconduct complaints received outside ofPIB shall be documented and submitted to PIB by the end of the shift in which it was received. 392. Upon notification by the City Attorney's Office, the DA, or judges or magistrates, NOPD agrees to ensure that allegations of officer misconduct are identified and investigated as misconduct complaints. The City Attorney's Office agrees to forward copies of all civil suits alleging misconduct by an NOPD officer to PIB. 393. NOPD agrees to track, as a separate category of misconduct complaints, allegations that an officer has in any way interfered with a civilian's First Amendment right to observe, record, andlor verbally comment on the performance of police duties in an area open to the public, or where the individual has a right to be, such as a person's home or business. Improper interference with this right includes improperly detaining or arresting individuals for interfering with a law enforcement investigation, disorderly conduct, or similar charges. 394. NOPD agrees to track, as a separate category of misconduct complaints, allegations of discriminatory policing, along with characteristics of the complainants. NOPD agrees to ensure that complaints of discriminatory policing are captured and tracked appropriately. 395. Within 365 days ofthe Effective date, PIB shall develop and implement a centralized numbering and tracking system for all misconduct complaints. Upon the receipt of a complaint, PIB shall promptly assign a unique numerical identifier to the complaint, which shall be provided to the complainant at the time the complaint is made. Where a misconduct complaint is received in the field, a supervisor shall obtain the unique numerical identifier and provide this identifier to the complainant. 396. NOPD's centralized numbering and tracking system shall maintain accurate and reliable data regarding the number, nature, and status of all misconduct complaints, from initial intake to final disposition, including investigation timeliness and notification to the complainant of the interim status and final disposition of the investigation. This system shall be used to determine the status of complaints and to confirm that a complaint was received, as well as for periodic
98

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6120o4fo9f3129
assessment of compliance with NOPD policies and procedures and this Agreement, inchiding requirements on the timeliness of administrative investigations. 397. Where a supervisor receives a misconduct complaint in the field alleging that misconduct has just occurred, the supervisor shall gather all relevant information and evidence and provide this information and evidence to PIB. This information includes the names and contact information for all complainants and witnesses, the names of all NOPD officers and employees involved in or witnessing the alleged misconduct, and any available physical evidence, such as voluntarily provided video or audio recordings, or documentation of the existence of such recordings where the witness chooses not to provide the recording. The supervisor shall take photographs of apparent injuries, or the absence thereof, unless the complainant/subject objects or declines. 398. Within three business days of the receipt of a misconduct complaint, PIB shall determine whether the complaint will be: assigned to an ICO or supervisor; retained by PIB for investigation or referred to the appropriate outside agency; and whether it will be investigated criminally. 399. NOPD agrees to develop and implement a complaint classification protocol that is allegation-based rather than anticipated outcome-based to guide PIB in determining where a complaint should be assigned. This complaint classification protocol shall ensure that PIB or an authorized outside agency investigates allegations including:
a) serious misconduct, including but not limited to: criminal misconduct; unreasonable use offorce; discriminatory policing; false arrest or planting evidence; untruthfulness/false statements; unlawful search; retaliation; sexual misconduct; domestic violence; and theft; b) misconduct implicating the conduct of the supervisory or command leadership of the subject officer; and c) subject to the approval by the Deputy Superintendent ofPIB, allegations that any commander requests be conducted by PIB rather than the subject officer's DistrictlDivision. 400. Where NOPD or the City determines that an externally-generated complaint contains no allegations of misconduct, the complaint shall receive a disposition of "exonerated" or "unfounded" and include for tracking purposes an indication that it was a complaint regarding service or otherwise contained no allegations of misconduct. NOPD agrees to cease the use of ''No Violation Observed," ''NIMS,'' or similar dispositions of misconduct allegations. NOPD
99

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6130o5fo9f3129
will use the classification "No Fonnal Investigation Merited" to resolve only the following types of complaints:
a) complaints disputing traffic citations, except that allegations of misconduct contained in such complaints (e.g., racial profiling, illegal search, excessive force) will be classified and investigated according to its merits; b) complaints alleging a delay in police service such as patrol response or detective follow-up, where the preliminary investigation demonstrates that the delay is due to workload. However, if the preliminary investigation discloses that misconduct such as negligence rather than workload caused the delay, the complaint will be classified according to its merits; c) complaints regarding off-duty officer conduct of a civil nature, unless the alleged conduct or its effects constitute misconduct or have a substantial nexus to the officer's employment; and d) complaints in which the preliminary investigation demonstrates that the subject officer does not work for NOPD or where the identity of the subject officer cannot be determined, despite the best efforts of PIB. 401. A misconduct complaint investigation may not be conducted by any officer who used force during the incident; whose conduct led to the injury of a person; who authorized the conduct that led to the reported incident or complaint; or who witnessed or was involved in the incident leading to the allegation of misconduct. G. Investigation Timeframe 402. NOPD and the City agree to make good faith efforts to have state law amended to permit a reasonable timeframe for the completion of administrative investigations of officer misconduct so that such investigations can be thorough, reliable, and complete. 403. All administrative investigations conducted by PIB shall be completed within the time limitations mandated by state law and within 90 days of the receipt of the complaint, including assignment, investigation, review and fmal approval, unless granted an extension as provided for under state law or Civil Service exemption, in which case the investigation shall be completed within 120 days. Where an allegation is sustained, NOPD shall have 30 days to determine and impose the appropriate discipline, except in documented extenuating circumstances, in which case discipline shall be imposed within 60 days. All administrative investigations shall be
100

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6140o6fo9f3129
subject to appropriate interruption (tolling period) as necessary to conduct a concurrent criminal investigation or as provided by law. H. Collection of Evidence 404. Officer misconduct investigations shall be as thorough as necessary to reach reliable and complete findings. The misconduct complaint investigator shall interview each complainant in person, absent extenuating circumstances, and this interview shall be recorded in its entirety, absent specific, documented objection by the complainant. 405. All witnesses, including officers witnessing or involved in an incident that becomes the subject ofa misconduct complaint, shall provide a written statement regarding the incident or be interviewed as described below. 406. Where the alleged misconduct is particularly serious or interviews of the subject officer(s) or other witnesses may be necessary to sufficiently investigate the allegation, the investigator shall conduct an in-person interview. The interview shall be recorded in its entirety, absent, in the case of non-officer witnesses, specific documented objection. 407. Each officer, witness, and complainant shall be interviewed separately. A NOPDAI not involved in the underlying complaint will be used when taking statements or conducting interviews of any Vietnamese or Spanish speaking LEP complainant or witness. 408. The misconduct investigator shall seek to identify all persons at the scene giving rise to a misconduct allegation, especially all NOPD officers. The investigator shall note in the investigative report the identities of all officers and other witnesses who were on the scene but assert they did not witness and were not involved in the incident. The investigator shall conduct further investigation of any such assertions that appear unsupported by the evidence. 409. All misconduct investigation interview recordings shall be stored and maintained in a secure location within PIB. 410. NOPD agrees to require officers to cooperate with administrative investigations, including appearing for an interview when requested by an NOPD or Inspector General investigator and providing all requested documents and evidence. Supervisors shall be notified when an officer under their supervision is summoned as part of an administrative investigation, and shall facilitate the officer's appearance, absent extraordinary and documented circumstances. 411. If at any time during complaint intake or investigation the investigator detennines that there may have been criminal conduct on the part of any officer or employee, the investigator
101

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6150o7fo9f3129
shall immediately notify the PIB commander. The PIB commander shall immediately notify the Superintendent, the DA and/or USAO, and the Monitor of the initiation of a criminal investigation. The subject officer shall not be compelled to provide a statement to administrative investigators where there is a potential criminal investigation or prosecution of the officer, until the remainder of the investigation has been completed, unless after consultation with prosecuting agency (e.g., DA or USAO) and the PIB commander, such compulsion is deemed appropriate by the Superintendent. NOPD and the City agree to consult with the DA to develop and implement protocols to ensure that the criminal and administrative investigations can be conducted in parallel as appropriate and are kept separate after a subject officer has provided a compelled statement. 412. Nothing in this Agreement or NOPD policy shall hamper an officer' s obligation to provide a public safety statement regarding a work related incidentor activity. NOPD agrees to make clear in policy and training that all officer statements in incident reports, arrest reports, use of force reports, and similar documents, and statements made in interviews such as those conducted in conjunction with NOPD' s routine use of force review and investigation process, are part of each officer's routine professional duties. I. Analysis of Evidence 413. In each investigation, NOPD shall consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate, and make credibility determinations based upon that evidence. There will be no automatic preference for an officer's statement over a non-officer's statement, nor will NOPD disregard a witness' statement merely because the witness has some connection to the complainant or because of any criminal history. NOPD shall make efforts to resolve material inconsistencies between witness statements. 414. The resolution of any misconduct complaint must be based upon the preponderance of the evidence. A misconduct investigation shall not be closed simply because the complaint is withdrawn or because the alleged victim is unwilling or unable to provide additional information beyond the initial complaint. In such instances, the investigation shall continue as necessary within the allowable investigation timeframes established under this Agreement to resolve the original allegation(s) where possible based on the evidence and investigatory procedures and techniques available. In each investigation, the fact that a complainant pled guilty or was found
102

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6160o8fo9f3129
guilty of an offense shall not be the deciding factor as to whether an NOPD officer committed the alleged misconduct, nor shall it justify discontinuing the investigation. 415. The misconduct investigator shall explicitly identify and recommend one of the following dispositions for each allegation of misconduct in an administrative investigation:
a) "Unfounded," where the investigation determines, by a preponderance of the evidence, that the alleged misconduct did not occur or did not involve the subject officer; b) "Sustained," where the investigation determines, by a preponderance of the evidence, that the alleged misconduct did occur; c) "Not Sustained," where the investigation is unable to determine, by a preponderance of the evidence, whether the alleged misconduct occurred; or d) "Exonerated," where the investigation determines, by a preponderance of the evidence, that the alleged conduct did occur but did not violate NOPD policies, procedures, or training.
416. The pm commander shall accept the investigator's recommended disposition and the
Superintendent shall approve the disposition, unless the disposition is unsupported by a preponderance of the evidence or additional investigation is necessary to reach a reliable finding. Where the disposition is unsupported by a preponderance of the evidence, the PIB Commander may correct the disposition or order additional investigation, as necessary. 417. In addition to determining whether the officer committed the alleged misconduct, administrative investigations shall assess and document whether: (a) the police action was in compliance with training and legal standards; (b) the incident indicates a need for additional training, counseling, or other non-disciplinary corrective measures; and (d) the incident suggests that NOPD should revise its policies, strategies, tactics, or training. This information shall be shared with the relevant commander(s) who shall document the commander's disagreement or agreement with these findings, refer any recommendations to the appropriate individual to implement the recommended change, document the implementation ofthese recommendations, and rerum the documentation to PIB.
J. Integrity of Investigative File and Evidence
418. DivisionlDistrict-Level investigation reports and all related documentation and evidence
shall be provided to pm immediately upon completion and approval by the appropriate
supervisor of the investigation, but no later than three business days.
103

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6170o9fo9f3129
419. All investigation reports and related documentation and evidence shall be securely maintained in a central and accessible location until the officer who was a subject of the complaint has severed employment with NOPD. K. Communication with Complainant 420. Each misconduct complainant will be kept informed periodically regarding the status of the investigation. The complainant will be notified of the outcome of the investigation, in writing, within ten business days of the completion of the investIgation, including regarding whether any disciplinary or non-disciplinary action was taken. L. Discipline Process and Transparency 421. NOPD agrees to ensure that discipline for sustained allegations of misconduct will be based on the nature of the allegation and defined and consistent, mitigating and aggravating factors, rather than the identity of the officer or his or her status within NOPD or the broader community. NOPD and the City agree to develop and implement procedures to ensure that discipline is fair and consistent. 422. NOPD agrees to use a disciplinary matrix that:
a) establishes a presumptive range of discipline for each type of rule violation; b) increases the presumptive discipline based both on an officer's prior violations of the same or other rules; c) sets out defined mitigating or aggravating factors; d) requires that any departure from the presumptive range of discipline must be justified in writing; e) provides that NOPD shall not take only non-disciplinary corrective action in cases in which the disciplinary matrix calls for the imposition of discipline; and f) provides that NOPD shall consider whether non-disciplinary corrective action also is appropriate in a case where discipline has been imposed. 423. NOPD and the City agree to establish a unified system for reviewing sustained findings and assessing the appropriate level of discipline pursnant to NOPD's disciplinary matrix, in order to facilitate consistency in the imposition of discipline. All disciplinary decisions shall be documented, including the rationale behind any decision to deviate from the level of discipline set out in the disciplinary matrix.
104

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6181o0fo9f3129
424. NOPD and the City agree to develop and establish written policies and procedures to ensure that the City Attorney's Office provides close guidance to NOPD at the disciplinary stage to ensure that NOPD's disciplinary decisions are as fair and legally defensible as possible. 425. The City agrees to request the Civil Service Commission to, within 90 days of the Effective Date, post online its full decisions related to NOPD discipline in a timely manner. M. Annual Report 426. PIB shall include in its annual report a summary of each misconduct complaint, including a description of the allegation, the final approved disposition, and any discipline imposed. PIB's annual report shall also include aggregate misconduct complaint data showing the number of each type of complaint and the number and rate of sustained cases after final approval, and shall provide an analysis of this data that identifies trends and concerns and documents NOPD's response to the identified trends and concerns. The PIB and IPM shall coordinate and confer with each other in collecting, analyzing, and reporting this data to avoid or minimize duplication of efforts or resources.
XVIII. TRANSPARENCY AND OVERSIGHT To ensure comprehensive, effective, and transparent oversight ofNOPD, NOPD and the City agree to develop, implement, and maintain systems that are meant to be sustained after the completion of this Agreement. To facilitate effective and constitutional policing and increase trust between NOPD and the broader New Orleans community, these oversight systems shall ensure that improper incidents, practices, or trends, are identified and corrected in an equitable and timely manner. To achieve these outcomes, NOPD and the City agree to implement the requirements set out below. A. Data Collection and Public Reporting 427. All NOPD audits and reports related to the implementation of this Agreement shall be publicly available via website and at the Police Department, City Hall, and other public locations, to the fullest extent permissible under law. 428. Within 30 days of its implementation, each NOPD policy, procedure, and manual, including those created pursuant to this Agreement, shall be posted online and otherwise made publicly available, unless NOPD documents a reasonable security reason for keeping the policy, procedure, or manual private. Where a portion of a manual may not be suitable for public availability, NOPD agrees to make the remainder of the manual publicly available.
105

"."---,,._-- - - -
CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee6191o1fo9f3129
429. NOPD shall collect and maintain all data and records necessary to facilitate and ensure transparency and wide public access to information related to NOPD decision making and activities, as permitted by law. B. United States Attorney Criminal Justice Coordination Group 430. Within 120 days of the Effective Date, NOPD shall develop and implement a system of formal coordination between a command-level NOPD official and the DA, municipal and state court judges, the Orleans Public Defenders, the FBI, the USAO, and the IPM. This criminal justice coordination group shall be convened by the USAO and shall meet monthly to share regular feedback regarding the quality ofNOPD arrests and indicia of misconduct; to refer specific allegations of misconduct for investigation; and to receive an update on the status of previous referrals. 431. The NOPD command-level official shall be accountable for documenting feedback and referrals received; ensuring that operational changes based upon this feedback are considered and made as appropriate; ensuring that all allegations of misconduct are investigated; and providing an update each month to the USAO-convened criminal coordination group regarding the status ofinvestigations of previously referred allegations ofmisconduct, and the status ofconsideration of operational changes as a result of feedback received from the group. C. District Community Outreach Programs and Meetings 432. Within 180 days of the Effective Date, NOPD agrees to develop and implement a Community Outreach and Public Information program in each NOPD District. 433. The Community Outreach and Public Information program shall include at least one semi-annual open meeting in each ofNOPD's eight Districts for the first year of this Agreement, and one meeting in each District annually thereafter. These open meetings shall be led by the Superintendent or Deputy Superintendent and shall inform the public about the requirements of this Agreement; NOPD's progress meeting these requirements; and address areas of community concern related to public trust and constitutional policing. At least one week before such meetings, the City shall widely publicize the meetings using earned media opportunities. In determining the locations of the meetings, NOPD shall consider factors such as easy access to public transportation and child care.
106

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7101o2fo9f3129
434. The Community Outreach and Public Information meetings shall include summaries of all pertinent audits and reports completed pursuant to this Agreement and inform the public of any policy changes or other significant actions taken as a result of this Agreement. 435. For at least the first two years of this Agreement, every NOPD officer and supervisor assigned to a District shall attend at least two community meetings (e.g., NONPACC and other meetings with residents, business and religious groups) per year in the geographic area to which the officer is assigned.
D. Police-Community Advisory Board
436. DO] acknowledges that NOPD and community representatives have acted jointly to create a PCAB to facilitate regular communication and cooperation between the Department, the City, and community leaders, including youth leaders, such as through the development of a community advisory panel and the collaborative development of policing strategies and priorities. 437. NOPD agrees to work collaboratively with PCAB to develop and implement public safety strategies that respect and reflect each community's public safety priorities and concerns about particular police tactics. To the extent specified below, NOPD agrees to seek PCAB's assistance, counsel, and input to build community consensus on potential recommendations in areas including the following:
a) community policing strategies; b) accountability for professional/ethical behavior by individual police officers; c) special task forces that meet high priority community need; d) central policy changes, where applicable, that improve quality of life; e) resource allocations to meet high priority, difficult issues; f) strategies for a qualified and diverse workforce; g) providing information to the community and conveying feedback from the community to NOPD;and h) ways to provide data and information, including information about NOPD's compliance with this Agreement, to the public in a transparent and public-friendly format, to the greatest extent allowable by law.
107

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7111o3fo9f3129
438. NOPD further agrees to participate in quarterly meetings scheduled by PCAB; to allow the meeting agenda to be determined by the PCAB; and to have command/executive level staff representation present at all regularly scheduled meetings.
E. Community-Based Restorative Justice Project
439. NOPD and the City agree to participate in a community-based restorative justice project. NOPD, the City, and DOJ will work to identify an entity to fund and administer this project. The aim of this project shall be to help remedy mistrust between NOPD and the broader New Orleans community and create an environment for successful problem-solving partnerships.
F. Office of the Independent Police Monitor
440. This Agreement in no way diminishes the authority and oversight provided by the IPM pursuant to city ordinance and the related Memorandum of Understanding between the IPM and NOPD. 441. NOPD and the City agree to provide the IPM ready and timely access to the information necessary to fulfill its duties. The IPM shall have all access to confidential information, including all protections and authority of state law, as does New Orleans' Office ofInspector General. 442. NOPD and the City agree to abide by the November 10,2010, Memorandum of Understanding between the NOPD and the IPM. This MOU is hereby incorporated by reference into this Agreement. 443. In determining the timing and content of its reviews and audits, the IPM will coordinate with the Monitor and NOPD to minimize duplication of effort, recognizing that overlapping or redundant audits may be necessary on occasion to assess the quality and reliability of various internal and external oversight mechanisms.
XIX. AGREEMENT IMPLEMENTATION AND ENFORCEMENT A. Role of the Monitor
444. The Monitor shall assess and report whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in the constitutional and professional treatment of individuals by NOPD. 445. The Monitor shall be subject to the supervision and orders of the Court, consistent with this Agreement. The Monitor shall only have the duties, responsibilities and authority conferred
108

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7121o4fo9f3129
by this Agreement. The Monitor shall not, and is not intended to, replace or assume the role and duties of the City and NOPD, including the Superintendent. 446. In order to assess and report on the Defendant's implementation of this Agreement and whether implementation is resulting in the constitutional and professional treatment of individuals by NOPD, the Monitor shall conduct the reviews, audits, and assessments specified below, and such additional audits, reviews, and assessments as the Monitor or the Parties jointly deem necessary to determine whether this Agreement has been implemented as required. B. Compliance Reviews and Audits 447. The Monitor shall conduct compliance reviews or audits as necessary to determine whether the City and NOPD have implemented and continue to comply with the material requirements of this Agreement. Compliance with a material requirement of this Agreement requires that the City and NOPD have: (a) incorporated the requirement into policy; (b) trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirement; and (c) ensured that the requirement is being carried out in actual practice. Compliance reviews and audits shall contain the elements necessary for reliability and comprehensiveness. Compliance reviews and audits may be conducted using sampling and compilation data as consistent with reliability and comprehensiveness. Outcome Assessments in Section XIX.C. may not require a review of all NOPD data on a specific statistic or category. C. Outcome Assessments 448. In addition to compliance reviews and audits, the Monitor shall conduct assessments to measure whether implementation of this Agreement is resulting in constitutional policing. These outcome assessments shall include collection and analysis of the following outcome data:
a) Use of Force measurements, including: (1) Rate offorce used per arrest by NOPD overall and by force type, geographic area (i.e., zone), type of arrest, age, race, gender, and etlmicity; (2) Canine bite ratio; (3) Rate of force complaints that are sustained and rate that are not sustained, overall and by force type; geographic area (i.e., zone), source of complaint (internal or external), type of arrest, age, race, gender and ethnicity; (4) Uses of Force that were found to violate policy overall and by force type, geographic area (i.e., zone), type of arrest, age, race, gender and etlmicity;
109

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7131o5fo9f3129
(5) Number and rate of Use of Force administrative investigations/reviews in which each finding is supported by a preponderance of the evidence; and (6) Number of officers who frequently or repeatedly use force, or have more than one instance offorce found to violate policy. b) Stop, Search, and Arrest measurements, including: (I) Number and rate of arrests for which there is documented reasonable suspicion for the stop and probable cause for the arrest, overall and broken down by geographic area (i.e., zone), type of arrest, age, race, gender, and ethnicity; (2) the DA's acceptance and refusal rates of arrests made by NOPD and reasons for refusals, when made available by the DA, including those factors and information indicating that a failure to prosecute was due to the quality of officer arrests or concerns regarding officer conduct, overall and broken down by geographic area (i.e. zone), type of arrest, age, race, gender, and ethnicity; and (3) Number and rate of searches that result in a finding of contraband, overall and broken down by geographic area (i.e., zone) type of arrest, age, race, gender, and ethnicity. c) Bias-Free Policing and Community Engagement measurements, including: (1) Number and variety of community partnerships, including particular partnerships with youth; (2) homicide clearance rate; (3) Comparative response time between LEP and non LEP individuals seeking assistance from NOPD and change in response time to LEP individuals.; (4) Accurate classification of reports of sexual assault and domestic violence; and (5) Clearance rate of sexual assault and domestic violence cases, overall and broken down by whether the case was cleared by arrest or by exception, including accuracy of clearance type. d) Recruitment and Training measurements, including: (1) Number of highly-qualified recruit candidates; (2) Officer and agency reports of adequacy of training in type and frequency; and
110

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7141o6fo9f3129
(3) Role of insufficient training reflected in problematic incidents or by performance trends. e) Officer Assistance and Support measurements, including: (1) Availability and use of officer assistance and support services; and (2) Officer reports of adequacy of officer assistance and support. f) Performance Evaluation and Promotion measurements, including: (1) Promotions of qualified candidates with a history of ethical decision-making; and (2) Uses offorce found to be unreasonable, misconduct complaints sustained and not sustained, and other performance-related indicators for supervisors/commanders promoted pursuant to the requirements of this Agreement, and for the units these supervisors/commanders command. g) Supervision measurements, including: (1) Initial identification of officer violations and performance problems by supervisors, and effective response by supervisors to identified problems. h) Secondary Employment measurements, including: (1) Policy and legal violations related to secondary employment. i) Accountability measurements, including: (1) Number of misconduct complaints, and whether any increase or decrease appears related to access to the complaint process; (2) Rate of sustained, not sustained, exonerated, and unfounded misconduct complaints; (3) Number and rate of misconduct complaint allegations supported by a preponderance of the evidence; (4) Number of officers who are subjects of repeated misconduct complaints, or have repeated instances of sustained misconduct complaints; (5) Arrests/summons of officers for on or off-duty conduct; (6) Criminal prosecutions ofofficers for on or off-duty conduct; and (7) Number and nature of civil suits against NOPD officers and amount of judgments or settlements against the City or NOPD for civil suits filed against NOPD officers for work-related conduct.
111

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7151o7fo9f3129
449. In conducting these outcome assessments the Monitor may use any relevant data collected and maintained by NOPD (e.g., crime trend pattern analysis), the Office of the Inspector General, or the IPM, provided that it has determined, and the Parties agree, that this data is reasonably reliable and complete. D. Monitoring Plan and Review Methodology 450. Within 90 days of assuming duties as Monitor, the Monitor shall develop a plan for conducting the above outcome assessments and compliance reviews and audits, and shall submit this plan to the Parties for review and approval. This plan shall:
a) clearly delineate the requirements of the Agreement to be assessed for compliance, indicating which requirements will be assessed together; b) set out a schedule for conducting outcome measure assessments for each outcome measure at least annually, except where otherwise noted, with the first assessment occurring within 12 months ofthe Effective Date; c) set out a schedule for conducting a compliance review or audit of each requirement of this Agreement within the first two years of the Agreement, and a compliance review or audit of each requirement at least annually thereafter. 451. Within 120 days of assuming duties as Monitor, the Monitor shall review and recommend any changes to the Outcome Assessment measurements set out in section XIX.C, above, that the Monitor deems useful in assessing whether implementation of the Agreement is resulting in constitutional policing The Parties shall adopt any recommendations upon which they agree. If the Parties disagree whether to adopt a particular outcome measurement, the Party seeking adoption may seek Court resolution. 452. Where the Monitor recommends and the Parties agree, the Monitor may refrain from conducting a compliance audit or review of a requirement previously found to be in compliance by the Monitor pursuant to audit or review, or where outcome assessments indicate that the outcome intended by the requirement has been achieved. 453. At least 90 days prior to the initiation of any outcome measure assessment or compliance review or audit, the Monitor shall submit a proposed methodology for the assessment, review, or audit to the Parties. The Parties shall submit any comments or concerns regarding the proposed methodology to the Monitor within 45 days of the proposed date of the assessment, review, or
112

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7161o8fo9f3129
audit. The Monitor shall modify the methodology as necessary to address any concerns or shall inform the Parties in writing of the reasons it is not modirying its methodology as proposed. E. Review or Use of Force and Misconduct Investigations 454. City and NOPD shall provide each investigation of a serious use of force or use of force that is the subject of a misconduct investigation, and each investigation report of a serious misconduct complaint investigation (i.e., criminal misconduct; unreasonable use of force; discriminatory policing; false arrest or planting evidence; untruthfulness/false statements; unlawful search; retaliation; sexual misconduct; domestic violence; and theft), to the Monitor before closing the investigation or communicating the recommended disposition to the subject of the investigation or review. The Monitor shall review each serious use of force investigation and each serious misconduct complaint investigation and recommend for further investigation any use of force or misconduct complaint investigations that the Monitor determines to be incomplete or for which the findings are not supported by a preponderance of the evidence. The Monitor shall provide written instructions for completing any investigation determined to be incomplete or inadequately supported by the evidence. The Superintendent shall determine whether the additional investigation or modification recommended by the Monitor should be carried out. Where the Superintendent determines not to order the recommended additional investigation or modification, the Superintendent will set out the reasons for this determination in writing. The Monitor shall provide recommendations so that any further investigation or modification can be concluded within the timeframes mandated by state law. The Monitor may coordinate with the rPM in conducting these use of force and misconduct investigation reviews. F. Monitor Recommendations and Technical Assistance 455. The Monitor may make recommendations to the Parties regarding measures necessary to ensure timely, full, and effective implementation of this Agreement and its underlying objectives. Such recommendations may include a recommendation to change, modify, or amend a provision of the Agreement; a recommendation for additional training in any area related to this Agreement; or a recommendation to seek technical assistance. In addition to such recommendations, the Monitor may also, at the request of DO] or the City and based on the Monitor's reviews, provide technical assistance consistent with the Monitor's responsibilities under this Agreement.
113

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7171o9fo9f3129
G. Comprehensive Re-Assessment 456. Two years after the Effective Date, the Monitor shall conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by this Agreement have been achieved, and any modifications to the Agreement that are necessary for continued achievement in light of changed circumstances or unanticipated impact (or lack of impact) of the requirement. This assessment also shall address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating full and effective compliance. Based upon this comprehensive assessment, the Monitor shall recommend modifications to the Agreement that are necessary to achieve and sustain intended outcomes. Where the Parties agree with the Monitor's recommendations, the Parties shall stipulate to modifY the Agreement accordingly. This provision in no way diminishes the Parties' ability to stipulate to modifications to this Agreement as set out in section XIX.P, below. Nothing in this assessment shall empower the Monitor to unilaterally modifY the terms of this Agreement. H. Monitor Reports 457. The Monitor shall file with the Court quarterly written, public reports covering the reporting period that shall include:
a) a description of the work conducted by the Monitor during the reporting period; b) a listing of each Agreement requirement indicating which requirements have been: (1) incorporated into implemented policy; (2) the subject of sufficient training for all relevant NOPD officers and employees; (3) reviewed or audited by the Monitor in determining whether they have been fully implemented in actual practice, including the date ofthe review or audit; and (4) found by the Monitor to have been fully implemented in practice; c) the methodology and specific findings for each audit or review conducted, redacted as necessary for privacy concerns. An unredacted version shall be filed under seal with the Court and provided to the Parties. The underlying data for each audit or review shall not be publicly available but shall be retained by the Monitor and provided to either or both Parties upon request; d) for any requirements that were reviewed or audited and found not to have been fully implemented in practice, the Monitor's recommendations regarding necessary steps to achieve compliance;
114

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7182o0fo9f3129
e) the methodology and specific findings for each outcome assessment conducted; and f) a projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to implementation of the Agreement. 458. The Monitor shall provide a copy of quarterly reports to the Parties in draft form at least 10 business days prior to Court filing and public release of the reports to allow the Parties to informally comment on the reports. The Monitor shall consider the Parties' responses and make appropriate changes, if any, before issuing the report. I. Coordination with IPM 459. In conducting its assessments, reviews, and audits, and in developing its monitoring plan and review methodologies, the Monitor may coordinate and confer with the IPM to avoid duplication of effort and expenses. J. Communication between Monitor, Parties, and Public 460. The Monitor shall maintain regular contact with the Parties in order to ensure effective and timely communication regarding the status of the implementation of and compliance with this Agreement. To facilitate this communication, the Monitor shall conduct monthly meetings that shall include participation by the Superintendent and representatives of the City Attorney's Office, and DOJ. 461. The Monitor shall meet with community stakeholders to explain the Monitor's reports to inform the public about the Agreement implementation process, and to hear community perspectives of police interactions. K. Public Statements, Testimony, Records, and Conflicts of Interest 462. Except as required or authorized by the terms of this Agreement or the Parties acting together, the Monitor, including any agent, employee, or independent contractor thereof, shall not make any public statements or issue findings with regard to any act or omission of the City or its agents, representatives, or employees; or disclose non-public information provided to the Monitor pursuant to the Agreement. Any press statement made by the Monitor regarding its employment or monitoring activities under this Agreement shall first be approved by DOJ and the City. 463. The Monitoring may testify as to its observations, findings, and recommendations before the Court with jurisdiction over this matter, but shall not testify in any other litigation or proceeding with regard to any act or omission of the City or any of its agents, representatives, or
115

_.- - - - - - - - -
CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee7192o1fo9f3129
employees related to this Agreement or regarding any matter or subject that the Monitor may have received knowledge of as a result of its performance under this Agreement. This paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this Agreement. 464. Unless such conflict is waived by the Parties, the Monitor shall not accept employment or provide consulting services that would present a conflict of interest with the Monitor's responsibilities under this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant's or claimant's attorney, in connection with a claim or suit against the City or its departments, officers, agents, or employees. 465. The Monitor is not a state or local agency, or an agent thereof, and accordingly the records maintained by the Monitor shall not be deemed public records subject to public inspection. 466. The Monitor shall not be liable for any claim, lawsuit, or demand arising out of the Monitor's performance pursuant to this Agreement brought by non-parties to this Agreement. L. NOPD Consent Decree Implementation Unit 467. The City and NOPD agree to hire and retain, or reassign current NOPD employees to form, an inter-disciplinary unit with the skills and abilities necessary to facilitate implementation of this Agreement. This unit will serve as a liaison between the Parties and the Monitor and will assist with the implementation of and compliance with this Agreement. At a minimum, this unit will: coordinate the City and NOPD's compliance and implementation activities; facilitate the provision of data, documents, materials, and access to the City and NOPD personnel to the Monitor and DO], as needed; ensure that all data, documents, and records are maintained as provided in this Agreement; and assist in assigning implementation and compliance related tasks to NOPD personnel, as directed by the Superintendent or his designee. M. Implementation Assessment and Report 468. NOPD and the City agree to collect and maintain all data and records necessary to: (1) document implementation of and compliance with this Agreement, including data and records necessary for the Monitor to conduct reliable outcome assessments, compliance reviews, and audits; and (2) allow NOPD or other City entities to perform ongoing quality assurance in each of the areas addressed by this Agreement.
116

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8102o2fo9f3129
469. Within six months of the Effective Date, the City agrees to file with the Court, with a copy to the Monitor and DOl, a status report. This report shall delineate the steps taken by NOPD during the reporting period to implement this Agreement; and the City's assessment of the status of its progress; plans to correct any problems; and response to any concerns raised in the Monitor's previous quarterly report. Following this initial status report, the City agreesto file a status report every six months thereafter while this Agreement is in effect. N. Access and Confidentiality 470. To facilitate its work, the Monitor may conduct on-site visits and assessments without prior notice to the City and NOPD. The Monitor shall have access to all necessary individuals, facilities, and documents, which shall include access to Agreement related trainings, meetings, and reviews, such as critical incident reviews, use offorce review boards, and disciplinary hearings. NOPD shall notifY the Monitor as soon as practicable, and in any case within 12 hours, of any critical firearms discharge, in-custody death, or arrest of any officer. 471. The City and NOPD agree to ensure that the Monitor shall have timely, full and direct access to all City and NOPD staff, employees, critical incident crime scenes, and facilities that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement. The Monitor shall cooperate with the City and NOPD to access people and facilities in a reasonable manner that, consistent with the Monitor's responsibilities, minimizes interference with daily operations. 472. City and NOPD shall ensure that the Monitor has full and direct access to all City and NOPD documents and data that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement, except any documents or data protected by the attorney-client privilege. The attorney-client privilege may not be used to prevent the Monitor from observing reviews and trainings such as use offorce review boards, or disciplinary hearings. Should the City and NOPD decline to provide the Monitor access to documents or data based on privilege, the City and NOPD shall inform the Monitor and DOl that they are withholding documents or data on this basis and shall provide the Monitor and DOl with a log describing the documents or data and the basis of the privilege for withholding. 473. For the purpose of implementing this Agreement, DOl and its consultants and agents shall have full and direct access to all City and NOPD staff, employees, facilities, documents, and data. DOl and its consultants and agents shall cooperate with the City and NOPD to access
117

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8112o3fo9f3129
involved personnel, facilities, and documents in a reasonable manner that, consistent with DOl's responsibilities to enforce this Agreement, minimizes interference with daily operations. Should the City and NOPD decline to provide DOl with access to documents or data based on privilege, the City and NOPD shall inform DOl that they are withholding documents or data on this basis and shall provide DOl with a log describing the documents or data and the basis of the privilege for withholding. 474. The Monitor and DOl shall provide the City and NOPD with reasonable notice of a request for copies of documents. Upon such request, the City and NOPD shall provide in a timely manner copies (electronic, where readily available) of the requested documents to the Monitor and DOl. 475. The Monitor shall have access to all records and information relating to criminal investigations ofNOPD officers as permissible by law. The Monitor shall have access to all documents in criminal investigation files that have been closed by NOPD after the Effective Date. The Monitor also shall have reasonable access to all arrest reports, warrants, and warrant applications initiated after the Effective Date whether or not contained in open criminal investigation files. Where practicable, arrest reports, warrants, and warrant applications initiated after the Effective Date shall be obtained from sources other than open criminal investigation files. 476. The Monitor and DOl shall maintain all non-public information provided by the City and NOPD in a confidential manner. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the City and NOPD may assert, including those recognized at common law or created by statute, rule or regulation, against any other person or entity with respect to the disclosure of any document. O. Selection and Compensation of the Monitor 477. Within 90 days of the Effective Date, or additional time if agreed to by both Parties, the City and DOl shall together select a Monitor, acceptable to both, which shall assess and report on NOPD' s implementation of this Agreement. The Parties have agreed to use New Orleans's procurement process in selecting the Monitor. This process shall be implemented in a manner consistent with this Agreement, including the requirement that the Monitor be jointly selected and acceptable to both DOJ and the City. The Parties' Monitor selection shall be subject to the
118

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8122o4fo9f3129
approval of the Federal Court with jurisdiction over this Agreement. The Monitor's team shall consist of individuals of the highest ethics. 478. If the Parties are unable to agree on a Monitor or an alternative method of selection within the timeframe agreed to by both parties as of the Effective Date, then the Court shall resolve the disagreement. 479. The Monitor shall be appointed for a period of four years from the Effective Date and the appointment shall be extended automatically should the City and NOPD not demonstrate full and effective compliance at the end of this four-year period. The extension of the Monitor beyond six years shall be allowed only if the Court detennines that it is reasonably necessary in order to assess and facilitate full and effective compliance with this Agreement. 480. The City shall bear all reasonable fees and costs of the Monitor. DOJ and the City recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly fees and costs shall be one factor considered in selecting the Monitor. In the event that any dispute arises regarding the reasonableness or payment of the Monitor's fees and costs, the City, DOJ, and the Monitor shall attempt to resolve such dispute cooperatively prior to seeking the assistance of the Court to resolve such dispute. 481. The City shall provide the Monitor with permanent office space and reasonable office support such as office furniture, telephones, access to internet, secure document storage, and photocopying. 482. The Monitor, at any time after its initial selection, may request to be allowed to hire or employ or contract with such additional persons or entities as are reasonably necessary to perform the tasks assigned to the Monitor by this Agreement. Any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this Agreement shall be subject to the provisions of this Agreement. The Monitor shall notify the City and DOl in writing if the Monitor wishes to select such additional persons or entities. The notice shall identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the City and DOJ agree to the Monitor's proposal, the Monitor shall be authorized to hire or employ such additional persons or entities. The City or DOJ have 10 business days to disagree with the proposal. If the City and DOJ are unable to reach agreement within 10 business days of receiving notice of the disagreement, the Court shall resolve the dispute.
119

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8132o5fo9f3129
483. In the event that full and effective implementation of this Agreement requires technical assistance beyond the scope of the Monitor's duties, DOJ, NOPD, and/or the Monitor shall inform the City of the need for technical assistance and its relation to implementation of the Agreement. The Monitor, with assistance from the City, shall arrange for the prompt initiation of the required technical assistance, to be performed by the Monitor or its agent or independent contractor; the IPM; or a separate entity. The City shall set aside $\00,000.00 for this purpose, and shall allocate additional funds as necessary. If either Party disagrees with the need for the technical assistance requested, the Party shall, within 15 days of being informed in writing of the requested technical assistance, inform the Court, which shall resolve the dispute. 484. Should either of the Parties to this Agreement determine that the Monitor's individual members, agents, employees, or independent contractors have exceeded their authority or failed to satisfactorily perform the duties required by this Agreement, the Party may petition the Court for such relief as the Court deems appropriate, including replacement of the Monitor, and/or any individual members, agents, employees, or independent contractors. P. Court Jurisdiction, Modification of the Agreement, and Enforcement 485. This Agreement shall become effective upon entry by the Court. 486. To ensure that the requirements of this Agreement are properly and timely implemented, the Court shall retain jurisdiction of this action for all purposes until such time as the City has achieved full and effective compliance with this Agreement and maintained such compliance for no less than two years. At all times, the City and NOPD shall bear the burden of demonstrating full and effective compliance with this Agreement. DOJ acknowledges the good faith of the City in trying to address measures that are needed to promote police integrity and ensure constitutional policing in New Orleans. DOJ, however, reserves its right to seek enforcement of the provisions of this Agreement ifit determines that the City has failed to fully comply with any provision of this Agreement. DOJ agrees to consult with officials from the City before instituting enforcement proceedings. 487. The City and DOJ may jointly stipulate to make changes, modifications, and amendments to this Agreement, which shall be effective, absent further action from the Court, 45 days after a joint motion has been filed with the Court. Such changes, modifications, and amendments to this Agreement shall be encouraged when the Parties agree, or where the reviews, assessments, and/or audits of the Monitor demonstrate, that the Agreement provision as drafted is not
120

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8142o6fo9f3129
furthering the pwpose of the Agreement, or that there is a preferable alternative that will achieve the same pwpose. Where the Parties or the Monitor are uncertain whether a change to the Agreement is advisable, the Parties may agree to suspend the current Agreement requirement for a time period agreed upon at the outset of the suspension. During this suspension, the Parties may agree to temporarily implement an alternative requirement. The Monitor shall assess whether the suspension of the requirement and the implementation of any alternative provision is as, or more, effective at achieving the pwpose as was the original/current Agreement requirement, and the Parties shall consider this assessment in determining whether to jointly stipulate to make the suggested change, modification, or amendment. 488. The Parties agree to defend the provisions of this Agreement. The Parties shall notifY each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any City court, removal to a federal court shall be sought by the Parties. 489. The City and NOPD agree to promptly notifY DOJ if any term of this Agreement becomes subject to collective bargaining consultation and to consult with DOJ in a timely manner regarding the position the City and NOPD take in any collective bargaining consultation connected with this Agreement. 490. The City and NOPD agree to require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors. Q. Termination of the Agreement 491. The City and NOPD will endeavor to reach full and effective compliance with this Agreement within four years of its Effective Date. The Parties may agree to jointly ask the Court to terminate this Agreement after this date, provided that the City and NOPD have been in full and effective compliance with this Agreement for two years. "Full and Effective Compliance" shall be defined to require sustained compliance with all material requirements ofthis Agreement or sustained and continuing improvement in constitutional policing, as demonstrated pursuant to the Agreement's outcome measures. 492. If after six years from the Effective Date, the Parties disagree whether the City has been in full and effective compliance for two years, either Party may seek to terminate this Agreement. In the case of termination sought by the City, prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has determined that it is in full and
121

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8152o7fo9f3129
effective compliance with this Agreement and that such compliance has been maintained for no less than two yearrs. Thereafter, the Parties shalll promptly confer as to the stattuss of compliance. Iff, after a reasonable period of consultation and the completion of any auditt or evaluation that DOOJ] and/or the Monitor may wish to undertakkee, including on-site observations, document review, or interviews with the City and NOPOD's personnell, the Parties cannot resollve any compliance issues, the City may file a motion to ternmninate this Agreement. If the City moves for ternmnination of this Agreement, DOJ] will have 60 days afterr the receipt of the City''Ss motion to object to the motion. IfODOJ] does not object,, the Court may grant the City'S motion. IfDDOOJ] does make an objection, the Court shall hold a hearing on the motion and the burden shall be on the City to demonstrate that it is in fuull and effectiive compliance with this Agreement and has maintained suchh compliance for at least two years.

Forrthe UNITED STATES OF AMERJlCA:

ERIC H. HOLDER, JR. Attorney General

~ ~ssLL~ 5iY

Assistant Attorney General Civil Rights Division

\\\.\ ,

ROY L. AUjS , . Deputy Ass~tant Atto Civ il Rights I)ivlslOn

General

1222


CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8162o8fo9f3129
lJaONNATHAN M. SMITH Chief Speciall Litigation Section

Executed on this 24thh day of.Jluly, 20112

RISTYY. . LOPEZ ( C 473 Deputyy hief
COREY M. SANDERS (DC 4909400) EMILYY A. GUNSTON (CA 218035) Seniorr Triaall Attorrnneys Unitedd Stattes Department of lJussttice Civil RRighhtts Divisionn Special LLiti gati on Sectiion 950 Pennsylvani a Avenue, NW Washington, DC 20530 Tell. (202) 514-6255 Fax. (202) 514-4883

12233

CasCea2s:e12-:0cv7-0c1v-902245-1S3M-G-JMCSW DDooccuummeenntt518509--21 FFilieledd0061/1/131/1/133 PPaaggee8172o9fo9f3129 Forr the CITY OF NEW ORLEANS:

Mayor

R L W. SERPAS perfilntendent
New Orrleans Police De

1~/C-1~~ RICHARD F. CORTIZAS

7

Cityy Attorney

Exeecuted onn this 24th day JJuuly, 201122

"'7f---- ' 1 +~~h
Sa"",,. SO ORDERED thiss __1'__1I __ day of :::Ia b it1 C<\

.~3
,22011/

UN ITED STATES DIST CT JUDGE

124

CCaassee22:1:027--ccvv--0012952143--SGMM-JSCWDocDuomceunmte5n8t01-529-F2ileFdil0e6d/1031/131/1P3agPea8g8e o1fo9f36

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA

•

CIVIL ACTION

Plaintiff

•

NUMBER: 12-1924

v.

•

SECTION: E

THE CITY OF NEW ORLEANS

•

Defendant

*

• • •

ERRATA SHEET REGARDING PROPOSED CONSENT DECREE

1.

Capt ion chan ged to reflect case number and section ass ignment.

2. ,4: commas added before and after the phrase "and the claims arose in."

3.

~ 10: The fo llowi ng sentence was ad ded at the end o f the paragrap h: "The assertion of

such privilege would be decided by the court with jurisdiction over the action, motion, su bpoena,

or req uest for disclosu re. "

4. , 14.a): "a" added before "k nife or stick."

5. , 14.h): hanging hyphen in "we ll-documented" moved to next line .

6. , 14.r): "firearms" changed to "firearm."

7.

, 14.vvv) (forma ll y uuu) : numbering fi xed .

8.

~ 17: " po licy" and "procedure" each made plural.

9.

~ 2 J: "5" added to two instances of "object."

1O. ~ 2 1: "Stop" changed to " Stops" and "Arrest" changed to ·'Arrests. "

11. ~ 22: numbering fo rmat chan ged to be co ns istent with rest of Conse nt Decree.

12. ~ 25: "s" added to " report" to agree with subject.

13. ~ 28: comma added after "overarchin g."

14. ~ 3 1; " pursuit" changed to "pursuits."

15. ~ 40: added "or entering a con fin ed space, such as a crawl·spaee,"

16. ~ 43: added "except where the suspect is hiding in a confined space (e.g. a craw l space)

and refuses to surrender. " Re structured paragraph to make clearer.

CCaassee22:1:027--ccvv--0012952143--SGMM-JSCWDocDuomceunmte5n8t01-529-F2ileFdil0e6d/1031/131/1P3agPea8g9e o2fo9f36
17. § III introducto ry paragraph: "effect" changed to "affect." 18. ~ 59: comma removed after "subject. " 19. ~ 65.c): addit ional space added after colon. 20. ~ 65.c): "a member" changed to " members." 21. ~ 70: "SOD's" cha nged to "the Special Operations Division's ." 22. ~ 72: hanging hyphen in "aft er-action" moved to next line. 23 . ~ 76: comma removed after "uniform." 24. ~ 82: ha ngi ng hyphen in " fo rce- related" moved to next line. 25. ~ 86.e): extra space removed after "statement." 26. ~ 97: comma added after "as necessary." 27. ~ 10 I: "any" added after "and." 28. ~ 10 1: commas changed to semico lons. 29. ~ 107.d): extra space before " incl ud ing" removed. 30. ~ I08.d): extra space before "If' removed. 3 I. ~~ 113.f)(2) and (5): fo nt of apostrophes cha nged. 32. ~ 115: "of the Effective Date" added after " Wit hin three years." 33. ~ 117: hanging hyphen in " lecture-based" moved to next line. 34. ~ 118: hanging hyphen in " in-serv ice" moved to nex t line. 35. ~ I 19: ex tra space removed be tween "to" and "offer." 36. ~ 125: "or gender identity" added after "sexual orientation" to mirror language used in ~ 127. 37. ~ 132: comma added after "privacy." 38. ~ 149.f): "the apparent" added before "race" to make consistent with precedi ng clause. 39. ~ 151: ha ngi ng hyphen in "non-d isciplinary" moved to nex t li ne. 40. ~ 154: hyphen added to "personal ly identifying." 41. ~ 162.b): "and" removed aft er sem icolon. 42. ~ 162.e): semico lon moved in side quotation marks. 43. ~ 164: ha ngi ng hyphen in "pre-interview" moved to next line. 44. ~ 177; hangi ng hyphen in " non-enforcement" moved to next li ne. 45. ~ 181: numbering forma t changed to be consistent with rest of Consent Decree.
2

CCaassee22:1:027--ccvv--0012952143--SGMM-JSCWDocDuomceunmte5n8t01-529-F2ileFdil0e6d/1031/131/1P3agPea9g0e o3fo9f36

46. ' 1187: extra space removed before " Where."

47. ~ 189.0: "Communicat ion" changed to "Communicat ions."

48 . ,J19 1: extra space removed between "and" and " thi s."

49.

191.e): modified so that it is two separate paragraphs. " Bas ic command of Span ish or

Vietnamese, for offic ers ass igned to Districts with significa nt LEP populat io ns" now in ~ 19 1.f).

50. ~ 201.a): peri od cha nged to semicolon.
5 1. ,J206: " ISB" changed to " In vest igative Serv ices Bureau."

52. , 208: hang ing hyphen in "drug-facilitated" moved to next line.

53. , 2 12: comma added after "pol icies and procedu res."
54. ,J2 14: " has" changed to " have. "

55. ~ 2 17: "of' changed to "or. "

56. ~ 220: "4"c han ged to "fou r."

57 . ~ 228: semico lo n chan ged to comma and "and" added between "deve lopi ng community

partnerships" and "partic ipating in publi c meetin gs. "

58. ~ 224: extra space removed between "adeq uate" and " number. "

59. 1226: "8" changed to "eight. "

60. 1233: "publical ly" changed to "publicly."

61. , 24 1: extra space removed after "C ivil Service."

62. ~ 242: hanging hyphen in " non-discriminatory" moved to next line.

63. ~ 245: " the" added before "rec ru it trai ning academy" and "and" removed before "a ll in-

service tra ining. "

64. ,247: hanging hyphen in " Department-Wide" moved to next line and ca pita l "W" in

" Department- Wide" chan ged to lowe rcase.

65. ~ 248: extra space befo re "two" removed.

66. ~ 248: "and " added before "a representative from the FB I, the Di stri ct Auorney 's office,

the USAO, and the City Attorney's Office."
67. ,J251; com ma added after "federa l law."

68. 1254: " X1X.E. " changed to "X I I. E."

69. ~ 255 : hangin g hyphen in " in- service" moved to next line.

3

CCaassee22:1:027--ccvv--0012952143--SGMM-JSCWDocDuomceunmte5n8t01-529-F2ileFdil0e6d/1031/131/1P3agPea9g1e o4fo9f36
70. ~ 257: extra space before " Within" removed and commas added before and after "and incorporate th e requirements of." 7 1. ~ 267: comma removed after "progress io n." 72. ~ 268: hangi ng hyphen in "de-escalation" moved to next line. 73. ~ 275: hanging hyphen in "field-tra inin g" moved to nex t line. 74. ~ 279: "depe ndan t" changed to "dependent." 75 . ~ 282: "method" changed to "methods." 76. ~ 283: ex tra parentheses removed. 77. ~ 295: "twelve month s" changed to "365 days" 78. ~ 296.j): sem icolon changed 10 period. 79. ~ 300: extra space re moved before "superv isor." 80. ~ 302: "twelve months" changed to "365 days" 81. ~ 305: "for officers" added so tha i sentence reads: The City agrees 10 work with C ivil Service to create opportunit ies for officers to be placed on the promotional list at least every two years. 82. ~ 313: ha nging hyphen in "non-discipl in ary" moved to nex l line. 83. ~ 314: ex tra space before "A ll" removed. 84. ~ 319.f): comma removed after "records." 85 . ~ 320: ex tra space removed before "or simi lar charges." 86. ~ 328g: "co nsistent with NOPD's state-approved document reten tion schedule" added to clari fy that provision is consistent with Loui siana law. 87. ~ 333: "and" added before "shall remain independent from actual or perceived influence by NOPD." 88. ~ 358: period removed after " FTO." 89. ~ 363.e): comma removed after "e mployer. " 90. ~ 364: hyphen added to "seven day." 91. ~ 365: hyphen added to "24 hour. " 92. ~ 367: ex tra space removed after "Registration." 93. ~ 367.a): "a" removed before "secondary employment." 94. ~ 376: ex tra space removed before " in frac tion."
4

CCaassee22:1:027--ccvv--0012952143--SGMM-JSCWDocDuomceunmte5n8t01-529-F2ileFdil0e6d/1031/131/1P3agPea9g2e o5fo9f36
95. ~ 38 1: extra spaces removed before "Offi cers." 96. ~ 383: ex tra spaces removed after "365" and between "NOPD" and "agrees. " 97. ~ 383: semicolon added between "failure to take a complaint " and " fai lure to report misconduct or compla ints." 98. ~ 41 1: comma removed after "officer." 99. ~ 4 14: ex tra space removed after "reso lve." 100. ~ 420: "ten" changed to " 10." 10 1. ~ 421: comma removed after "consistent." I02. ~ 426: In last sentence of paragrap h, "sha ll " chan ged to "should. " 103. § XV III. Introductory Paragraph : comma removed after " trends." I04. ~ 433: "toward" added between "progress" and " meeting." I05. ~ 435: "and" added before " business and re li gious groups." 106. ~ 437.a): extra space removed before "co mmun ity." 107. § XV III. E: extra space removed before "Commu nity." 108. ~ 443 : "w ill " changed to " may." 109. ~ 445: co mma added after "responsibi lities." II O. ~ 448.a): " Force" changed to "force." I II . ~ 448.a)(4): "Fo rce" changed to " force" and comm a added after ·'policy." 11 2. ~ 448.b): "the" changed to "The." 11 3. ~ 448.b)(2): com ma added after " i.e." 114. ~ 448.c)( I): extra space removed before " particul ar." 11 5. ~ 448. c)(2): " homicide" chan ged to "Homicide." 116. , 448.c)(3): hyphen added to "non LEP" and comma added afte r "NOPD." 11 7. ~ 450: chan ged " 12 mon ths" to "365 da ys" 118. ~ 45 1: period added after "constitutiona l pol icing" and extra space removed. 11 9. ~ 454: "may" cha nged to "shall" so that sentence reads: "The Monitor shall coordinate with the IPM in conducting these use of force and mi scondu ct invest igation reviews." 120. ,456: "and shall submit such stipulat ion to the Court fo r approva l" added after "accord in gly."
5

CCaassee22:1:027--ccvv--0012952143--SGMM-JSCWDocDuomceunmte5n8t01-529-F2ileFdil0e6d/1031/131/1P3agPea9g3e o6fo9f36
12 1. ~ 459: "may" changed to "shall " so that sentence reads: ''In conducting its assessments, rev iews, and aud its, and in developing its mon itoring plan and review methodo logies, the Monitor shall coordinate and confe r with the IPM to avo id dup lication of effort and expenses." 122. § XJX.J: "between" changed to " Between. " 123. ~ 460: comma added and "and " removed after "Superintendent." 124. ~ 46 1: comma added after "reports." 125. ~ 463: " Monitoring" changed to "Monitor." 126. ~ 469: "a nd" removed before "the C ity'S assessment of the status of its progress." 127. ~ 469: "s ix months" changed to " 180 days" 128. ~ 470: extra space removed after "heari ngs." 129. ~ 477: removed: ''The Parties have agreed to use New Orleans' procurement process in selecting the Mo nitor," as the process has been rev ised cons istent with the Co urt' s in structio n.
6

Case 2:07-cv-02513-GMS Document 580-3 Filed 06/13/13 Page 1 of 33
EXHIBIT B

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1eo2f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2eo3f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag3eo4f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag4eo5f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag5eo6f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag6eo7f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag7eo8f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag8eo9f 3o2f 33

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

CasCea2s:e072-:1cv2-0c2v-501039-8G1M-LSOADoDcuomcuemnte5n8t 01-3FilFeidle0d50/160/1/132/13PaPgaeg9e o1f03o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e01o1f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e11o2f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e21o3f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e31o4f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e41o5f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e51o6f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e61o7f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e71o8f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e81o9f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag1e92o0f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e02o1f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e12o2f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e22o3f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e32o4f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e42o5f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e52o6f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e62o7f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e72o8f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e82o9f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag2e93o0f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag3e03o1f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag3e13o2f 3o2f 33

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

CaCseas2e:027:-1c2v--c0v2-501039-8G1M-LSOADoDcoucmuemnetn5t810-3FileFdile0d5/0160//1132/13PaPgeag3e23o3f 3o2f 33

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

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 1 of 129
EXHIBIT C

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 2 of 129
PRIVILEGED AND CONFIDENTIAL FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT BETWEEN THE UNITED STATES, MARICOPA COUNTY, SHERIFF OF MARICOPA COUNTY, AND MARICOPA COUNTY
SHERIFF’S OFFICE PREPARED BY UNITED STATES – 02/26/12

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 3 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
_________________________________________ UNITED STATES OF AMERICA,
Plaintiff, vs.
MARICOPA COUNTY, SHERIFF OF MARICOPA COUNTY, and MARICOPA COUNTY SHERIFF’S OFFICE,
Defendants. _________________________________________
Maricopa County (“County”), the Sheriff of Maricopa County (“the Sheriff”), the
Maricopa County Sheriff’s Office (“MCSO” or “Sheriff’s Office”), and the United States of
America (collectively, “the Parties”) enter into this agreement (“Agreement”) with the goal of
ensuring that police services are delivered to the people of Maricopa County in a manner that is
effective and complies with the Constitution and laws of the United States and State of Arizona.
The Parties understand that public safety, constitutional policing, and the community’s trust in its
police force are interdependent and of equal importance. The full and sustained implementation
of this Agreement is intended to protect the constitutional rights of all members of the
community, improve the safety and security of the people of Maricopa County, and increase
public confidence in the Sheriff’s Office.
This Agreement requires the County, the Sheriff, and MCSO (“Defendants”) to
implement new policies, training, and practices throughout the Sheriff’s Office, in the areas of:
discriminatory policing; stops, searches, seizures, and arrests; use of force; volunteer posse
operations; retaliation; jail operations; community engagement; and misconduct complaint
intake, investigation, and adjudication. As part of the process to reform MCSO, the Defendants

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 4 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
have agreed to the selection of a Monitor who will have the opportunity to review and approve all new guidelines and plans before their implementation by the MCSO. This Agreement also calls on the County to create an Office of Inspector General, which will ensure that MCSO is accountable to the people of Maricopa County by providing MCSO with sustained oversight and providing the community with the information necessary to accurately assess the policies, procedures, and practices of MCSO.
This Agreement further requires the County and the Sheriff’s Office to demonstrate that the implementation of this Agreement has eliminated the practices and conditions that resulted in a pattern of constitutional violations and that Defendants have put in place the systems and oversight that will provide for the identification and correction of future problems. This Agreement requires measures that will assist the Parties and the community in determining whether: the unconstitutional conduct that led to the filing of this case has ceased; community trust in MCSO has increased; public safety has improved for all segments of the Maricopa County community; and gains will be sustained. This Agreement also calls for the development of a language assistance plan to ensure the constitutional and legal treatment of those who are limited English proficient. All new and revised policies, procedures, processes and training must be approved by the Monitor and the Department of Justice (“DOJ”) prior to implementation.
Noting the general principle that settlements are to be encouraged, particularly settlements between government entities, and having considered the terms of the measures set forth herein, that the Defendants agree to undertake to remedy a pattern or practice of conduct by the command staff and deputies of MCSO, it is ORDERED, ADJUDGED AND DECREED that Judgment shall be entered in this matter pursuant to the following terms and conditions.
3

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 5 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
TABLE OF CONTENTS Definitions/Abbreviations I. Bias-Free Policing and Detention Services II. Stops, Searches, and Arrests III. Use of Force IV. Gender-Biased Policing V. Posse Volunteers VI. Jail Operations VII. Supervision VIII. Misconduct Complaint Intake, Investigation and Adjudication IX. Retaliation X. The Office of the Inspector General and Additional Means for Oversight and Transparency XI. Community Engagement XII. Policies and Training Generally XIII. Agreement Implementation and Enforcement
4

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 6 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
Definitions/Abbreviations 1. The following terms and definitions shall apply to this Agreement:
a) “MCSO” means the Maricopa County Sheriff’s Office and its agents, deputies, detention officers, supervisors, employees (both sworn and unsworn), and posse volunteers. b) “County” means Maricopa County, including its agents and employees. c) “DOJ” means the United States Department of Justice’s Civil Rights Division and its agents and employees. d) “Court” means the United States District Judge for the District of Arizona presiding over this case. e) “Arrest” means a seizure of greater scope or duration than an investigatory stop or detention. An arrest is lawful only when supported by probable cause. f) “Auditable form” means a discrete and verifiable electronic or paper record of the relevant information maintained separately and independently of other forms maintained by MCSO, for the purpose of internal or external review and/or quality assurance. g) “Bilingual” means a person with demonstrated proficiency in both spoken English and at least one other language. h) “Boilerplate” means language that is stock and/or formulaic and fails to attest to the unique facts of an incident. i) “Civilian Employee” means any non-sworn personnel employed by MCSO, on either a temporary or permanent basis, in either a paid or unpaid capacity.
5

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 7 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
j) “Complainant” means any person, including a member of the public, MCSO deputy, detention officer, civilian employee or posse member, who makes a complaint against MCSO. k) “Complaint” means any allegation of improper conduct made by a member of the public or MCSO personnel regarding MCSO services, policy or procedure, or any claim for damages or criminal complaint that alleges dissatisfaction with or misconduct by MCSO personnel. l) “Computer Aided Dispatch” or “CAD” means the electronic system used by MCSO to track the actions of MCSO deputies on patrol. m) “Consent search” means a search in which a deputy requests permission to perform a search of a person, a person’s vehicle, a person’s residence, or a person’s property. A deputy shall not coerce consent. n) “Demographic Category” or “demographic characteristic” means age, race, color, ethnicity, national origin, religion, gender, disability, sexual orientation or gender identity or the perception of age, race, color, ethnicity, national origin, religion, gender, disability, sexual orientation or gender identity. o) “Deputy” means any law enforcement officer employed by MCSO, including supervisors and cadets. p) “Direct ‘In-Language’ Communication” means monolingual communication in a language other than English between a bilingual employee and a limited English proficient (“LEP”) person (e.g., Spanish to Spanish).
6

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 8 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
q) “Discipline” means a personnel action for violation of any law, regulation, rule, or MCSO policy, including, but not limited to, an admonishment, written reprimand, suspension, demotion or termination. r) “Discriminatory Policing” means selective enforcement or non-enforcement of the law, including the selecting or rejecting of particular policing tactics or strategies, based on membership in a demographic category. Discriminatory policing does not include using a demographic category in any reliable suspect-specific description or for purposes of data collection. s) “District” refers to one of the seven police service areas of MCSO. t) “District Level Investigation” means the investigation of a misconduct complaint conducted by the Integrity Control Officer (“ICO”) of the District to which the subject deputy is assigned, if the deputy is assigned to a District, or by the ICO of the subject deputy’s supervisor, if the deputy is not assigned to a District. u) “ECW” means electronic control weapon, a weapon designed primarily to discharge electrical charges into a subject. TASERS are an example of an ECW. v) “Effective Date” means the day this Agreement is entered by the Court. w) “EIS” means Early Intervention System. x) “Exigent circumstances” means emergencies in which a reasonable person would believe that imminent death or bodily harm to a person or persons or the destruction of evidence is likely. y) “IA” means Internal Affairs, the MCSO unit charged with conducting internal and administrative investigations of MCSO deputies, agents, and employees.
7

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 9 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
z) “Immigration-related offenses” means any civil or criminal offense in which immigration status is an element. aa) “Implement” or “implementation” means the development or putting into place of a policy or procedure, including the appropriate training of all relevant personnel, and the consistent and verified performance of that policy or procedure in actual practice. bb) “Include” or “Including” means “include or including, but not limited to.” cc) “Interpretation” means the act of listening to a communication in one language (source language) and orally converting it into another language (target language), while retaining the same meaning. dd) “Interrogation” means any words or actions on the part of a deputy that the deputy knows or should know are reasonably likely to elicit an incriminating response from a suspect or information from a witness. ee) “Interview” includes questioning for the purpose of eliciting facts or information. ff) “Investigatory stop,” “investigatory contact,” or “investigatory detention” means a temporary restraint of a civilian by a law enforcement official, or a brief interaction between a law enforcement official and a civilian, during which the civilian does not feel free to leave. An investigatory stop, contact, or detention is lawful when supported by reasonable suspicion and narrowly tailored in scope and duration to the reasons supporting the actions taken by the law enforcement official. An investigatory stop or detention may involve a person on foot or using any mode of transportation.
8

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 10 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
gg) “Language Access Unit” or “LAU” means the unit designated by MCSO to oversee all aspects of adherence to Title VI obligations related to language access, and led by a highlevel supervisor who reports to the MCSO Headquarters Language Access Coordinator. hh) “Language Assistance” means the facilitation of communication with an LEP individual using one of five designated methods, namely, interpretation, translation, direct “inlanguage” communication, telephonic interpretation, or sight translation in order to enable LEP individuals to communicate effectively with MCSO and to provide LEP individuals with meaningful access to, and an equal opportunity to participate fully in MCSO’s services, activities, and other benefits and programs. ii) “LEP” means Limited English Proficient, and refers to a person who does not speak English as his/her primary language and has a limited ability to read, write, speak, or understand English. LEP individuals may be competent in certain types of communication (e.g., speaking or understanding), but still be LEP for other purposes (e.g., reading or writing). Similarly, LEP designations are context-specific: an individual may possess sufficient English language skills to function in one setting, but these skills may be insufficient in other situations. jj) “MCSO Bilingual Staff” means bilingual MCSO employees with primary duties unrelated to interpretation but who have demonstrated proficiency in English and other language(s), trained on interpretation, ethics, and correctional vocabulary skills, and are authorized to both interpret for others and engage in direct “in-language” communication. A self-identification of fluency in a language other than English is not sufficient to be designated as a MCSO bilingual staff member.
9

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 11 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
kk) “MCSO personnel” or “MCSO employee” means all MCSO employees, contractors and volunteers, including command staff, deputies, detention officers, civilian employees and posse volunteers. ll) “Monitor” means a person or team of people who shall be selected to assess and report on the Defendants’ implementation of this Agreement. mm) “MCSOAI” means MCSO Authorized Interpreter, a bilingual MCSO employee who has been authorized to interpret for others in certain situations, such as interviews, interrogations, or taking and responding to civilian complaints. nn) “MCSOAI List” means a list of MCSO personnel who are bilingual and are authorized to act as volunteer interpreters. MCSO will create and maintain the list and provide it to the MCSO 911 Communications Center. oo) “The National Incident Based Reporting System” (NIBRS) means the incident-based reporting system developed and maintained by the National Archive for Criminal Justice Data. For each crime incident coming to the attention of law enforcement, a variety of data are collected about the incident. These data include the nature and types of specific offenses in the incident, characteristics of the victim(s), types and value of property stolen and recovered, and characteristics of persons arrested in connection with a crime incident. pp) “Non-disciplinary corrective action” refers to action other than discipline taken by a MCSO supervisor to enable or encourage a deputy or detention officer to improve his or her performance. qq) “OIG” means the Office of the Inspector General, a County agency tasked with providing oversight of MCSO policies and practices.
10

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 12 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
rr) “PCAB” refers to the Police Community Advisory Board. ss) “Policies and Procedures” means written regulations or directives, regardless of the name of the regulation or directive, describing the duties, functions, and obligations of MCSO personnel, and providing specific direction in how to fulfill those duties, functions, or obligations. All policies and procedures should be available in hardcopy and electronically. tt) “Primary Language” means the individual’s native language or the language in which an individual most effectively communicates. uu) “Probable cause” means reasonably trustworthy facts that, within the totality of the circumstances, lead a deputy to reasonably believe that an individual has committed or is committing a crime. vv) “Qualified Contract Interpreters/Translators” means a bilingual non-employee contractor who has demonstrated his or her competence to interpret or translate through a MCSO approved assessment. ww) “Reasonable Force” means that force which an ordinary, prudent and reasonable deputy placed in the same position with the same knowledge would find to be reasonable. In determining whether the force used by a deputy in effectuating an arrest was reasonable under the circumstances, factors to be considered are: (1) the known character of the arrestee; (2) the risks and dangers faced by the deputies and third parties; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the deputies as compared to the arrestee; and (7) the exigency of the moment. Force that is not “reasonable” is “unreasonable.”
11

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 13 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
xx) “Reasonable suspicion” means articulable facts that, within the totality of the circumstances, lead a deputy to reasonably suspect that a criminal act has been or is about to be committed. yy) “Seizure” or “detention” means any restriction on the liberty interest of an individual. A seizure occurs when a deputy’s words or actions convey to a reasonable person that he or she is not free to leave. zz) “Serious use of force” means: (1) uses of force by MCSO personnel that create a substantial risk of death, serious disfigurement, disability or impairment of the functioning of any body part or organ; (2) critical firearm discharges by MCSO personnel; (3) uses of force by MCSO personnel resulting in a significant injury, including a broken bone or an injury requiring hospitalization; (4) head, neck, and throat strikes; (5) neck holds; (6) uses of force by MCSO personnel resulting in a loss of consciousness; (7) other uses of force by MCSO personnel apparently resulting in death; (8) canine apprehensions; (9) more than two applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, and whether the applications are by the same or different deputies, or ECW application for longer than 15 seconds, whether continuous or consecutive; and (10) strikes, blows, kicks, ECW applications, or similar uses of force against a restrained (see paragraph lll below) subject. aaa) “Shall” means that the provision imposes a mandatory duty. bbb) “Sheriff” means the current and future Sheriffs of MCSO.
12

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 14 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
ccc) “Sight translation” means the oral rendering of written text or a document into spoken language by an interpreter without change in meaning based on a visual review of the original text or document. ddd) “Specialized operation” means any law enforcement operation involving eight or more MCSO personnel. eee) “Specialized unit” means a temporary or permanent organization of deputies within MCSO whose operational objectives are focused on a specific law enforcement purpose beyond general patrol or criminal investigations. Specialized units require enhanced training on police tactics, strategies, or techniques. fff) “Supervisor” means a sworn MCSO employee at the rank of sergeant or above (or anyone acting in those capacities) and non-sworn personnel with oversight responsibility for MCSO personnel. ggg) “Telephonic Interpretation Services” means real-time language service that enables speakers of different languages to communicate by telephone with the assistance of a network of operators and bilingual individuals via a three-way conference call. Telephone interpreters may or may not have the qualifications of a professional interpreter or one procured through a contract for in-person interpretation service. hhh) “Training” shall comport with best practices and include adult-learning methods that incorporate role-playing scenarios, interactive exercises, as well as traditional lecture formats. Training shall also include testing and/or writings that indicate that MCSO personnel taking the training comprehend the material taught.
13

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 15 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
iii) “Translation” means the replacement of written text from one language (source language) with an equivalent written text in another language (target language). jjj) “Uniform Crime Reports” or “UCR” means the data issued by the FBI on an annual basis related to its efforts to collect, publish, and archive crime statistics in the United States. kkk) “Use of force” means any physical coercion, used to effect, influence, or persuade an individual to comply with an order from a deputy, above unresisted handcuffing, including unholstering a firearm. lll) “Use of force indicating apparent criminal conduct by a deputy” means that force which a reasonable and trained supervisor would conclude could result in criminal charges due to the apparent circumstances of the use of force, such as the level of force used as compared to the resistance encountered or discrepancies in the use of force as described by the deputy and any resulting injuries, witness statements, or other evidence. It includes, but is not limited to, all strikes, blows, kicks, ECW applications, or other similar uses of force against a restrained subject. mmm) “Use of Force Report” means a written report documenting all force used above unresisted handcuffing. nnn) “Vehicle stop” means any instance where a MCSO deputy directs a civilian operating a motor vehicle of any type to stop and the driver is detained for any length of time. ooo) “Vital document” means paper or electronic written material that contains information that is critical for accessing MCSO’s program or activities, or is required by law. Vital documents may include the following: consent to search forms; witness and victim statement forms; citation forms; victim rights notification forms; civilian complaint forms; notices
14

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 16 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
advising LEP persons of free language assistance; rules, regulations, announcements, and notices posted in MCSO jails; and inmate request, order, visitation, grievance, and appeal forms used in MCSO jails.
I. BIAS-FREE POLICING AND DETENTION SERVICES MCSO shall deliver police and detention services consistent with the Constitution and laws of the United States and State of Arizona, MCSO policy, and this Agreement, and with best practices and current professional standards. In conducting its activities, MCSO shall ensure that members of the public receive equal protection of the law, without bias based on race, color, ethnicity, national origin, gender, or other demographic category, and in a manner that promotes broad community engagement and confidence. To do so, MCSO must transform its training, policies, procedures, as they relate to all its law enforcement functions, including patrol, jail operations, and its specialized units and operations, including the Human Smuggling Unit and the Criminal Employment Squad. To achieve these outcomes, MCSO shall develop and implement the following: A. Policies and Procedures on Bias-Free Policing and Custody Services 2. MCSO shall apply and administer all programs, initiatives, and activities in a manner free of bias on the basis of demographic categories. MCSO shall eliminate discriminatory policing, including but not limited to the selective enforcement or non-enforcement of the law, the selection or rejection of particular policing tactics or strategies, or the selection of particular communities or geographic areas for targeted policing, in a manner that disadvantages individuals of a particular demographic category. MCSO shall further eliminate discriminatory
15

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 17 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
treatment of inmates or such treatment that disadvantages inmates of a particular demographic category. 3. MCSO shall provide clear policies and guidance, in writing, on prohibited conduct, including examples of the types of activities that would constitute discriminatory policing or custody operations. 4. MCSO leadership and supervising deputies and detention officers shall unequivocally and consistently reinforce to subordinates that discriminatory policing and custody operations are unacceptable. 5. Deputies or detention officers who engage in discriminatory policing or custody operations will be subjected to administrative discipline and, where appropriate, referred for criminal prosecution. MCSO shall provide clear guidelines, in writing, regarding the disciplinary consequences for deputies or detention officers who engage in discriminatory policing. 6. Deputies shall take affirmative steps to prevent public perceptions of discriminatory policing, including but not limited to: 1) introducing themselves at the initiation of contact with a civilian; 2) stating the reason, as soon as practicable, for an investigatory stop or detention; 3) ensuring that an investigatory stop or detention is no longer than necessary; and 4) acting with professionalism and courtesy throughout their interactions with civilians. 7. Within 30 days of the Effective Date, MCSO shall modify its Code of Conduct to prohibit MCSO employees from utilizing County property, such as County e-mail, in a manner which discriminates against anyone on the basis of race, color, religion, national origin or sex.
16

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 18 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
8. MCSO shall ensure that it does not use or otherwise rely on any information collected from any hotline unless the information is credible and contains evidence of a crime. 9. Within 180 days of the Effective Date, MCSO shall ensure that all police vehicles are equipped with functional video and audio recording equipment, including but not limited to digital cameras, and shall commence regular operation and maintenance of such video and audio recording equipment. MCSO shall repair or replace all non-functioning video or audio recording equipment, as necessary for reliable functioning. MCSO shall ensure that recordings are captured, maintained, and reviewed regularly by supervisors, in addition to any review for investigatory or audit purposes, to assess the quality and appropriateness of police activities. Deputies who fail to activate their recording equipment or notify MCSO that their equipment is non-functioning shall be subject to discipline. 10. Within 180 days of the Effective Date, MCSO shall incorporate concrete requirements regarding bias-free policing, bias-free custody services, and equal protection into its hiring, promotion, and performance assessment policies and processes. These requirements shall give significant weight to an individual’s documented history of bias-free policing or custody services, as well as use interviews and other methods to assess the individual’s ability and willingness to effectively practice bias-free policing or custody services. 11. Within 180 days of the Effective Date, MCSO shall develop and implement a plan, including the development of a written policy, to provide all individuals within the County essential police services regardless of immigration status or language abilities. Such policy shall include the provision of police services to crime victims and witnesses regardless of whether
17

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 19 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
such individuals decline to provide photo identification documents or other evidence of immigration status. 12. Within one year of the Effective Date, and at least annually thereafter, MCSO shall assess all MCSO programs, initiatives, and activities to ensure that no program, initiative, or activity is applied or administered in a biased manner. As part of its assessment, MCSO shall specifically include an assessment of use of force, motor vehicle and pedestrian stops, arrests, and the geographic deployment of specialized units. MCSO shall base its assessment of programs, initiatives, and activities on accurate, complete, and reliable data, including data contained in the Early Intervention System (“EIS”), stop and detention data, use of force analyses, and operations plans and after action reports. B. Bias-Free Traffic Enforcement 13. MCSO shall ensure that its Patrol Bureau engages in its traffic enforcement-related duties in a manner that promotes effective and constitutional law enforcement. In regards to routine traffic enforcement activities, MCSO shall ensure that deputies enforce traffic laws in a manner that guarantees that members of the public receive equal protection of the law, without bias based on demographic category, and in accordance with the Constitution and laws of the United States and State of Arizona. To achieve these outcomes, MCSO shall implement the requirements below. 14. MCSO shall prohibit deputies engaged in traffic enforcement from relying in any fashion and to any degree on the actual or perceived demographic category of motorists or passengers in deciding which vehicles to subject to a motor vehicle stop; the scope or substance of any enforcement action in connection with a motor vehicle stop; or the procedures employed during
18

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 20 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
the course of a motor vehicle stop. Deputies may take into account as one factor the demographic category of an individual where deputies are seeking to detain or apprehend one or more specific suspects who have been identified or described in part by demographic category. 15. MCSO policy shall provide specific guidance on forms of identification that may be presented by unlicensed drivers in satisfaction of Arizona law. 16. MCSO shall develop and implement policies and procedures that require deputies engaged in traffic enforcement to document every civilian encounter, including motorist assists, in accordance with the data collection requirements set forth in this Agreement. This documentation shall include the date, time, and location of the encounter; the reason for the encounter; the police actions taken during the encounter; any determination to pursue further investigation or actions as a result of the encounter; and any statements made by the civilian(s) involved in the encounter. Such data shall be memorialized in auditable form and through CAD. 17. MCSO shall provide guidance to Patrol Bureau supervisors to ensure that discriminatory policing does not take place. MCSO shall require that Patrol Bureau supervisors:
a) not engage in, ignore, or condone bias-based policing; b) ensure that deputies under their command know and understand the content and application of bias-free policing policies and procedures; c) monitor subordinate deputy compliance with bias-free policing policies procedures; and d) intervene where they have reasonable belief that biased policing may be occurring. Such intervention may include informal counseling; disapproval of a stop, search or arrest; or referral for internal investigation.
19

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 21 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
C. Human Smuggling Unit Operations 18. MCSO shall develop and implement eligibility criteria and selection devices for assignment to specialized units that emphasize effectiveness, integrity, honesty, good judgment, and demonstrated capacity to carry out the mission of each specialized unit in a constitutional, lawful, and bias-free manner. These eligibility criteria and selection devices shall give significant weight to an individual’s documented history of bias-free policing, as well as use interviews and other methods to assess the individual’s ability and willingness to effectively practice bias-free policing. Deputies assigned to a specialized unit who are unable to maintain eligibility shall be removed from the specialized unit. 19. MCSO shall develop and implement policies and procedures that ensure that the Human Smuggling Unit (“HSU”) operates effectively and in accordance with the Constitution and laws of the United States and State of Arizona, and in a manner free of bias. 20. MCSO shall provide HSU supervisors with an additional 8 hours of comprehensive and interdisciplinary training on supervising law enforcement deputies engaged in sensitive and highprofile operations. As needed, HSU supervisors will also receive training and updates as required by changes in pertinent immigration law, Fourth Amendment law, and other areas. 21. MCSO shall require that HSU deputies attend roll-call meetings with their immediate supervisors at assigned duty stations before the initiation and conclusion of each shift. Immediate supervisors shall discuss and memorialize objectives and activity for each shift. In the course of these meetings, HSU supervisors shall unequivocally and consistently reinforce to HSU deputies that discriminatory law enforcement tactics are unacceptable.
20

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 22 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
22. MCSO shall articulate factors that may be considered in establishing reasonable suspicion when assessing whether property, a vehicle, or an individual is implicated in human smuggling. The articulated factors shall be drawn from the Constitution, federal laws, state laws, established legal precedent, and they shall be updated as necessary. 23. MCSO shall require HSU deputies to memorialize each and every civilian interaction, including motorist assists, through CAD and in keeping with the data collection requirements of this Agreement. 24. Neither HSU, nor any other MCSO unit or employee, shall initiate a stop for an observed infraction of Arizona State Code Title 28, Chapter 3 (Traffic and Vehicle Regulation) where the employee does not have reasonable suspicion of a criminal immigration violation and where the employee’s objective is to conduct an immigration-related investigation. 25. Neither HSU, nor any other MCSO unit or employee, shall request consent to search a person or vehicle to develop evidence of a criminal immigration violation unless the employee has reasonable suspicion that the vehicle or person has evidence to support a criminal immigration violation.
a) The MCSO employee must obtain the knowing and signed consent of the vehicle’s driver or owner prior to a consensual vehicle search or the person prior to a physical search. b) The MCSO employee must include a written summary describing the reasonable suspicion used to support the request for consent with the signed consent to search form. c) The MCSO may not use force, fraud or coercion to obtain consent. d) The consent to search form and the summary describing the reasonable suspicion must be provided to the employee’s supervisor at the end of the employee’s shift.
21

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 23 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
26. MCSO shall prohibit the interrogation of any vehicle passenger during suspected human smuggling detentions unless a deputy has reasonable suspicion to believe that the specific passenger has violated the state human smuggling law or another state or federal law. 27. MCSO HSU policies shall state that an individual’s unlawful presence in the United States, without more, does not provide deputies with reasonable suspicion that the person is or was involved in human smuggling for profit. 28. Whenever HSU members detain or seize an individual for committing an immigration related offense, they will submit an incident report in which they clearly identify the date, time, and location of the encounter, the reasonable suspicion that led to the detention/seizure, the police actions taken during the detention/seizure, any determination to pursue further investigation or actions as a result of the detention/seizure, and any statements made by the civilian(s) involved in the encounter. MCSO shall explicitly prohibit the use of boilerplate or conclusory language in HSU incident reports and stop, search, and seizure data documents. HSU deputies who routinely employ boilerplate or conclusory language shall be subject to disciplinary action. These incident reports shall be memorialized in auditable form and through CAD. 29. MCSO shall require HSU deputies to submit stop, search, and seizure data and incident reports at the conclusion of each shift. The data shall include the name, demographic category of each individual stopped – including passengers, if contacted – by HSU deputies. 30. HSU supervisors shall review HSU incident reports within 12 hours of receipt, absent exigent circumstances. MCSO will analyze stop data on a quarterly basis to ensure HSU deputies are not engaging in discriminatory policing practices. 31. MCSO shall prohibit the use of posse members in HSU operations.
22

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 24 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
32. To ensure compliance with the terms of this Agreement and the principles of constitutional policing, first-line HSU supervisors will directly supervise the law enforcement activities of new HSU members for eight weeks in the field, and directly supervise the in-thefield-activities of all HSU members for at least two weeks every year. D. Criminal Employment Squad Operations 33. MCSO shall develop and implement policies and procedures that ensure that the Criminal Employment Squad (“CES”) operates in accordance with the Constitution and laws of the United States and State of Arizona, in a bias-free manner, and in accordance with best practices. 34. MCSO shall develop a set of detailed, written operating policies specific to the operations of CES. Those procedures shall require that CES deputies:
a) not prolong the detention of individuals to conduct immigration enforcement investigations under the pretense of executing a search warrant for documents and evidence of forgery; b) not detain bystanders present at a location where a search warrant is executed for longer than reasonably necessary to secure the area; c) not use or display more force than is necessary in the course of their operations; d) not conduct their worksite raids in conjunction with Special Weapons and Tactics Units (“SWAT”), unless warranted by exigent circumstances; and e) document the total number of those detained or seized in the course of an operation at an employment site, as well as the demographic category of each person detained or seized in the operation. 35. MCSO shall prohibit the use of posse members in CES operations.
23

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 25 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
36. CES supervisors will review collected data to ensure operations are conducted in accordance with CES’s operating procedures and this Agreement. 37. At least one CES supervisor will be present at CES employment operations to ensure compliance with CES’s operation policies and other provisions of this Agreement. 38. MCSO shall provide all CES deputies and first-line supervisors with at least 16 hours of annual training on CES operating policies and procedures. 39. MCSO shall limit the deployment of SWAT to providing a properly calibrated response to critical situations where a tactical response is required, such as hostage rescue, barricaded subjects, high-risk warrant service and high-risk apprehension, and terrorism response. The policy shall prohibit SWAT and SWAT tactics from being deployed or used for routine patrol functions, worksite raids, or for the service of non-high-risk warrants, unless approved in writing by the MCSO Chief Deputy. 40. MCSO shall provide clear guidance, in writing, on what types of warrants are “highrisk,” and what tactics are permissible for the service of high-risk warrants, including tactics that are not permissible for the service of non-high-risk warrants, and shall take steps to ensure that the CES, SWAT, and all deputies charged with serving warrants are aware of that guidance. Only SWAT shall serve high-risk warrants. E. Crime Suppression Operations 41. MCSO crime suppression operations, which include single-unit saturation patrols and larger, multi-unit actions, shall be conducted in a bias-free manner that complies with the Constitution, other federal laws, this Agreement, and best practices.
24

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 26 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
42. MCSO shall develop policies and procedures to guide planning and execution of crime suppression operations. MCSO crime suppression operations policies shall require that:
a) justification documents detailing the justification and goals are drafted prior to any proposed crime suppression operations; b) justification documents detail the site selection process, which shall be based on documented, formal analysis of relevant, reliable, and comparative crime data; c) command staff review and approval of crime suppression operation plans; d) crime suppression operation plans identify and provide specific operational directives for participating deputies, as well as detailed reports describing the significant events of the operation; e) all participating deputies report to the operation command center for roll-call and briefing; f) commanding deputies of a crime suppression operation conduct a briefing session for all participating deputies to detail the objectives and tactics of the operation; g) participating deputies collect data following each civilian encounter, whether or not it results in a citation or arrest; and h) participating deputies report to the operation command center at the conclusion of a crime suppression operation for debriefing and for submission of all collected data. 43. MCSO deputies shall not conduct warrantless searches of private residences unless exigent circumstances exist.
25

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 27 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
44. MCSO shall review crime suppression operations for effectiveness and to ensure that the tactics employed during the operation were in keeping with MCSO policy and this Agreement. MCSO’s review of crime suppression operations shall include:
a) analysis of the number and rate of arrests for which there is documented reasonable suspicion for the stop and probable cause for the arrest, overall and broken down by geographic area; type of arrest; and demographic category; b) analysis of the number and rate of searches which result in a finding of contraband, overall and broken down by geographic area; type of arrest; and demographic category. c) assessment of stated objectives for the crime suppression operation and final results, including comparative analysis of crime statistics; d) assessment of resource allocation during crime suppression operations; and e) analysis of complaints lodged against deputies during or up to two weeks after a crime suppression operation; 45. MCSO shall prohibit the use of posse members during immigration related crime suppression operations. 46. MCSO shall hold at least one community outreach meeting within 30 days of a crime suppression operation within the boundaries of affected District(s). MCSO shall work with the Monitor and the PCAB to ensure that the community outreach meeting adequately communicates information regarding the objectives and results of the crime suppression operation. The community outreach meeting shall be advertised extensively, with both English and Spanish materials, in MCSO facilities, County facilities, public defender facilities, and on MCSO and County websites. The community outreach meeting shall be held within the boundaries of the
26

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 28 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
crime suppression operation District and at least one MCSO Chief and two Deputy Chiefs must be in attendance. F. Language Assistance in Policing Operations 47. MCSO shall establish a language access plan, policy, and set of procedures that articulate clear guidelines and protocols to ensure that all police personnel take reasonable steps to provide LEP persons with timely and meaningful access to police services. The policy, plan, and procedures shall be designed to ensure that LEP individuals do not encounter discrimination on account of their limited English proficiency or national origin when encountering MCSO personnel, and shall comply, at a minimum with Title VI of the Civil Rights Act of 1964, as amended, (42 U.S.C. § 2000d et seq.) and other applicable law, best practices, and current professional standards. To achieve this outcome, MCSO shall adopt policing-related language access requirements that parallel the requirements set forth in part VII of this Agreement. In particular, MCSO’s policing-related language access plan, policy, procedures and practices shall cover the following categories:
a) General Language Assistance (see VI.A); b) Identification of LEP individuals (see VI.B); c) Documentation of Language Needs (see VI.C); d) Assessment of Police Personnel Competency to Provide Language Assistance (see VI.E); e) Use of Arrestees or Community Members to Translate or Interpret (see VI.F); f) Written Translations (see VI.G), including identifying official and vital documents that are subject to public dissemination, and requiring translation of such documents into, at a
27

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 29 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
minimum, Spanish, and other languages spoken by more than 5% of individuals in Maricopa County; g) Oral Language Assistance (see VI.H), including interpretation protocols for interrogations and interviews of LEP individuals, such as requiring and ensuring the use of a qualified interpreter for the taking of any formal statement that could adversely affect a suspect or witness’ legal rights; h) Telephonic Interpretation Services (see VI.N); i) Notification and Outreach (see VI.O), including translation of the language assistance plan and policy into Spanish and other languages as appropriate, distribution of the plan and policy to a variety of community organizations serving LEP individuals, and posting the English and translated versions in a public area of the MCSO facilities, on MCSO’s web site, and in any other locations throughout the County where individuals go to seek police assistance; j) Complaint Procedures (see VI.P), including taking, responding to, and tracking civilian complaints and resolutions of complaints filed by LEP individuals; k) Supervisory Responsibility (see VI.Q); l) Consultation and Monitoring (see VI.S); m) Retention of Records (see VI.T); n) Hiring Plans for MCSO Bilingual Staff based on demographic and service data, including a process for recruitment of qualified bilingual personnel to meet demonstrated service needs incorporating sustained and significant outreach to local and state-wide institutions and community organizations that can serve as the source of qualified bilingual applicants;
28

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 30 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
o) Plan for proper deployment of MCSO Bilingual Staff based on demographic and service data, including maintaining a regularly updated list of bilingual MCSO Bilingual Staff by rank that all supervisors can access to ensure necessary day-to-day, shift-to-shift bilingual coverage. p) Language Assistance Requirements in 911 Call Center Operations, including rapid determination of LEP status, identification of primary language, priority of language assistance services to be used; and transmission of language needs information to radio dispatch. 48. MCSO shall distribute its police and jails language access plans, policies, and protocols to all personnel and provide at least eight hours training to all personnel on providing language assistance services to LEP individuals. Such training of all personnel shall be completed within one year of the Effective Date. This training shall include: a) MCSO’s LEP plan and policies, and the requirements of Title VI and this Agreement; b) how to access MCSO-authorized, telephonic and in-person interpreters; c) how to work with interpreters in the field; d) cultural diversity and how to communicate with LEP individuals in scenarios commonly encountered by law enforcement and jails staff; and e) basic command Spanish, for deputies assigned to HSU, CES, and Districts with 10% or more LEP populations. 49. Within 180 days of the Effective Date, MCSO shall designate a Headquarters Language Access Coordinator who shall coordinate and ensure MCSO’s compliance with its language access plan as it relates to its law enforcement operations and jail facilities. The Headquarters
29

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 31 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
Language Access Coordinator shall oversee both the police and jails Language Access Supervisors, and shall report to MCSO’s Chief Deputy. 50. Within one year of the Effective Date, MCSO shall develop and implement a process of consultation with representatives of the LEP community to develop and at least annually review: implementation of the language access plan, including areas of possible collaboration to ensure its effectiveness; identification of additional languages that would be appropriate for translation of materials; accuracy and quality of MCSO language assistance services; and concerns, ideas, and strategies for ensuring language access. 51. Within 180 days of the Effective Date, MCSO shall develop a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals. As part of this process MCSO shall:
a) document the number of LEP persons encountered by MCSO and their primary language; b) collect data regarding the number of times an interpreter has been used, listed by language and type of interpreter (telephonic or in-person); c) document the number of MCSO Bilingual Staff who have been evaluated for language proficiency, by language, job title, and level of proficiency; and d) document use of translators, vital documents translated, and languages into which vital documents are translated. G. Public Meetings on Bias-Free Policies and Procedures 52. Within 90 days of the Effective Date, MCSO and the PCAB agree to hold public meetings detailing MCSO’s bias-free policing policies and procedures and related rights of individuals who are stopped and questioned by deputies. MCSO and PCAB shall hold at least
30

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 32 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
one public meeting in every District every 180 days. Meetings shall not take place on MCSO premises. 53. MCSO shall ensure that a MCSO supervisor with extensive knowledge regarding biasrelated policies attends each meeting. 54. MCSO shall advertise the location and time of each meeting through postings, in English and in Spanish, at MCSO facilities, County facilities, MCSO’s website, and in any other locations throughout the County where individuals go to seek police assistance. MCSO also shall distribute the posting to community organizations with which it is collaborating to effectuate this Agreement. 55. MCSO and PCAB shall develop a program related to MCSO’s bias-free commitment and related policies to present at all Maricopa County public high schools. MCSO and PCAB shall develop materials, in English and in Spanish, detailing rights concerning improper law enforcement acts, rights of individuals regarding improper stops, searches, and other materials to disseminate during high school presentations. H. Bias-Free Policing Training 56. MCSO shall provide all deputies, including those in the HSU and CES, with eight hours of comprehensive and interdisciplinary training on bias-free policing within 180 days of the Effective Date, and at least four hours annually thereafter, based on developments in Arizona or federal law and MCSO policy. Such training shall emphasize that discriminatory policing, including but not limited to the selective enforcement or non-enforcement of the law, the selection or rejection of particular policing tactics or strategies, or the selection of particular communities or geographic areas for targeted policing, in a manner that disadvantages people
31

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 33 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
belonging to a particular demographic category, is prohibited by policy and will subject deputies to discipline. This training shall address:
a) the protection of civil rights as a central part of the police mission and as essential to effective policing; b) constitutional and other legal requirements related to equal protection and unlawful discrimination, including the requirements of this Agreement; c) police and community perspectives related to discriminatory policing; d) the existence of arbitrary classifications, stereotypes, and implicit bias, and the impact that these may have on the decision-making and behavior of a deputy; e) methods and strategies for effective policing, including deputy decision-making at key decision points, which rely upon non-discriminatory factors; f) forms of identification that may be presented by unlicensed drivers in satisfaction of Arizona law; g) methods and strategies to reduce misunderstanding, conflict, and complaints due to perceived police bias or discrimination, including problem-oriented policing strategies; and h) instruction in the data collection protocols required by this Agreement. I. Performance Metrics for Bias-Related Policing Reforms 57. In order to ensure that MCSO’s reforms related to bias-free policing are conducted in accordance with the Constitution and laws of the United States and State of Arizona, MCSO policy and this Agreement, the Monitor shall assess MCSO’s progress in implementing these provisions and the effectiveness of these reforms. To do so, the Monitor shall include an analysis of the following metrics and trends:
32

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 34 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
a) a baseline survey of community members, MCSO employees, and detainees; b) changes in prevalence of complaints of biased policing by MCSO; c) deputy awareness and comprehension of issues addressed in training; d) MCSO collaboration with key state, private, and community-based organizations with expertise in serving individuals from specific demographic categories; e) traffic enforcement data as it relates to the demographic categories of motorists subject to MCSO action; f) deployment and use of all specialized units; g) execution of crime suppression operations, overall and by stated objectives; geographic area; type of tactics employed; and effectuating units; h) civilian complaints regarding specialized units and operations; i) complaints that are sustained and rate that are not sustained, overall and by type; j) geographic area; type of operation; effectuating unit; and demographic category; and k) disciplinary outcomes related to specialized units and operations.
II. STOPS, SEARCHES, AND ARRESTS MCSO shall ensure that all MCSO stops, searches, and arrests are conducted in accordance with the Constitution, and laws of the United States and State of Arizona, MCSO policy, and this Agreement and comports with best practices and current professional standards. MCSO shall ensure that investigatory stops, searches, and arrests are part of an effective overall crime prevention strategy and are consistent with community-oriented policing. To achieve these outcomes, MCSO shall develop and implement the following:
33

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 35 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
A. Ban on Quotas 58. MCSO shall discontinue and prohibit any policy, procedure, directive, or practice, whether formal or informal, that provides supervisors or deputies with a quota for the stop, citation, search, or arrest of persons or property. This requirement shall not be construed to prohibit MCSO from recording, reviewing, or evaluating deputy activity and effectiveness. B. Stops and Detentions 59. MCSO deputies shall conduct stops or detentions only where the deputy has reasonable suspicion that a person has been, is, or is about to be engaged in the commission of a crime. 60. MCSO shall develop written policies and procedures within 180 days of the Effective Date to ensure that investigatory stops and detentions related to the enforcement of immigrationrelated laws do not result in prolonged and unlawful detentions. 61. MCSO deputies shall utilize the CAD system to routinely and accurately report any investigatory contact with civilians, including civilian assists, as they occur. Deputies shall be required to record the exact location of each investigatory contact with civilians. 62. MCSO shall develop auditable forms for deputies to memorialize data related to investigatory stops or detentions. Deputies shall not use boilerplate or conclusory language in any reports documenting investigatory stops, detentions and searches. Articulation of reasonable suspicion and probable cause shall be specific and clear. 63. MCSO deputies shall not use any demographic category as a factor, to any degree, in establishing reasonable suspicion or probable cause, except as part of a credible description of a specific suspect.
34

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 36 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
64. MCSO deputies shall continue to require reasonable suspicion to conduct field interviews, and document investigatory field contacts, including field interviews, in accordance with the stop and search data collection requirements of this Agreement. C. Searches 65. MCSO shall develop written policies and procedures within 180 days of the Effective Date to ensure that searches related to the enforcement of immigration-related laws are not conducted in a manner that discriminates against the members of any demographic category and do not result in prolonged and unlawful detentions. 66. MCSO deputies shall not use any demographic category in exercising discretion to conduct a warrantless search or to seek a search warrant, except as part of a credible description of a specific suspect. 67. An affidavit or sworn declaration supporting an application for a search warrant shall provide an accurate, complete, and clear description of the offense, the place or thing to be searched, scope of the search, and time and method of the search. 68. Search warrants related to the investigation of a residential property suspected of being used for human smuggling or immigration-related offenses shall be narrowly-tailored consistent with constitutional and legal requirements. MCSO deputies shall not rely on such warrants to investigate surrounding properties. 69. A supervisor shall review each request for a search or arrest warrant, including each affidavit or declaration before it is filed by a deputy in support of a warrant application, for appropriateness, legality, and conformance with MCSO policy and this Agreement. The supervisor shall assess the information contained in the warrant application and supporting
35

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 37 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
documents for authenticity, including an examination for boilerplate or conclusory language, inconsistent information, and lack of articulation of a legal basis for the warrant. 70. As part of the supervisory review, the supervisor shall document in an auditable format those warrant applications that are legally unsupported, are in violation of MCSO policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The supervisor shall take appropriate action to address violations or deficiencies, including recommending non-disciplinary corrective action for the involved deputy, and/or referring the incident for administrative or criminal investigation. The quality and accuracy of search warrants and supportive affidavits or declarations shall be taken into account in deputy performance evaluations. 71. MCSO deputies shall not detain bystanders present at the location where a search warrant is executed for longer than reasonably necessary to secure the area. 72. MCSO shall maintain centrally and in each MCSO District and specialized unit, a log listing each search warrant, the case file where a copy of such warrant is maintained, the deputy who applied for each warrant, and each supervisor who reviewed the application for a search warrant. D. Arrests 73. MCSO shall develop written policies and procedures within 180 days of the Effective Date to ensure that arrests related to the enforcement of immigration-related laws are in compliance with the Constitution, federal and state law. 74. MCSO deputies shall only arrest an individual where the deputy has probable cause.
36

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 38 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
75. In effectuating an arrest, MCSO deputies shall not rely on information known to be materially false or incorrect. Deputies may not use any demographic category in deciding whom to arrest, except as part of a credible description of a specific suspect. 76. A deputy shall immediately notify a supervisor when effectuating an arrest for an immigration-related offense, including identity crimes, an arrest for obstructing or resisting a deputy, any disorderly conduct type arrest, or a custodial arrest for a vehicle infraction. 77. The responding supervisor shall approve or disapprove the deputy’s arrest recommendation, based on the existence of probable cause, and compliance with MCSO policy and this Agreement. The supervisor shall take appropriate action to address violations or deficiencies in the deputy’s arrest recommendation, including releasing the subject, recommending non-disciplinary corrective action for the involved deputy, and/or referring the incident for administrative or criminal investigation. 78. MCSO shall follow proper and timely consular notification procedures, in accordance with the Vienna Convention on Consular Relations and guidance by the U.S. Department of State, following the arrest or detention of an individual who is a foreign national. MCSO shall ensure that arrested individuals who are foreign nationals receive proper and timely consular access, that consulates requiring direct notification are so notified, and that consular officials face no delays in accessing arrested individuals who are citizens of the countries they represent. 79. MCSO deputies shall complete all arrest reports before the end of shift. MCSO field supervisors shall review each arrest report of deputies under their command and shall memorialize their review in writing within 12 hours of the arrest, absent exceptional circumstances. Supervisors shall review reports and forms for boilerplate or conclusory
37

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 39 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
language, inconsistent information, lack of articulation of the legal basis for the action, or other indicia that the information in the reports or forms is not authentic or correct. 80. As part of the supervisory review, the supervisor shall document in an auditable format those arrests that are unsupported by probable cause, are in violation of MCSO policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The supervisor shall take appropriate action to address violations or deficiencies in making arrests, including recommending non-disciplinary corrective action for the involved deputy, and/or referring the incident for administrative or criminal investigation. 81. Supervisors shall use EIS to track each subordinate’s violations or deficiencies and the corrective actions taken, in order to identify deputies needing repeated corrective action. The supervisor shall ensure that each violation or deficiency is noted in the deputy’s performance evaluations. The quality of these supervisory reviews shall be taken into account in the supervisor’s own performance evaluations. MCSO shall take appropriate corrective or disciplinary action against supervisors who fail to conduct reviews of adequate and consistent quality. 82. A command-level official shall review, in writing, all supervisory reviews related to arrests that are unsupported by probable cause, are in violation of MCSO policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The commander’s review shall be completed within seven days of receiving the document reporting the event. The commander shall evaluate the corrective action and recommendations in the supervisor’s written report and ensure that all appropriate corrective action is taken.
38

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 40 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
E. Stop and Search Data Collection and Review 83. Within 180 days of the Effective Date, MCSO shall develop a system to ensure that deputies collect data on all investigatory stops, searches, and motorist assists, whether or not they result in an arrest or issuance of a citation. This system shall allow for summarization and searches and also shall be integrated into EIS and shall require deputies to document the following:
a) the deputies’ names and badge numbers; b) date and time of the stop; c) location of the stop; d) duration of the stop; e) subject’s apparent demographic characteristics (including subject’s surname); f) reason for the stop, including a description of the facts creating reasonable suspicion; g) if a vehicle stop, whether the driver or any passenger was required to exit the vehicle, and reason; h) whether any individual was asked to consent to a search and whether such consent was given and what reasonable suspicion supported the request for consent to search; i) whether a probable cause search was performed on any individual, including a description of the facts creating probable cause; j) whether a pat-and-frisk or other search was performed on any individual, including a description of the facts justifying the pat-and-frisk or other search; k) whether any contraband or evidence was seized from any individual, and nature of the contraband or evidence; and
39

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 41 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
l) disposition of the stop, including whether a citation was issued or an arrest made. 84. Deputies shall submit documentation of investigatory stops and detentions, and any searches resulting from or proximate to the stop or detention, to their supervisors by the end of the shift in which the police action occurred. Absent exceptional circumstances, within 12 hours of receiving a report on an investigatory stop and detention or search, a supervisor shall review the report and shall document: (1) those investigatory stops and detentions that appear unsupported by reasonable suspicion, (2) those searches that appear to be without legal justification; (3) stops or searches in violation of MCSO policy or this Agreement, or (4) stops or searches that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. 85. The supervisor shall take appropriate action to address all violations or deficiencies in investigatory stops or detention or executing a search, including recommending non-disciplinary corrective action for the involved deputy, and/or referring the incident for administrative or criminal investigation. Supervisors shall use EIS to track each subordinate’s violations or deficiencies investigatory stops or detention or executing a search and the corrective actions taken, in order to identify deputies needing repeated corrective action. Such information shall be provided to IA. The supervisor shall ensure that each violation or deficiency is noted in the deputy’s performance evaluations. The quality and completeness of these supervisory reviews shall be taken into account in the supervisor’s own performance evaluations. MCSO shall take appropriate corrective or disciplinary action against supervisors who fail to conduct complete, thorough, and accurate reviews of deputies’ investigatory detentions and searches.
40

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 42 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
86. Within one year of the Effective Date, MCSO shall develop a protocol for comprehensive analysis, incorporating appropriate benchmarks for comparison, of the stop and search data collected. 87. MCSO shall ensure that all databases containing individual-specific data comply fully with federal and state privacy standards governing personally identifying information. MCSO shall develop a process to restrict database access to authorized, identified users who are accessing the information for a legitimate and identified purpose. F. Stop, Search and Arrest Training 88. Within 180 days of the Effective Date, MCSO shall provide all deputies with no fewer than eight hours of comprehensive training on stops, searches and arrests, and at least two hours on an annual basis thereafter. The faculty for this training shall include competent legal instructors with significant experience litigating Fourth Amendment issues or law professors, from an accredited law school, with Fourth Amendment teaching or writing experience, and the instruction shall include:
a) Fourth Amendment and related law; MCSO policies, and the requirements of this Agreement regarding searches and seizures; b) First Amendment and related law in the context of the rights of individuals to verbally dispute, observe, and record deputy conduct; and c) the difference between various police contacts by the scope and level of police intrusion; between probable cause, reasonable suspicion and mere speculation; and voluntary consent from mere acquiescence to police authority;
41

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 43 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
d) the facts and circumstances that should be considered in initiating, conducting, terminating, and expanding an investigatory stop or detention; e) the legal requirements for conducting searches and executing arrests, with and without a warrant; f) the nature and scope of searches based on the level of permissible intrusion on an individual’s privacy interests, including searches conducted pursuant to probation or parole release provisions; g) the procedures for executing searches, including handling, recording, and taking custody of seized property or evidence; and h) the nature and scope of searches incident to an arrest. G. Performance Metrics for Stop, Search and Arrest Reforms 89. In order to ensure that searches, seizures, and arrests by MCSO deputies are conducted in accordance with the Constitution, laws of the United States and State of Arizona, MCSO policy and this Agreement, the Monitor shall assess MCSO’s progress in implementing these provisions and the effectiveness of these reforms. To do so, the Monitor shall include an analysis of the following metrics and trends related to searches, seizures and arrests: a) an annual traffic study measuring whether MCSO employees are engaged in racial profiling; b) civilian complaints; c) disciplinary/administrative outcomes; d) deputies who have received multiple complaints; e) criminal charges and tort claims;
42

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 44 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
f) the number and rate of searches which result in a finding of contraband, overall and broken down by unit, shift, geographic area; type of arrest; and demographic category; g) the number and rate of arrests for which there is documented reasonable suspicion for the stop and probable cause for the arrest, overall and broken down by geographic area; type of arrest; and demographic category; h) the number and rate at which the County Attorney declines to prosecute arrests, courts suppress evidence, and cases result in not guilty verdicts; and i) qualitative reviews of supervisory reviews of search and arrest warrants.
III. USE OF FORCE MCSO shall develop and implement use of force policy, training, and review mechanisms that ensure that force used by MCSO deputies is in accordance with the Constitution, laws of the United States and State of Arizona, MCSO policy, and this Agreement, and is consistent with best practices and current professional standards. MCSO shall ensure that any potential unreasonable uses of force are identified promptly and responded to appropriately and expeditiously. MCSO shall also ensure that deputies use non-force techniques to effect compliance with police orders whenever feasible; use force only when strictly necessary; use force in a manner that avoids unnecessary injury to deputies and civilians; and de-escalate the use of force at the earliest reasonable moment. To achieve these outcomes, MCSO shall develop and implement the following: A. General Use of Force Policy 90. Within 180 days of the Effective Date, MCSO shall develop and implement an agencywide use of force policy that complies with applicable law and comports with best practices and
43

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 45 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
current professional standards. The comprehensive use of force policy shall include all force techniques, technologies, and weapons, both lethal force and less-lethal force, that are available to MCSO deputies, including standard-issue weapons that are made available to all deputies, weapons that are made available only to specialized units, and personal weapons carried on the job. The comprehensive use of force policy shall clearly define and describe each force option and the circumstances under which use of such force is appropriate. B. Use of Force Reporting Policy 91. MCSO shall develop and implement a single, uniform, reporting system pursuant to a Use of Force Reporting Policy and using a single, uniform, Use of Force Report. All deputies using or observing force above un-resisted handcuffing shall report in writing, before the end of shift, the use of force in a Use of Force Report. The Use of Force Report shall include: (1) a detailed account of the incident from the deputy’s perspective; (2) the reason for the initial police presence; (3) a specific description of the acts that led to the use of force; (4) the level of resistance encountered; and (5) a description of every type of force used. The Use of Force Reporting Policy shall explicitly prohibit the use of boilerplate or conclusory language in all reports documenting use of force. 92. Each deputy on the scene of a use of force shall write a supplemental Use of Force Report, before the end of the shift, documenting the deputy’s own actions and observations. 93. Deputies' Use of Force Reports (whether primary or supplemental) shall completely and accurately describe the use of force. Deputies shall be held strictly accountable for material omissions or inaccuracies in the Use of Force Report.
44

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 46 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
94. Deputies who use or observe force shall notify their supervisors immediately following any use of force or upon receipt of an allegation of unreasonable or unreported use of force by any deputy. 95. Deputies who use or observe force and fail to report it shall be held strictly accountable and may face discipline up to and including termination, regardless of whether the force was reasonable. 96. Use of Force Reports shall be maintained centrally by IA, and relevant force data shall be entered into a searchable, sortable database in a manner that will facilitate the analysis required by this Agreement. 97. At least bi-annually, MCSO shall analyze the year’s force data, including the forcerelated outcome data collected pursuant to this Agreement, to determine significant trends; identify and correct deficiencies revealed by this analysis; and document its findings in a public report. 98. MCSO shall establish a single, uniform reporting and investigation/review system for all serious uses of force. 99. MCSO shall ensure that all serious uses of force, as the term is defined above, are investigated fully and fairly by individuals with appropriate expertise, independence and investigative skills to ensure that uses of force that are contrary to law or policy are identified and appropriately resolved; that policy, training, equipment, or tactical deficiencies related to the use of force are identified and corrected; and that investigations of sufficient quality are completed to ensure that deputies are held accountable and provided corrective training as necessary.
45

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 47 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
C. Use of Force Training 100. Within one year of the Effective Date, MCSO shall provide all MCSO personnel who could be involved in the stop, search, or arrest of an individual with at least eight hours of use of force training, and four hours of use of force training on at least an annual basis thereafter, and additional training as necessary based on developments in applicable law and MCSO policy. MCSO shall coordinate and review all use of force policy and training to ensure quality, consistency, and compliance with the Constitution, federal law, MCSO policy and this Agreement. MCSO’s use of force training shall include the following topics:
a) proper use of force decision-making; b) use of force reporting requirements; c) the Fourth Amendment and related law; d) the Eighth Amendment and related law; e) role-playing scenarios and interactive exercises that illustrate proper use of force decisionmaking, including training deputies on the importance and impact of ethical decision making and peer intervention; f) the proper deployment and use of all intermediate weapons or technologies, including batons, chemical spray, canines, and ECWs; g) de-escalation techniques that encourage deputies to make arrests without using force, and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, calling in specialized units, or delaying arrest may be the appropriate response to a situation, even when the use of force would be legally justified; h) threat assessment;
46

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 48 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
i) basic crisis intervention and interacting with people with mental illnesses, including instruction by mental health practitioners and an emphasis on de-escalation strategies; j) factors to consider in initiating or continuing a pursuit; and k) appropriate training on conflict management; 101. Supervisors of all ranks, as part of their initial and annual in-service supervisory training, shall receive additional training in conducting use of force investigations; strategies for effectively directing deputies to minimize uses of force and to intervene effectively to prevent or stop unreasonable force; and supporting deputies who report unreasonable or unreported force, or who are retaliated against for using only reasonable force or attempting to prevent unreasonable force. 102. Included in the use of force training set out above MCSO shall deliver firearms training to all deputies within one year of the Effective Date and at least twice yearly thereafter. Any deputy who has failed to qualify shall not be permitted to possess a firearm as an MCSO deputy until he or she qualifies. D. Compliance Metrics for Use of Force Reforms 103. In order to ensure that MCSO deputies use force in accordance with the Constitution and laws of the United States and State of Arizona, and this Agreement, the Monitor shall assess MCSO’s progress in implementing these provisions and assess the effectiveness of MCSO use of force reforms. To do so, the Monitor’s assessment shall include the following metrics and trends: a) Consistency of use of force reporting; b) deployment and use of all weapons or technologies, including firearms, batons, chemical agents, and ECWs;
47

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 49 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
c) civilian complaints regarding use of force; d) rate of force complaints that are sustained and rate that are not sustained, overall and by force type; geographic area; type of arrest; effectuating unit shift; and demographic category; e) uses of force that are found to violate policy overall and by force type; geographic area; type of arrest; and demographic category; f) disciplinary/administrative outcomes related to use of force; g) number of deputies who frequently or repeatedly use force, or have more than one instance of force found to violate policy; h) deputies who have received multiple complaints regarding use of force; i) instances in which force investigations are returned for further investigation or for completeness; and j) administrative and criminal charges and tort claims related to use of force.
IV. GENDER-BIASED POLICING MCSO shall respond to and investigate reports involving allegations of sexual violence, including domestic violence, sexual assault, and child sex abuse, in a professional, timely, effective, and unbiased manner in accordance with the Constitution, and laws of the United States and State of Arizona, MCSO policy, and this Agreement, and with best practices and current professional standards. MCSO shall promptly and effectively respond to reports of sexual violence; investigate all reports of sexual violence assigned to it; appropriately classify reports of sexual violence; collaborate closely with community partners; and apply a traumainformed victim-centered approach at every stage of its response. To achieve these outcomes, MCSO shall develop and implement the following.
48

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 50 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
A. Sexual Violence and Domestic Violence 104. MCSO shall clearly delineate in policy the respective duties of patrol deputies or other first responders, investigators, and supervisors, and provide clear and detailed guidelines for steps at each stage of MCSO’s response to a report involving allegations of sexual violence and domestic violence, including dispatch response; initial deputy response; and on-scene and follow-up investigation. These guidelines must include requirements as to the time frames for each stage of MCSO’s response, and incorporate best practices from the International Association of Chiefs of Police (“IACP”) Violence Against Women Projects and the National Protocol for Sexual Assault Medical Forensic Examinations (Adults /Adolescents). 105. MCSO shall investigate cases and provide services to victims equitably regardless of demographic category or referring agency. 106. MCSO shall ensure that it has sufficient staffing across shifts and districts to ensure proper communication between MCSO and LEP sexual assault and domestic violence victims. 107. Patrol deputies or other first responders shall document all calls or other reports involving allegations of sexual violence and domestic violence, including the date and time of receipt of the reports, the means of communication of the reports, the deputies’/first responders’ own observations, actions taken, and plans or observations regarding further investigation of the reports, and any statements of victims, witnesses, and reporting persons. Patrol deputies or other first responders shall immediately assess the risk to the safety of the victim of an incident of sexual assault or domestic violence, and attempt to contact the victim as soon as is practicable following the MCSO’s receipt of the report of such incident, and within a time frame appropriate to the degree of risk. Patrol deputies or other first responders who are unable to meet or speak
49

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 51 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
with a victim of sexual assault or domestic violence upon the first attempt to contact her or him shall make at least two additional attempts to contact the victim, using, to the extent possible, various means of communication, within 24 hours of the MCSO’s receipt of the report of such incident, and shall document in writing such attempts, including the dates and times of each attempt, the means of communication employed, and the outcome of each attempt. 108. MCSO protocols for conducting initial and follow-up victim interviews shall reflect the special needs of victims who may be in crisis or suffering from trauma. MCSO follow-up interviews with victims of sexual assault and domestic violence shall incorporate, to the extent practicable, each victim’s stated preferences as to the means, timing, and location of communication between the victim and MCSO personnel. 109. MCSO shall provide clear and detailed guidelines for on-scene and follow-up investigation, including identifying, locating, and interviewing witnesses and suspects; collaborating with victim advocates; evidence collection, special procedures for drug-facilitated sexual assaults, and documentation. These guidelines must include requirements as to the time frames for each stage of MCSO’s on-scene and follow-up investigation; these requirements must reflect the patrol deputy/first responder’s assessment of the level of risk to the safety of the victim. 110. MCSO shall establish protocols for forensic examinations of victims and suspects, as well as evidence preservation and crime scene management, for the purpose of responding to radio calls of sexual assault or evaluating a sexual offense. 111. Deputies shall be informed about, and shall provide sexual assault or domestic violence victims with written referrals to, relevant available services, referrals, or other assistance.
50

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 52 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
112. MCSO shall, in cooperation with the Monitor and community partners, take affirmative steps to encourage and facilitate communication between sexual assault or domestic violence victims and MCSO deputies or other first responders, including but not limited to the following:
a) within 30 days of the Effective Date, develop and implement a policy of not requiring persons reporting sexual assault or domestic violence to provide any form of photo identification document to MCSO deputies or other first responders; b) develop partnerships with community organizations serving victims of sexual assault or domestic violence, with the goal of facilitating reporting by victims and providing support services to victims working in cooperation with MCSO; c) appoint deputies and support personnel to act as liaisons between MCSO and community organizations serving victims; and d) Ensure that liaisons are culturally and linguistically competent to properly function as a liaison. 113. First-line supervisors of Special Victims Unit employees and other investigators handling crimes of sexual assault and domestic violence shall provide direct supervision of their subordinates by: a) providing assistance and resources to deputies and investigators responding to felony sexual assaults; b) building relationships with and enhancing cooperation with victim advocates and forensic examination programs, to both respond to and reduce the risk of sexual violence; c) continually seeking and creating opportunities for training to enhance deputies’/first responders’ and investigators’ skills;
51

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 53 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
d) closely reviewing investigative reports and dispositions; e) demonstrating a detailed understanding of issues confronting victims of sexual assault and domestic violence, setting clear expectations of deputies/first responders and investigators regarding their treatment of victims, and demonstrating a proper law enforcement response to victims; f) incorporating victim interactions and services into subordinates’ performance evaluations; and g) promptly following up on all investigative leads generated from Combined DNA Index System hits. 114. MCSO training on sexual assault and domestic violence shall be updated annually to reflect changes in policy, law, and developments in research. 115. MCSO shall provide comprehensive initial training for Special Victims Unit detectives and any investigators assigned to crimes of sexual assault, child abuse, or domestic violence, of no fewer than 16 hours, and at least eight hours of in-service training on at least an annual basis thereafter. This training shall include: a) realistic dynamics of sexual assault and domestic violence, including issues related to response to trauma and delayed reporting; b) overcoming the perceptions of false/unfounded allegations; c) drug and alcohol-facilitated sexual assault or domestic violence; d) skills-based training, including case reviews, victim evaluations of MCSO’s response to reports of sexual assault and domestic violence, and/or taped mock victim interviews; e) report-writing;
52

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 54 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
f) discovery; and g) collection, preservation, and submission of evidence, including an assessment of evidence obtained from crime scenes and a determination, based on the history of the assault and the potential impact on the outcome of the investigation and on successful prosecution, of the evidence to be submitted for laboratory testing. 116. MCSO shall provide comprehensive initial and recruit training on responding to reports of sexual assault and domestic violence for patrol deputies and other first responders of no fewer than 12 hours, and ongoing annual in-service training of at least eight hours. Additionally, MCSO shall incorporate fact-based scenarios involving sexual violence into recruit and inservice training on topics such as general investigation, crime scene preservation, and reportwriting. MCSO's general training on sexual violence shall include: a) realistic dynamics of sexual assault and domestic violence, including issues related to response to trauma, reasons for delayed reporting by victims of sexual violence, and nonstranger sexual assault; b) report writing, using the language of non-consensual sex; c) victim interviewing; d) initial assessment of victim, including recognition of post-traumatic stress syndrome; and e) assessment and preservation of crime scene and evidence collection techniques. 117. MCSO shall train supervisors and investigators in the Special Victims Unit in the proper definitions and application of “unfounded,” “false,” “baseless,” “exceptionally cleared,” and “waived”/”waiver” classifications in the context of sexual violence. The immediate supervisor in the Special Victims Unit and the Unit commander shall closely review and approve in writing
53

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 55 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
any decision to classify a report using one of these categories. MCSO shall track each of these conclusions separately and publicly report them on at least a bi-annual basis. 118. MCSO shall work cooperatively with the Monitor and community partners to develop all training described in this Section, with the purpose of enhancing MCSO’s ability to respond to and thoroughly investigate reports of sexual assault and domestic violence using a bias-free and victim-centered approach. 119. MCSO shall separately track all reports of felony sexual assault, incorporating the most recent definitions of those offenses used in the Uniform Crime Reports (“UCR”) and the National Incident Based Reporting System (“NIBRS”) counts, and including those offenses that may not be included in current UCR and NIBRS counts, such as drug-facilitated sexual assault and sexual assaults involving persons with disabilities unable to consent. MCSO shall collect data on the final disposition of investigations involving sexual violence, including whether the pertinent local prosecutor charged the suspect, and if so, whether the case was eventually dismissed, pled, or tried. 120. Within 180 days of the Effective Date, MCSO shall develop a mechanism to select and permit a committee of representatives from state, private, and community-based organizations with expertise in issues of domestic violence and sexual assault in Maricopa County, including rape crisis and domestic violence advocates, service providers, and/or legal providers, to review, on a semi-annual basis: (a) sexual assault investigations disposed of as “unfounded,” “exceptionally cleared,” “waived,” or similar terminology; (b) a random sample of open sexual assault investigations; (c) after the first year of this Agreement, reported sexual assaults placed in a miscellaneous or non-criminal category; and (d) the effectiveness and adequacy of MCSO
54

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 56 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
victim services. MCSO shall develop a protocol to ensure that feedback and recommendations from this committee is incorporated into policies, general training, remedial training for specific deputies or detectives, and decisions to re-examine and re-open investigations. This mechanism shall include appropriate safeguards to protect ongoing criminal or administrative investigations, confidential or privileged information, or personal information that is protected from disclosure by applicable laws. B. Performance Metrics for Gender-Biased Policing Reforms 121. In order to ensure that MCSO’s bias related reforms are conducted in accordance with the Constitution and laws of the United States and State of Arizona, the Monitor shall assess MCSO’s progress in implementing these provisions and assess the effectiveness of these reforms. To do so, the Monitor shall conduct a reliable, comprehensive, and representative annual survey of individual members of the Maricopa County community, and interviews with state, private, and community-based organizations with expertise in issues of sexual assault and domestic violence in Maricopa County, regarding their experiences with and perceptions of MCSO’s implementation of the improvements described in this section and of the safety of victims of sexual assault and domestic violence in the community. This comprehensive community survey shall include measures to ensure meaningful input from individuals of each demographic category represented in the Maricopa County community, including LEP individuals. 122. The Monitor’s assessment shall include the following metrics and trends:
a) accurate classification of reports of sexual assault or domestic violence; b) changes in prevalence of reports of sexual assault or domestic violence;
55

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 57 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
c) resolutions of all reports of sexual assault and domestic violence received by MCSO, including the number of such reports that resulted in investigations, arrests, referrals for prosecution, and/or convictions; d) changes in number of reports of sexual assault or domestic violence that result in investigations, arrests, referrals for prosecution, and/or convictions; e) timelines showing MCSO’s response times to reports of sexual violence both by deputies/first responders and SVU personnel by unit, district and victim’s demographic category; f) the number of attempts made by MCSO to contact victims; g) the nature of the information and evidence gathered by MCSO including the quality of MCSO’s reports and interviews with victims, witnesses and suspects; h) average length of sexual assault and domestic violence investigations until resolution; i) comprehensiveness of investigations of reports of sexual violence, particularly as compared to MCSO’s investigations of other matters; j) police awareness and comprehension of issues addressed in training; and k) police collaboration with the committee described above and with other state, private, and community based organizations providing services to victims of sexual assault or domestic violence.
V. POSSE VOLUNTEERS MCSO shall provide posse members with the training and support necessary to ensure that they are productive members of an effective and constitutional police force. To achieve this outcome, MCSO shall develop and implement the following:
56

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 58 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
123. MCSO shall ensure that all current and new posse volunteers are qualified to assist MCSO. Within 180 days of the Effective Date, MCSO shall develop standards of qualification for posse volunteers that shall reflect Arizona POST qualifications for sworn deputies. 124. MCSO shall disband and discontinue the operation of all immigration posses. 125. MCSO policies shall prohibit the participation of posse members in crime suppression operations, worksite raids, and immigration-related law enforcement activities. 126. MCSO shall require that all posse volunteers operate under the direct supervision of MCSO deputies. 127. MCSO shall require posse volunteers to report to their supervisor or internal affairs any misconduct that they observe or learn about. The presumptive penalty for failing to report misconduct is the permanent loss of posse privileges. 128. Within 90 days of the Effective Date, MCSO shall ensure that all posse volunteers receive 24 hours of initial training. Posse volunteer training shall include components related to:
a) bias-free policing; b) community/problem solving policing; c) ethics, including preventing and reporting misconduct and peer intervention; d) report writing; and e) recognizing, documenting, and responding to allegations of misconduct received in the field. 129. Posse members shall be prohibited from carrying or using any weapon (including firearms, batons, ECWs, and O.C. sprays) while working for or with MCSO unless they have
57

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 59 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
been fully trained on use of force and fully qualified to use any weapon to be carried or used. Full qualification for Posse members is the same as full qualification for sworn MCSO officers. 130. Within 180 days of the Effective Date, MCSO shall develop and implement a posse equipment policy. MCSO’s posse equipment policy shall:
a) ensure that posse volunteer uniforms are clearly distinguishable from uniforms worn by MCSO sworn deputies; b) ensure that vehicles used by posse volunteers during MCSO-sanctioned activities are clearly distinguishable from vehicles owned and operated by sworn deputies; and c) establish guidelines allowing for the tracking of MCSO equipment issued to posse volunteers. 131. MCSO shall develop a Posse Volunteer Activity Log for use by volunteer posse members. Volunteer posse members shall be required to adequately memorialize MCSO sanctioned activity in the Log and submit the Log to a MCSO supervisor at the end of each shift. 132. Within one year of the Effective Date, MCSO shall develop and implement a performance evaluation system for posse volunteers. Posse volunteers shall be evaluated on a biannual basis by their immediate supervisor, and the evaluations shall be used to determine whether a posse volunteer shall continue to work with MCSO. A. Performance Metrics for Posse Volunteer Reforms 133. In order to ensure that MCSO’s posse volunteer program is conducted in accordance with the Constitution and laws of the United States and State of Arizona, and to assess the effectiveness of MCSO posse volunteer reforms, the Monitor shall assess MCSO’s progress in
58

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 60 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
implementing these provisions and the effectiveness of these reforms. To do so, the Monitor’s assessment shall include the following metrics and trends:
a) deployment and use of posse volunteers; b) civilian complaints regarding posse volunteers; c) rate of complaints that are sustained, overall and by type; geographic area; type of operation; effectuating unit; and demographic category; d) performance evaluations of posse volunteers; e) administrative and criminal charges and tort claims related to posse volunteers; and f) qualitative reviews of supervisory assessments of posse volunteers.
VI. JAIL OPERATIONS MCSO shall establish a language access plan, policy, and set of procedures that articulate clear guidelines and protocols to ensure that all personnel assigned to work in or for MCSO’s jail facilities (“MCSO jail personnel”) take reasonable steps to provide LEP persons with timely and meaningful access to all MCSO jail classes, programs, and other benefits and services. These guidelines shall be designed to ensure that MCSO jail personnel do not discriminate against LEP individuals because of their limited English proficiency or national origin or any other basis articulated in Title VI of the Civil Rights Act of 1964. MCSO further shall ensure that all inmates are treated without bias based on race, color, ethnicity, national origin, gender, or any other demographic category, and in accordance with the Constitution, laws of the United States and State of Arizona, MCSO policy and this Agreement, and with best practices and current professional standards. To achieve this outcome, MCSO shall develop and implement the following:
59

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 61 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
A. Language Assistance 134. MCSO jail personnel shall provide qualified, free, and timely language assistance to LEP individuals whom they encounter or whenever an LEP person requests language services. This obligation encompasses arrestees, inmates, visitors, family members, parents and guardians of juvenile inmates, as well as members of the general public. It is the responsibility of MCSO, and not the LEP person, to ensure that communication between the LEP person and MCSO is not impaired because the person is LEP. 135. MCSO shall develop and implement written policy consistent with Title VI and this Agreement. 136. MCSO shall create a LAU to handle all language access needs and oversee compliance with the MCSO language access policy and plan. The LAU’s responsibilities shall include the following:
a) addressing all interpretation and translation needs raised by supervisors from MCSO jail units and departments; b) overseeing contracts with telephonic interpretation companies; c) overseeing contracts with interpretation and translation companies; d) establishing and enforcing assessment and quality control standards for bilingual jail personnel, MCSO Authorized Interpreters (“MCSOAI”), and contract providers; e) ensuring that capacity needs are met; f) identifying, and working with appropriate officials to obtain, the technology and apparatus necessary to effectively execute the language access plan;
60

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 62 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
g) monitoring facility, MCSO-wide, and county demographics so that language capacity keeps up with changing needs; h) ensuring optimal bilingual and MCSOAI staffing levels commensurate with language needs; i) designing training curricula and executing trainings, in conjunction with other personnel as required; j) designing logging, data entry, record keeping, and identification systems as discussed in the language access plan and herein; and k) establishing a complaint process to address complaints related to language services. 137. MCSO shall appoint a high-level supervisor to oversee the LAU. MCSO shall establish a reporting structure whereby the LAU and its supervisor report to the MCSO Headquarters Language Access Coordinator, who, in turn, reports directly to the Chief Deputy. 138. MCSO shall provide MCSO jail personnel, inmates, and members of the public (through its website and other means) contact information for the LAU and describe the duties of the LAU. 139. MCSO shall require that the LAU submit an annual report of any complaints submitted to the unit and steps taken to resolve any such complaints. B. Identification of LEP Individuals 140. All intake and other jail personnel who have contact with inmates or the public during the conduct of jail operations (including visitation) shall, upon initial contact, immediately determine whether an individual is LEP. Jail personnel shall use all necessary methods to ascertain LEP status, including asking open-ended questions requiring a narrative response. Where an
61

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 63 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
individual is unable to provide a fluent narrative response in English, he or she shall be deemed LEP. 141. While determining and documenting LEP status and primary language of inmates is the responsibility of jail intake staff, all jail personnel are responsible for ensuring that language access needs are met. As such, all jail personnel shall be familiar with, and responsible for, identifying LEP individuals and updating/correcting LEP status and language needs. 142. All intake and other personnel who have made an initial determination that an individual is LEP shall avoid making assumptions about an inmate’s primary language and should identify the LEP person’s primary language using one or more of the following commonly-used methods, in order of priority:
a) Self-identification by the LEP individual (i.e., if the individual is able to communicate the language that he or she speaks); b) Language identification cards (e.g., “I Speak Cards”), which invite LEP persons to identify their primary language. MCSO deputies and other employees who may have contact with LEP persons shall be provided access to language identification cards at intake, classification, transportation, and housing. An example of such a card from the U.S. Census Bureau is available on the internet at: www.lep.gov/ISpeakCards2004.pdf; c) Language identification posters, which invite LEP persons to identify their primary language. These posters shall be placed at the 4th Avenue Central Intake, in the 4th Avenue Holding Tanks next to the Language Access Policy, in the Holding Tanks at each of the housing facilities, in the Self-Surrender facility, in all visitation waiting areas, and at
62

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 64 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
visitation counters. The information from such posters may be available through a telephonic interpretation service; d) Verification of language by MCSO bilingual jail personnel; e) Verification by MCSOAI; and f) Through use of a telephonic interpretation service. 143. MCSO shall make determinations of LEP status and primary language in a timely manner, to ensure that LEP individuals are not subject to longer processing times as compared to non-LEP inmates. 144. If an inmate has been identified as LEP and the primary language has been ascertained by an arresting agency, MCSO jail personnel at Central Intake will confirm the inmate’s primary language. C. Documenting Language Needs 145. MCSO shall enter each individual’s primary language in the Jail Management System database under the primary language field. 146. MCSO shall ensure that the inmate’s primary language appears on all inmate rosters. 147. MCSO shall require intake deputies to write each individual’s primary language on his or her Facility card. In addition, MCSO intake personnel shall identify the LEP inmate’s primary language on the wristband used for inmate identification, so that deputies can read the inmate’s language on the wristband. 148. MCSO shall require all jail personnel to review this process and update inmate language needs information if the inmate’s primary language is missing or inaccurate.
63

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 65 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
D. Jail Personnel Access to Primary Language Information 149. MCSO shall ensure that all jail personnel have access to the daily inmate rosters for those inmates with whom they may interact (housing rosters, transportation rosters, etc.). 150. MCSO shall ensure that jail personnel are trained to check the wristbands identifying LEP inmates to ensure that communication is occurring in the inmate’s primary language. E. Assessment of Jail Personnel Competency to Perform Language Assistance 151. Jail personnel who self-identify as bilingual and agree to serve as interpreters and/or translators and those hired into the MCSOAI position shall demonstrate proficiency in and ability to communicate information accurately in both English and the other language. Proficiency requires knowledge of terminology (including special terminology used in the corrections context); vocabulary; accuracy; grammatical correctness; pronunciation; enunciation; intonation; attentive listening; information retention; ability to follow directions; the role of the interpreter (including confidentiality and conflict of interest); presentation and delivery; customer service skills; and professional demeanor. The LAU shall set a level of qualification based on these requirements and certify individuals who meet that level. Certified individuals will be deemed MCSO bilingual jail personnel or MCSOAI. MCSO shall retain all test scores and copies of certificates in employee personnel files. 152. MCSO shall create a list of certified bilingual jail personnel for distribution throughout its facilities. The list shall include the name of the individual, days and shifts that the individual works, the individual’s duty station(s), and contact information. MCSO shall update the list at least once a month to reflect jail personnel member’s decertification, personnel changes
64

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 66 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
(including additions to the list, shift in duty station, change in shift worked, change in contact information, etc.), or other changes. 153. MCSO shall permit bilingual jail personnel members who wish to discontinue their designation as language service providers the opportunity to do so. F. Use of Inmates to Translate or Interpret 154. MCSO shall not use inmates to provide language assistance absent exigent circumstances or upon the express affirmative request of the LEP inmate. MCSO personnel shall not encourage inmates to use other inmates as translators. 155. MCSO shall document all uses of inmates as translators or interpreters, including a description of the circumstances of such use. Supervisors shall review each instance in which a subordinate used an inmate to provide language assistance, and submit documentation of these instances to the LAU for further review. The LAU supervisor shall determine if inmate use was appropriate under the circumstances. G. Written Translations 156. The LAU shall be responsible for all translation needs, including:
a) identifying vital documents; b) identifying and determining languages into which vital documents should be translated; c) procuring qualified translators to accomplish translation of vital documents; d) monitoring quality of translated documents; e) enforcing protocols for accurate translation of documents; f) reviewing complaints related to quality of translations; g) distributing translated forms and documents; and
65

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 67 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
h) ensuring that the supply of translated documents meets the demand. 157. MCSO shall use MCSO bilingual jail personnel, MCSOAI, or qualified contract translators for the translation of documents. MCSO shall ensure that the LAU documents the names of the forms that have been translated (including the version that was translated), translators’ names, date of translation, and language of translation. 158. MCSO shall ensure that the LAU conducts periodic assessments, at least annually, to ensure that all vital documents are translated. At minimum, vital documents shall include the introductory paragraph of this Section, the Inmate Rules and Regulations (“Rules”), announcements of classes and programs, any additional rules and notices posted in the MCSO jails, Inmate Request Form (Tank Order), Inmate Medical Request Form (Medical Tank Order), Inmate Grievance Form, Institutional Grievance Appeal Form, External Grievance Appeal Form, Inmate Legal Services Request Form, Disciplinary Appeal Form, Inmate Visitation Form, and Canteen and Commissary offerings and order forms. 159. MCSO shall require a second translator to perform a “second check” on each translated vital document. 160. All vital documents shall be translated into Spanish and any other language rising to the level of 5% of MCSO’s overall inmate population. 161. Any time a vital document is updated, MCSO shall issue that document simultaneously in English and Spanish and shall translate that document within 15 business days into any other required language. 162. The Rules shall be revised and translated to include the introductory paragraph to this Section.
66

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 68 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
163. MCSO shall ensure that inmates receive the Rules in the appropriate language. If an inmate’s primary language is a language other than English or Spanish and the Rules are not available in that language, MCSO shall ensure that MCSO bilingual jail personnel, MCSOAI, or a qualified interpreter or translator conveys all of the key information contained in the Rules using sight translation. MCSO shall prepare, for this purpose, an English language document outlining the key information contained in the Rules. MCSO shall ensure that this sight translation occurs within 48 hours of an inmate’s entering a housing facility. 164. MCSO shall post translated postings (such as visitation rules and other documents) alongside the English versions of those materials. MCSO shall ensure that vital documents are distributed to LEP inmates in their primary language as required. 165. MCSO shall instruct jail personnel that forms, requests, or any other document may be submitted by an inmate in the inmate’s designated language. MCSO shall not reject forms and documents because of the language in which they are submitted, including in situations where an LEP inmate submits a form in English. MCSO shall instruct jail personnel to advise LEP inmates who submit forms in English that they have the option of submitting forms in their primary language. 166. MCSO shall ensure translation of all forms and other written documents submitted by inmates in Spanish during the shift submitted, or if submitted in the last four hours of a shift, by the end of the next shift. Forms or other written documents in other languages should be translated within 48 hours. 167. MCSO shall ensure that, upon receiving a form or written document in a language other than English, jail personnel will seek a MCSO bilingual officer or MCSOAI to translate the form
67

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 69 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
or document as soon as possible within the shift submitted. If it is obvious that the form is not to be addressed by the housing detention officer on duty (e.g., Medical Inmate Request forms, Grievances, Library, Religious Services, etc.), the detention officer may forward the form without translating it. 168. MCSO shall ensure that any non-housing unit personnel in receipt of a form or written document in a language other than English complies with LEP policy and have the form or document translated within the shift in which it was received. Such personnel shall seek a MCSO bilingual officer or MCSOAI to translate. For grievance forms, the supervisor reviewing the form shall request a translation from a MCSOAI who does not supervise or work with any officer named in the grievance. H. Oral language assistance for inmates 169. MSCO shall ensure language services for each shift, through adequate staffing of all shifts with bilingual jail personnel, MCSOAI, and/or qualified contract interpreters, and/or by providing for immediate telephonic language assistance, or some combination of these measures. Adequate staffing presumes enough access to MCSO bilingual jail personnel, MCSOAI, qualified contract interpreters, and/or telephonic interpretation, such that detention officers do not need to use inmates or MCSO bilingual jail personnel from another house or housing unit to provide language assistance. Staffing needs and contract and telephonic interpretation capacity should be coordinated with the LAU. 170. MCSO shall ensure that all announcements in housing facilities, transportation, and escort are made in both English and Spanish. If available, an officer may use a pre-recorded announcement that is consistent with the English announcement. If a pre-recorded
68

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 70 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
announcement is unavailable, MCSO must ensure that bilingual jail personnel, MCSOAI, qualified contract interpreters, or a telephonic interpretation service timely interprets the announcement in the non-English language. MCSO shall ensure that, at the beginning of each shift or as soon as practicable after the start of a shift, shift supervisors and detention officers assess the language needs of inmates in their charge and identify the necessary language assistance services in order to facilitate interpretation of all communication, including announcements, such as group announcements and those pertaining to rule modifications, visitors, or other matters. 171. MCSO shall ensure that transportation detention officers and deputies have radio or telephonic access to MCSO bilingual jail personnel, MCSOAI, and/or a telephonic interpretation service at all times. 172. MCSO shall implement specific shift procedures to facilitate oral language and other language assistance, including ensuring that:
a) shift supervisors, at the beginning of each shift, review inmate rosters to determine the language needs of inmates, and require detention officers on the shift to do the same; b) shift supervisors inform detention officers at the beginning of each shift to immediately notify their supervisor in the event that the detention officer encounters an inmate whose language needs are not correctly identified in the roster and/or wristband; c) shift supervisors, at the beginning of each shift, identify available bilingual jail personnel, MCSOAI, and/or qualified contract interpreters to assist with the language needs of LEP inmates during the shift. MCSO shall ensure that supervisors communicate to personnel on the shift the names of the individuals to be used for language needs during the shift.
69

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 71 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
d) jail personnel on each shift have immediate access to a telephonic interpretation service if bilingual jail personnel, MCSOAI, or qualified contract interpreters are not immediately available to assist. Jail personnel shall be trained on obtaining immediate access to telephonic interpretation; and e) shift sergeants facilitate and supervise the transfer of tasks and duties as necessary in all instances where MCSO jail personnel are diverted to language assistance tasks. I. Contacts of a Medical Nature 173. For any contacts with LEP individuals of a medical nature, MCSO shall ensure that Correctional Health Services staff is immediately informed of any language assistance needs. J. Inmate Classes, Programs, and Other Services 174. MCSO shall ensure that inmate classes, services, and programs are available to LEP inmates at a frequency commensurate with the number of individuals who speak a given language in each housing unit. MCSO shall keep a record of all scheduled classes, services, and programs, and the language in which they were conducted, by having the housing officer document the event in the online journal system and by keeping attendance lists from all scheduled classes, services, and programs. A copy of attendance lists at non-English language offerings shall be provided to the LAU. K. Grievances 175. MCSO shall accept grievances and grievance appeals in any language, and ensure that they are addressed in a timely manner, regardless of the language in which the grievance was submitted. MCSO shall schedule and conduct grievance hearings with LEP inmates using a
70

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 72 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
MCSOAI or a qualified contract interpreter. MCSO shall document the type of language assistance provided on all grievance-related reports, and provide this documentation to the LAU. L. Disciplinary Action 176. MCSO shall prohibit the practice of imposing pod restrictions and other inmate disciplinary or retaliatory measures because of a language access issue. If language barriers prevent an inmate from understanding instructions being provided to him or her, a detention officer may not discipline the pod, dorm, or the inmate for the lack of understanding. 177. For all communication relating to a disciplinary action, MCSO shall ensure that jail personnel use a MCSO bilingual officer, MCSOAI or telephonic interpretation. MCSO shall ensure that the method of language assistance provided is documented on all related reports. M. Visitors 178. MCSO shall provide all Spanish-speaking LEP visitors with language-appropriate visitation forms. MCSO shall ensure that jail personnel use a MCSO bilingual officer or MCSOAI to translate non-English language information on a visitation request form. 179. MCSO shall ensure that such translation occurs within a reasonable amount of time, giving consideration to LEP visitors who may lose visitation time because of translation delays. Under no circumstances shall an LEP visitor be turned away from visitation because either MCSO bilingual jail personnel or MCSOAI are unavailable to translate a form. 180. MCSO shall use telephonic interpretation services for visitors who speak a language for which no language-appropriate forms and/or timely translation services are available on-site, to permit the LEP visitor to orally convey the written information to the telephonic interpreter, who shall, in turn, interpret the visitor’s statements to MCSO personnel.
71

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 73 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
181. MCSO shall post language identification posters in visitation waiting areas and counters. 182. Under no circumstances shall a minor child be used to interpret the communication between MCSO jail personnel and a visitor or inmate. 183. MCSO shall translate into Spanish the portions of its website that provide information relevant to family, friends, and visitors of inmates. N. Telephonic Interpretation Services 184. MCSO shall equip housing units, as well as other MCSO jail units and departments that interact with inmates, arrestees, and/or the public, with the apparatus necessary to obtain timely telephonic interpretation assistance. 185. MCSO shall set forth procedures to permit personnel to timely access telephonic interpretation assistance. 186. The LAU shall incorporate detailed training, with step-by-step instructions on accessing telephonic interpretation, into its language access training. 187. MCSO shall ensure that personnel using telephonic interpretation services submit appropriate documentation of the use of the service to his or her supervisor following completion of the call. The LAU shall maintain copies of all such documentation. 188. MCSO shall ensure that all shift supervisors log the use of telephonic interpretation at the end of each shift, and submit the log to their supervisors, with a copy to the LAU. The log shall include the name of the inmate for whom the interpretation service was used, the language in which the service was provided, the nature of the interaction, the duration of the call, and whether there were any problems using the service.
72

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 74 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
189. MCSO shall ensure that interactions interpreted through use of telephonic interpretation are accorded the same degree of confidentiality as in-person interactions. As such, communications of a confidential nature that are normally conducted outside the presence of other inmates or jail personnel, when conducted telephonically, shall involve the same degree of privacy (via dual handsets, a private room, or other methods). O. Notification and Outreach 190. MCSO shall post the introductory paragraph of this Section in English and Spanish sideby-side throughout MCSO facilities, including, but not limited to, the 4th Avenue Central Intake area, 4th Avenue Holding Tanks, Facility Holding Tanks, the Self Surrender Facility, Housing Facilities, Facility Lobby and Visitor Area, and on the MCSO website. MCSO also shall post language identification posters alongside the introductory paragraph postings. P. Complaint Procedures 191. MCSO shall set forth a language access complaint process in its LEP policy and plan. MCSO shall describe the language access complaint process in the Inmate Rules and Regulations, and post information about the complaint process prominently on its website. Language access complaints, including public complaints and inmate grievances, shall be directed to the LAU. The LAU shall log all complaints, contemplated next steps, individuals responsible for executing the steps, outcomes of investigation, and the response provided to the complaining party, together with the date on which the response was provided. 192. The LAU shall share personnel-related complaints with supervisors who oversee the personnel concerned. The LAU, together with the appropriate supervisor and other appropriate
73

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 75 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
parties, shall be involved in all aspects of investigating personnel-related language access complaints. Q. Supervisory Responsibility 193. MCSO supervisors are responsible for reviewing all logs, records, reports, and other data referenced in this section; overseeing jail personnel implementation of language access responsibilities; reviewing complaints related to subordinates’ execution of language access duties; addressing deficiencies; raising any concerns with both the jail personnel concerned, the supervisor’s own chain of command, and the LAU; and documenting in jail personnel performance evaluations any departures from the policy and plan and deficiencies in performance. Supervisors shall route all logs, records, reports, and other data referenced in this section to the LAU. Investigations and remedial measures related to deficient execution of language access responsibilities shall be carried out in conjunction with the LAU. R. Training 194. Within 180 days of the Effective Date, all MCSO jail personnel shall receive four hours of training on the provisions of this section, and the MCSO language access policy and plan including, training on Title VI of the Civil Rights Act of 1964; identifying LEP status; identifying primary language; documenting, logging, and reporting requirements; accessing language assistance in various settings; ethical requirements of interpretation and translation; the duties and functions of the LAU; chains of command and reporting structures for language access functions; and cultural sensitivity and the provision of bias-free detention services. All new detention officers shall receive this information as part of their Academy Training and other
74

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 76 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
jail personnel as a part of any new employee orientation or training. Annually, all MCSO personnel shall receive two hours of language access training. S. Consultation, Monitoring, and Updating 195. MCSO shall develop a process of consultation with representatives of LEP communities, consular officials, the court system, law enforcement agencies, the school system (particularly programs dealing with English language learners and LEP parent communications), and representatives of inmates and detainees to include review of:
a) implementation of this plan, including areas of possible collaboration to assure its effectiveness; b) annual assessment of LEP populations MCSO may encounter, with a view to determining whether MCSO should enhance or modify language access practices, provide system-wide access in additional languages, recruit additional bilingual jail personnel, MCSOAI, and contract interpreters and translators, and other matters as appropriate; and c) concerns, ideas, and strategies for ensuring language access within the MCSO. T. Other General Provisions 196. MCSO shall comply in all respects with the nondiscrimination requirements of Title VI of the Civil Rights Act of 1964. While Latino inmates comprise a significant percentage of MCSO’s inmate population, MCSO shall not discriminate against indigenous, African American, Asian, Caucasian, or any other inmates on the bases of race, color, and national origin.
VII. SUPERVISION MCSO and the County shall ensure that an adequate number of qualified first-line supervisors are deployed in the field to provide the close and effective supervision necessary to
75

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 77 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
ensure that deputies are following the Constitution, laws of the United States and the State of Arizona, MCSO policy and this Agreement. First-line supervisors shall ensure that deputies are policing actively and effectively, are provided with the instruction necessary to correct mistakes, and are held accountable for misconduct. To achieve these outcomes, MCSO shall develop and implement the following: A. Duties of Supervisors 197. MCSO supervisors shall, and shall be held accountable for, providing the close and effective supervision necessary to direct and guide deputies. Close and effective supervision requires that supervisors: respond to the scene of certain arrests; review each arrest report; respond to the scene of uses of force; investigate each use of force; confirm the accuracy and completeness of deputies’ Daily Activity Reports; respond to each complaint of misconduct; ensure deputies are working actively to engage the community and increase public trust and safety; provide counseling, redirection, support to deputies as needed, and are held accountable for performing each of these duties. 198. Within 120 days of the Effective Date, all operational field deputies (including District patrol, task force, district investigative unit, and narcotics unit deputies) shall be assigned to a single, consistent, clearly identified supervisor. Supervisors shall be assigned to and shall actually work the same days and hours as the deputies they are assigned to supervise, absent unusual circumstances. 199. Within 120 days of the Effective Date, first-line field supervisors shall be assigned to supervise no more than six deputies. On-duty field supervisors shall be available throughout
76

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 78 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
their shift to respond to the field to provide supervision to deputies under their direct command and, as needed, to provide supervisory assistance to other units. 200. Within 180 days of the Effective Date, MCSO shall develop and implement a program to identify and train acting field supervisors who can fill-in, on a temporary, as-needed basis, for assigned supervisors who are on vacation, in training, ill, or otherwise temporarily unavailable. MCSO shall ensure consistent supervision by acting supervisors for supervisors who are on extended leave, and shall reassign deputies to a new permanent non-acting supervisor when the currently assigned supervisor has been or is expected to be absent for longer than six weeks. 201. District Commanders and platoon lieutenants shall closely and effectively supervise the deputies under their command. All MCSO Commanders and supervisors shall that all supervisors and deputies under their command comply with MCSO policy, state and federal law, and the requirements of this Agreement. 202. MCSO shall hold commanders and supervisors directly accountable for the quality and effectiveness of their supervision, including whether commanders and supervisors identify and effectively respond to misconduct, as part of their performance evaluations and through nondisciplinary corrective action, or through the initiation of formal investigation and the disciplinary process, as appropriate. B. Supervisor and Command Level Training 203. MCSO shall develop and implement mandatory supervisory training for all new supervisors of no less than 16 hours, which shall be completed prior to assuming supervisory responsibilities or, for current MCSO supervisors, within 180 days of the Effective Date of this Agreement. In addition to this initial supervisory training, MCSO shall require each supervisor
77

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 79 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
to complete at least 4 hours of supervisor-specific training annually thereafter. In-service training for supervisors, including commanders, shall provide necessary updates and refreshers, as well as training in new skills. 204. MCSO’s supervisory training program shall include instruction in the following topics:
d) techniques for effectively guiding and directing deputies, and promoting effective and constitutional police practices; e) de-escalating conflict, including peer intervention when necessary; f) evaluation of written reports, including what constitutes a fact-based description, and how to identify conclusory, “canned,” or perfunctory language that is not supported by specific facts; g) investigating officer uses of force; h) responding to and investigating allegations of officer misconduct; i) operation of supervisory tools such as EIS, mobile recording equipment and AVL; j) burdens of proof, interview techniques, and the factors to consider when evaluating officer, complainant or witness credibility, to ensure that investigative findings, conclusions, and recommendations are unbiased, uniform and legally appropriate; k) evaluating officer performance as part of MCSO’s annual performance evaluation system; l) building community partnerships and guiding deputies on same; m) incorporating integrity-related data into COMSTAT reporting. C. Early Identification System 205. MCSO shall develop, implement and maintain an EIS to support the effective supervision and management of MCSO deputies and employees, including the identification of and response
78

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 80 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
to potentially problematic behaviors as early as possible. MCSO will regularly use EIS data to promote ethical and professional police practices; to manage risk and liability; and to evaluate the performance of MCSO employees across all ranks, units and shifts. 206. Within 90 days of the Effective Date, MCSO shall create a unit, which shall include at least one full-time-equivalent qualified information technology specialist, to facilitate the development, implementation, and maintenance of the EIS. MCSO shall ensure that there is sufficient additional staff to facilitate EIS data input and provide training and assistance to EIS users. This unit may be housed within IA. 207. MCSO shall develop and implement a protocol setting out which fields shall include historical data; deadlines for inputting data related to current and new information; and the individuals responsible for capturing and inputting data. 208. MCSO shall develop and implement a protocol for using the EIS and information obtained from it. The protocol for using the EIS shall address data storage, data retrieval, reporting, data analysis, pattern identification, identifying deputies for intervention, supervisory use, supervisory/agency intervention, documentation and audit. Among protocol requirements MCSO shall include:
a) comparative data analysis, including peer group analysis, to identify patterns of activity by individual deputies and groups of deputies; b) MCSO commander and supervisor review, on a regular basis, but not less than bi-weekly, of EIS reports regarding each officer under the commander or supervisor’s direct command and, at least quarterly, broader, pattern-based reports.
79

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 81 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
c) MCSO commanders and supervisors to initiate, implement, and assess the effectiveness of interventions for individual deputies, supervisors, and units, based on assessment of the information contained in the EIS. d) require an array of intervention options to facilitate an effective response to identified problems. Interventions may take the form of counseling or training, or of other supervised, monitored, and documented action plans and strategies designed to modify activity. MCSO shall seek the services of mental health professionals and others to ensure that interventions are appropriate and effective. All interventions will be documented in writing and entered into the automated system; e) specify that the decision to order an intervention for an employee or group using EIS data shall include peer group analysis, including consideration of the nature of the employee’s assignment, and not solely on the number or percentages of incidents in any category of information recorded in the EIS; f) prompt review by MCSO commanders and supervisors of the EIS system records of all deputies upon transfer to their supervision or command; g) evaluation of MCSO commanders and supervisors based on their appropriate use of the EIS to enhance effective and ethical policing and reduce risk; and h) mechanisms to ensure monitored and secure access to the EIS to ensure the integrity, proper use, and appropriate confidentiality of the data. 209. The EIS shall include a computerized relational database, which shall be used to collect, maintain, integrate, and retrieve: a) all uses of force, including critical firearm discharges, both on-duty and off-duty;
80

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 82 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
b) the number of ECW units in use and the number of canisters of chemical spray used by deputies; c) each canine officer’s canine bite ratio; d) all injuries to persons in custody, including in-custody deaths; e) all instances in which force is used and a subject is charged with resisting an officer, interfering with a law enforcement investigation, disorderly conduct, or similar charges; f) all misconduct complaints (and their dispositions); g) data compiled under the stop data collection mechanism; h) all criminal proceedings initiated, as well as all civil or administrative claims filed with, and all civil lawsuits served upon, the County and/or its deputies or agents, resulting from MCSO operations or the actions of MCSO personnel; i) all judicial proceedings involving domestic disputes, including domestic violence, protective orders, divorce, or child custody; j) all vehicle pursuits and traffic collisions involving MCSO equipment; k) all loss or theft of MCSO property or equipment in the custody of the employee, including currency, firearms, force instruments, and identification cards; l) all arrests without probable cause or in which the individual was released from custody without formal charges being sought; m) all investigatory stops and/or searches found to be unsupported by reasonable suspicion or probable cause, as appropriate; n) all interviews or interrogations in violation of MCSO policy;
81

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 83 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
o) all instances in which MCSO is informed by a prosecuting authority that a declination to prosecute any crime was based, in whole or in part, upon concerns about the credibility of an MCSO employee or that a motion to suppress evidence was granted on the grounds of a constitutional violation by an MCSO employee; p) all disciplinary action taken against employees; q) all non-disciplinary corrective action required of employees; r) all awards and commendations received by employees; s) training history, including firearm qualification and other weapon certifications, for each employee; t) sick leave usage; and u) bi-weekly supervisory observations of each employee under the supervisor’s direct command. 210. The EIS shall include appropriate identifying information for each involved employee (i.e., name, badge number, shift and supervisor) and civilian (e.g., race, ethnicity, national origin and gender). 211. MCSO shall maintain computer hardware, including servers, terminals and other necessary equipment, in sufficient amount and in good working order to permit personnel, including supervisors and commanders, ready and secure access to the EIS system to permit timely input and review of EIS data as necessary to comply with the requirements of this Agreement. 212. MCSO shall maintain all personally identifiable information about an officer included in the EIS for at least five years following the officer’s separation from the agency. Information
82

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 84 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
necessary for aggregate statistical analysis will be maintained indefinitely in the EIS. On an ongoing basis, MCSO will enter information into the EIS in a timely, accurate, and complete manner, and shall maintain the data in a secure and confidential manner. No individual within MCSO shall have access to individually identifiable information that is maintained only within EIS and is about an officer not within that individual’s direct command, except as necessary for investigative, technological, or auditing purposes. 213. 214. The EIS computer program and computer hardware will be operational, fully implemented, and be used in accordance with policies and protocols that incorporate the requirements of this Agreement within 365 days of the Effective Date. Prior to full implementation of the new EIS, MCSO will continue to use existing databases and resources to the fullest extent possible, to identify patterns of conduct by employees or groups of deputies. 215. MCSO will provide training to all employees, including deputies, supervisors and commanders regarding EIS prior to its implementation as required to facilitate proper understanding and use of the system. MCSO supervisors shall be trained in and required to use EIS to ensure that each supervisor has a complete and current understanding of the employees under the supervisor’s command. Commanders and supervisors shall be trained in evaluating and making appropriate comparisons in order to identify any significant individual or group patterns. Following the initial implementation of the EIS, and as experience and the availability of new technology may warrant, MCSO may propose to add, subtract, or modify data tables and fields, modify the list of documents scanned or electronically attached, and add, subtract, or
83

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 85 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
modify standardized reports and queries. MCSO will submit all such proposals for review and approval of the Monitor and DOJ before implementation.
VIII. MISCONDUCT COMPLAINT INTAKE, INVESTIGATION AND ADJUDICATION
MCSO and the County shall ensure that the people of Maricopa County are encouraged to report misconduct; all allegations of employee misconduct are received and fully and fairly investigated; all investigative findings are supported by a preponderance of the evidence and documented in writing; and that all employees who commit misconduct are held accountable pursuant to a disciplinary system that is fair and consistent. To achieve these outcomes, MCSO and the County shall develop and implement the following: A. Reporting Misconduct 216. MCSO shall require that all personnel report alleged or apparent misconduct by other MCSO personnel to a supervisor or directly to IA for review and investigation. Where apparent misconduct is reported to a supervisor, the supervisor shall immediately document and report this information to IA. Failure to report or document apparent misconduct or criminal behavior shall be grounds for discipline, up to and including termination. The presumptive discipline for a failure to report criminal behavior shall be termination. B. Response to Internally Discovered Infractions 217. MCSO shall develop and establish protocols requiring supervisors to take appropriate disciplinary or non-disciplinary corrective action when the supervisor becomes aware of an infraction committed by a deputy that is not reported from outside MCSO and does not require an immediate IA notification (such as improper use of sick leave, improper attire, etc.). The
84

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 86 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
infraction and the supervisor’s response shall be reported to IA within five business days. IA shall review the report and supervisory response to determine whether additional investigation is required and to evaluate the imposed discipline or corrective action to determine whether the supervisory response was fair and consistent with MCSO disciplinary protocols. C. Staffing, Selection and Training Requirements 218. MCSO and the County shall ensure that a sufficient number of well-trained staff are assigned and available to complete and review thorough and timely misconduct investigations. MCSO and the County further shall ensure sufficient resources and equipment to conduct thorough and timely criminal and administrative misconduct investigations. 219. Within 180 days of the Effective Date, MCSO shall review the staffing of IA and ensure that individuals currently serving as or who are selected for IA possess excellent investigative skills, a reputation for integrity, the ability to write clear reports, and the ability to be fair and objective. Deputies with a sustained complaint of, or who have been disciplined for, excessive use of force, false arrest, unlawful search or seizure, sexual harassment, discrimination, or dishonesty shall be presumptively ineligible from assignment to IA. 220. Deputies shall be required to serve a rotation in IA to be eligible for promotion to the rank of Lieutenant or higher. 221. All personnel conducting MCSO deputy misconduct investigations, whether assigned to IA or elsewhere, shall receive at least eight hours of initial training in conducting deputy misconduct investigations within 180 days of the Effective Date, and shall receive at least four hours of in-service training each year. This training shall include instruction in:
85

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 87 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
v) investigative skills, including proper interrogation and interview techniques; gathering and objectively analyzing evidence; surveillance; data and case management; the particular challenges of administrative police misconduct investigations, including identifying alleged misconduct that is not clearly stated in the complaint; properly weighing credibility of civilian witnesses against deputies; using objective evidence to resolve inconsistent statements; the proper application of the preponderance of the evidence standard; relevant state, local, and federal law, including state employment law related to deputies and the rights of public employees, as well as criminal law rules such as those set out in Garrity v. New Jersey, 385 U.S. 493 (1967), and Brady v. Maryland, 373 U. S. 83 (1963). 222. Within one year of the Effective Date, MCSO shall develop a plan for conducting regular, targeted, and random integrity audit checks, or “sting” operations to identify and investigate deputies engaging in at-risk behavior, including: unlawful stops, searches, and/or seizures (including false arrests); discriminatory policing; failure to take a complaint; and failure to report misconduct or complaints. D. Complaint Information 223. Within 180 days of the Effective Date, the County and MCSO shall develop and implement a program to ensure broad knowledge throughout the Maricopa County community about how to make misconduct complaints, and the availability of effective mechanisms for making misconduct complaints. The requirements below shall be incorporated into this program. 224. The County and MCSO shall make complaint forms and informational materials, including brochures and posters, available at appropriate government and non-government properties, including, MCSO headquarters, District stations, MCSO and County websites,
86

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 88 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
libraries, and community centers. Individuals shall be able to submit misconduct complaints through the MCSO and County websites and these websites shall include complaint forms and information regarding how to file misconduct complaints. 225. At the locations listed above, MCSO shall post and maintain a permanent placard describing the external complaint process that includes relevant contact information, such as telephone numbers, email addresses, and Internet sites. MCSO will require all deputies to carry complaint forms, containing basic complaint information, in their agency vehicles at all times. Deputies shall also provide complaint forms and the deputy’s name and badge number upon request. If an individual objects to a deputy’s conduct, that deputy will inform the individual of his or her right to make a complaint and shall provide the complaint form, informational brochure, and the deputy’s name and identification number. If the individual indicates that he or she would like to make a complaint, the deputy shall immediately inform his or her supervisor who will immediately respond to the scene. 226. Complaint forms and related informational materials shall be made available and posted in English and Spanish. E. Complaint Intake, Classification, Assignment and Tracking 227. Within 180 days of the Effective Date, MCSO shall revise its complaint intake policy and train all deputies and supervisors on it. The policy and training will provide complaint materials and information; the consequences for failing to take complaints; and strategies for turning complaints into positive police-civilian interactions.
87

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 89 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
228. The refusal to accept a misconduct complaint, discouraging the filing of a misconduct complaint, or providing false or misleading information about filing a misconduct complaint, shall be grounds for discipline, up to and including termination. 229. MCSO shall accept all misconduct complaints, including anonymous and third-party complaints, for review and investigation. Complaints may be made in writing or verbally, in person or by mail, telephone (or TDD), facsimile, or electronic mail. Any LEP individual who wishes to file a complaint about MCSO personnel shall be provided with a complaint form in the appropriate language and such complaints will be investigated in accordance with the Agreement. 230. All deputies and employees who receive a misconduct complaint in the field shall immediately inform a supervisor of the misconduct complaint so that the supervisor can ensure proper intake of the complaint. All misconduct complaints received outside of IA shall be forwarded to IA before the end of the shift in which it was received. 231. MCSO shall ensure that allegations of deputy misconduct made by a Judge, that lead to the suppression of evidence, or that survive a motion to dismiss during criminal prosecutions or civil lawsuits are identified and investigated as misconduct complaints. 232. MCSO shall track, as a separate category of misconduct complaints, allegations that a deputy has in any way interfered with a civilian’s First Amendment right to observe, record, and/or verbally comment on the performance of police duties, including by allegedly improperly detaining or arresting individuals for interfering with a law enforcement investigation, disorderly conduct, or similar charges.
88

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 90 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
233. MCSO shall track, as a separate category of misconduct complaints, allegations of discriminatory policing, along with demographic characteristics of the complainants. MCSO shall ensure that complaints of discriminatory policing are captured and tracked appropriately, even if the complainant does not specifically label the misconduct as such. 234. Within 180 days of the Effective date, IA shall develop and implement a centralized numbering and tracking system for all misconduct complaints. Upon the receipt of a complaint, IA shall promptly assign a unique numerical identifier to the complaint, which shall be provided to the complainant at the time the complaint is made. Where a misconduct complaint is received in the field, a supervisor shall obtain the unique numerical identifier and provide this identifier to the complainant. 235. MCSO’s centralized numbering and tracking system shall maintain accurate and reliable data regarding the number, nature, and status of all misconduct complaints, from initial intake to final disposition, including investigation timeliness and notification to the complainant of the interim status and final disposition of the investigation. This system shall be used to determine the status of complaints and to confirm that a complaint was received, as well as for periodic assessment of compliance with MCSO policies and procedures and this Agreement, including requirements on the timeliness of administrative investigations. 236. Where a supervisor receives a misconduct complaint in the field alleging that misconduct has just occurred, the supervisor shall gather all relevant information and evidence and provide this information and evidence to IA. This information includes the names and contact information for all complainants and witnesses, the names of all MCSO deputies and employees on the scene at the time of the alleged misconduct, and any available physical evidence such as
89

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 91 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
voluntarily provided video or audio recordings, or documentation of the existence of such recordings where the witness chooses not to provide the recording. The supervisor shall take photographs of apparent injuries or the absence thereof. 237. Within three business days of the receipt of a misconduct complaint, IA shall determine whether the complaint will be assigned to an Integrity Control Officer (“ICO”) or supervisor for a District Level Investigation (“DLI”) (depending upon the subject deputy’s assignment), retained by IA for investigation, and whether it will be investigated criminally. 238. MCSO shall develop and implement a complaint classification protocol that is allegationbased rather than anticipated outcome-based to guide IA in determining where a complaint should be assigned. This complaint classification protocol shall ensure that IA investigates allegations including:
a) serious misconduct, including but not limited to: criminal misconduct; unreasonable use of force; discriminatory policing; false arrest or planting evidence; untruthfulness/false statements; unlawful search; retaliation; sexual misconduct; domestic violence; and theft; b) misconduct implicating the conduct of the supervisory or command leadership of the subject deputy; c) allegations that may be subject to significant media or community scrutiny; and d) allegations that any commander requests be conducted by IA rather than the subject deputy’s bureau. 239. Where MCSO or the County determines that an externally-generated complaint contains no allegations of misconduct the complaint shall receive a disposition of “exonerated” or
90

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 92 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
“unfounded” and include for tracking purposes an indication that it was a complaint regarding service or otherwise contained no allegations of misconduct. 240. A misconduct complaint investigation may not be conducted by any deputy who used force during the incident; whose conduct led to the injury of a person; who authorized the conduct that led to the reported incident or complaint; or who was on the scene of the incident leading to the allegation of misconduct. F. Investigation Timeframe 241. All administrative DLIs shall be completed within 60 days of the receipt of the complaint, including assignment, investigation, review, and final approval, unless granted an extension by IA, in which case the investigation shall be completed in 90 days. All administrative investigations conducted by IA shall be completed within 60 days of the receipt of the complaint, including assignment, investigation, review and final approval. Upon good cause shown in writing, the Chief Deputy can grant a 30 day extension. Any additional extensions must be authorized in 30 day intervals by the OIG. Where an allegation is sustained, MCSO shall have 30 days to determine and impose the appropriate discipline. All administrative investigations shall be subject to appropriate tolling periods as necessary to conduct a concurrent criminal investigation or as provided by law. G. Collection of Evidence 242. Investigations of deputy misconduct shall be as thorough as necessary to reach reliable and complete findings. The misconduct complaint investigator shall interview each complainant in person, absent extenuating circumstances, and this interview shall be recorded in its entirety, absent specific, documented objection by the complainant. A MCSOAI not involved in the
91

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 93 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
underlying complaint will be used when taking statements or conducting interviews of any LEP complainant or witness. All deputies on the scene of an incident shall provide a written statement regarding the incident, even to state that they did not see or hear anything. 243. Where the alleged misconduct is particularly serious or information from a deputy or other witness may be necessary to resolve an allegation, the investigator shall conduct an inperson interview of the deputy or other witness. Each deputy, witness, and complainant shall be interviewed separately. 244. All deputy and civilian witness statements should be documented in their entirety, including any statement that the witness saw or heard nothing. All interviews should be recorded. All recordings shall be stored and maintained in a secure location within IA. 245. MCSO shall require deputies to cooperate with administrative investigations, including appearing for an interview when requested by a MCSO, County, or OIG investigator and providing all requested documents and evidence. Supervisors shall be notified when a deputy under their supervision is summoned as part of an administrative investigation and shall facilitate the deputy’s appearance, absent extraordinary and documented circumstances. 246. The subject deputy shall not be compelled to provide a statement to administrative investigators where there is a potential criminal investigation or prosecution of the deputy, until the remainder of the investigation has been completed, and after consultation with the criminal investigative agency (e.g. County Attorney or U.S. Attorney’s Office) and the IA commander. MCSO and the County Attorney’s office shall develop and implement protocols to ensure that the criminal and administrative investigations are kept appropriately separate after a subject deputy has provided a compelled statement.
92

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 94 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
247. Nothing in this Agreement or MCSO policy shall hamper a deputy’s obligation to provide a public safety statement regarding a work-related incident or activity. MCSO shall make clear that all deputy statements in incident reports, arrest reports, use of force reports and similar documents, and statements made in interviews such as those conducted in conjunction with MCSO’s routine use of force review and investigation process, are part of each deputy’s routine professional duties and are not compelled statements. Where a deputy believes that providing a verbal or written statement will be self-incriminating, the deputy shall affirmatively state this and shall not be compelled to provide a statement without prior consultation with the criminal investigative agency and the IA commander, and approval by the Sheriff. 248. If at any time during complaint intake or investigation the investigator determines that there may have been criminal conduct on the part of any MCSO personnel, the investigator shall immediately notify the IA commander. The IA commander shall notify the Sheriff, County Attorney’s Office, and local FBI regarding the initiation of a criminal investigation. Where an allegation is investigated criminally, IA shall continue with the administrative investigation of the allegation, except that it may delay or decline to conduct an interview of the subject deputy or other witnesses until completion of the criminal investigation. At the completion of any criminal investigation, IA shall complete its administrative investigation and shall report its findings. H. Analysis of Evidence 249. In each investigation, MCSO shall consider all relevant evidence including circumstantial, direct and physical evidence, as appropriate, and make credibility determinations based upon that evidence. There will be no automatic preference for a deputy’s statement over a
93

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 95 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
non-deputy’s statement, nor will MCSO disregard a witness’ statement merely because the witness has some connection to the complainant or because of any criminal history. MCSO shall make efforts to resolve material inconsistencies between witness statements. 250. A misconduct investigation shall not be closed simply because the complaint is withdrawn or the alleged victim is unwilling or unable to provide additional information beyond the initial complaint. In such instances, the investigation shall continue as necessary to determine whether the original allegation(s) can be resolved based on the evidence and investigatory procedures and techniques available. In each investigation, the fact that a complainant pled guilty or was found guilty of an offense will not be considered dispositive as to whether MCSO deputy committed the alleged misconduct, nor shall it justify discontinuing the investigation. 251. The misconduct investigator shall explicitly identify and recommend one of the following dispositions for each allegation of misconduct in an administrative investigation:
a) “Unfounded,” where the investigator determines, by a preponderance of the evidence, that the alleged misconduct did not occur or did not involve the subject deputy; b) “Sustained,” where the investigator determines, by a preponderance of the evidence, that the alleged misconduct did occur; c) “Not Sustained,” where the investigator is unable to determine, by a preponderance of the evidence, whether the alleged misconduct occurred; or d) “Exonerated,” where the investigator determines, by a preponderance of the evidence, that the alleged conduct did occur but did not violate MCSO policies, procedures, or training.
94

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 96 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
252. The IA commander shall accept the investigator’s recommended disposition and the Sheriff shall approve the disposition, unless the disposition is unsupported by a preponderance of the evidence or additional investigation is necessary to reach a reliable finding. Where the IA Commander or the Sheriff believes that the disposition is unsupported by a preponderance of the evidence, the IA Commander or Sheriff may change the disposition or order additional investigation with a written explanation fully detailing the reasons for the change or request for additional investigation. 253. In addition to determining whether the deputy committed the alleged misconduct, administrative investigations shall assess and document, whether: (a) the police action was in compliance with training and legal standards; (b) the use of different tactics should or could have been employed to achieve a potentially better outcome; (c) the incident indicates a need for additional training, counseling or other non-disciplinary corrective measures; and (d) the incident suggests that MCSO should revise its policies, strategies, tactics, or training. This information shall be shared with the relevant commander(s) who shall document the commander’s disagreement or agreement with these findings; refer any recommendations to the appropriate individual to implement the recommended change; document the implementation of these recommendations; and return the documentation to IA. I. Integrity of Investigative File and Evidence 254. Division/District Level investigation reports and all related documentation and evidence shall be provided both to IA and to the OIG within 24 hours of completion of the investigation.
95

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 97 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
255. All investigation reports and related documentation and evidence shall be securely maintained in a central and accessible location until every deputy who was a subject of the complaint has severed employment with MCSO. J. Communication with Complainant 256. Each misconduct complainant shall be notified in writing of the initiation and will be kept informed periodically regarding the status of an investigation. The complainant will be notified of the outcome of the investigation, in writing, within ten business days of the completion of the investigation, including regarding whether any disciplinary or non-disciplinary action was taken. K. Discipline Process and Transparency 257. MCSO shall ensure that discipline for sustained allegations of misconduct is based on the nature of the allegation and defined, consistent, mitigating and aggravating factors, rather than the identity of the deputy or his or her status within MCSO or the broader community. MCSO and the County shall develop and implement procedures to ensure that discipline is fair and consistent including: 258. MCSO, in consultation with the County, shall develop a disciplinary matrix that:
a) establishes a presumptive range of discipline for each type of rule violation; b) increases the presumptive discipline based upon the deputy’s prior violations of the same or other rules; c) sets out defined mitigating and aggravating factors; d) requires that any departure from the presumptive range of discipline must be justified in writing;
96

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 98 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
e) provides that MCSO shall take disciplinary corrective action in cases in which the disciplinary matrix calls for the imposition of discipline; and f) provides that MCSO shall consider whether non-disciplinary corrective action also is appropriate in a case where discipline has been imposed. 259. MCSO shall establish a unified system for reviewing sustained findings and assessing the appropriate level of discipline pursuant to MCSO’s disciplinary matrix to facilitate consistency in the imposition of discipline. All disciplinary decisions shall be documented, including the rationale behind any decision to deviate from the level of discipline set out in the disciplinary matrix. 260. MCSO shall develop and establish written policies and procedures to ensure that the County Attorney’s Office provides close guidance to MCSO at the disciplinary stage to ensure that MCSO’s disciplinary decisions are as fair and legally defensible as possible. L. Annual Report 261. IA shall include in its annual report a summary of each misconduct complaint, the final approved disposition, and any discipline imposed. IA’s annual report shall also include aggregate misconduct complaint data showing the number of each type of complaint and the number and rate of sustained cases after final approval, and shall provide an analysis of this data that identifies trends and concerns and documents MCSO’s response to the identified trends and concerns. M. Performance Metrics for Complaint Process Reforms 262. In order to ensure that MCSO’s supervision-related reforms are conducted in accordance with the Constitution and laws of the United States and State of Arizona, and to assess the
97

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 99 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
effectiveness of such reforms, the Monitor shall assess MCSO’s progress in implementing these provisions. 263. In addition, the Monitor shall assess the effectiveness of the reforms described in this section, considering the following:
a) investigation timeliness; b) notification to complainant of initiation, status, and final disposition of investigation; c) number of misconduct complaints, with a qualitative assessment of whether any increase or decrease appears related to access to the complaint process, and assessment of where and when complaints are coming from, by geographic area, shift and demographic category; d) number of internal misconduct complaints; e) rate of sustained, not sustained, exonerated, and unfounded misconduct complaints; f) number and rate of misconduct complaints in which the finding for each allegation is supported by a preponderance of the evidence; g) number of deputies who are subjects of repeated misconduct complaints, or have repeated instances of sustained misconduct complaints; h) arrests/summons of deputies for on- or off-duty conduct; i) criminal prosecutions of deputies for on- or off-duty conduct; j) number of civil suits against MCSO personnel and amount of County settlements and judgments for civil suits filed against MCSO personnel for on- or off-duty conduct; and k) number and nature of civil suits against MCSO deputies regardless of whether the County is a defendant in the litigation.
98

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 100 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
IX. RETALIATION MCSO shall ensure that its law enforcement activities do not infringe on the freedom of expression and speech of Maricopa County residents and visitors and MCSO personnel, as protected by the First Amendment of the Constitution and other federal laws. To achieve this outcome, MCSO shall develop and implement the following: A. Anti-Retaliation Policies and Procedures 264. Within 180 days of the Effective Date, MCSO shall develop and implement policies and procedures that expressly prohibit retaliation by MCSO personnel against other MCSO personnel, and residents and visitors to Maricopa County. The County and MCSO shall expressly prohibit all forms of retaliation targeting individuals who criticize the Sheriff or the policies and practices of MCSO, whether subtle or direct, including discouragement, intimidation, coercion, or adverse action. 265. MCSO anti-retaliation policies shall establish that the presumptive penalty for retaliation is termination. 266. The County and MCSO shall make complaint forms and informational materials, including brochures and posters, available at appropriate government properties, including, at a minimum, MCSO headquarters, District stations, MCSO and County websites, County facilities, Courthouses within Maricopa County, all public libraries, Public Defender facilities, and at the offices or gathering places of community groups. The County and MCSO shall make sure that all materials are available in English and Spanish. Individuals shall be able to submit retaliation complaints through the MCSO and County websites and these websites shall include complaint forms and information regarding how to file retaliation complaints.
99

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 101 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
B. First Amendment Right to Observe and Record Deputy Conduct 267. MCSO shall ensure that onlookers or bystanders may witness, observe, record, and/or comment on law enforcement actions, including stops, detentions, searches, arrests, or uses of force, in accordance with the Constitution and laws of the United States and State of Arizona. Deputies shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and MCSO shall ensure that deputies understand that exercising this right serves important public purposes. 268. Individuals observing law enforcement actions shall be permitted to remain in the proximity of the incident unless their presence would jeopardize the safety of the deputy, the suspect, or others in the vicinity; the bystander violates the law; or the bystander incites others to violate the law. 269. Individuals shall be permitted to record law enforcement activities by camera, video recorder, cell phone recorder, or other means, unless their presence would jeopardize the safety of the deputy, the suspect, or others in the vicinity; the bystander violates the law; or the bystander incites others to violate the law. 270. Deputies shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording law enforcement activities. 271. Deputies shall not detain, prolong the detention of, or arrest an individual for remaining in the proximity of, recording or verbally commenting on deputy conduct directed at the individual or a third party, unless their presence would jeopardize the safety of the deputy, the suspect, or others in the vicinity; the bystander violates the law; or the bystander incites others to violate the law.
100

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 102 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
272. Deputies shall not seize or otherwise coerce production of recorded sounds or images, without obtaining a warrant, absent exigent circumstances. Deputies shall never destroy or order an individual to destroy any recordings. Where a deputy has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a misdemeanor or felony crime, the deputy may secure such evidence for no longer than necessary to obtain a legal subpoena, search warrant, or other valid order. C. Performance Metrics for Retaliation Reforms 273. In order to ensure that MCSO’s retaliation-related reforms are conducted in accordance with the Constitution and laws of the United States and State of Arizona, and to assess the effectiveness of such reforms, the Monitor shall assess MCSO’s progress in implementing these provisions. 274. The Monitor shall assess the effectiveness of the reforms described in this section, considering the following:
a) alleged incidents of retaliation that occurred or were investigated; b) any discipline imposed for retaliation; and, c) supervisors’ performance in addressing and preventing retaliation. X. OFFICE OF THE INSPECTOR GENERAL AND ADDITIONAL MEANS FOR
OVERSIGHT AND TRANSPARENCY MCSO and the County shall develop, implement, and maintain systems to ensure effective, comprehensive, and transparent oversight of MCSO that will be sustained after the completion of this Agreement. These oversight systems shall ensure that improper incidents, practices, or trends are identified and corrected in an equitable and timely manner to facilitate
101

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 103 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
effective and constitutional policing and increase trust between MCSO and the broader Maricopa County community. To achieve these outcomes, MCSO and the County shall develop and implement the following: A. Office of the Inspector General 275. Constitutional policing rests on consistent and unbiased assessment of a law enforcement agency’s policies and practices. To that end, the County shall establish an Office of the Inspector General (“OIG”) to ensure MCSO’s continued compliance with constitutional policing. The OIG shall carry out its responsibilities through three distinct areas of activity: Compliance Audits, Complaint Investigation and Adjudication, and Public Reporting. 276. The Court shall appoint an Inspector General for a term of 5 years, which shall be renewable. The Court shall select the Inspector General from a list of candidates created by the Monitor, who shall take into account recommendations from the County, MCSO, the DOJ, and appropriate community stakeholders. 277. The OIG cannot be removed absent substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.
278. After the initial 5 year term, the Board of Supervisors will appoint the Inspector General for subsequent 5 year terms. 279. While this Agreement is in effect, the OIG shall be empowered to initiate and conduct independent investigations of MCSO regarding any incident, policy, pattern or practice related to compliance with the terms of this agreement. The OIG shall be an “Officer of the MCSO” for the purposes of having full access to records and otherwise independent of MCSO, the Sheriff,
102

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 104 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PURPOSES ONLY PROPOSED AGREEMENT
PREPARED BY UNITED STATES – 02/26/12
and the County Attorney. The OIG shall report directly to the Court and the Maricopa County Board of Supervisors. 280. OIG reports shall include the findings of investigation as well as any recommendations to address or remedy any findings. Should the Sheriff determine not to implement an OIG finding, the Sheriff must provide written notice to the OIG, the County, the Monitor and the Court. The notice from the Sheriff must include a justification for the decision not to implement the recommendation and any alternative measure the Sheriff will take. 281. The reports of the OIG shall be deemed legal advice to the County Council, and all information developed during an investigation shall be protected by the work product and attorney client privileges. The OIG shall not be required or compelled to testify, satisfy document requests, or provide information to third parties or in judicial proceedings unrelated to this Agreement regarding its investigations. 282. The County shall fully fund the OIG so that it can employ an Inspector General, sufficient employees to conduct the investigations necessary to complete the OIG’s work, facilities, office equipment and technology, and other necessary items to conduct its work. The OIG shall not be located on MCSO premises. The staffing and resource needs of the OIG shall be assessed and determined on an annual basis by the Monitor, in consultation with the OIG and the County. 283. The Monitor shall determine whether MCSO has fully complied with the provisions of this Agreement. After MCSO achieves full and effective compliance with specific provisions of this Agreement, those provisions will be transferred to the OIG for continued review.
103

Case 2:07-cv-02513-GMS Document 580-4 Filed 06/13/13 Page 105 of 129
PRIVILEGED AND CONFIDENTIAL– FOR NEGOTIATION PUR
[cell cut: 19,679,435 characters, first 4,193,875 kept]
[CONTENT] December 12, 2007 | United States | District Court | Arizona | the County of Maricopa | the Maricopa County Sheriff's Office | Joe Arpaio ||| Latino | Maricopa County ||| the Fourth Amendment | Fourteenth Amendment | the U.S. Constitution | the Civil Rights Act | 1964 | Arizona ||| the American Civil Liberties Union | the Mexican American Legal Defense Fund ||| The United States Department of Justice | Civil Rights Division | U.S. | County | United States | Maricopa County | Clearinghouse ||| Latino ||| Latino |||  ||| U.S. Immigration and Customs Enforcement (ICE ||| ICE ||| Maricopa County | Latino ||| Latino | Caucasian |||  |||  |||  ||| July 15, 2009 | Mary H. Murgia ||| only the day | Murgia | Murgia | the National Council of La Raza | NCLR | Murgia |||  ||| NCLR | Stop the Hate | Murgia ||| Arpaio | 2009 | U.S. ||| 2009 | 2132693 | D. | July 15, 2009 ||| G. Murray Snow ||| August 13, 2009 | Snow | County ||| Maricopa County | 2009 | U.S. ||| 2009 | 2515618 | D. | Aug. 13, 2009 ||| October 13, 2009 | Maricopa County | Maricopa County ||| December 23, 2011 ||| zero | Illegal Alien ||| Suspected Illegal Alien ||| MCSO | MCSO | Mexicans ||| Arpaio | 2011 | U.S. ||| D. | Dec. 23, 2011 ||| the same day | Latino | January 2007 | Maricopa County | Arizona ||| MCSO | the United States ||| Ortega-Melendres | 836 ||| 2d 959 | D. ||| The Maricopa County Sheriff's Office | the Ninth Circuit ||| September 25, 2012 | the Ninth Circuit Court of Appeals ||| De Jesus Ortega Melendres | 695 | 990 | 9th | 2012 ||| July | August 2012 ||| May 24, 2013 | Snow | 142 ||| Fourth | Fourteenth Amendment | the Sheriff's Office | Latino | Maricopa County | LEAR | Latino | Maricopa County | Latino | Maricopa County | Latino | Latino | Maricopa County | Latino | Latino | Maricopa County | the Arizona Human | the Arizona Employer Sanctions Act.</li | 13-16285 ||| the Maricopa Sheriff's Office ||| October 2, 2013 | Snow ||| the Sheriff's Office ||| Sheriff | US | AZ | Sheriffs ||| Sheriffs | 13-17238 ||| April 4 | October 10, 2014 | the Sheriff's Office | the Sheriff's Office ||| second ||| September 11, 2014 | Snow | 4,439,241.66 ||| Compliance | no less than three years ||| February 12, 2015 | Snow | MCSO ||| 2013 | Sheriff Arpaio |||  ||| April 15, 2015 | John Wallace | the U.S. Court of Appeals | Snow | May 24 | 2013 |||  |||  ||| 784 ||| The United States ||| Snow | August 13, 2015 ||| The United States's | 42 | USC | Title VI | the Civil Rights Act | 1964 |||  ||| August 26, 2015 | Snow ||| the Ninth Circuit | MCSO ||| the Ninth Circuit's | Snow | Monitor ||| the Department of Justice | 2012 | Silver | the U.S. District Court | Arizona | DOJ |||  ||| several months ||| May 13, 2016 | Snow | May 31, 2016 ||| 2016 | 2783715 ||| thousands |||  ||| Snow | July 22, 2016 |||  ||| first ||| 2016 | 3965949 ||| November 2016 | Paul Penzone | Joe Arpaio | Arizona ||| January 13, 2017 | Penzone ||| Snow | August 19, 2016 | Sheriff Arpaio | December 23, 2011 | April 23, 2015 | order.</li |||  ||| July 31, 2017 | Susan R. Bolton | Sheriff Arpaio ||| 2017 | 3268180 ||| Snow | Fourth Amendment ||| Sheriff Arpaio ||| August 14, 2017 | Sheriff Arpaio |||  ||| Trump | Executive | Joe Arpaio | August 28, 2017 ||| first | two ||| October 19, 2017 | Bolton | Sheriff Arpaio's ||| 2017 | 4839072 ||| Sheriff Arpaio |||  ||| Arpaio | the Ninth Circuit ||| April 17, 2018 | the Ninth Circuit ||| United States | Arpaio | 887 | 979 | 9th Cir. 2018 |||  |||  |||  ||| October 25, 2018 | Court | the Solicitor General | the Supreme Court | the United States ||| January 1, 2019 | the Solicitor General | the Supreme Court |||  |||  |||  ||| March 3, 2017 | the Ninth Circuit | Maricopa County | 400,395.55 ||| March 1, 2018 | the Ninth Circuit | Maricopa County | 52,877.42 ||| 2017 | MCSO ||| November 2018 ||| May 24, 2018 | MCSO ||| MCSO ||| MCSO ||| Report ||| Report | MCSO ||| MCSO ||| June 1, 2016 | August 31, 2017 | 1,237,192.10 ||| April 12th, 2019 | 747,836.24 ||| mid-June of 2019 | the Independent Investigator | the Second Amended Second Permanent Injunction/Judgment Order ||| January of 2020 ||| The Maricopa County Sheriff | June 8th, 2020 [SUMMARY] On December 12, 2007, a group of plaintiffs filed this lawsuit in United States District Court for the District of Arizona against the County of Maricopa and the Maricopa County Sheriff's Office (MCSO), as well as Sheriff Joe Arpaio. The plaintiffs sought to represent a class of Latino persons who have been or will be stopped, detained, interrogated, or searched by the Sheriff or his agents in moving or parked vehicles in Maricopa County. They alleged claims under the Fourth Amendment (search and seizure) and Fourteenth Amendment (equal protection) to the U.S. Constitution; Title VI of the Civil Rights Act of 1964; and the Arizona state constitution. The plaintiffs were represented by private pro bono attorneys, the American Civil Liberties Union (both local and national), and the Mexican American Legal Defense Fund. The United States Department of Justice (Civil Rights Division and local U.S. Attorneys) appeared in the case as amicus, explaining that they had a sharp interest in the matter because of its separate civil rights lawsuit against the County, United States v. Maricopa County, <a href="http://www.clearinghouse.net/detail.php?id=12282">PN-AZ-0001</a> in this Clearinghouse. The plaintiffs sought declaratory and injunctive relief against the defendants, claiming that defendants have engaged in a widespread pattern and practice of racial profiling and racially or ethnically discriminatory treatment in "enforcing" federal immigration laws against Latino persons without regard for actual citizenship or immigration status. 

The plaintiffs alleged that defendants have launched a series of "crime suppression sweeps" to target Latino persons for investigation of immigration status, using pretextual and unfounded stops, racially motivated questioning, searches, and/or baseless arrests. These sweeps include a volunteer "posse" that help to carry out defendants' policies and practices. Defendants had claimed authority under a limited agreement with U.S. Immigration and Customs Enforcement (ICE). However, plaintiffs allege that the ICE agreement prohibits these practices, because the agreement only allows for questioning of immigration status once someone is suspected of violating a state or federal law more severe than a traffic offense. The plaintiffs further allege that defendants' pattern and practice of racial profiling goes beyond these "sweeps" to include widespread, everyday targeting and mistreatment of drivers and passengers in Maricopa County who appear to be Latino. The plaintiffs allege that Latino drivers and passengers are stopped at higher rates, treated more intrusively, and detained longer than similarly situated Caucasian drivers and passengers (even within the same vehicle). The plaintiffs also allege that defendants have set up a "hotline" for "tips" on illegal immigrants, which they allege invites individuals to equate race with immigration status. Finally, the plaintiffs allege a failure to train personnel and volunteers adequately and to promulgate appropriate policies to prevent infringement of plaintiffs' rights. Allegedly, the Sheriff made many public statements about his intent to "go after illegals" and said publicly that physical appearance was basis to question someone about their immigration status.

On July 15, 2009, the court (Judge Mary H. Murgia) granted the defendants' motion for recusal. The defendants claimed that only the day after Judge Murgia ruled against them did they become aware that Judge Murgia's (identical twin) sister was the President and CEO of the National Council of La Raza (NCLR); they argued that accordingly, Judge Murgia must recuse herself. On the one hand, the court found that the motion was untimely, that the defendants had not shown any evidence of the court's bias, and that her sister's position was not enough to compel recusal. On the other, however, the court found that NCLR's "Stop the Hate" online campaign, which contains articles that are highly disparaging of these defendants and which takes a strong stand on disputed legal and factual matters in this case (and which contain pictures of the judge's identical twin sister) might lead the public to question Judge Murgia's impartiality, and that she should recuse herself in this close call. Melendres v. Arpaio, 2009 U.S. Dist. LEXIS 65069, 2009 WL 2132693 (D. Ariz. July 15, 2009). The case was reassigned to Judge G. Murray Snow. 

On August 13, 2009, Judge Snow denied the County's motion to stay proceedings pending DOJ investigations. Melendres v. Maricopa County, 2009 U.S. Dist. LEXIS 75364, 2009 WL 2515618 (D. Ariz. Aug. 13, 2009). On October 13, 2009, the court approved a joint motion and stipulation of plaintiffs and defendant Maricopa County to dismiss Maricopa County without prejudice. 

On December 23, 2011, the court issued an order denying summary judgment and sending the case to trial in large part. Based on the few statistical sheets that were available, the court held that the finder of fact may draw the following inferences from the statistic sheets that MCSO shredded: that they would have suggested officers involved in special operations did not follow a "zero tolerance" policy requiring them to stop all traffic offenders; that they would have included a significantly higher number of arrests in the categories "Illegal Alien turned over to ICE/LEAR" and/or "Suspected Illegal Alien arrested on state charges" than records documenting ordinary patrol activity. Based on the recovered emails, the court found that the finder of fact could draw the following inferences from emails that MCSO irretrievably purged: that MCSO maintained a file of citizen complaints making requests for special operations; that MCSO conducted operations in areas named in the complaints; and that at least some of the citizen communications complained about "Mexicans," "day laborers," or "illegal immigrants" but did not provide a description of any criminal activity. Melendres v. Arpaio, 2011 U.S. Dist. LEXIS 148187 (D. Ariz. Dec. 23, 2011).

On the same day, the court certified the class of "all Latino persons who, since January 2007, have been or will be in the future, stopped, detained, questioned, or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona." The court also enjoined MCSO and its officers from detaining any person only because they believe or know that the person is unlawfully present in the United States. Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959 (D. Ariz. 2011). The Maricopa County Sheriff's Office filed an interlocutory appeal with the Ninth Circuit. Later, on September 25, 2012, the Ninth Circuit Court of Appeals affirmed the District court's order. De Jesus Ortega Melendres v. Arpaio, 695 F.3d 990 (9th Cir. Ariz. 2012).

In the meantime, the matter proceeded to a bench trial, held in July and August 2012. On May 24, 2013, Judge Snow issued a 142-page decision finding for the plaintiffs. The court found the plaintiffs entitled to injunctive relief to remedy the Fourth and Fourteenth Amendment violations caused by the Sheriff's Office past and continuing operations, and entered a permanent injunction forbidding the MCSO from: 
<li>detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization; <li>following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County; <li>using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant; <li>using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization; <li>detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law; <li>detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present; and<li>detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.</li>The defendant appealed this decision, along with the denial of their initial motion to dismiss (Docket No. 13-16285).

The parties negotiated a consent decree to ensure the Maricopa Sheriff's Office complied with the court's findings of facts for the plaintiffs. On October 2, 2013, after hearing the terms on which the parties could and could not agree, the court (Judge Snow) issued an order making the previous injunctions permanent and establishing the methods for compliance. The order required the Sheriff's Office to create a unit to aid in compliance and a system for identifying problematic behavior and provided for an independent monitor to ensure compliance. It further demanded that all of the Sheriff's policies and procedures conform to the US and AZ constitutions and laws, that the monitor review any of the Sheriff's immigration-related policies and practices, that all officers receive training on nondiscriminatory policing, that the Sheriffs create an accountable system for documenting traffic stops including dash-cam recording, that all complaints are brought forward and addressed, and that the Sheriffs get involved in the community to rebuild public trust.

The Sheriffs appealed this order as well (Docket No. 13-17238), and it was consolidated with their previous appeal.

On April 4, and October 10, 2014, the court issued orders amending the permanent injunction, giving the Monitor, rather than the Sheriff's Office, the community outreach responsibility to serve as a liaison between the public and the Sheriff's Office. The second of the orders amended the injunction to allow for body-mounted cameras as opposed to dash mounted cameras, for the purpose of recording traffic stops.

On September 11, 2014, the court (Judge Snow) awarded attorneys' fees and costs to the plaintiffs, as the prevailing party in a civil rights case, totaling $4,439,241.66. The court retained jurisdiction of this action for all purposes until such time as the defendants have achieved full and effective Compliance and maintained such compliance for no less than three years. 

On February 12, 2015, Judge Snow entered an order for an evidentiary hearing to address whether MCSO committed contempt of the court. This order was in response to a 2013 video released of Sheriff Arpaio telling his officers to disregard the court's order requiring them to track the race and ethnicity of the individuals they stopped. Further videos were retrieved showing officers had detained people against the court's earlier orders and that these officers had been unlawfully taking detainees possessions. 

On April 15, 2015, Justice John Wallace for the U.S. Court of Appeals for the 9th Circuit affirmed in part, vacated in part, and remanded Judge Snow's May 24, 2013 permanent injunction. He held that the the named plaintiffs were adequate class representatives and the district court had not abused its discretion. He found the requirement within the permanent injunction that monitors consider "disciplinary outcomes for any violation of department policy" and assess whether deputies should be subject to "civil suits or criminal charges for off-duty conduct" was overbroad. 784 F.3d 1254

The United States moved to intervene based on the "general public importance" of the matter. Judge Snow granted the motion on August 13, 2015. The United States's intervenor complaint cited violations of 42 USC § 14141(b) and Title VI of the Civil Rights Act of 1964. It sought equitable and injunctive relief.

On August 26, 2015, Judge Snow issued an order amending the supplemental permanent injunction. In response to the defendants' appeal of the initial supplemental permanent injunction, the Ninth Circuit affirmed all provisions except for those allowing the Monitor to consider MCSO's discipline for "any violations of department policy" and whether any deputies were repeatedly party to any "complaints, civil suits, or criminal charges, including for off-duty conduct." After the Ninth Circuit's ruling, Judge Snow narrowed the Monitor's considerations to only include violations pursuant to this particular case and injunction.

Meanwhile, in a related case filed by the Department of Justice in 2012, Judge Silver for the U.S. District Court for the District of Arizona, settled certain issues but required the DOJ to pursue further relief within this case. (<a href="https://www.clearinghouse.net/detail.php?id=12017">PN-AZ-0001 in this Clearinghouse</a>).

The parties then litigated evidentiary issues for several months. On May 13, 2016, Judge Snow issued a Finding of Fact holding defendants in civil contempt of the court and setting a hearing date for May 31, 2016. 2016 WL 2783715. Based on the Finding of Fact, the court found that the defendants' had failed to implement the court's preliminary injunction, failed to disclose thousands of relevant discovery items, and deliberately violated court orders. These actions harmed the plaintiff class, impeded litigation, and led to a trial that did not adequately address plaintiffs' constitutional rights. Judge Snow therefore issued an amended supplemental permanent injunction on July 22, 2016. The Injunction required MCSO to investigate all allegations of employee misconduct related to the issues in this case; implement misconduct related training, develop a civilian complaint intake, implement transparency measures, and ensure document preservation and production. It further demanded that all policies, procedures, protocols, training materials, and other relevant materials remain subject to review and comment by the compliance Monitor implemented in the first supplemental permanent injunction. 2016 WL 3965949.

In November 2016, Paul Penzone defeated Joe Arpaio in the Arizona election for Sheriff. On January 13, 2017, the court replaced Penzone as the named defendant for the case. 

Prior to the change in defendant, Judge Snow issued an order on August 19, 2016 referring Sheriff Arpaio to a randomly selected judge for criminal proceedings to determine whether he should be held in criminal contempt for:<li>Violation of the court's December 23, 2011, preliminary injunction; <li>failure to disclose all relevant materials for the investigation; and <li>his intentional failure to preserve and produce required records as directed in the court's April 23, 2015, order.</li>The criminal proceedings continued separately to this case. 

On July 31, 2017, District Judge Susan R. Bolton issued an order finding Sheriff Arpaio guilty of criminal contempt. 2017 WL 3268180. The court found that Judge Snow’s preliminary injunction was clear and spelled out that detaining persons past the time sufficient to conduct a criminal investigation was a violation of their Fourth Amendment rights and that Sheriff Arpaio had to cease the practice immediately. Further, the court found that Sheriff Arpaio had the requisite knowledge of the order and that, based on public statements demonstrating flagrant disregard for the order, he had willfully violated the preliminary injunction order. On August 14, 2017, Sheriff Arpaio filed a motion for a new trial, and/or that the verdict be vacated, arguing that he was wrongfully denied a trial by jury. On that same date, he also filed a motion for a judgment of acquittal. After President Trump issued an Executive grant of clemency to Joe Arpaio on August 28, 2017, he filed an additional motion to vacate the verdict. Subsequently, the court dismissed the first two motions with prejudice, reserving only the motion to vacate the verdict. 

On October 19, 2017, Judge Bolton denied Sheriff Arpaio's motion to vacate the verdict, insofar as it sought relief beyond dismissal with prejudice. 2017 WL 4839072. The court held that although the presidential pardon spared Sheriff Arpaio from any punishment that otherwise might have been imposed, it did not "revise the historical facts" of the case. Thus, the judgment of conviction was maintained. Sheriff Arpaio appealed this decision to the Ninth Circuit. On April 17, 2018, the Ninth Circuit issued an order appointing a special prosecutor to defend the district court’s decision. United States v. Arpaio, 887 F.3d 979 (9th Cir. 2018). The role of the “special prosecutor” under the order was limited to providing briefing and argument to the merits panel. A judge of the appeals court sua sponte called for a vote on whether to rehear en banc the order appointing a special prosecutor. Rehearing en banc was denied. On October 25, 2018, the Court stayed briefing in this case to allow the Solicitor General to consider whether to file certiorari in the Supreme Court of the United States. On January 1, 2019, the Solicitor General determined that the government would not seek certiorari in the Supreme Court and the appeals court reinstated a briefing schedule. Thus, the appeal in the contempt proceedings is still pending.

Meanwhile, in the district court, the parties continued litigating over legal fees. Although they went to mediation, this was unsuccessful. On March 3, 2017, the Ninth Circuit ordered Maricopa County to pay $400,395.55 to the plaintiffs to cover legal fees. On March 1, 2018, the Ninth Circuit ordered that an employee of Maricopa County pay the plaintiffs $52,877.42 in additional attorneys' fees for work performed on a motion to dismiss the employee's appeal of the district court's order finding that he had committed civil contempt for violating the injunction.

In 2017, the Monitor noted that MCSO had completed the delivery of misconduct investigations training. As of November 2018, the Monitor noted steady improvement in the quality of internal investigations, particularly since completion of the training. 

On May 24, 2018, MCSO published its Third Traffic Stop Annual Report. The Monitor noted issues with the underlying data due to a lack of quality control procedures with MCSO’s contracted vendor responsible for the various analyses. MCSO has since contracted with a new vendor. Despite the Monitor's concerns with the data, the Report found that the issue of racial differences in post-stop outcomes is systemic and cannot be attributed only to a small number of deputies. The Report did, however, identify several deputies which were outliers when compared to their geographic peers and MCSO is working to address those outliers.  

The Monitor continues to oversee the MCSO's compliance with the multiple supplemental injunctive relief orders entered. The plaintiffs have filed a supplemental motion for attorneys' fees incurred from June 1, 2016, through August 31, 2017, in the total amount of $1,237,192.10. On April 12th, 2019 the court granted plaintiff attorney's fees in the amount of $747,836.24. 

In mid-June of 2019, the Independent Investigator, assigned in the Second Amended Second Permanent Injunction/Judgment Order, announced that he had completed his duties and that he was no longer needed to investigate MCSO affairs. In January of 2020 he submitted a letter to the judge charting the work he did and notifying him that he would be available to the court if he was required to testify. 

The Maricopa County Sheriff continues to submit reports to the court and the case is ongoing as of June 8th, 2020.