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

1

Thomas E. Perez Assistant Attorney General

2

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

3

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

4

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

5

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

6

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

7

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

8 Attorneys for the United States

9

10

IN THE UNITED STATES DISTRICT COURT FOR THE

11

DISTRICT OF ARIZONA

12

13 United States of America,

14

Plaintiff,

No. _________________

15

v.

COMPLAINT

16

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

17

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

18

Defendants.

19

20

21

INTRODUCTION

22

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

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

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

25 jail practices that unlawfully discriminate against Latino prisoners with limited

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

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

28 Latino prisoners with limited English language skills are denied important

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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

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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

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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

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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.

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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.

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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

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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

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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.

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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.

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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.

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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.

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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

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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

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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.

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1

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

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

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

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

5 preventing discriminatory policing.

6

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

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

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

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

10 information they input into CAD.

11

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

12 procedures for tracking deputy misconduct.

13

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

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

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

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

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

18 keeping.

19

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

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

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

22

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

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

24 policing.

25

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

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

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

28 to prevent it.

16

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

1

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

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

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

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

5 against Latinos.

6

iv. MCSO Posses Receive Inadequate Training and Oversight

7

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

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

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

10

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

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

12

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

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

14 qualified to participate in routine law enforcement activities.

15

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

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

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

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

19 control during demonstrations against MCSO immigration policies.

20

100. MCSO provides insufficient supervision and oversight to ensure that

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

22 without engaging in unlawful discrimination.

23

D. MCSO Leadership and Staff Demonstrate Intent to Discriminate

24

against Latinos through Their Public Statements and Endorsement of Anti-

25

Latino Statements

26

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

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

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

17

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

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

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

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

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

5 against Latinos.

6

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

7 undocumented individuals and that demonstrate bias toward Latinos and their

8 presence in the United States.

9

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

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

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

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

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

14 States.

15

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

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

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

18

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

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

20 practices.

21

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

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

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

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

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

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

27 you notes or to maintain copies for his files.

28

18

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

1

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

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

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

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

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

6

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

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

8 three copies of the original letter for himself.

9

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

10 were speaking Spanish in a McDonald’s restaurant.

11

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

12 that advocate blatant bias against Latinos.

13

111. MCSO supervisory staff also expresses bias and endorses discrimination

14 and other unlawful conduct against Latinos.

15

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

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

17 Latinos.

18

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

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

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

21 alien.”

22

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

23 Mexicans are prone to drunkenness.

24

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

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

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

27

28

19

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

1

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

2 undocumented persons in Maricopa County are Latino and described undocumented

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

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

5

Rights of Latino Limited English Proficient Prisoners

6

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

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

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

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

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

11

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

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

13 prisoners in MCSO jails.

14

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

15 the correctional context.

16

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

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

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

19 prisoners and officers.”

20

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

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

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

23

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

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

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

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

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

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

20

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

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

2 prisoners to occur.

3

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

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

5 to non-LEP prisoners.

6

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

7 submitting forms written in English.

8

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

9 or prisoner request orders (“tank orders”) written in Spanish. Grievance forms

10 provide the means for prisoners to report misconduct by a detention officer. Tank

11 orders provide the means for prisoners to request basic daily services, religious

12 materials, legal research, or information—such as court dates, and other important

13 information.

14

126. For example, female Latino LEP prisoners have been denied basic sanitary

15 items. In some instances, female Latino LEP prisoners have been forced to remain

16 with sheets or pants soiled from menstruation because of MCSO’s failure to ensure

17 that detention officers provide language assistance in such circumstances.

18

127. MCSO detention officers routinely issue commands only in English.

19

128. In some instances, when a Latino LEP prisoner has been unable to

20 understand commands given in English, MCSO detention officers have put an entire

21 area of the jail in lockdown—effectively preventing all the prisoners in that area from

22 accessing a number of privileges because of the Latino LEP prisoner’s inability to

23 understand English, inciting hostility toward the LEP prisoner, and potentially placing

24 MCSO officers and other prisoners in harm’s way.

25

129. In other instances, MCSO detention officers have put Latino LEP prisoners

26 in solitary confinement for extended periods of time because of their inability to

27 understand and thus follow a command given in English.

28

21

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 22 of 32

1

130. MCSO detention officers routinely make announcements only in English.

2 Some of these are basic announcements informing prisoners, among other things,

3 when it is time for them to go outdoors, receive clothing, or eat.

4

131. MCSO detention officers use MCSO’s institutional failure to provide

5 language assistance to take advantage of Latino LEP prisoners.

6

132. For example, MCSO detention officers have pressured Latino LEP

7 prisoners to sign “voluntary return” forms without proper language assistance. Once

8 signed, these forms oblige foreign nationals to give up any right to have an

9 immigration hearing, challenge their removal from the United States, speak with an

10 attorney, or otherwise seek a determination permitting them to stay in the United

11 States. Latino LEP prisoners have been compelled by MCSO detention officers to

12 sign this form even when they have pending proceedings that may authorize their

13 continued stay in the United States.

14

133. MCSO detention officers have used Spanish-speaking prisoners to interpret

15 for them in non-exigent circumstances, but MCSO makes no determination whether

16 these prisoners have the language competency to interpret.

17

134. The use of inmate interpreters risks not only inaccuracy, but also may give

18 the inmate-interpreter access to personal or private information of the LEP inmate and

19 presents a security and safety risk in a detention setting.

20

135. Detention officers have received little training or guidance from command

21 staff with regard to providing language assistance to Latino LEP prisoners.

22

136. MCSO does not have in place any meaningful system to record or use the

23 language proficiency of its detention officers. Although MCSO has noted that it

24 created a “Foreign Language Skills Roster,” which listed the names of detention

25 officers who self-identified as speaking languages other than English, MCSO has

26 neither assessed the ability of these detention officers to interpret or translate nor

27 provided them with training to provide language services.

28

22

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 23 of 32

1

137. The absence of these critical components of a language assistance program

2 is a substantial departure from generally accepted correctional standards.

3 III. MCSO Has Retaliated against Perceived Critics of Its Practices in Violation

4

of the First Amendment

5

138. Since at least 2006 and continuing to the present, in violation of the First

6 Amendment, MCSO and Arpaio have retaliated against critics of MCSO practices,

7 and particularly MCSO’s immigration practices, in an effort to punish these persons

8 for their criticism and to prevent future criticism.

9

139. As recounted below, the filing of unsubstantiated complaints and lawsuits

10 demonstrates the pattern or practice of retaliation for protected speech activity.

11

140. The former Chief Deputy, acting on behalf of MCSO and Arpaio, filed five

12 separate complaints with the Arizona State Bar targeting attorneys who spoke out

13 publicly against MCSO and Arpaio. Each of these complaints was dismissed for lack

14 of facts or evidence sufficient to support even the initiation of an investigation.

15

141. The former Chief Deputy, acting on behalf of MCSO and Arpaio, filed four

16 complaints with the Arizona Commission on Judicial Conduct targeting judges who

17 had either made public statements critical of MCSO or had issued decisions that

18 Arpaio or MCSO command staff disliked. Each of these complaints was dismissed

19 for lack of facts or evidence to support opening an investigation.

20

142. Acting in concert with the former Chief Deputy, Arpaio, and MCSO, a

21 former Maricopa County Attorney filed a lawsuit accusing people who had publicly

22 criticized MCSO of conspiracy in a criminal enterprise. Arpaio participated as a

23 named plaintiff in the lawsuit and substantially contributed to its filing. This case was

24 soon abandoned as unjustified and the responsible attorneys, including former

25 Maricopa County Attorney Andrew Thomas and two of his assistant attorneys, were

26 subsequently charged by the Arizona State Bar for having violated the Arizona Rules

27 of Professional Conduct by bringing the lawsuit.

28

23

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 24 of 32

1

143. On April 10, 2012, former Maricopa County Attorney Thomas and his two

2 assistant attorneys were found guilty of the ethics charges. Thomas announced that he

3 was not appealing his disbarment.

4

144. MCSO and Arpaio also have used arrests as a means to intimidate and

5 retaliate against persons who have spoken out against their immigration practices.

6 The Opinion and Order in the Thomas ethics matter found, for example: “Sheriff

7 Arpaio, through Chief Deputy Hendershott, closing their eyes to his Constitutional

8 rights, ordered Mr. Stapley [an Arpaio critic] arrested. They never filed any

9 documents or charges but instead surreptitiously videotaped his arrest, and held him

10 in jail for hours. Testimony at the disbarment hearing revealed that no one ever filed

11 anything against Mr. Stapley regarding this event, but the press was called and

12 informed that Mr. Stapley had been arrested.”

13

145. The Thomas ethics Opinion and Order also described the treatment of

14 Arpaio critics by Arpaio, Thomas and others as “a concerted effort … to wrestle

15 power from [Maricopa County Board of Supervisors], County officials, and Superior

16 Court judges, and to instill fear in the hearts of those who would resist.” The Opinion

17 and Order concluded that this effort culminated in a “conspiracy” to indict a judge

18 without cause: “Thomas and [assistant county attorney] Aubuchon quietly met with

19 Arpaio and [former Chief Deputy] Hendershott behind closed doors. This shameful

20 gathering had but one motive. The foursome met to conspire about how to muzzle

21 their next most-feared nemesis. After much late-night intrigue by Thomas and

22 Aubuchon, the conclave’s results were revealed the following morning. On

23 December 9th, Thomas and Aubuchon filed criminal charges against Presiding

24 Criminal Judge Gary Donahoe without a shred of evidence that Donahoe had

25 committed any crime.” Judge Donahoe had done nothing more than issue a ruling

26 adverse to MCSO and was perceived to be a critic of Arpaio.

27

146. Retaliation was not reserved for officials and judges in Maricopa County,

28 but also extended to individuals perceived as critical of Arpaio and MCSO.

24

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 25 of 32

1

147. MCSO arrested a peaceful protestor for obstructing a thoroughfare during

2 an act of civil disobedience. The protestor – who has a long history of publicly

3 criticizing MCSO immigration operations – was released.

4

148. The protestor then went to observe the continuing protests. Although this

5 critic of MCSO policies was observing the protest without participating, MCSO

6 unlawfully arrested him when Arpaio, who is very familiar with this protestor,

7 publicly suggested that he be arrested a second time. At the arraignment, the

8 prosecuting attorney admitted that there had been no probable cause for the second

9 arrest. The interim County Attorney later dismissed the charges stemming from the

10 second arrest for lack of probable cause.

11

149. On repeated occasions, MCSO officers arrested persons who had expressed

12 their disagreement with MCSO immigration policies during the course of County

13 Board meetings by applauding. These arrests were unjustified, as the arrestees did not

14 disrupt the meeting in any meaningful way. Indeed, the judge presiding over the trial

15 of the arrestees found that the arresting MCSO deputy “believes it is his role to make

16 uncomfortable anyone who express[es] views that disagree with the Sheriff” and that

17 Arpaio’s officers had “trampl[ed] on the First Amendment.” The court acquitted the

18 arrestees on its own motion at the close of the State’s case.

19

150. Another critic of Arpaio was arrested for engaging in protected speech, and

20 was subsequently acquitted. Despite the acquittal, Arpaio explicitly stated that “[i]n

21 the same circumstance, he would be arrested again,” making clear that retaliation,

22 rather than legitimate law enforcement, motivates Arpaio’s treatment of his critics.

23

151. These actions, taken by MCSO and Arpaio, have deterred and are likely to

24 deter persons from engaging in protected speech.

25

IV. MCSO Is a Recipient of Federal Financial Assistance

26

152. At all relevant times described in this Complaint, the Defendants have been

27 and continue to be recipients of federal financial assistance from the Department of

28 Justice, either directly or through another recipient of federal financial assistance.

25

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 26 of 32

1

153. The County has received grants from the DOJ Office of Justice Programs

2 (OJP). MCSO has been and is a subrecipient of grants that the County has received

3 from OJP. MCSO is also a subrecipient of grants from other recipients of federal

4 financial assistance from OJP.

5

154. MCSO has received grants from the DOJ component Community Oriented

6 Policing Services (COPS).

7

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

8 administered by the DOJ Criminal Division, Asset Forfeiture and Money Laundering

9 Section (AFMLS).

10

156. As a condition of receiving federal financial assistance, the County, through

11 its authorized representatives, certified that it agreed to comply with all requirements

12 imposed by Title VI and the federal regulations implementing Title VI.

13

157. Title VI and its implementing regulations prohibit intentional

14 discrimination on the grounds of race, color, or national origin in any of a grant

15 recipient’s or subrecipient’s operations, and they prohibit methods of administration

16 that have the effect of subjecting individuals to discrimination because of their race,

17 color, or national origin, or have the effect of defeating or substantially impairing

18 accomplishment of the objectives of the grant recipient’s or subrecipient’s operations

19 with respect to individuals of a particular race, color, or national origin.

20

158. The assurances signed by the County bind subsequent recipients and

21 subgrantees, including MCSO, to which the County disburses the funds. The County

22 is responsible for ensuring that subsequent recipients and subgrantees comply with the

23 requirements of Title VI and its implementing regulations.

24

159. As a condition of receiving federal financial assistance, MCSO, through its

25 authorized representatives, including Arpaio, agreed to comply with all requirements

26 imposed by Title VI and its implementing regulations.

27

160. On December 15, 2011, the United States notified the Defendants that they

28 had failed to comply with Title VI, its implementing regulations, and related

26

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 27 of 32

1 contractual assurances, and that this lawsuit would follow if compliance could not be

2 achieved by voluntary means.

3

161. Between December 15, 2011, and April 3, 2012, the United States sought to

4 engage with the Defendants in an effort to achieve voluntary compliance with Title

5 VI, its implementing regulations, and contractual assurances, as well as to resolve the

6 other constitutional deficiencies identified in the December 15, 2011 letter. These

7 efforts were unsuccessful.

8

162. The United States has determined that all administrative requirements have

9 been exhausted and that securing compliance from the Defendants cannot be achieved

10 by voluntary means. Accordingly, the United States has provided the Defendants’

11 with a Notice of Intent to File Civil Action. See Exhibits A, B, and C.

12

CLAIMS FOR RELIEF

13

163. The United States is authorized under 42 U.S.C. § 14141(b) to seek

14 declaratory and equitable relief to eliminate a pattern or practice of law enforcement

15 officer conduct that deprives persons of rights, privileges, or immunities secured or

16 protected by the Constitution or laws of the United States.

17

164. The United States is authorized under Title VI to seek declaratory and

18 equitable relief and/or the termination of federal funds to ensure that no person shall

19 be excluded from participation in, be denied the benefits of, or be subjected to

20 discrimination under any program or activity receiving federal funding on the basis of

21 race, color, or national origin.

22

FIRST CLAIM FOR RELIEF:

23

DEFENDANTS’ LAW ENFORCEMENT POLICIES AND PRACTICES

24

VIOLATE 42 U.S.C. § 14141 AND THE FOURTEENTH AMENDMENT

25

165. Plaintiff re-alleges and incorporates by reference the allegations set forth in

26 paragraphs 1-164, above.

27

166. The Defendants, their agents, and persons acting on their behalf, including

28 MCSO officers, have engaged in law enforcement practices, including traffic stops,

27

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 28 of 32

1 workplace raids, home raids, and jail operations, with the intent to discriminate

2 against Latino persons in Maricopa County on the basis of their race, color, or

3 national origin.

4

167. The discriminatory law enforcement practices engaged in by the

5 Defendants, their agents, and persons acting on their behalf constitute a pattern or

6 practice of conduct by law enforcement officers that deprives persons of rights

7 protected by the Due Process and Equal Protection Clauses of the Fourteenth

8 Amendment of the United States Constitution, in violation of 42 U.S.C. § 14141(a).

9

SECOND CLAIM FOR RELIEF:

10

DEFENDANTS’ SEARCHES, ARRESTS, AND DETENTIONS

11

VIOLATE 42 U.S.C. § 14141 AND THE FOURTH AMENDMENT

12

168. Plaintiff re-alleges and incorporates by reference the allegations set forth in

13 paragraphs 1-164, above.

14

169. The Defendants, their agents, and persons acting on their behalf, including

15 MCSO officers, have unreasonably searched, arrested, and detained numerous persons

16 in Maricopa County, including searches and arrests without probable cause or

17 reasonable suspicion.

18

170. The unreasonable searches, arrests, and detentions lacking probable cause

19 or reasonable suspicion engaged in by the Defendants, their agents, and persons acting

20 on their behalf constitute a pattern or practice of conduct by law enforcement officers

21 that deprives persons of their rights under the Fourth Amendment, in violation of 42

22 U.S.C. § 14141(a).

23

THIRD CLAIM FOR RELIEF:

24

DEFENDANTS’ TREATMENT OF LATINOS VIOLATES TITLE VI

25

171. Plaintiff re-alleges and incorporates by reference the allegations set forth in

26 paragraphs 1-164, above.

27

172. The Defendants received and continue to receive federal financial

28 assistance for their programs and activities.

28

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 29 of 32

1

173. The Defendants have engaged in law enforcement practices that are

2 unjustified and have an adverse disparate impact on Latinos.

3

174. The Defendants have engaged in law enforcement practices with the intent

4 to discriminate against Latinos on the basis of their race, color, or national origin.

5

175. The Defendants’ discriminatory law enforcement practices, and intentional

6 discrimination, independently violate Title VI and the Title VI implementing

7 regulations.

8

FOURTH CLAIM FOR RELIEF:

9

DEFENDANTS’ TREATMENT OF LATINO LEP PRISONERS

10

VIOLATES TITLE VI

11

176. Plaintiff re-alleges and incorporates by reference the allegations set forth in

12 paragraphs 1-164, above.

13

177. The Defendants received and continue to receive federal financial

14 assistance for their programs and activities.

15

178. The Defendants have excluded limited English proficient (LEP) Latino

16 prisoners from participation in, denied LEP Latino prisoners the benefits of, and

17 intentionally subjected LEP Latino prisoners to discrimination under Defendants’

18 programs and activities relating to the operations of the Maricopa County jails on the

19 basis of those persons’ race, color, or national origin.

20

179. The Defendants’ treatment of Latino LEP prisoners is unjustified and has

21 an adverse disparate impact on Latinos.

22

180. The Defendants’ discriminatory treatment of LEP individuals violates Title

23 VI, and the Title VI implementing regulations.

24

FIFTH CLAIM FOR RELIEF:

25

DEFENDANTS’ TREATMENT OF LATINOS

26

VIOLATES THE TITLE VI ASSURANCES

27

181. Plaintiff re-alleges and incorporates by reference the allegations set forth in

28 paragraphs 1-164, above.

29

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 30 of 32

1

182. The Defendants signed contractual assurance agreements with the United

2 States that all of their programs and activities would be conducted in compliance with

3 all the requirements of Title VI and its implementing regulations.

4

183. The Defendants’ intentional discrimination against Latinos and Latino LEP

5 prisoners violates Title VI and its implementing regulations.

6

184. The Defendants’ unjustified policing and jail practices that have an adverse

7 disparate impact on Latinos and Latino LEP prisoners violate Title VI and its

8 implementing regulations.

9

185. The Defendants therefore have violated their Title VI contractual

10 assurances.

11

SIXTH CLAIM FOR RELIEF:

12

DEFENDANTS’ RETALIATION AGAINST THEIR CRITICS

13

VIOLATES 42 U.S.C. § 14141 AND THE FIRST AMENDMENT

14

186. Plaintiff re-alleges and incorporates by reference the allegations set forth in

15 paragraphs 1-164, above.

16

187. The Defendants, their agents, and persons acting on their behalf, including

17 MCSO officers, have retaliated against persons in Maricopa County on the basis of

18 protected speech and thereby chilled future protected speech.

19

188. The retaliation against protected speech and the chilling of future protected

20 speech engaged in by the Defendants, their agents, and persons acting on their behalf

21 constitute a pattern or practice of conduct by law enforcement officers that deprives

22 persons of their rights under the First Amendment of the United States Constitution,

23 in violation of 42 U.S.C. § 14141(a).

24

PRAYER FOR RELIEF

25

189. WHEREFORE, the United States prays that the Court:

26

190. Declare that the Defendants have engaged in a pattern or practice of

27 conduct by MCSO law enforcement officers that deprives persons of rights,

28

30

Case 2:12-cv-00981-LOA Document 1 Filed 05/10/12 Page 31 of 32

1 privileges, or immunities secured or protected by the Constitution or laws of the

2 United States, in violation of 42 U.S.C. § 14141(a);

3

191. Declare that the Defendants have excluded persons from participation in,

4 denied persons the benefits of, or subjected persons to discrimination under programs

5 or activities receiving federal financial assistance, on the basis of race, color, or

6 national origin, in violation of Title VI;

7

192. Order the Defendants, their officers, agents, and employees to refrain from

8 engaging in any of the predicate discriminatory acts forming the basis of the pattern or

9 practice of unlawful conduct described herein;

10

193. Order the Defendants, their officers, agents, and employees to adopt and

11 implement policies, procedures, and mechanisms to remedy the pattern or practice of

12 unlawful conduct described herein, and by specifically addressing, inter alia, the

13 following areas: policies and training; non-discriminatory policing and jail

14 operations; stops, searches, and arrests; response to crimes of sexual violence; posse

15 operations; jail operations; supervision; misconduct complaint intake, investigation,

16 and adjudication; retaliation; oversight and transparency; and community

17 engagement; and

18

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

19

20

21

22

23

24

25

26

27

28

31

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

1

2

DATED: May 10, 2012

3

Thomas E. Perez

4

Assistant Attorney General

5

Roy L. Austin, Jr.

6

Deputy Assistant Attorney General

7

Jonathan M. Smith (DC Bar #396578)

8

Chief, Special Litigation Section

9

10

11

/s/ Winsome G. Gayle_________ Winsome G. Gayle (NY Bar #3974193)

12

Sergio Perez (CA Bar #274798)

13

Jennifer L. Mondino (NY Bar #4141636) Edward G. Caspar (MA Bar #650566)

14

Trial Attorneys

U.S. Department of Justice, Civil Rights Division

15

950 Pennsylvania Avenue, N.W.

16

Washington, D.C. 20530

Tel. (202) 305-4164/Fax (202) 514-6273

17

winsome.gayle@usdoj.gov

18

Attorneys for the United States

19

20

21

22

23

24

25

26

27

28

32

 </s> Case: 15-17558, 05/07/2018, ID: 10863037, DktEntry: 51-1, Page 1 of 14

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 15-17558
D.C. No. 2:12-cv-00981-ROS

COUNTY OF MARICOPA, Arizona, Defendant-Appellant,

OPINION

and
PAUL PENZONE,* in his official capacity as Sheriff of Maricopa County, Arizona,
Defendant.

Appeal from the United States District Court for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted September 15, 2017 San Francisco, California
Filed May 7, 2018

* Paul Penzone is the current Sheriff of Maricopa County and has, therefore, been automatically substituted for his predecessor, Joseph M. Arpaio. See Fed. R. Civ. P. 25(d).

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2

UNITED STATES V. COUNTY OF MARICOPA

Before: Ronald M. Gould, Richard C. Tallman, and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford

SUMMARY**

Civil Rights
The panel affirmed the district court’s summary judgment in favor of the United States, which brought this action to halt racially discriminatory policing policies concerning traffic stops instituted by Joseph Arpaio, the former Sheriff of Maricopa County, Arizona.
The panel held that Sheriff Arpaio acted as a final policymaker for the County. The panel further held that because the traffic-stop policies at issue fell with the scope of a sheriff’s law-enforcement duties, Arpaio acted as a final policymaker for Maricopa County when he instituted those policies.
The panel held that Title VI of the Civil Rights Act of 1964 and 34 U.S.C. § 12601 authorized policymaker liability. The panel further held that the proper standard for determining which employees have the power to establish an entity’s “official policy” under Title VI and 34 U.S.C. § 12601 is the standard that governs under 42 U.S.C. § 1983. The panel concluded that Maricopa County was liable for
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. COUNTY OF MARICOPA

3

violations of Title VI and § 12601 stemming from its own official policies. Finally the panel held that when Arpaio adopted the racially discriminatory traffic-stop policies at issue, he acted as a final policymaker for the County, and the district court correctly held the County liable for the violations of Title VI and § 12601 caused by those policies.

The panel held that the district court properly applied issue preclusion to bar the County from relitigating the lawfulness of Arpaio’s traffic-stop policies because the County was bound by prior adverse findings. See Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).

COUNSEL
Richard K. Walker (argued), Walker & Peskind PLLC, Scottsdale, Arizona, for Defendant-Appellant.
Elizabeth Parr Hecker (argued) and Thomas E. Chandler, Attorneys; Gregory B. Friel, Deputy Assistant Attorney General; Civil Rights Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

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UNITED STATES V. COUNTY OF MARICOPA

OPINION

WATFORD, Circuit Judge:

The United States brought this action to halt racially discriminatory policing policies instituted by Joseph Arpaio, the former Sheriff of Maricopa County, Arizona. Under Arpaio’s leadership, the Maricopa County Sheriff’s Office (MCSO) routinely targeted Latino drivers and passengers for pretextual traffic stops aimed at detecting violations of federal immigration law. Based on that and other unlawful conduct, the United States sued Arpaio, MCSO, and the County of Maricopa under two statutes: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141).1 The district court granted summary judgment in favor of the United States on the claims relating to the unlawful traffic stops; the parties settled the remaining claims. Maricopa County is the lone appellant here. Its main contention is that it cannot be held liable for the unlawful traffic-stop policies implemented by Arpaio.

We begin with a summary of the lengthy legal proceedings involving Arpaio’s unlawful policing policies. In an earlier class action lawsuit, Melendres v. Arpaio, a group of plaintiffs representing a class of Latino drivers and passengers sued Arpaio, MCSO, and the County of Maricopa

1 Title VI prohibits discrimination on the basis of “race, color, or national origin” in programs or activities that receive federal funding; § 12601 authorizes the United States to obtain declaratory and injunctive relief against any governmental authority that engages in a “pattern or practice of conduct by law enforcement officers” that deprives persons of rights protected by federal law.

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5

under 42 U.S.C. § 1983 and Title VI. They alleged that execution of Arpaio’s racially discriminatory traffic-stop policies violated their rights under the Fourth and Fourteenth Amendments. Following a bench trial, the district court ruled in the plaintiffs’ favor and granted broad injunctive relief, which we largely upheld on appeal. See Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012); Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (Melendres II).

While the Melendres action was proceeding, the United States filed this suit. Among other things, the United States challenged the legality of the same traffic-stop policies at issue in Melendres. The United States named as defendants Arpaio, in his official capacity as Sheriff of Maricopa County; MCSO; and Maricopa County. Early on, the district court dismissed MCSO from the action in light of the Arizona Court of Appeals’ decision in Braillard v. Maricopa County, 232 P.3d 1263 (Ariz. Ct. App. 2010), which held that MCSO is a non-jural entity that cannot be sued in its own name. Id. at 1269.

Throughout the proceedings below, the County argued that it too should be dismissed as a defendant, on two different grounds. First, the County argued that when a sheriff in Arizona adopts policies relating to law-enforcement matters, such as the traffic-stop policies at issue here, he does not act as a policymaker for the county. He instead acts as a policymaker for his own office, or perhaps for the State. The County contended that, because Arpaio’s policies were not policies of the County, it could not be held liable for the constitutional violations caused by execution of them. Second, the County argued that, even if Arpaio acted as a policymaker for the County, neither Title VI nor 34 U.S.C.

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UNITED STATES V. COUNTY OF MARICOPA

§ 12601 permits a local government to be held liable for the actions of its policymakers.

The district court rejected both of the County’s arguments. The court then granted the United States’ motion for summary judgment with respect to claims predicated on the traffic-stop policies found unlawful in Melendres. The court held that the County was barred by the doctrine of issue preclusion from relitigating the issues decided in the Melendres action, which by that point had reached final judgment. The County does not contest that if the Melendres findings are binding here, they establish violations of Title VI and § 12601.

On appeal, Maricopa County advances three arguments: (1) Arpaio did not act as a final policymaker for the County; (2) neither Title VI nor § 12601 renders the County liable for the actions of its policymakers; and (3) the County is not bound by the Melendres findings. We address each of these arguments in turn.

I

We have already rejected Maricopa County’s first argument—that Arpaio was not a final policymaker for the County. In Melendres v. Maricopa County, 815 F.3d 645 (9th Cir. 2016) (Melendres III), we noted that “Arizona state law makes clear that Sheriff Arpaio’s law-enforcement acts constitute Maricopa County policy since he ‘has final policymaking authority.’” Id. at 650 (quoting Flanders v. Maricopa County, 54 P.3d 837, 847 (Ariz. Ct. App. 2002)). Because that determination was arguably dicta, we have conducted our own analysis of the issue, and we reach the same conclusion.

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UNITED STATES V. COUNTY OF MARICOPA

7

To determine whether Arpaio acted as a final policymaker for the County, we consult Arizona’s Constitution and statutes, and the court decisions interpreting them. See McMillian v. Monroe County, 520 U.S. 781, 786 (1997); Weiner v. San Diego County, 210 F.3d 1025, 1029 (9th Cir. 2000). Those sources confirm that, with respect to lawenforcement matters, sheriffs in Arizona act as final policymakers for their respective counties.

Arizona’s Constitution and statutes designate sheriffs as officers of the county. The Arizona Constitution states: “There are hereby created in and for each organized county of the state the following officers who shall be elected by the qualified electors thereof: a sheriff, a county attorney, a recorder, a treasurer, an assessor, a superintendent of schools and at least three supervisors . . . .” Ariz. Const. Art. 12, § 3 (emphasis added). The relevant Arizona statute explicitly states that sheriffs are “officers of the county.” Ariz. Rev. Stat. § 11-401(A)(1).

Arizona statutes also empower counties to supervise and fund their respective sheriffs. The county board of supervisors may “[s]upervise the official conduct of all county officers,” including the sheriff, to ensure that “the officers faithfully perform their duties.” Ariz. Rev. Stat. § 11-251(1). The board may also “require any county officer to make reports under oath on any matter connected with the duties of his office,” and may remove an officer who neglects or refuses to do so. Ariz. Rev. Stat. § 11-253(A). In addition, the county must pay the sheriff’s expenses. Ariz. Rev. Stat. § 11-444(A); Braillard, 232 P.3d at 1269 n.2. As Maricopa County conceded in Melendres, those expenses include the costs of complying with any injunctive relief ordered against Arpaio and MCSO. See Melendres III, 815 F.3d at 650. A

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UNITED STATES V. COUNTY OF MARICOPA

county’s financial responsibility for the sheriff’s unlawful actions is strong evidence that the sheriff acts on behalf of the county rather than the State. See McMillian, 520 U.S. at 789; Goldstein v. City of Long Beach, 715 F.3d 750, 758 (9th Cir. 2013).

The limited guidance Arizona courts have provided on this topic further confirms that sheriffs act as policymakers for their respective counties. Most on point is Flanders v. Maricopa County, 54 P.3d 837 (Ariz. Ct. App. 2002), which held that then-Sheriff Arpaio acted as a final policymaker for Maricopa County with respect to jail administration. Id. at 847. Flanders relied in part on the fact that the statutory provision that specifies a sheriff’s powers and duties lists “tak[ing] charge of and keep[ing] the county jail” as one of them. Id. (citing Ariz. Rev. Stat. § 11-441(A)(5)). That same provision also lists a wide array of law-enforcement functions that fall within the sheriff’s powers and duties. Ariz. Rev. Stat. § 11-441(A)(1)–(3). Maricopa County does not explain why the Sheriff would be a final policymaker for the County with respect to jail administration but not with respect to the law-enforcement functions assigned to him in the same provision.

It is true that sheriffs in Arizona are independently elected and that a county board of supervisors does not exercise complete control over a sheriff’s actions. Nonetheless, “the weight of the evidence” strongly supports the conclusion that sheriffs in Arizona act as final policymakers for their respective counties on law-enforcement matters. See McMillian, 520 U.S. at 793. Because the traffic-stop policies at issue fall within the scope of a sheriff’s law-enforcement duties, we conclude that Arpaio acted as a final policymaker for Maricopa County when he instituted those policies.

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UNITED STATES V. COUNTY OF MARICOPA

9

II

Maricopa County next argues that, even if Arpaio acted as the County’s final policymaker, neither Title VI nor 34 U.S.C. § 12601 permits the County to be held liable for his acts. Whether either statute authorizes policymaker liability is an issue of first impression. We conclude, informed by precedent governing the liability of local governments under 42 U.S.C. § 1983, that both statutes authorize policymaker liability.

The concept of policymaker liability under § 1983 is well developed. Section 1983 imposes liability on any “person” who, while acting under color of law, deprives someone of a right protected by the Constitution or federal law. In Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that the term “person” includes municipalities, which had the effect of creating liability for local governments under § 1983. See id. at 690. But the Court also limited the scope of that liability. It concluded that a local government may not be held vicariously liable for the acts of its employees under the doctrine of respondeat superior. Id. at 691. Instead, liability arises only if a local government’s own official policy or custom caused the deprivation of federal rights. Id. at 694. As the Court later explained, this “official policy” requirement is intended to ensure that a municipality’s liability “is limited to acts that are, properly speaking, acts ‘of the municipality’—that is, acts which the municipality has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

Under policymaker liability, only certain employees of a local government have the power to establish official policy

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UNITED STATES V. COUNTY OF MARICOPA

on the government’s behalf. The government’s legislative body has such power, of course, but so do officials “whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694. Such officials are those who exercise “final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” McMillian, 520 U.S. at 784–85 (internal quotation marks omitted). In essence, policymaker liability helps determine when an act can properly be deemed a government’s own act, such that the government may be held liable for deprivations of federal rights stemming from it.

We think this same concept of policymaker liability applies under both Title VI and § 12601. As to Title VI, the Supreme Court has held that an entity’s liability is limited to the entity’s own misconduct, as it is under § 1983. See Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 640 (1999); Gebser v. Lago Vista Independent School District, 524 U.S. 274, 285 (1998).2 Thus, while an entity cannot be held vicariously liable on a respondeat superior theory, it can be held liable under Title VI if an official with power to take corrective measures is “deliberately indifferent to known acts” of discrimination. Davis, 526 U.S. at 641. An entity can also be held liable for acts of discrimination that result from its own “official policy.” Gebser, 524 U.S. at 290; see Mansourian v. Regents of the University of California, 602 F.3d 957, 967 (9th Cir. 2010); Simpson v. University of Colorado Boulder, 500 F.3d 1170, 1177–78 (10th Cir. 2007). Because this form of

2 Davis and Gebser involved Title IX of the Education Amendments of 1972, but “the Court has interpreted Title IX consistently with Title VI.” Barnes v. Gorman, 536 U.S. 181, 185 (2002).

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UNITED STATES V. COUNTY OF MARICOPA

11

“official policy” liability resembles § 1983 policymaker liability, we think the proper standard for determining which employees have the power to establish an entity’s “official policy” under Title VI is the standard that governs under § 1983.

We reach the same conclusion with respect to § 12601. As relevant here, the statute provides: “It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 34 U.S.C. § 12601(a).

Section 12601 shares important similarities with § 1983. Section 1983 was enacted to create “a broad remedy for violations of federally protected civil rights.” Monell, 436 U.S. at 685. Section 12601 was also enacted as a remedy for violations of federal civil rights, specifically for violations that are systematically perpetrated by local police departments. See Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 527–28 (2004). And, like § 1983, § 12601 imposes liability on local governments. Indeed, the language of § 12601 goes even further than § 1983, making it unlawful for “any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority” to engage in the prohibited conduct. 34 U.S.C. § 12601(a).

We need not decide whether the language of § 12601 imposes liability on the basis of general agency principles, as the United States urges here. It is enough for us to conclude, as we do, that § 12601 at least imposes liability on a

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UNITED STATES V. COUNTY OF MARICOPA

governmental authority whose own official policy causes it to engage in “a pattern or practice of conduct by law enforcement officers” that deprives persons of federally protected rights. Id. Because of the similarity between § 12601 and § 1983, we again see no reason to create a new standard for determining which officials have the power to establish a governmental authority’s official policy. The same standard that governs under § 1983 applies here as well.

In short, Maricopa County is liable for violations of Title VI and § 12601 stemming from its own official policies. As discussed above, when Arpaio adopted the racially discriminatory traffic-stop policies at issue, he acted as a final policymaker for the County. Those policies were therefore the County’s own, and the district court correctly held the County liable for the violations of Title VI and § 12601 caused by those policies.

III

Lastly, Maricopa County challenges the district court’s application of issue preclusion, which precluded the County from relitigating the lawfulness of Arpaio’s traffic-stop policies. Given the nature of the County’s involvement in the Melendres action, we conclude that the County is bound by the adverse findings rendered in that action.

The County was originally named as a defendant in the Melendres action, along with then-Sheriff Arpaio and MCSO. Early in the litigation, the parties stipulated to dismissal of the County as a named defendant, without prejudice to the County’s being rejoined as a defendant later in the litigation if that became necessary to afford the plaintiffs full relief. Melendres III, 815 F.3d at 648. In effect, the County agreed

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UNITED STATES V. COUNTY OF MARICOPA

13

to delegate responsibility for defense of the action to Arpaio and MCSO, knowing that it could be bound by the judgment later despite its formal absence as a party.

The case proceeded to trial against Arpaio and MCSO and resulted in judgment against them. On appeal, we concluded that MCSO had been improperly named as a defendant because it could not be sued in its own name following the Arizona Court of Appeals’ intervening decision in Braillard. Melendres II, 784 F.3d at 1260 (citing Braillard, 232 P.3d at 1269). Pursuant to the parties’ stipulation, we ordered that the County be rejoined as a defendant in lieu of MCSO. Id. We later explained that we did so “[t]o assure a meaningful remedy for the plaintiffs despite MCSO’s dismissal.” Melendres III, 815 F.3d at 648. The County challenged this ruling in a petition for rehearing en banc and a petition for writ of certiorari, both of which were denied. See id.

Given this history, the district court properly applied issue preclusion to bar the County from relitigating the Melendres findings. Each of the elements of offensive non-mutual issue preclusion is satisfied: There was a full and fair opportunity to litigate the identical issues in the prior action; the issues were actually litigated in the prior action; the issues were decided in a final judgment; and the County was a party to the prior action. See Syverson v. International Business Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 2007). Indeed, the County contests only the last element, arguing that it was not in fact a party to Melendres. That is not accurate as a factual matter, because the County was originally named as a defendant in Melendres and is now one of the parties bound by the judgment in that action. Moreover, even though the County did not remain a party to Melendres throughout the litigation, it effectively agreed to

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UNITED STATES V. COUNTY OF MARICOPA

be bound by the judgment in that action. Such an agreement is one of the recognized exceptions to non-party preclusion. See Taylor v. Sturgell, 553 U.S. 880, 893 (2008).

AFFIRMED.

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 </s> Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 1 of 13

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 United States of America,

10

Plaintiff,

11 vs.

12 Maricopa County, Arizona; et al.,
13 Defendants.
14

15

) No. CV-12-00981-PHX-ROS ) ) ORDER ) ) ) ) ) ) ) ) )

16

Pending before the Court are Defendants’ motions to dismiss. (Docs. 35 and 37). For

17 the reasons below, Maricopa County Sheriff’s Office (“MCSO”) will be dismissed, but the

18 claims against Sheriff Joseph M. Arpaio (“Arpaio”) and Maricopa County, Arizona (the

19 “County”) will be allowed to proceed.

20

BACKGROUND

21

On May 10, 2012, the United States of America (“Plaintiff”) filed a Complaint against

22 the County, MCSO and Arpaio in his official capacity. The Complaint alleges six claims for

23 relief: Count One for intentional discrimination on the basis of race, color or national origin

24 in violation of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §

25 14141 (“Section 14141”) and the Due Process and Equal Protection clauses of the Fourteenth

26 Amendment; Count Two for unreasonable searches, arrests and detentions lacking probable

27 cause or reasonable suspicion in violation of Section 14141 and the Fourth Am endment;

28 Count Three for disparate impact and intentional discrimination on the basis of race, color

Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 2 of 13

1 or national origin in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d

2 - 2000d-7 (“Title VI”) ; Count Four for disparate im pact and intentional discrim ination

3 against limited English proficient (“LEP”) Latino prisoners in violation of Title VI; Count

4 Five for disparate im pact and intentional discrim ination in violation of Defendants’

5 contractual assurances under Title VI; Count Six for retaliation against Defendants’ critics

6 in violation of Section 14141 and the First Amendment. (Doc. 1, ¶¶ 165-188). Defendants

7 move to dismiss.

8

ANALYSIS

9 A. Legal Standard

10

Under Rule 8 of the Federal Rules of Civil Procedure, a com plaint must contain “a

11 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

12 Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the . . . claimis

13 and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

14 (quotation omitted). A plaintiff must allege facts sufficient “to raise a right to relief above

15 the speculative level.” Id. The complaint must contain “sufficient factual matter, accepted

16 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

17 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claimhas facial plausibility when

18 the plaintiff pleads factual content that allowsthe court to draw the reasonable inference that

19 the defendant is liable for the misconduct alleged.” Id. at 678. “Where a complaint pleads

20 facts that are ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line

21 between possibility and plausibility of entitlem ent to relief.’” Id. (quoting Twombly, 550

22 U.S. at 557). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of

23 the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 at 555).

24 B. MCSO

25

The MCSO moves to dismiss because it is a non-jural entity, incapable of suing or

26 being sued in its own name. State law generally determines a party’s capacity to be sued.

27 See Fed. R. Civ. P. 17(b)(3). Under Arizona law, “Governm ent entities have no inherent

28 power and possess only those powers and duties delegated to themby their enabling statutes.

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 3 of 13

1 Thus, a governmental entity may be sued only if the legislature has so provided.” Braillard

2 v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) (citations om itted). In

3 Braillard, the Arizona Court of Appeals recognized the question of “[w]hether MCSO is a

4 nonjural entity is apparently an issue of first impression in our state courts.” Id. The Court

5 noted, “[a]lthough A.R.S. § 11-201(A)(1) provides that counties have the power to sue and

6 be sued through their boards of supervisors, no Arizona statute confers such power on MCSO

7 as a separate legal entity.” Id. Braillard “therefore conclude[d] MCSO is a nonjural entity

8 and should be dism issed from this case.” Id. The MCSO’s m otion to dismiss will be

9 granted because the MCSO is a nonjural entity.1

10 C. Sheriff Arpaio

11

1. Disparate Impact Claims in Counts III, IV and V

12

Counts III, IV and V allege disparate impact and intentional discrimination under Title

13 VI. The Sheriff seeks to dismiss the disparate impact portion of Counts III, IV and V for

14 failure to allege sufficient statistical evidence of discriminatory effect.

15

A prima facie case of disparate impact requires the plaintiff: (1) identify the specific

16 practices or policies being challenged; (2) show disparate impact; and (3) prove causation.

17 Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990). The second and third

18 factors are generally shown with statistics. Id. To establish causation, the plaintiff m ust

19 offer “statistical evidence of a kind and degree sufficient to show that the practice in question

20 has caused the exclusion of [a particular group]because of their membership in a protected

21

22

1 Prior to May 27, 2010, whether MCSO is a jural entity was not firlmy decided in this

23 Court. See, e.g., Scotti v. City of Phoenix, No. CV-09-1264-PHX-MHM, 2010 WL 994649,

at *5 (D. Ariz. March 17, 2010) (“the Arizona state courts have not yet addressed the issue 24 of whether police departments, sheriff’s offices, and entities with similar legal identities are

25 non-jural under Arizona state law, and decisions issued by courts within the District of Arizona have been conflicting”). On May 27, 2010, the Arizona Court of Appeals decided
26 Braillard, resolving the issue. Since Braillard, courts ha ve cited Braillard for the

27

proposition that the MCSO is not a jural entity capable of being sued.E.g., Abrah v. City of Scottsdale Police Dept., 2010 WL 4102563 at *1 (D. Ariz. Oct. 18, 2010) (dism issing

28 MCSO).

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 4 of 13

1 group.” Id. (citing Watson v. Fort Worth Bank & Trus,t487 U.S. 977, 108 S.Ct. 2777, 2788-

2 89 (1988)). “The statistical disparities ‘must be sufficiently substantial that they raise such

3 an inference of causation.’” Id. (quoting Watson, 108 S.Ct. at 2789)). “The ‘significance’

4 or ‘substantiality’ of num erical disparities is judged on a case by c ase basis.” Id. (citing

5 Watson, 108 S.Ct. at 2789 n.3).

6

At the motion to dismiss stage, a complaint need not allege statistical data. McQueen

7 v. City of Chi., 803 F. Supp. 2d 892 (N.D. Ill. 2011) (“A Title VII disparate impact claim

8 need not allege statistical support to survive a motion to dismiss.”)2; Garcia v. Country Wide

9 Fin. Corp., No. EDCV 07-1161-VAP (JCRx), 2008 WL 7842104 (C.D. Cal. Jan. 17, 2008)

10 (plaintiff “is not required at the pleading st age to produce statistical evidence proving a

11 disparate impact”) (citing Twombly, 127 S.Ct. at 1964-65). “It would be inappropriate to

12 require a plaintiff to produce statistics to support her dispa rate impact claim before the

13 plaintiff has had the benefit of discovery.” Jenkins v. N.Y. City Transit Auth., 646 F. Supp.

14 2d 464, 469-70 (S.D.N.Y. 2009) . At the m otion to dismiss stage, “there is no reason [a

15 plaintiff] would have this kind of statistical evidence yet.” Mata v. Ill. State Police, No. 00

16 C 0676, 2001 WL 292804, at *4 (N.D. Ill. Mar. 22, 2001).

17

The Sheriff argues these cases are no longer good law because they rely on

18 Swierkiewicz v. Sorema , 534 U.S. 506 (2002), which has subsequently been overruled.

19 However, Swierkiewicz was overruled because it applied a standard less than the plausibility

20 standard set forth in Twombly and Iqbal. Here, Plaintiff does not argue for a standard less

21 than plausibility. Plaintiff acknowledges the plausibility standard. AlthoughSwierkiewicz

22 was overruled byTwombly and Iqbal, post-Twombly and Iqbal cases have held statistical data

23 is still not required at the motion to dismiss stage. See McQueen, 803 F. Supp. 2d 892 (citing

24 Iqbal); Jenkins, 646 F. Supp. 2d at 469-70 (citing Iqbal and Twombly); Garcia, 2008 WL

25 7842104 (citing Twombly).

26

27

2 “We look to Title VII disparate im pact analysis in analyzing Title VI claim s.”

28 Darensburg v. Metro. Transp. Com’n, 636 F.3d 511, 519 (9th Cir. 2011).

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 5 of 13

1

The Complaint alleges MCSO officers routinely and unlawfully target Latinos through

2 pretextual traffic stops. As a result, vehicles occupied by Latinos are far more likely to be

3 stopped by MCSO officers than those oc cupied by non-Latinos.3 The Complaint alleges:

4 MCSO officers detain Latinos in cars or at worksites without probable cause; Defendants

5 select locations for large-scale crime suppression sweeps based on complaints by non-Latino

6 residents that Latinos are in those areas, resulting in extensive se izures of law-abiding

7 Latinos who happen to be present; MCSO officers detain all Latinos during worksite raids

8 and do not detain non-Latino employers during such raids; and when MCSO officers search

9 suspected drop houses, they also detain law-abiding Latinos in neighboring houses with no

10 probable cause or reasonable suspicion. As a result, Latinos are far m ore likely to be

11 deprived of their constitutional rights than non-Latinos. The Complaint alleges Defendants

12 failed to develop and implement policies and practices to ensure LEP Latino inmates have

13 equal access to jail services such as sanitary needs, food, clothing, legal inform ation and

14 religious services. The Complaint alleges the discriminatory conduct of MCSO officers is

15 facilitated by broad, unfettered discretion and lack of training and oversight.

16

Plaintiff has alleged (1) a practice or policy being challenged; (2) disparate impact;

17 and (3) causation. Rose, 902 F.2d at 1424. Plaintiff has alleged “sufficient factual matter,

18 accepted as true, to ‘state a claimto relief that is plausible on its face.’” Iqbal, 129 S. Ct. at

19 1949 (quoting Twombly, 550 U.S. at 570). As such, the Sheriff’s m otion to dismiss the

20 disparate impact claims in Counts III, IV and V will be denied.

21

22

23 3 Although not required, Plaintiff has alleged statistical evidence for disparate impact
24 claims based on pretextual traffic stops and crim e suppression sweeps. Plaintiff alleges a

25 2011 study shows Latino drivers are four to nine times more likely to be stopped for traffic

violations by MCSO officers than non-Latino drivers engaged in sim

ilar conduct.

26 Specifically, Latino drivers are almost four times more likely to be stopped in the southwest

27

portion of the County, over seven times more likely to be stopped in the northwest portion of the County, and nearly nine times more likely to be stopped in the northeast portion of the

28 County.

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 6 of 13

1

2. LEP Discrimination

2

The Sheriff moves to dismiss Count IV and part of Count V insofar as they allege

3 discrimination against LEP Latino prisoners. The S heriff argues Title VI’s prohibition

4 against intentional discrimination “on the ground of race, color, or national origin” does not

5 cover language proficiency. 42 U.S.C. §§ 2000d. In other words, the Sheriff argues

6 language is not a proxy for national origin.

7

However, longstanding case law, federal regulations and agency interpretation of

8 those regulations hold language-based discrimination constitutes a form of national origin

9 discrimination under Title VI. In Lau v. Nichols, 414 U.S. 563, 568 (1974) abrogated on

10 other grounds by Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), the Supreme

11 Court held Title VI’s prohibition against discrim ination on national origin c overed

12 discrimination against LEP individuals. See also Colwe ll v. Dep’t of Health & Human

13 Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009) (noting Lau concluded “discrim ination

14 against LEP individuals was discrim ination based on national origin in violation of Title

15 VI”). InLau, the school district ran an English-operated systemwith no language assistance

16 for 1800 Chinese LEP students. The Court ruled there was “no equality of treatment merely

17 by providing students with the sam e facilities, textbooks, teachers, and curriculum ; for

18 students who do not understand English are effectively fore closed from any meaningful

19 education.” Id. at 566. Thus, the LEP students were denied “a meaningful opportunity to

20 participate in the educational program - all earmarks of discrimination banned by the [Title

21 VI] regulations.” Id. at 568. Thus, underLau, Title VI’s prohibition against national origin

22 discrimination covers language proficiency.

23

In addition, the DOJ has interpreted Title VI’s prohibition against national origin

24 discrimination requires funding recipients to ensure LEP persons have meaningful access to

25 the recipient’s programs. See Dep’t of Justice Guidance to Federal Financial Assistance

26 Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting

27 Limited English Proficient Persons, 67 Fed. Reg. 41455 (June 18, 2002) (“Under DOJ

28 regulations implementing Title VI . . . recipients of Federal financial assistance have a

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 7 of 13

1 responsibility to ensure meaningful access to their programs and activities by persons with

2 limited English proficiency (LEP).”). The De partment’s regulations explicitly apply to

3 sheriffs’ departments and jails. See id. at 41459, 41466. An agency’s interpretation of its

4 own regulation is “controlling” unless plainly erroneous or inconsistent with the regulation.

5 Auer v. Robbins , 519 U.S. 452, 461 (1997). The DOJ coordinates governm ent-wide

6 compliance with Title VI and its interpretation of Title VI is entitled to special deference.

7 See Exec. Order No. 12250, 45 Fed. Reg. 72,995 (Nov. 2 1980); Consol. Rail Corp. v.

8 Darrone, 465 U.S. 624, 634 (1984); Andrus v. Sierra Club, 442 U.S. 347, 357-58 (1979).

9

Further, federal agencies consistently interpret Title VI’s prohibition on national

10 origin discrimination to re quire federal funding recipients to provide LEP individuals

11 meaningful access to their program s. See, e.g., Dep’t of Health, Education, and Welfare,

12 Identification of Discrimination and Denial of Services on the Basis of National Origin, 35

13 Fed. Reg. 11,595 (July 18, 1970); Notice of Proposed Rulemaking, Nondiscrimination on

14 the Basis of Race, Color, or National Origin Under Programs Receiving Federal Financial

15 Assistance Through the Department of Health and Hum an Services, 45 Fed. Reg. 82,972

16 (Dec. 17, 1980); Exec. Order No. 13,166, Im proving Access for Persons with Lim ited

17 English Proficiency, 65 Fed. Reg. 50,121 (Aug. 11, 2000); Guidance to Federal Financial

18 Assistance Recipients Regarding Title VI Prohbi ition Against National Origin Discrimination

19 Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (Dep’t of Justice, June

20 18, 2002).

21

Defendants rely on two cases to support their argument that national origin does not

22 cover LEP individuals under Title VI: Mumid v. Abraham Lincoln High Sch., 618 F.3d 789

23 (8th Cir. 2010), andFranklin v. District of Columbia, 960 F. Supp. 394 (D.D.C. 1997),rev’d

24 on other grounds, 163 F.3d 625 (D.C. Cir. 1998). In Mumid, the school delayed special

25 education testing of LEP students for three years for “a legitimate non-discriminatory reason

26 . . . nam ely, that it did not believe that it could reliably assess whether a student needed

27 special-education services until the student had been in the country long enough to learn

28 English.” Mumid, 618 F.3d at 794. The school did not delay testing of other foreign-born

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 8 of 13

1 students, and the Eighth Circuit concluded the policy did not facially discrim inate on the

2 basis of national origin. In Franklin, the defendant offered programs for LEP inmates, and

3 the programs were cut back because of budgetary restrictions, not invidious reasons.

4 Franklin, 960 F. Supp. at 432. Neither Mumid nor Franklin cite, let alone distinguish Lau.

5 In light of the factual differences and the absence of any discussion of the Supreme Court’s

6 decision in Lau, the Court finds Mumid and Franklin distinguishable.

7

Plaintiff alleges Defendants c onduct their jail operations in English and provide

8 inadequate language assistance to its large Latino LEP population, thereby denying Latino

9 LEP inmates meaningful access to jail programs such as sanitary needs, food, clothing, legal

10 information and religious services. Under longstanding Supreme Court precedent and the

11 DOJ’s interpretation of Title VI regulations, the Court finds Plaintiff has stated a claim for

12 national origin discrimination against the LEP population.

13

3. First Amendment Retaliation

14

Section 14141 prohibits law enforcem ent officers from engaging in a pattern or

15 practice “that deprives persons of rights, privileges, or immunities secured or protected by

16 the Constitution or laws of the United States.” 42 U.S.C. § 14141. The plain language of

17 the statute allows for a Section 14141 claim based on a First Amendment deprivation. The

18 First Amendment prohibits a government official from retaliating against an individual for

19 protected speech. E.g., Hartman v. Moore, 547 U.S. 250, 256 (2006). The First Amendment

20 prohibits retaliation taken to chill future speech. E.g., Skoog v. County of Clackamas, 469

21 F.3d 1221, 1232 (9th Cir. 2006).

22

The Complaint alleges former County Attorney Andrew Thomas acted in concert with

23 Defendants to file a baseless lawsuit accusing people who had publicly criticized Defendants

24 and baseless Arizona State Bar com plaints against attorneys who spoke out a gainst

25 Defendants. The Complaint alleges Defendants used unjustified arrests to intim idate and

26 retaliate against critics of their immigration policies. These allegations state a claimfor First

27 Amendment retaliation under Section 14141.

28

The Sheriff argues these allegations ar e “inaccurate,” but this is a factual

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 9 of 13

1 determination not properly before the Court at the m otion to dismiss stage. The Sheriff

2 argues Section 14141 claim s typically focus on police brutality. This does not forbid a

3 Section 14141 claim based on the First Amendment that is permitted by the plain language

4 of the statute.

5

The Sheriff argues Plaintiff lacks standing to bring such First Amendment claims on

6 behalf of third parties. Plaintiff, however, does not assert claims on behalf of third parties.

7 It asserts its own right to enforce Section 14141, as explicitly provided by Congress. 42

8 U.S.C. § 14141(b) (explicitly authorizing Attorney General to bring civil action in the name

9 of the United Sta tes to obtain appropriate relief); see also H.R. Rep. 102-242(I), at 135

10 (1991) (explaining legislation would “grant[]standing to the United States Attorney General

11 . . . to obtain civil injunctive relief”).

12

Finally, the Sheriff argues the Complaint does not state a Section 14141 claimbecause

13 not all of the First Am endment violations relate to im migration enforcement. Plaintiff’s

14 authority to enforce Section 14141 is not limited to immigration matters. Plaintiff may seek

15 injunctive relief to a ddress Defendants’ alleged pattern and practice of constitutional

16 violations by retaliating a gainst critics regardless of whether the subject m atter is

17 immigration related. Therefore, the Court will deny the Sheriff’s motion to dismiss Count

18 VI for First Amendment retaliation.

19

4. Scope of Remedies

20

The Sheriff moves to dismiss a portion of Plaintiff’s prayer for relief that seeks an

21 order for Defendants to a dopt and im plement policies regarding its policing and jail

22 operations. A 12(b)(6) motion to dismiss challenges the legal sufficiency of the pleadings,

23 not the appropriateness of the relief sought. See Fed. R. Civ. P. 12(b)(6); City of New York

24 v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 353 (E.D.N.Y. 2007) (“[A]motion for failure

25 to state a claimproperly addresses the causeof action alleged, not the remedy sought.”). The

26 scope of the relief must match the scope of the harmproven. Lewis v. Casey, 518 U.S. 343,

27 357 (1996). This will be determined after discovery.

28

The Sheriff cites Casey for the proposition that interference with prison operations is

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 10 of 13

1 prohibited. But Casey does not stand for such a broad proposition. In Casey, the Supreme

2 Court set aside an injunctive order developed without any input fromstate prison authorities,

3 and remanded for further proceedings. Casey, 518 US. at 362-63. The Sheriff citesSensing

4 v. Harris, 172 P.3d 856, 859 (Ariz. Ct. App. 2007), for the proposition that a court cannot

5 override law enforcem ent priorities. Again, Sensing does not stand for such a broad

6 proposition. In Sensing, the Arizona Court of Appeals affirmed the trial court’s decision to

7 dismiss a complaint seeking a mandamus directing the city police chief to enforce a soliciting

8 ordinance. By contrast, here Plaintiff seeks to enforce federal anti-discrim ination laws.

9 Nothing in Sensing prohibits Plaintiff from pleading injunctive relief to rem edy

10 discriminatory law enforcement conduct. Therefore, the Court will deny the Sheriff’s motion

11 to dismiss a portion of Plaintiff’s prayer for relief.

12 D. County

13

The County argues it should be dismissed because it has no authority over the MCSO

14 and Sheriff and therefore has no liability for, or power to stop, the alleged discrimination by

15 the MCSO and Sheriff. (Doc. 37).

16

Municipal liability arises where an alleged constitutional deprivation is caused by a

17 policy or custom of the municipality. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

18 658, 691-94 (1978); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). “[A] policy is a

19 deliberate choice to follow a course of action . . . made from among various alternatives by

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

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

22 curiam) (internal quotations omitted)). “Whether a state official is a final policy maker for

23 purposes of municipal liability is a question of state law that is to be determ ined by the

24 district court.” Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025 (D. Ariz. 2009) (citing

25 Streit v. County of Los Angeles , 236 F.3d 552, 560 (9th Cir. 2001)). “When determ ining

26 whether an individual has final policymaking authority, courts ask whether the individual at

27 issue has authority ‘in a particular area, or on a particular issue.’”Id. (quoting McMillian v.

28 Monroe County, 520 U.S. 781, 785 (1997)).

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 11 of 13

1

By statute, Arizona law charges county sheriffs with the responsibility of conducting

2 law enforcement and jail activity on the part of the county. Arizona Revised Statute §

3 11-441A provides the “sheriff shall”:

4

1. Preserve the peace.

5

2. Arrest and take before the nearest magistrate for examination

all persons who attem pt to commit or who ha ve committed a

6

public offense.

7

3. Prevent and suppress all affrays, breaches of the peace, riots

and insurrections which m ay come to the knowledge of the

8

sheriff. . . .

9

5. Take charge of and keep the county jail, including a county

jail under the jurisdiction of a county jail district, and the

10

prisoners in the county jail.

11 A.R.S. § 11-441A; see also Ariz. Const. art. XII, §§ 3-4 (providing that there shall be created

12 in an for each County of the State a Sheri ff and that the Sheriff’s duties, powers, and

13 qualifications shall be prescribed by law).

14

Under Flanders v. Maricopa County, 203 Ariz. 368 (Ct. App. 2002) and Guillory v.

15 Greenlee County, No. CV 05-352 TUC DCB, 2006 WL 2816600 (D. Ariz. Sept. 28, 2006),

16 Arizona Counties can be held liable for the Sheriff’s discretionary acts related to jail

17 management and law enforcement policy. Guillory specifically held:

18

The Sheriff is an enumerated officer of the Defendant County. 11-401(A)(1).

As a m atter of law, the County is liable for policies m ade by the Sheriff,

19

pursuant to his designated powers and duties as provided for by statute: A.R.S.

§ 11-441. See e.g., Flanders, 54 P.3d at 847 (holding county liable because the

20

sheriff is a county officer whose duties regarding jail operations are fixed by

law, A.R.S. § 11-441(5)).

21

Section 11-441(A)(2) provides that the Sheriff shall arrest and take before a

22

magistrate for examination all persons who attem pt to commit or who have

committed a public offense. The purpose of this duty is the prompt and orderly

23

administration of crim inal justice, including the Sheriff' s discretionary

investigatory determination of when enough evidence has been obtained to

24

make an arrest. Cf. Arizona v. Monaco , 207 Ariz. 75, 83 P.3d 553, 558-59

(Ariz. App. 2004) (explaining the statute does not create a constitutional right

25

to be arrested upon first discovery of criminal activity because sheriff must be

permitted to exercise discretion to conduct investigation until enough evidence

26

is obtained for a conviction). This m akes the Sheriff the final policymaker

regarding criminal investigations.

27

Under A.R.S. § 11-444, actual and necessary expenses of the Sheriff must be

28

allowed and paid by the County. The Court finds that this fiscal independence

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 12 of 13

1

further demonstrates that the Sheriff is the designated and final policymaker

for the County regarding the needs of its officers for the prom pt and orderly

2

administration of criminal justice . . . .

3 Guillory, 2006 WL 2816600 at *4.

4

Moreover, courts routinely find the Sheriff is the final policymaking authority for the

5 County in analogous § 1983 matters. See Wilson v. Maricopa County, 463 F. Supp. 2d 987,

6 991 (D. Ariz. 2006) (citing A.R.S. § 11-441A and holding “Arizona law makes clear that the

7 Sheriff is the final policymaker for the County’s jails. The Court accordingly concludes that

8 Sheriff Arpaio is the County’s final policymaker for purposes of municipal liability under

9 § 1983 arising out of events at tent city.”)F; landers, 54 P.3d 837 (holding in § 1983 case that

10 Maricopa County is responsible for Sheriff Arpaio’s jail policies);see also Cortez v. County

11 of L.A., 294 F.3d 1186, 1189 (9th Cir. 2002) (“[Th] e County is subject to § 1983 liability for

12 the Sheriff’s actions taken here pursuant to his role as administrator of the county jail.”);

13 Guillory, 2006 WL 2816600 at *4 (D. Ariz. Sept. 28, 2006) (“Here, the alleged inadequate

14 training was a policy of the County because the Sheriff was the policymaker for the County

15 regarding the officer training . . . .”); United States v. City of Columbus, No. 2:99-cv-1097,

16 2000 WL 1133166, at *8 (S.D. Ohio Aug. 3, 2000) (concluding that liability under § 14141

17 can be established by evidence that would establish liability under § 1983).

18

Municipalities create policies in three ways: first, in a “‘policy statement, ordinance,

19 regulation or decision officially adopted andpromulgated’” by the municipality’s lawmaking

20 body; second, by “a single edict or act by a m unicipal officer with final policy m aking

21 authority”; or third, by “a widespread customor practice [that] creates a de facto municipal

22 policy.” Greenawalt v. Sun City West Fire Dis.t, 250 F.Supp. 2d 1200, 1215 (D. Ariz. 2003)

23 (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). The focus here is on the

24 Sheriff’s policymaking authority.

25

Courts “must apply pleading standards in a realistic, com mon-sense fashion that

26 recognizes that at the pleading stage (i.e., prior to discovery occurring) a plaintiff frequently

27 lacks the actual details concerning a contested policy or custom.” Id. at 1216. “In the Ninth

28 Circuit, plaintiffs need not specifically alle ge a policy, it is enough if the policy m ay be

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Case 2:12-cv-00981-ROS Document 56 Filed 12/12/12 Page 13 of 13

1 inferred from the allegations of the complaint.” Id. The Complaint satisfies this pleading

2 requirement because it alleges Defendants failed to implement adequate policies, training or

3 accountability mechanisms to remedy the pattern and practice of unlawful conduct and

4 prevent discrimination against Latinos. Plaintiff alleges a custom , policy and practice of

5 targeting, searching, arresting and detaining Latinos without probable cause or reasonable

6 suspicion because of their race, color and national origin.

7

Under Arizona law, the Sheriff has final policym aking authority with respect to

8 County law enforcement and jails, and the County can be held responsible for constitutional

9 violations resulting from these policies. The policymaker analysis also supports Plaintiff’s

10 Title VI claim s against the County because Title VI reaches the actions of relevant

11 “decisionmakers.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (holding that

12 a successful showing of a Title VI violation rests on the actions of a decisionamker). In light

13 of the Arizona statutes and case law acknowledging the Sheriff’s policyamking authority, the

14 County’s motion to dismiss will be denied.

15

Accordingly,

16

IT IS ORDERED the motion to dismiss filed by Maricopa County Sheriff’s Office

17 and Sheriff Joseph M. Arpaio (Doc. 35) is GRANTED IN PART AND DENIED IN

18 PART. The Maricopa County Sheriff’s Office is dismissed.

19

IT IS FURTHER ORDERED Maricopa County’s motion to dismiss (Doc. 37) is

20 DENIED.

21

DATED this 11th day of December, 2012.

22

23

24

25

26

27

28

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 </s> Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 1 of 26

I

2

3

4

5

6

7

8

9

10

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

111+-----~ - - - - - - - - - - - - - - - ,

12 United States of America,

13

Plaintiff,

No. 2:12-cv-00981-ROS

14

v.

SETTLEMENT AGREEMENT

IS Maricopa County, Arizona; and Joseph M.

16

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

17

Defendants.

18
lt-----
19

20

The parties to this Agreement, the United States of America, Joseph M. Arpaio,

21 Sheriff of Maricopa County, and Maricopa County (collectively the "Parties"), enter into

22 this Settlement Agreement ("Agreement") to resolve all claims related to worksite

23 identity theft operations ("Worksite Operations") and claims relating to alleged retaliation

24 ("Retaliation Claims'') as set forth in, inter alia, the Second and Sixth Claims of the

25 United States' Complaint in this action. The parties have reached a separate agreement 26 that resolves the United States' Fourth Claim and that portion of any other claim
27 addressing discrimination in MCSO jails. See Attachment A.
28

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 2 of 26

I

The Parties agree that this Agreement is in the best interests of the people of

2 Maricopa County and the Unit!.')d States.

3 I. DEFINITIONS

4

The following terms and definitions shall apply to this Agreement:

5

1. "Agreement'' means this Agreement.

6

2. "Business," as used in Paragraph 9, below, means any business,

7 organization, or other enterprise that employs people, is engaged in business activities or

8 charitable services, and is involved in the provision of goods or services, or both.

9

3. "Complaint" means the Complaint filed in United States v. Maricopa

10 County and Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County,

11 Arizona, No. 2:12-cv-00981-ROS.

12

4. "Defendants'' means Joseph M. Arpaio, Sheriff of Maricopa County,

13 named in his ofticial capacity; and Maricopa County.

14

5. "Effective Date of this Agreement'' means the date on which this

15 Agreement becomes effective pursuant to Paragraph 23, below.

16

6. "Identity theft," as used in Paragraph 9, below, means the crime of"taking

17 identity of another person," as defined currently or prospectively by Arizona law, and as

18 currently defined:

19 20 21
22
23
·~~~
24
25

A person commits taking the identity of another person or entity if the person

knowingly takes, purchases, manufactures, records, possesses or uses any personal

identifYing information or entity identifYing information of another person or

entity, including a real or fictitious person or entity, without the consent of that

other person or entity, with the intent to obtain or use the other person's or entity's

identity for any unlawful purpose or to cause loss to a person or entity whether or

...........- ..... -..

I~~~

not the person or entity actually suffers any economic loss as a result of the

offense, or with the intent to obtain or continue employment.

26 Ariz. Rev. Stat. § 13-2008(A).

27

7. "MCSO" means the Maricopa County Sheriff's Office.

28

2

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 3 of 26

I

8. "United States" means the United States of America as represented by the

2 United States Department of Justice's Civil Rights Division and its agents, employees,

3 and consultants.

4

9. "Worksite Identity Theft Operation" means any pre-planned MCSO law

5 enforcement operation at a place of business to execute a search warrant for evidence of,

6 or for persons suspected of committing, identity theft or crimes incident thereto, such as

7 forgery.

8 II. SECOND CLAIM OF THE UNITED STATES' COMPLAINT AND

9

ALLEGATIONS RE: WORKSITE OPERATIONS

10

10. On December 18,2014, the MCSO announced that it would no longer

II enforce State identity theft laws relating to obtaining or continuing employment, namely

12 A.R.S. sections l3-2008(A) (employment provision) and 13-2009(A)(3), and that it

13 would disband its Criminal Employment Unit.

14

11. On January 5, 2015, in the case of Puente Arizona v. Arpaio, No. 14-cv-

15 01356 (D. Ariz.), the United States District Court for the District of Arizona entered a

16 preliminary injunction enjoining the Maricopa County Sheriff from enforcing those

17 statutory provisions that address actions committed with the intent to obtain or continue

18 employment.

19

12. On January 19, 2015, the MCSO disbanded its Criminal Employment Unit,

20 which was responsible for investigating cases of identity theft relating to obtaining or

21 continuing employment, and for planning and carrying out Worksite Identity Theft

22 Operations.

23

13. MCSO is not now engaged, currently planning to engage, or currently

24 intending to engage in any Worksite Identity Theft Operations.

25

14. Before any Worksite Identity Theft Operation targeting three or more

26 suspects may occur after the Effective Date of this Agreement:

27

a. Defendant Arpaio shall cause the MCSO to first establish a set of

28

written policies or protocols to ensure that subsequent Worksite Identity

3

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 4 of 26

1

Theft Operations are conducted in compliance with all applicable laws

2

and the United States Constitution; and

3

b. Defendant Arpaio will provide Plaintiff United States with draft policies

4

and protocols regarding Worksite Identity Theil Operations, as

5

described above, before MCSO finalizes them, and MCSO will consider

6

in good faith any comments, suggestions, objections, and

7

recommendations from the United States regarding those policies and

8

protocols. Once MCSO finalizes policies and protocols regarding

9

Wotksite Identity Theft Operations, as described above, the MCSO shal

10

ensure that all persotmel participating in any subsequent Worksite

11

Identity Theft Operations are advised of the applicable policies and

12

protocols and MCSO will take reasonable measures designed to ensure

13

that all MCSO persormel comply with such policies, and protocols in

14

carrying out any Worksite Identity Theft Operations.

15

15. If a Worksite Identity Theft Operation occurs after the Effective Date of

16 this Agreement, it must comply with all applicable laws, and the United States

17 Constitution.

18

16. If a Worksite Identity Theft Operation occurs after the Effective Date of

19 this Settlement Agreement, MCSO shall timely grant reasonable requests by the United

20 States for information related to any such operation so that the United States may

21 determine whether such operation was conducted consistent with Federal law and the

22 United States Constitution. Such information shall include documents, data, and records,

23 including any investigative reports and supplemental reports and any video or audio
-------- --------------~1----
24 recordings relating to such operation.

25

17. The United States may bring a new civil action within two (2) years of the

26 Effective Date of this Agreement seeking relief for alleged violations offederallaw

27 relating to any Worksite Identity Theft Operations that occurred prior to the Effective

28 Date of this Agreement, but the United States may bring such a civil action only if: (a) a

4

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 5 of 26

1 Worksite Identity Theft Operation, as defined in Paragraph 9 of this Agreement, occurs

2 after the Effective Date of this Agreement; (b) the United States first notifies the

3 Defendants that the information it has obtained indicates that the Worksite Identity Theft

4 Operation involves Fourth and Fourteenth Amendment violations that are consistent with

5 the pattern or practice of Fourth or Fourteenth Amendment violations alleged in this case;

6 (c) the United States attempts to confer with the Defendants to seek an agreement on

7 specific actions MCSO can take to guard against constitutional violations in any future

8 Worksite Identity Theft Operations; and (d) the Parties are unable, within 60 days of the

9 United States' notification, to agree on such action or a Defendant fails to implement any

l 0 such actions it has agreed to take. The United States may not bring such a civil action-

!! an action seeking relieffor alleged violations ofFederallaw relating to Worksite Identity

12 Theft Operations that occurred prior to the Effective Date of this Agreement-after two

13 (2) years ofthe Effective Date ofthis Agreement.

14

18. This Settlement Agreement does not affect the United States' authority to

15 bring a civil action seeking relief for violations of federal law relating to Worksite

I6 Identity Theft Operations that occur after the Eflective Date of this Agreement.

17 III. SIXTH CLAIM OF THE UNITED STATES' COMPLAINT AND

18

ALLEGATIONS RE: RETALIATION

19

19. Within 30 days after the effective date of this Agreement, the Maricopa

20 County Sheriffs Office (MCSO) will establish an oflicial policy prohibiting retaliation

21 against any individual for any individual's lawful expression of ideas in the exercise. of

22 the First Amendment right to the freedom of speech.

23

20. The Parties have agreed that the policy will read as follows:

24

25

It is the policy ofthe Maricopa County Sheriffs Office to

respect the First Amendment rights of all individuals. MCSO

26

personnel wiiJ not take action against any individual in

27

retaliation for any individual's lawful expression of opinions

in the exercise of the First Amendment right to the freedom of

28

speech.

5

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 6 of 26

21. MCSO will notify all MSCO personnel of this policy through the issuance

2 ofa briefing board and in any other way MCSO determines to be appropriate. MCSO

3 will take reasonable steps to ensure all future MCSO personnel are advised of this policy,

4 consistent with MCSO practices to advise new personnel of existing MCSO policies.

5

22. Through counsel, within 45 days after the Effective Date of this

6 Agreement, Defendant Arpaio will provide the United States with an affidavit or sworn

7 declaration by an MCSO employee with authority to speak on behalf of MCSO and

8 Sheriff Arpaio confirming that MCSO has issued the policy and briefing board, and will

9 provide copies of same to the United States.

10 IV.EFFECTIVE DATE AND JURISDICTION

11

23. This Agreement shall become effective upon the signing of this Agreement

12 by duly authorized representatives ofPl1;1intiffUnited States, Defendant Sheriff Joseph

13 Arpaio, Defendant Maricopa County, and by the Court. The Court will retain jurisdiction

14 over this action for the purpose of enforcing compliance with the terms of this

15 Agreement

16 V. SCOPE, IMPLEMENTATION AND ENFORCEMENT

17

24. The United States shall notify Defendants if it determines that a Defendant

18 is not in compliance with the Agreement in any respect. The Parties shall first attempt to

19 resolve any dispute informally by notification and conferral. If the Parties are unable to

20 agree on a resolution of the dispute concerning the Defendant's compliance within 60

21 days after initial conferral, the United States may, without further notice to Defendants,

22 seek enforcement ofthis Agreement with the United States District Court for the District

23 of Arizona (the ''Court"), through any appropriate form of relief. Any motion to enforce

24 this Agreement shall be brought within one year of the occurrence of any alleged

25 violations.

26

25. The Parties shall notify each other of any court or administrative challenge

27 to this Agreement. In the event any provision of this Agreement is challenged in any

28

6

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 7 of 26

local or state court, removal to a federal court shall be sought by the Parties and transfer

2 of venue to the United States District Court for the District of Arizona will be sought.

3

26. In response to requests tor documents or data as provided herein, either

4 Defendant may withhold from the United States any documents or data protected by the

5 attorney-client privilege or the work product doctrine. Should a Defendant decline to

6 provide the United States access to such documents or data based on attorney-client

7 privilege and/or the work product doctrine, the Defendant shall inform the United States

8 that it is withholding documents or data on this basis and shall provide the United States

9 with a log describing the documents or data.

I 0

27. The Parties may make use of protective orders or agreements to ensure the

11 confidentiality of any non-public information as appropriate and necessary. Other than as

12 expressly provided herein, this Agreement shall not be deemed a waiver of any privilege

13 or right a Defendant may assert, including the attorney-client communication privilege,

14 attorney work product protections, and any other privilege, right, or protection recognize

15 at common law or created by statute, rule or regulation, against any other person or entity

16 with respect to the disclosure of any document.

17 VI.ENTIRE AGREEMENT, SEVERABILITY, COSTS

18

28. This Agreement constitutes the entire agreement between the Parties with

19 regard to the Second and Sixth Claims, and any portions of other claims arising out of or

20 relating to Worksite Operations or Retaliation Claims of the Complaint in this action, and

21 it supersedes any and all prior representations and agreements, whether oral or written,

22 between the Parties with regard to those claims. No such prior representations or

23 agreements may be offered or considered to vary the terms of this Agreement, or to

24 determine the meaning of any of its provisions.

25

29. In the event that any provision in this Agreement is declared invalid for any

26 reason by a court of competent jurisdiction, said finding shall not affect the remaining

27 provisions of this Agreement.

28

7

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 8 of 26

30. Each party shall bear its own costs, fees, and expenses associated with the
2 litigation concerning this action, United States v. Maricopa County, et al., No.2: 12-cv3 981 (D. Ariz).
SIGNATURES OF THE PARTIES:

6

7 JosephM. Arpaio

Steve Chucri

8 Maricopa County Sheriff

Chairman, Maricopa County

9

Board of SuJJervisors

~~ AITEST:

.

Clerk of the Boar

::

Dep~tmcrrt ~ ark Kappe off, De Assistant Attorney General

U.S.

of Jrurtloo, C"'il RighW ])i<i•ion

~

CIIIIF Deputy County Attomey
15
16 SO ORDERED this ~~~~~~--day of ---~2015.

17

18

19

20

H-o- no~ ra~ bl- e R-o~ sly-n- 0.-S~ ilv~ er-----

, Senior United States District Judge 21

22

23
--~~----~1- ----------------·--- -- -- - -----------------· - --- ---- ------ .
24

25

26

27

28

8

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 9 of 26 '.
i
Attachment
A

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 10 of 26

IN THE UNITED STATES DIS11UCT COURT FOR THE DISTRICT OF ARIZONA

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

No. 2:12-cv-00981-ROS SETTLEMENT AGREEMENT RESOLVING THE FOURTH CLAIM OF THE UNITED STATES' COMPLAINT AND RELATED ALLEGATIONS

The patties to this Settlement Agreement, the United States of America, Joseph M. Arpaio, SheriffofMaticopa County, and Maricopa County (collectively the "Parties"), enter into this Agreement to resolve the Fourth Claim, and that portion of any other claim -addre.ssing-discriminationin-Mese-jails,setforthin-theUnited8tatesl_Gomplaint"-in-thisc---action. The Parties agree that this Agreement is in the best interests of the people of Maricopa County and the United States.
I. BACKGROUND 1. The Maricopa County Sheriff's office ("MCSO") has established a formal
language access program to benefit limited-English-proficient ("LEP") inmates. The

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 11 of 26

1 establishment of a formal Language Access Program signified MCSO's formal

2 aclmowledgment of its duty to provide LEP inmates with reasonable and meaningful

3 access to programs and services in the Maricopa County jail system.

4

2. Over the last five years, the evolution ofMCSO's Language Access

5 Program illustrates MCSO's continued efforts to further meaningful access for LEP

6 inmates to jail programs, services and opportunities. This evolution has entailed not only

7 improvements and enhancements to existing policies and programs, but also the creation

8 of new policies and operations plans to further the: (1) provision of language assistance

9 to LEP persons whom MCSO personnel encounter; (2) recognition and identification of

10 LEP individuals with whom MCSO personnel come into contact; (3) documentation of

11 each LEP inmate's language needs and the easy availability of such information to all jail

12 personnel; (4) assessment of the competency ofjail personnel to provide language

13 assistance; (5) limitation of the use of other inmates to translate and interpret for LEP

14 inmates; (6) production and distribution of written translations in Spanish of Vital

15 Documents; (7) facilitation of oral language assistance for communications with LEP

16 inmates; (8) reasonable availability of inmate classes, .programs, opportunities and other

17 services to LEP inmates; (9) bias-free treatment of inmates; (10) facilitation of the

18 communication of grievances by LEP inmates; (11) facilitation of effective

!9 communication between LEP visitors and jail personnel; (12) availability ofte1ephonic

20 interpretation SC:lrvices; (13) appropriate handling of complaints relating to language

21 access; and (14) provision of appropriate supervision and training relating to MCSO

22 personnel's language access responsibilities. This Agreement is intended to ensure that

23 MCSO maintains such language access policies and practices,

24 II. DEFINITIONS

25

The following terms and definitions shall apply to this Settlement Agreement:

26

3. "Agreement" means this Settlement Agreement.

27

4. "Defendants" means Joseph M. Arpaio, Sheriff of Maricopa County,

28 named in his official capacity; and Maricopa County.

2

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 12 of 26

1

5. "Detention Language Roster" means a database listing the bilingual or

2 multilingual language capabilities of detention offtcers who have volunteered to provide

3 periodic language interpretation and translation services.

4

6. "Direct 'In-Language' Communication'' means monolingual

5 communication in a language other than English between a bilingual employee and a

6 limited English proficient ("LEP", as defined in paragraph 12) person (e.g., Spanish to

7 Spanish).

8

7. "Effective Date of this Agreement" means the date on which this

9 Agreement becomes effective, which is the day it is signed by a representative of the

I0 United States, a representative of Sheriff Arpaio, and a representative of Maricopa

11 County, provided that this Agreement does not become effective until each Party to this

12 action also signs the separate Settlement Agreement resolving all claims related to

13 worksite identity theft operations and claims relating to alleged retaliation as set forth in,

14 inter alia, the Second and Sixth Claims of the United States' Complaint in this action.

15

8. "Full Assessment" means a written complete review and appraisal of the

16 Defendants' compliance with the terms of this Agreement.

17

9. "Interpretation" means the act of listening to a communication in one

18 language (source language) and orally converting it into another language (target

19 language), while retaining essentially the same meaning.

20

10. ''Language Access Plan'' means MCSO's DI-6 Policy regarding limited-

21 English-proficient inmates, or any future MCSO policy intended to ensure that MCSO

22 will provide continued, effective communication with inmates and the public who have

23 limited English language proficiency, as well as MCSO detention-related operations with
~~~~~~-1~-----~--~-----
24 regard to LEP inmates. The purpose ofMCSO's Language Access Plan is to ensure

25 compliance with Title VI and all other applicable laws.

26

11. "Language Assistance" means the facilitation of communication with an

27 LEP individual using one of five designated methods, namely, interpretation, translation,

28 direct "in-language" communication, telephonic interpretation, or sight translation in

3

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 13 of 26

1
~-----~-1

order to enable LEP individuals to communicate effectively with MCSO and to provide

2 LEP individuals with meaningful access to, and an equal opportunity to participate fully

3 in MCSO's services, activities, and other benefits and programs.

4

12. "LEP" means limited English proficient, and refers to a person who does

5 not speak English as his/her Primary Language and has a limited ability to read, write,

6 speak, or understand English. LEP individuals may be competent in certain types of

7 communication (e.g., speaking or understanding), but still be LEP for other purposes

8 (e.g., reading or writing). Similarly, LEP designations are context-specific: an individual

9 may possess sufficient English language skills to function in one setting, but these skills

I 0 may be insufficient in other situations.

11

13. "MCSO" means the Maricopa County Sheriffs Office.

12

14. "MCSO Bilingual Staff" means bilingual MCSO employees with primary

13 duties unrelated to interpretation but who have reasonably been determined to be

14 proficient in English and other hinguage(s), and are authorized to both interpret for others

15 and engage in direct "in~language" communication.

16

15. "Primary Language" means the language in which the individual most

17 effectively communicates.

18

16. "Qualified Interpreters/Translator'' means a bilingual MCSO employee or

19 non-employee contractor who has demonstrated his or her competence to interpret or

20 translate through a MCSO approved assessment and/or whose employer is on the State of

21 Arizona list of approved contractors.

22

17. "Sight translation" means the oral rendering of written text or a document

23 into spoken language by an interpreter while retaining essentially the same meaning

24 based on a visual review of the original text or document.

25

18. "Telephonic Interpretation Services" means real-time language service that

26 enables speakers of different languages to communicate by telephone with the assistance

27 of a network of operators or bilingual individuals via the available MCSO telephone

28

4

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 14 of 26

1 system. Telephone interpreters may or may not have the qualifications of a professional

2 interpreter or one procured through a contract for in-person interpretation service.

3

19. "Title VI" means Title VI of the Civil Rights Act of 1964, as amended.

4

20. "Translation" me.ans the replacement of written text from one language

5 (source language) with a written text in another language (target language) while

6 retaining essentially the same meaning.

7

21. "United States" means the United States of America as represented by the

8 United States Department of Justice's Civil Rights Division and its agents, employees,

9 and consultants.

10

22. "Vital Documents" means written documents that are essential to providing

11 meaningful access to programs and services to all jail inmates offered by MCSO. Such

12 written materials include the following: (1) Inmate Rules and Regulations; (2)

13 Announcements of Classes and Programs; (3) Any additional rules and notices posted in

14 the MCSO Jails; (4) Imnate Request Forms ("Tank Orders"); (5) Inmate Medical Request 15 Forms ("Medical Tank Orders"); (6) Inmate Grievance Form; (7) Institutional Grievance

16 Appeal Form; (8) External Grievance Appeal Fotm; (9) Inmate Legal Servic.es Request 17 Form; (10) Disciplinary Appeal Form; (11) Visitation Form; and (12) Canteen and

18 Commissary Forms. Whether additional documents are "vital" may depend upon the

19 importance of the program, information, encounter, or service involved.

20

23. "Vital Announcements" means announcements made in MCSO jails that

21 are essential to providing meaningful access to programs and services and basic safety to

22 all jail inmates offered liy MCSO, including, at a minimum, announcements indicating

- - - 23 the following: "Medical Nurse'', "Male or Female in the House", "Chow in the House", -------· 24 "Lockdown", "Programs", or "Recreation."

25 III. COMMITMENTS

26

A. Language Assistance

27

24. MCSO jail personnel shall provide reasonable, effective, free, and timely

28 language assistance to LEP individuals whom they encounter, including LEP inmates and

5

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 15 of 26

members of the public, regardless of whether the LEP person requests language services

2 in the jail setting concerning jail related matters. MCSO detention personnel assigned to

3 the visitation area of each facility shall take all reasonable steps to assist LEP members o

4 the public requesting to visit an inmate or requesting jail-related information regarding

5 jail-related matters, including utilizing bilingual and multilingual detention personnel and

6 telephonic language interpretation services. MCSO will require the Sheriffs Information

7 Management Services (SIMS) to utilize bilingual and multilingual personnd, as well as

8 the telephonic language interpretation services, to assist members ofthe public who are

9 LEP individuals when providing information on the public jail information telephone line

I 0 or in the Bonds and Fines Lobby at the 4th Avenue Jail.

II

25. MCSO shaH continue to maintain a written language access policy

12 consistent with Title VI and this Agreement.

13

26. MCSO shall continue to maintain designated personnel to handle all

14 language access needs and oversee compliance with the MCSO language access policy

15 and plan. The responsibilities of such personnel shall include, but need not be limited to,

16 the following:

17

a. addressing all interpretation and translation needs raised by supervisors

18

from MCSO jail units and departments;

19

b. providing input regarding the selection and perfom1anoe of interpretation

20

and translation companies;

21

c. establishing and enforcing assessment and quality control standards for

22

bilingual jail personnel who will interpret for LEP persons;

23

d. identifying, and working with appropriate officials to obtain within

24

reasonable cost parameters the technology and apparatus reasonably

25

necessary to effectively execute the Language Access Plan;

26

e. monitoring the demographics ofjail population in Maricopa County jail

27

facilities to ensure sufficient language capacity as prescribed by DOJ

28

guidelines;

6

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 16 of 26

1

f. maintaining and updating training curricula and conduct training, in

2

conjunction with MCSO training personnel;

3

g. maintaining and updating logging, data entry, record keeping, and

4

identification systems as discussed in the Language Access Plan and herein;

5

and

6

h. maintaining complaint processes to address complaints related to language

7

services in the jail setting concerning jail-related matters.

8

27. MCSO shall continue to maintain a high-level supervisor who is

9 responsible for the oversight of personnel with language access responsibilities. MCSO

10 shall maintain a reporting structure whereby such personnel report to a MCSO

11 Headquarters LEP Coordinator, through the established chain of command, responsible t

12 report to the Chief of Custody.

13

28. MCSO shall continue to require that the LEP Coordinator or other MCSO

14 personnel primarily responsible for implementation ofMCSO's language access policies

15 generate an annual report of any language-access-related complaints submitted to MCSO

16 by an LEP inmate or visitor of an LEP inmate, and steps taken to resolve any such

17 complaints. The report shall be provided to the Chief of Custody and to the United States

18 for the duration of this Agreement.

19

B. Identitlcation ofLEP Individuals

20

29. MCSO shall continue to require jail personnel to make reasonable efforts to

21 determine during the inmate intake process whether any incoming inmates are LEP and

22 to record that LEP status so that other jail personnel having subsequent contact with the

23 inmate can readily identify the inmate's LEP status. MCSO also shall adopt reasonable

·-·-----·-----

····----·~~~~~!-~~-

24 procedures to ensure that any inmates whose limited English proficiency is not noticed

25 during intake may subsequently be identified by jail personnel as LEP and their LEP

26 status recorded so that other jail personnel having subsequent contact with the inmate can

27 readily identify the inmate's LEP status.

28

7

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 17 of 26

1

30. In determining LEP status of an inmate, MCSO shall continue to ensure

2 that MCSO personnel use means reasonably calculated to determine LEP status. The

3 methods to determine LEP status may include one or more of the following:

4

a. Self-identification by the LEP individual (i.e., if the individual is able to

5

communicate the language that he or she speaks);

6

b. Language identification posters, which invite LEP persons to identify their

7

Primary Language. These posters shall be placed at all MCSO intake

8

facilities, in the 4th Avenue Holding Tanks next to the Language Access

9

Policy, in the Holding Tanks at each of the housing facilities, in the Self-

10

Surrender facility, in all visitation waiting areas, and at visitation counters.

11

The information from such posters may also be available through a

12

telephonic interpretation service;

13

c. Veri flcation of language by MCSO bilingual jail personnel; and

14

d. Through use of a telephonic interpretation service.

15

31. If an inmate has been identified as LEP by an arresting agency, MCSO jail

16 personnel at Central Intake will utilize its independent procedures to determine whether

17 an inmate is LEP and the inmate's Primary Language is accurately identified.

18

C. Documenting Language Needs

19

32. MCSO shall continue to enter each individual's Primary Language in the

20 Jail Management System (".JMS'') database under the Primary Language field. In the

21 event that a language code is unavailable for a particular language in JMS, MCSO will

22 take appropriate measures to record the Primary Language of the LEP inmate in JMS in

23 such a way that other jail personnel having subsequent contact with the inmate can

24 readily identify the inmate's LEP status.

25

33. MCSO shall continue to ensure that all jail personnel have access to the

26 daily inmate rosters for those inmates with whom they may interact (housing rosters,

27 transportation rosters, etc), and that each inmate's Primary Language appears on such

28 rosters.

8

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 18 of 26

l

34. MCSO shall continue to require jail intake personnel to record each LEP

2 inmate's Primary Language on his or her booking/door facility card.

3

D. Assessment of Jail Personnel Competency to Perform Language Assistance

4

35. MCSO shall continue to ensure that jail personnel who self-identify as

5 bilingual and agree to serve as interpreters and/or translators demonstrate proficiency in

6 and ability to communicate information accurately in the languages in which they will be

7 interpreting or translating.

8

36. MCSO shall continue to maintain a list of bilingual jail personnel who may

9 be available to help other jail personnel communicate with LEP inmates. The list shall be

10 accessible throughout its facilities and include the name of the Individual detention

11 officer and the facilities to which the individual detention officer is assigned. MCSO

12 shall continue to keep the list updated to account for personnel changes and transfers.

13

E. Use oflnmates to Translate or Interpret

14

37. MCSO's Language Access Plan shall make clear that reliance on inmates to

15 translate or interpret for fellow LEP inmates Is generally not appropriate and should only

16 be an option in unforeseeable emergency circumstances or if the topic of communication

17 is not sensitive, confidential, important, or technical in nature and the inmate is

18 competent in the skill of interpreting. MCSO's Language Access Plan also shall make

19 clear that special care must be taken to ensure that family, legal guardians, caretakers,

20 fellow inmates, and other informal interpreters are appropriate in light of the

21 circumstances and subject matter of the communication. MCSO personnel shall refrain

22 from encouraging inmates to use other inmates as translators.

23

F. Written Translations

24

38. The LEP Coordinator and/or other MCSO personnel primarily responsible

25 for implementation ofMCSO's language access policies shall be responsible for:

26

a. identifying Vital Documents;

27

b. identifying and determining languages into which Vital Documents should

28

be translated;

9

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 19 of 26

I
-"-------~1
2

c. procuring qualified translators to accomplish translation of Vital Documents;

3

d. monitoring quality of translated documents;

4

e. enforcing protocols for accurate translation of documents;

5

f. reviewing complaints related to quality of translations;

6

39. MCSO shall ensure that each jail facility maintains an appropriate supply o

7 documents that have been translated into languages other than English, considering the

8 LEP inmate population at each facility.

9

40. MCSO shall use MCSO bilingual jail personnel or qualified contract

10 translators for the translation of Vital Documents into Spanish or any other language

I 1 rising to the h::vel of five percent (5%) of the overall inmate population in the Maricopa

I2 County jails. MCSO shall ensure that the LEP Coordinator and/or other MCSO personnel

13 primarily responsible for implementation ofMCSO's language access policies documents

14 the names of the forms that have been translated (including the version that was 15 translated), translators' names, date oftranslation, and language of translation.

16

41. MCSO shall continue to translate all Vital Documents into Spanish.

17

42. Any time a Vital Document is updated, MCSO shall issue that document

18 simultaneously in English and Spanish.

19

43. MCSO shall ensure that Vital Documents are available to LEP inmates in

I
20 their Primary Language, if the Primary Language rises to the leve1 of five percent (5%) o

21 MCSO's overall intnate population.

22

44. MCSO shall instruct jail personnel that forms, requests, or any other

23 document may be submitted by an inmate in the inmate's designated language. MCSO

24 shall require its jail personnel to accept forms and Vital Documents in the language in

25 which they are submitted.

26

45. MCSO shall handle and process all Vital Documents submitted by inmates

27 in Spanish in a reasonably expedient manner and timeframe.

28

G. Oral language assistance for inmates

10

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 20 of 26

1

46. MCSO shall ensure by December 31,2015, that all vital announcements in

2 MCSO facilities are made in both English and Spanish.

3

47. MCSO shall ensure that transportation detention officers and deputies have

4 radio or telephonic access to MCSO bilingual personnel and/or a telephonic interpretatio

5 service while. at MCSO jail facilities.

6

48. MCSO shall maintain its Language Access Plan and procedures to facilitate

7 oral language and other language assistance. MCSO shall take reasonable steps to ensure

8 that personnel are available to communicate effectively with LEP inmates at all times.

9

H. Contacts of a Medical Nature

10

49.. For any contacts with LEP individuals of a medical nature, MCSO shall

11 take reasonable steps to ensure that Correctional Health Services staff are informed of

12 language assistance needs to facilitate such staff's communication with the LEP

13 individual.

14

I. Inmate Classes, Programs, Work Opportunities and Other Services

15

50. MCSO shall take reasonable steps to ensure that inmate classes, services,

16 and programs are reasonably available to LEP inmates. MCSO shall keep a record of all

17 scheduled classes, services, and programs, and the language in which they were

18 conducted, by having the housing officer document the event in the online journal system

19 and by keeping attendance lists from all scheduled classes, services, and programs. A

20 copy of attendance lists at non-English language offerings shall be available to the LEP

21 Coordinator and/or other MCSO personnel primarily responsible for implementation of

22 MCSO's language access policies upon request. MCSO shall take reasonable steps to

23 ensure that an inmate's LEP status will not hinder the inmate from benefiting from

-------1

'

---·--· ' ..

....

... --~

~.

24 classes or programs that can reduce the inmate's length of stay or improve conditions of

25 the inmate's confinement.

26

51. MCSO shall take reasonable steps to ensure that work opportunities,

27 particularly those that may be associated with benefits such as additional food, clothing,

28 or recreation, are made reasonably available to LEP inmates.

11

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 21 of 26

I

J. Bias-Free Treatment ofinmates

2

52. MCSO shall continue to ensure that all MCSO jail personnel, including

3 .MCSO jail personnel hired after the initial implementation of this Agreement, receive

4 training on the MCSO Code of Conduct (CP-2) and Employee Disciplinary Procedures

5 (GC-17), including clear guidance that MCSO policy prohibits employees from 6 demeaning inmates or acting disparagingly against any inmate regardless of age,

7 nationality, religious beliefs, race, gender, culture, sexual orientation, veteran status, 8 ancestry, or disability, as currently provided in paragraph 4.D. ofMCSO'sCode of 9 conduct (CP-2) .

I 0

K. Grievances

I I

53. MCSO shall continue to accept grievances and grievance appeals in any

12 language, and ensure that they are addressed in a reasonably timely manner, regardless of

13 the language in which the grievance was submitted in accordance with rules and 14 procedures applicable to all other grievances and grievance appeals. MCSO shall conduct 15 grievance hearings with LEP inmates using a MCSO bilingual officer, a qualified

16 contract interpreter, or a tekphonic language interpretation service. MCSO shall

17 document the type of language assistance provided on all grievance-related reports, and 18 make this documentation available to the LEP Coordinator and/or other MCSO personnel 19 primarily responsible for implementation ofMCSO's language access policies, upon

20 request.

21

L. Disciplinary Action

22

54. MCSO shall prohibit the practice of imposing pod restrictions and inmate

23 disciplinary measures solely because of a language access issue.

24

55. MCSO shall ensure that jail personnel use a MCSO bilingual officer or

25 telephonic interpretation for communications relating to disciplinary action regarding an

26 LEP inmate. MCSO shall ensure that the method of language assistance provided is

27 documented on all related reports.

28

12

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 22 of 26

1

M. Visitors

2

56. MCSO shall provide all Spanish-speaking LEP visitors with language-

3 appropriate visitation forms. MCSO shall ensure that jail personnel use a MCSO 4 bilingual officer to translate non-English language information on a visitation request

5 form.

6

57. MCSO shall ensure that such translation occurs within a reasonable amount

7 of time. MCSO will also ensure that no LEP visitor will be turned away from visitation

8 solely due to a language issue.

9

58. MCSO shall follow its Language Access Plan regarding the use of

10 telephonic interpretation services for visitors who speak a language for which no

II language-appropriate forms and/or timely translation services are available on-site, and 12 will permit the LEP visitor to orally convey the written information to the telephonic

13 interpreter, who shall, in turn, interpretthe visitor's statements to MCSO personnel.

14

59. MCSO shall continue to post language identification posters in visitation

15 waiting areas.

16

60. MCSO shall translate into Spanish the portions of its website that provide

17 information relevant to family, friends, and visitors of inmates.

18

N. Telephonic Interpretation Services

19

61. MCSO shall continue to equip housing units, as well as other MCSO jail

20 units and departments that interact with inmates, arrestees, and/or the public, with

21 communication technology reasonably necessary to obtain timely telephonic

22 interpretation assistance.

23

62. MCSO shall continue to maintain procedures to permit personnel to timely

24 access telephonic interpretation assistance.

25

63. MCSO shall continue to provide training to MCSO jail personnel on

26 accessing telephonic interpretation services .and provide MCSO jail personnel with a 27 telephonic language interpretation access card pursuant to MCSO policy.

28

13

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 23 of 26

1

64. MCSO shall continue to ensure that interactions interpreted through use of

2 telephonic interpretation are accorded the same degree of confidentiality as in-person

3 interactions. As such, MCSO will ensure that communications of a confidential nature

4 that are normally conducted outside the presence of other inmates or jail personnel, when

5 conducted telephonically, shall involve the same degree of privacy (via dual handsets, a 6 private room, or other methods).

7

0. Complaint Procedures

8

65. MCSO shall continue to maintain a grievance policy for inmate complaints

9 and describe the complaint process in the Inmate Rules and Regulations. Complaints

I0 regarding language access concerning jail related issues shall be made available to the

11 LEP Coordinator and/or other MCSO personnel primarily responsible for implementation 12 ofMCSO's language access policies.

13

66. The LEP Coordinator and/or other MCSO personnel primarily responsible

14 for implementation of MCSO's language access policies shall share language access 15 complaints concerning jail related issues with the supervisors who oversee any personnel 16 implicated by such complaints.

17

P. Training

18

67. MCSO shall continue to ensure that MCSO jail personnel receive

19 reasonable and adequate training on the MCSO Language Access Pian; Title VI of the
20 Civil Rights Act of 1964, and cultural sensitivity and the provision of bias-free detention

21 services. MCSO shall ensure that all new detention officers shall receive this training as

22 part of their Academy Training. MCSO personnel shall require jail personnel to receive

23 reasonable Language Access Plan training annually.

24

Q. Other General Provisions

25

68. Any provision in this Agreement requiring translation, interpretation, or

26 other language assistance in Spanish does not relieve MCSO of any obligation under

27 Title VI or any other applicable law to provide translation, interpretation, or other

28 language assistance in other languages. This Agreement does not relieve MCSO of any

14

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 24 of 26

1 obligation it may have under Title VI to ensure meaningful access to programs or

2 activities by LEP individuals.

3

R. Assessing Compliance

4

69. MCSO shalL timely grant reasonable requests by the United States for

5 information necessary to confirm and assess Defendants' compliance with this

6 Agreement. Such information may include access to dqcuments, data, records, and

7 facilities, and interviews with MCSO personnel and inmates. MCSO shall compile

8 quarterly reports during the one year period following the effective date of this

9 Agreement which will include: (l) telephonic language interpretation usage reports; (2)

10 LEP inmate related formal grievances; (3) LEP jail related written complaints received

11 from the public; (4) JMS Language Code by Facility Reports; (5) LEP inmate monthly

12 interview forms; and (6) detention officer monthly LEP interview forms. These quarterly

13 reports will be available to the United States upon request. In addition, upon reasonable

14 notice and the delivery of a desired itinerary from the DOJ, MCSO will grant the United 15 States reasonable access to Maricopa County jail facilities for a maximum of two visits in

16 connection with the DOJ's Full Assessments.

17

70. The United States shall have the opportunity to make two Full Assessments

18 of the Defendants' compliance with this Agreement.' The United States shall have the

19 opportunity to complete the first Full Assessment within 210 days of the Effective Date

20 of this Agreement, unless otherwise agreed by the Parties. The United States shall have
'
21 the opportunity to complete its second Full Assessment of Defendants' compliance with

22 this Agreement within 155 days after completing the first Full Assessment, unless

23 otherwise agreed by the Parties.

24

71. In resolving anymotlonor a~tionto enfor~e any provision of this

25 Agreement, evidence of a Defendant's conduct, practices, or procedures prior to the

26 Effective Date of this Agreement may be probative, but shall not be determinative on the

27 question of whether the Defendant is in compliance with this Agreement.

28

15

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 25 of 26

1 IV.SCOPE, IMPLEMENTATION AND ENFORCEMENT

2

72. On the Effective Date of this Agreement or the business day following, the

3 United States shall file in this case a notice informing the Court that the parties to this

4 case have stipulated under Rule 15(a)(2) to amend the Complaint to remove the United

5 States' Fourth Claim and that pottion of any other claim addressing discrimination in

6 MCSO jails, that the Complaint is thereby so amended and any such claims will not be

7 further prosecuted in this action.

8

73. The United States shall notify Defendants if it determines that a Defendant

9 is not in compliance with the Agreement in any respect. Any notification of alleged non-

10 compliance shall be in writing and will identify the specific non-compliance and the

II factual basis for any alleged non-compliance. The Parties shall first attempt to resolve

12 any dispute infonnally by notification and conferral. If the Parties are unable to agree on

13 a resolution of the dispute concerning the Def()lldant's compliance within 60 days after

14 initial conferral, the United States may, without further notice to Defendants, seek

15 enforcement of this Agreement with the United States District Court for the District of

16 Arizona (the "Court"), through any appropriate,form of relief. Anymotion or action to

17 entorc.e this Agreement shall be brought within one year of the occurrence of any alleged

18 violations.

19

74. The Parties shall notify each other of any court or administrative challenge

20 to this Agreement. In the event any provision of this Agreement is challenged in any

21 local or state court, removal to a federal court shall be sought by the Parties and transfer

22 of venue to the United States District of Arizona will be sought.

23

75. Either Defendant may withhold from the United States any documents or

24 data protected by the attorney-client privilege or the work product doctrine. Should a

25 Defendant decline to provide the United States access to documents or data based on

26 attorney-client privilege and/or the work product doctrine, the Defendant shall inform the

27 United States that it is withholding documents or data on this basis and shall provide the

28 United States with a log describing the documents or data.

16

Case 2:12-cv-00981-ROS Document 391-2 Filed 07/17/15 Page 26 of 26

1

76. The Parties may make use of protective orders or agreements to ensure the

2 confidentiality of any non-public information as appropriate and necessary. Other than as

3 expressly provided herein, this Agreement shall not be deemed a waiver of any privilege

4 or right a Defendant may assert, including the attorney-client communication privilege,

5 attorney work product protections, and any other privilege, right, or protection recognized

6 at common law or created by statute., rule or regulation, against any other person or entity

7 with respect to the disclosure of any document.

8 V. ENTIRE AGREEMENT, SEVERABILITY, COSTS

9

77. This Agreement constitutes the entire agreement between the Parties with

10 regard to the Fourth Claim of the Complaint in this action, and it supersedes any and all

11 prior representations and agreements, whether oral or written, between the Parties with

12 regard to that claim. No such prior representations or agreements may be offered or

13 considered to vary the terms of this Agreement, or to determine the meaning of any of its

14 provisions.

15

78. In the event that any provision in this Agreement is declared invalid for any

16 reason by a court of competent jurisdiction, said finding shall not affect the remaining

17 provisions of this Agreement.

18

79. Each party shall bear its own costs, fees, and expenses associated with the

19 litigation concerning this action, United States v. Maricopa Cout!ty, eta!., No. 2: 12-cv-

20 981 (D. Ariz).

21

SIGNATURES OF TilE PARTIES:

2

23
24~~~~~~~~---
Joseph M. Arpaio
25 Maricopa County Sh.eriff

C/llfl# Deputy County Attorney

 </s> Case 2:12-cv-00981-ROS Document 391-1 Filed 07/17/15 Page 1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT FOR THE

7

DISTRICT OF ARIZONA

8

9 United States of America,

10

Plaintiff,

11

v.

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

No. 2:12-cv-00981-ROS ORDER

14

Defendants.

15

16 The Court having considered the parties’ Joint Motion to Approve Settlement
17 Agreement,
18 IT IS ORDERED, on this ___ day of __________, 2015:
19 1. That the Joint Motion to Approve Settlement Agreement hereby is
20 GRANTED;
21 2. That the Settlement Agreement attached to the parties’ Joint Motion to
22 Approve Settlement Agreement, concerning the United States’ worksite
23 operations and retaliation claims in the above captioned case, hereby is
24 approved, signed, and entered by the Court; and
25 3. That the Clerk of this Court transmit a copy of this Order to all parties and
26 counsel of record.
27

28

 </s> Case 2:12-cv-00981-ROS Document 391 Filed 07/17/15 Page 1 of 5

1 Mark Kappelhoff Deputy Assistant Attorney General

2 Judy Preston (MD Bar, no numbers assigned)

3

Timothy D. Mygatt (DC Bar No. 1021564) Edward G. Caspar (MA Bar No. 650566)

4 Jennifer L. Mondino (NY Bar No. 4141636)

5

Paul Killebrew (LA Bar No. 32176) Puneet Cheema (CA Bar No. 268677)

6 U.S. Department of Justice, Civil Rights Division

7

Special Litigation Section 601 D St. NW, Suite 5200

8 Washington, D.C. 20004

9 Attorneys for the United States

10

IN THE UNITED STATES DISTRICT COURT FOR THE

11

DISTRICT OF ARIZONA

12

13 United States of America,

No. 2:12-cv-00981-ROS

14

Plaintiff,

v. 15

JOINT MOTION TO APPROVE SETTLEMENT AGREEMENT

Maricopa County, Arizona; and Joseph M.

16 Arpaio, in his official capacity as Sheriff of

Maricopa County, Arizona,

17

Defendants.

18

19

The parties to this action, Plaintiff United States of America, Defendant Maricopa

20 County Sheriff Joseph M. Arpaio, and Defendant Maricopa County, hereby jointly move

21 the Court to approve and enter the attached Settlement Agreement. The Settlement

22 Agreement resolves all claims related to worksite identity theft operations (“worksite

23 operations”) and claims relating to alleged retaliation (“retaliation claims”) as set forth in,

24 inter alia, the Second and Sixth Claims of the United States’ Complaint in this action.

25 The parties have reached a separate agreement that resolves the United States’ Fourth

26 Claim and that portion of any other claim alleging discrimination in Maricopa County

27 Sheriff’s Office (“MCSO”) jails.

28

Case 2:12-cv-00981-ROS Document 391 Filed 07/17/15 Page 2 of 5

1

The parties request that the Court sign the attached Settlement Agreement

2 concerning the worksite operations and retaliation claims and enter it in the docket in this

3 case. As to the Fourth Claim in this case, and that portion of any other claim addressing

4 discrimination in MCSO jails, the United States will file a notice promptly that the parties

5 to this case have stipulated under Rule 15(a)(2) to amend the Complaint to remove the

6 United States’ Fourth Claim and that portion of any other claim addressing discrimination

7 in MCSO jails, that the Complaint is thereby so amended and any such claims will not be

8 further prosecuted in this action. The parties are not requesting the Court’s approval of

9 the settlement agreement resolving the claims of discrimination in MCSO jails.

10

This Settlement Agreement does not resolve Claims One, Three, and Five in this

11 case, except as they may relate to worksite, retaliation and jails claims in this case. As to

12 Claims One, Three and Five, the parties are conferring on what matters, if any, remain to

13 be tried, and will, as ordered, advise the Court of their respective positions on that matter.

14

This Motion is supported by the following Memorandum of Points and

15 Authorities.

16

Memorandum and Points of Authorities

17

The United States brought this action in May 2010. The United States’ Complaint

18 alleges four patterns or practices of unconstitutional conduct: (1) discriminatory policing

19 against Hispanic persons in MCSO’s saturation patrols, general traffic enforcement, and

20 worksite operations targeting Hispanic immigrants, (2) detentions in violation of the

21 Fourth Amendment during MCSO’s worksite operations targeting Hispanic immigrants,

22 (3) failures in the provision of language access to Hispanic limited-English-proficient

23 (LEP) jail inmates, and (4) retaliatory police action against critics of Sheriff Arpaio and

24 MCSO.

25

The attached Settlement Agreement, which the parties request the Court to

26 approve, resolves the second and fourth issues above, and the first issue to the extent it

27 concerns discrimination relating to worksite operations and retaliation claims. The

28 parties have reached a separate settlement agreement resolving the third issue above.

2

Case 2:12-cv-00981-ROS Document 391 Filed 07/17/15 Page 3 of 5

1 Certain aspects of the first issue, concerning the discriminatory policing claims, was the

2 subject of the Court’s Order on the parties’ motions for summary judgment, Docket No.

3 379. The parties are conferring on what matters, if any, remain to be tried as to those

4 claims, and will promptly advise the Court of their respective positions on that matter.

5

As to the Settlement Agreement resolving the second and fourth issues above (the

6 worksite operations and retaliation claims), entry of the proposed Settlement Agreement

7 is appropriate in this case because it is fundamentally fair, adequate, and reasonable; it

8 has resulted from arm’s-length negotiations between sophisticated parties; and it is

9 consistent with the purposes of the federal law that the Complaint in this action seeks to

10 enforce as to those claims, 42 U.S.C. § 14141. See United States ex rel. Lummi Nation v.

11 Dawson, 328 Fed. App’x 462 (9th Cir. 2009) (to assess whether to approve a proposed

12 settlement agreement, courts consider whether the settlement is “fundamentally fair,

13 adequate, and reasonable”), citing United States v. Oregon, 913 F.2d 576, 580 (9th Cir.

14 1990) (same). Further, public policy favors settlement, particularly in complex litigation

15 such as these pattern-or-practice claims brought by the United States. See Officers for

16 Justice v. Civil Service Comm’n, 688 F.2d 615, 625 (9th Cir. 1982) (“[I]t must not be

17 overlooked that voluntary conciliation and settlement are the preferred means of dispute

18 resolution”).

19

Since before the claims in this case were brought, the parties have engaged

20 periodically in arm’s-length negotiations to settle them. After intensive negotiation, the

21 parties have reached agreements to settle the claims concerning worksite operations,

22 alleged retaliation, and language access in MCSO jails. In seeking approval of the

23 Settlement Agreement resolving the worksite operations and retaliation claims, the

24 parties recognize that MCSO is no longer enforcing State identity theft laws relating to

25 obtaining or continuing employment; that it has disbanded its Criminal Employment

26 Unit; that in a separate case, the United States District Court for the District of Arizona

27 entered a preliminary injunction enjoining the Maricopa County Sheriff from enforcing

28 statutory provisions prohibiting identity theft committed with the intent to obtain or

3

Case 2:12-cv-00981-ROS Document 391 Filed 07/17/15 Page 4 of 5

1 continue employment; and that MCSO is not currently planning to engage in the type of

2 worksite operations that are the subject of the United States’ claims in this case. Further,

3 the United States does not claim in this case that MCSO has engaged in any retaliatory

4 police action since 2010. The Settlement Agreement further provides for policies,

5 protocols and other protections to avoid constitutional violations relating to worksite

6 operations and retaliatory police action, and it preserves the United States’ authority to

7 seek relief, as provided in the Settlement Agreement, in the event of future violations.

8

For the foregoing reasons, the parties jointly request that the Court approve, sign

9 and enter the attached Settlement Agreement concerning the worksite operations and

10 retaliation claims in this case.

11

Respectfully submitted,

12

Mark Kappelhoff

13

Deputy Assistant Attorney General Civil Rights Division

14

15

Judy Preston Acting Chief, Special Litigation Section

16

17

Timothy D. Mygatt Special Counsel

18

/s/ Edward G. Caspar

19

Edward G. Caspar (MA Bar No. 650566)

20

Special Counsel

Jennifer L. Mondino (NY Bar No. 4141636)

21

Paul Killebrew (LA Bar No. 32176)

22

Puneet Cheema (CA Bar No. 268677)

Trial Attorneys

23

U.S. Department of Justice

24

Civil Rights Division- PHB

950 Pennsylvania Avenue, NW

25

Washington, D.C. 20530

26

Tel. (202) 514-2000/Fax (202) 514-6273

edward.g.caspar@usdoj.gov

27

Attorneys for the United States of America

28

4

Case 2:12-cv-00981-ROS Document 391 Filed 07/17/15 Page 5 of 5

1

2

WALKER & PESKIND, PLLC

3

By:/s/ Richard K. Walker

4

Richard K. Walker Charles W. Jirauch

5

16100 N. 71st Street, Suite 140

6

Scottsdale, Arizona 85254-2236

7

WINSTON & STRAWN, LLP

8

By:/s/ Dan K. Webb

9

Dan K. Webb (admitted pro hac vice)

10

J. Erik Connolly (admitted pro hac vice) 35 West Wacker Drive

11

Chicago, IL 60601

12

Counsel for Defendant Maricopa County

13 JONES, SKELTON & HOCHULI, P.L.C.
14

15

By s/ Joseph J. Popolizio

William R. Jones, Jr.

16

John T. Masterson

17

Joseph J. Popolizio

2901 North Central Avenue, Suite 800 Phoenix,

18

Arizona 85012

19

Attorneys for Defendant Joseph M. Arpaio

20

21

22

23

24

25

26

27

28

5

 </s> Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 1 of 52

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 United States of America,

No. CV-12-00981-PHX-ROS

10

Plaintiff,

ORDER

11 v.

12 Maricopa, County of, et al.,

13

Defendants.

14

15

Before the Court are the parties’ cross-motions for summary judgment (Doc. 332,

16 334, 345).

17

BACKGROUND

18 I. The Parties

19

Plaintiff the United States brought the present action alleging a pattern or practice

20 of discrimination against Latinos in Maricopa County, Arizona by Defendants Joseph M.

21 Arpaio (“Arpaio”) and Maricopa County in violation of the Constitution and federal

22 statutes. Defendant Arpaio is the Sheriff of Maricopa County and heads the Maricopa

23 County Sheriff’s Office (“MCSO”). As MCSO’s chief officer, Arpaio directs law 24 enforcement throughout Maricopa County.1 He is responsible for MCSO’s policies and
25 operations, which include all facets of policing and prison administration. MCSO is a 26 subdivision of Maricopa County. Maricopa County’s primary governing body is the

27

28

1 MCSO is a non-jural entity, which the Arizona Court of Appeals has determined cannot be sued. Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App.

2010).

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 2 of 52

1 Board of Supervisors (the “Board”). The Board consists of five Supervisors, each of

2 whom is elected from one of Maricopa County’s five districts. Maricopa County

3 determines the budgets and provides the funding for its subdivisions, including municipal

4 courts, public schools, and law enforcement (i.e. MCSO). Maricopa County receives

5 federal financial assistance from the United States, which it distributes to various county

6 subdivisions, including MCSO.

7 II. The Prior Litigation: Melendres v. Arpaio

8

In 2007, private individual plaintiffs initiated a class action lawsuit against Arpaio,

9 MCSO, and Maricopa County, alleging MCSO officers engaged in racial discrimination

10 against Latinos “under the guise of enforcing immigration law.” Ortega-Melendres v.
11 Arpaio, 836 F. Supp. 2d 959, 969 (D. Ariz. 2011), aff’d sub nom. Melendres v. Arpaio,
12 695 F.3d 990 (9th Cir. 2012) (hereinafter “Melendres”). The case focused on “saturation
13 patrols,” which were described as “crime suppression sweeps” in which officers saturate
14 a given area and target persons who appeared to be Latino for investigation of their
15 immigration status. (2:07-CV-02513-GMS, Doc. 26 at 10). Jose de Jesus Ortega-
16 Melendres, the named plaintiff, was stopped in his vehicle by members of the MCSO’s 17 Human Smuggling Unit and detained without probable cause while officers investigated 18 his immigration status, along with those of his passengers. Melendres v. Arpaio, 989 F.
Supp. 2d 822, 880 (D. Ariz. 2013); (2:07-CV-02513-GMS, Doc. 26 at 17). The certified 19
class of plaintiffs encompassed “[a]ll Latino persons who, since January 2007, have been 20
or will be in the future stopped, detained, questioned or searched by [the defendants’] 21
agents while driving or sitting in a vehicle on a public roadway or parking area in 22
Maricopa County, Arizona.” Melendres v. Arpaio, 695 F.3d 990, 995 (9th Cir. 2012). See 23
also Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 994 (D. Ariz. 2011). 24
In May 2009, Maricopa County requested a stay pending the outcome of the 25
United States’ investigation of Arpaio’s practices, which had begun one month earlier. 26
The United States opposed the motion, as did Arpaio, and the court denied the stay due to 27
the timing and uncertainty regarding the outcome of the United States’ investigation. 28
Melendres v. Maricopa Cnty., No. 07-cv-02513, 2009 WL 2515618, at *4 (D. Ariz. Aug.

- 2 -

Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 3 of 52

1 13, 2009). Over the course of the Melendres litigation, the United States requested

2 deposition transcripts and filed motions for protective orders regarding discovery. It also

3 sought to transfer a 2010 Title VI enforcement action to the Melendres court.

4

In October 2009, the Melendres court granted a joint motion and stipulation to

5 dismiss Maricopa County without prejudice. (2:07-CV-02513-GMS, Doc. 194). The

6 stipulation stated, “Defendant Maricopa County is not a necessary party at this juncture

7 for obtaining the complete relief sought.” (2:07-CV-02513-GMS, Doc. 178).

8

On May 24, 2013, the Melendres court issued Findings of Fact and Conclusions of

9 Law. Melendres v. Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013) (“Melendres Order”).
10 The court held MCSO’s “saturation patrols all involved using traffic stops as a pretext to
11 detect those occupants of automobiles who may be in this country without authorization,”
12 id. at 826, and “MCSO’s use of Hispanic ancestry or race as a factor in forming
13 reasonable suspicion that persons have violated state laws relating to immigration status
14 violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 899. The court 15 also found MCSO conducted discriminatory traffic stops outside of saturation patrols. Id. 16 at 844-845, 889-890. The Melendres Order enjoined MCSO from “using Hispanic 17 ancestry or race as [a] factor in making law enforcement decisions pertaining to whether 18 a person is authorized to be in the country, and [] unconstitutionally lengthening [vehicle]
stops.” Id. at 827. 19
After the ruling, the United States filed a statement of interest concerning potential 20
forms of relief.2 On October 2, 2013, the court issued its Supplemental Permanent 21
Injunction/Judgment Order. Melendres v. Arpaio, No. CV-07-02513-PHX-GMS, 2013 22
WL 5498218, at *1 (D. Ariz. Oct. 2, 2013) (“Supplemental Order”). The order 23
permanently enjoined Defendants from: 1) “[d]etaining, holding or arresting Latino 24
occupants of vehicles in Maricopa County based on a reasonable belief, without more, 25

26

2 The statement of interest was made pursuant to 28 U.S.C. § 517, which permits

27

the Attorney General to send officers of the Department of Justice to “any State or district in the United States to attend to the interests of the United States in a suit pending in a

28

court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517. See M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2012)

(comparing “statement of interest” under 28 U.S.C. § 517 to an amicus brief).

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1 that such persons are in the country without authorization”; 2) “[u]sing race or Latino

2 ancestry as a factor in deciding whether to stop any vehicle” or in deciding whether a

3 vehicle occupant was in the United States without authorization; (3) “[d]etaining Latino

4 occupants of vehicles stopped for traffic violations for a period longer than reasonably

5 necessary to resolve the traffic violation in the absence of reasonable suspicion that any

6 of the vehicle’s occupants have committed or are committing a violation of federal or

7 state criminal law”; (4) “[d]etaining, holding or arresting Latino occupants of a vehicle . .

8 . for violations of the Arizona Human Smuggling Act without a reasonable basis for

9 believing the necessary elements of the crime are present”; and (5) “[d]etaining, arresting

10 or holding persons based on a reasonable suspicion that they are conspiring with their

11 employer to violate the Arizona Employer Sanctions Act.” Id. The Supplemental Order

12 also contained numerous provisions regarding the implementation of bias-free policing,

13 including standards for bias-free detention and arrest policies and training, as well as

14 detailed policies and procedures for ensuring and reviewing MCSO’s compliance with

15 the Melendres Order. The procedures included the appointment of an independent

16 monitor to report on Arpaio and MCSO’s compliance and collection of traffic stop data.

17 Id.

18

Arpaio and MCSO appealed the Melendres Order and the Supplemental Order

(collectively, the “Melendres injunction”), challenging provisions which addressed non19

saturation patrol activities and arguing the evidence was insufficient to sustain the district 20

court’s conclusion that Arpaio and MCSO’s unconstitutional policies extended beyond 21
the context of saturation patrols. Melendres v. Apraio, No. 13-16285, Opening Brief of 22
Defendant/Appellant Arpaio, Doc. 32-1, at 2, 13-15, 17-18 (March 17, 2014). MCSO 23
also argued it was not a proper party in the case. Id. 24
On April 15, 2015, the Ninth Circuit issued an opinion holding MCSO was not a 25
proper party because it is a non-jural entity lacking separate legal status from Maricopa 26
County. Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). The Ninth Circuit ordered
27 Maricopa County substituted as a party in lieu of MCSO. Id. at 1260. But the court also

28 stated, “[o]n remand, the district court may consider dismissal of Sheriff Arpaio in his

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1 official capacity because ‘an official-capacity suit is, in all respects other than name, to be 2 treated as a suit against the entity.’” Id.3 In addition, the court held the Melendres

3 injunction was not overbroad because it applied to activities beyond saturation patrols:

4 “Although the evidence largely addressed [the] use of race during saturation patrols, the

5 district court did not clearly err in finding [Arpaio’s] policy applied across-the-board to 6 all law enforcement decisions—not just those made during saturation patrols.”4 Id.

7 However, the court found the requirements for the independent monitor “to consider the

8 ‘disciplinary outcomes for any violations of departmental policy’ and to assess whether

9 Deputies are subject to ‘civil suits or criminal charges . . . for off-duty conduct” were not

10 narrowly tailored and ordered the district court “to tailor [these provisions] to address

11 only the constitutional violations at issue.” Id. at 1267.

12 III. The Litigation Before This Court: U.S. v. Maricopa County

13

On March 10, 2009, the United States Department of Justice (“DOJ”) sent Arpaio

14 a letter notifying him it was commencing an investigation of his office. (Doc. 333-3 at 6).
15 Over a year later, on August 3, 2010, DOJ issued a “Notice of noncompliance with the
16 obligation to cooperate with the Department of Justice investigation pursuant to Title VI
17 of the Civil Rights Act of 1964.” (Doc. 333-3 at 9) (“Notice Letter”). Although the
18 Notice Letter appears to have been mailed only to counsel for MCSO, counsel for Maricopa County responded to it. (Doc. 333-3 at 9). On August 12, 2010, Maricopa
19 County’s private counsel wrote to the United States to express Maricopa County’s
20 “desire[] to cooperate in any way possible with the [United States’] investigation
21 referenced in the Notice Letter,” emphasizing, “[a]s a recipient of Title VI funds,
22 Maricopa County believes it has an obligation to cooperate.” Id. Maricopa County
23 offered to use its subpoena power to procure documents in aid of DOJ’s investigation. Id.
24 at 10. The letter also stated Maricopa County would “[notify] MCSO that it [could] not
25

26 3 On May 15, 2015, Maricopa County filed a Petition for Rehearing on its
27 substitution as a party in Melendres.

28

4 The reference to “all law enforcement decisions” was referring to decisions made

regarding vehicle stops outside of the context of official saturation patrols.

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 6 of 52

1 expend any public funds, including on outside counsel, to resist any DOJ Title VI

2 inquiry,” and that “Maricopa County [would] not pay those bills as resisting a Title VI

3 inquiry is outside the scope of the employment of any elected or appointed official.” Id.

4

On December 15, 2011, DOJ sent Maricopa County Attorney Bill Montgomery

5 (“Montgomery”) a 22-page letter notifying him of the investigation into MCSO and

6 announcing “the findings of the Civil Rights Division’s investigation into civil rights

7 violations by the [MCSO].” (Doc. 333-2 at 2) (“Findings Letter”). The Findings Letter

8 did not reference Maricopa County, specifically. Montgomery immediately responded

9 that DOJ had “noticed the wrong party.” (Doc. 333-3 at 12). On January 17, 2012, DOJ

10 responded it would continue to include Maricopa County in all correspondence because

11 its “investigation potentially affect[ed] Maricopa County as the conduit of federal

12 financial assistance to MCSO.” (Doc. 333-3 at 14).

13

On May 9, 2012, DOJ advised Maricopa County:

14

[I]n accordance with the notice requirements set forth in DOJ’s Title VI

regulations, 42 C.F.R. § 108(d)(3), it is the intention of the Department of Justice

15

to file a civil action against Maricopa County, the Maricopa County Sheriff’s

16

Office, and Sheriff Joseph M. Arpaio in order to remedy the serious Constitutional

and federal law violations, including noncompliance with Title VI, as noted in our

17

December 15, 201[1] Findings Letter.

18 (Doc. 333-3 at 25). The following day, the United States filed a complaint in this Court, 19 outlining six claims for relief against Arpaio, MCSO, and Maricopa County:

20

(1) Intentional discrimination on the basis of race, color or national origin in

21 violation of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §

22 14141 (“Section 14141”) and the Due Process and Equal Protection clauses of the

23 Fourteenth Amendment.

24

(2) Unreasonable searches, arrests and detentions lacking probable cause or

25 reasonable suspicion in violation of Section 14141 and the Fourth Amendment.

26

(3) Disparate impact and intentional discrimination on the basis of race, color or

27 national origin in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§

28 2000d-2000d-7 (“Title VI”).

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1

(4) Disparate impact and intentional discrimination against limited English

2 proficient (“LEP”) Latino prisoners in violation of Title VI.

3

(5) Disparate impact and intentional discrimination in violation of Defendants’

4 contractual assurances under Title VI.

5

(6) Retaliation against Defendants’ critics in violation of Section 14141 and the

6 First Amendment.

7 (Doc. 1).

8

Arpaio, MCSO, and Maricopa County moved to dismiss. On December 12, 2012,

9 the Court denied Maricopa County’s motion and granted Arpaio and MCSO’s motion in

10 part. (Doc. 56). MCSO was dismissed from the case based on the Arizona Court of

11 Appeals decision, Braillard v. Maricopa County, which held MCSO is a non-jural entity,

12 lacking the capacity to sue and be sued. 224 Ariz. 481, 487 (Ct. App. 2010).

13

The remaining parties proceeded with discovery. The United States and Arpaio

14 now each move for partial summary judgment. (Doc. 332, 345). Maricopa County moves

15 for summary judgment on all claims. (Doc. 334).

16

ANALYSIS

17 I. Legal Standard

18

Under Rule 56, summary judgment is appropriate when the moving party

demonstrates the absence of a genuine dispute of material fact and entitlement to 19

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is 20

material when, under governing substantive law, it could affect the outcome of the case. 21
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); United States v. Kapp, 564 22
F.3d 1103, 1114 (9th Cir. 2009). A dispute is genuine if a reasonable jury could return a 23
verdict for the nonmoving party. Anderson, 477 U.S. at 248. 24
A party seeking summary judgment bears the initial burden of establishing the 25
absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. The moving party 26
can satisfy this burden in two ways: either (1) by presenting evidence that negates an
27 essential element of the nonmoving party’s case; or (2) by demonstrating the nonmoving

28 party failed to establish an essential element of the nonmoving party’s case on which the

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 8 of 52

1 nonmoving party bears the burden of proof at trial. Id. at 322-23. “Disputes over

2 irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W.

3 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

4

Once the moving party establishes the absence of genuine disputes of material

5 fact, the burden shifts to the nonmoving party to set forth facts showing a genuine dispute

6 remains. Celotex, 477 U.S. at 322. The nonmoving party cannot oppose a properly

7 supported summary judgment motion by “rest[ing] on mere allegations or denials of his

8 pleadings.” Anderson, 477 U.S. at 256. The party opposing summary judgment must also

9 establish the admissibility of the evidence on which it relies. Orr v. Bank of America, NT

10 & SA, 285 F.3d 285 F.3d 764, 773 (9th Cir. 2002) (a court deciding summary judgment

11 motion “can only consider admissible evidence”); see also Beyene v. Coleman Sec.

12 Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (“It is well settled that only

13 admissible evidence may be considered by the trial court in ruling on a motion for

14 summary judgment.”); Fed. R. Civ. P. 56, 2010 Advisory Committee Notes (“The burden

15 is on the proponent to show that the material is admissible as presented or to explain the

16 admissible form that is anticipated.”).

17

When ruling on a summary judgment motion, the court must view every inference

18 drawn from the underlying facts in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 601 (1986). The court 19

does not make credibility determinations with respect to evidence offered. See T.W. Elec., 20
809 F.2d at 630-631 (citing Matsushita, 475 U.S. at 587). Summary judgment is therefore 21
not appropriate “where contradictory inferences may reasonably be drawn from 22
undisputed evidentiary facts.” Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 23
1324, 1335 (9th Cir. 1980). 24
II. Justiciability 25
A. Justiciability of Claims Against Arpaio 26
Arpaio argues the United States’ claims involving discriminatory traffic stops in
27

28

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1 Counts One, Two, Three, and Five are moot.5 He argues the Melendres injunction

2 eliminated all threat of immediate and future discriminatory traffic stops, as well as the 3 ability of this Court to provide redress for those claims.6 The United States argues its

4 traffic stop claims are not moot for four reasons: (1) the Melendres injunction does not

5 reach all of the conduct challenged in the present suit because it is necessarily tied to and

6 based upon the immigration-related operations at issue in Melendres; (2) the federal

7 government has unique interests which warrant providing it with its own enforcement

8 mechanism for the types of reforms and controls in the Melendres injunction; (3) Arpaio

9 appealed the scope of the Melendres injunction; and (4) the Melendres injunction is years

10 away from full implementation.

11

Mootness doctrine prevents courts from ruling “when the issues presented are no

12 longer live and therefor the parties lack a cognizable interest for which the courts can

13 grant a remedy.” Alaska Ctr. For Env’t v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir.

14 1999). “The party asserting mootness bears the burden of establishing that there is no 15 effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d 455,

16

17

5 In the “Introduction” of the complaint, the United States summarizes the basis of

18

the lawsuit as “discriminatory police conduct directed at Latinos.” (Doc. 1 at 1). This conduct includes: 1) stopping, detaining, and arresting Latinos on the basis of race; 2)

19

denying Latino prisoners with limited English language skills constitutional protections; and 3) illegally retaliating against perceived critics through baseless criminal actions,

20

lawsuits, and administrative actions. (Doc. 1 at 1-2). Specifically, Count One alleges violations of 42 U.S.C. § 14141 and the Fourteenth Amendment based on a pattern or

21

practice of law enforcement practices, including traffic stops, workplace raids, home raids, and jail operations, with the intent to discriminate. Count Two alleges violations of

22

42 U.S.C. § 14141 and the Fourth Amendment based on a pattern or practice of unreasonable searches and seizures conducted without probable cause or reasonable

23

suspicion. Count Three alleges violations of Title VI based on the use of federal financial assistance by persons alleged to be engaging in discriminatory law enforcement practices.

24 Count Five alleges violations of Title VI’s contractual assurances.

6 Arpaio argues the same facts regarding redressability to claim the action is moot, 25 the Court lacks subject matter jurisdiction, the United States lacks standing, and the

26

action is not ripe. In doing so, he often conflates the standards pertaining to each doctrine. Because standing is measured at the time an action is commenced (in this case, May 10,

27

2012) and the Melendres injunction was not issued until over a year later (May 24, 2013), it appears the only cognizable justiciability argument Arpaio makes concerns mootness.

28

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n. 5 (1992) (“[S]tanding is to be determined as of the commencement of suit”). Therefore, the Court will analyze the

viability of the United States’ claims under mootness doctrine.

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1 461 (9th Cir. 2006). And “[t]hat burden is ‘heavy’; a case is not moot where any effective

2 relief may be granted.” Id. “Partial relief in another proceeding cannot moot an action

3 that legitimately seeks additional relief.” Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d

4 879, 885 (9th Cir. 1992).

5

As a general principle, “the government is not bound by private litigation when the

6 government’s action seeks to enforce a federal statute that implicates both public and

7 private interests.” California v. IntelliGender, LLC, 771 F.3d 1169, 1177 (9th Cir. 2014)

8 (internal quotation marks and citation omitted). See also Hathorn v. Lovorn, 457 U.S.

9 255, 268 n. 23 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n. 6 (1975).

10 For example, in E.E.O.C. v. Goodyear Aerospace Corp., the Ninth Circuit held the Equal

11 Employment Opportunity Commission’s (“EEOC”) “interests in determining the legality

12 of specific conduct and in deterring future violations are distinct from the employee’s

13 interest in a personal remedy.” 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the

14 Court held the EEOC’s enforcement action was not mooted by a private plaintiff’s

15 lawsuit and settlement based on the same facts. Id. at 1543 (“[The private plaintiff’s]

16 settlement does not moot the EEOC’s right of action seeking injunctive relief to protect

17 employees as a class and to deter the employer from discrimination.”).

18

Goodyear Aerospace Corp. involved a previous suit by an individual private

plaintiff. But the court’s analysis relied in part on Secretary of Labor v. Fitzsimmons, 19

where the prior suit was a private class action. 805 F.2d 682 (7th Cir. 1986). In 20

Fitzsimmons, the Seventh Circuit held the Secretary of Labor was not barred by res 21
judicata from bringing an ERISA enforcement action based on the same facts as a 22
previously settled class action in which the Secretary had intervened. Fitzsimmons, 805 23
F.2d at 699. The decision was based in part on the history and structure of ERISA. The 24
court noted ERISA arose out of concern over the “increasingly interstate” “operational 25
scope and economic impact” of employee benefit plans and the direct effect such plans 26
had on the “well-being and security of millions of employees and their dependents.” Id. at
27 689 (citing 29 U.S.C. § 1001(a)). Employee benefit plans were also thought to

28 “substantially affect the revenues of the United States” and therefore to be “affected with

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 11 of 52

1 a national public interest.” Id. The statute provided the Secretary of Labor the right to

2 intervene in any action brought by a participant, beneficiary, or fiduciary. Id.

3

The defendants in Fitzsimmons argued the right to intervene in private lawsuits

4 created privity between the Secretary of Labor and the private plaintiffs so as to bar the

5 Secretary from bringing a separate enforcement action. In determining no privity existed

6 between the government and the private class of plaintiffs, the court articulated

7 compelling and unique government interests, which justified the Secretary’s separate,

8 second lawsuit:

9

[I]t is clear that the Secretary does have a unique, distinct, and separate public

interest, duty and responsibility in bringing this ERISA action to enforce the

10

trustees’ fiduciary obligations and duties, to ensure public confidence in the

11

private pension system that provides billions of dollars of capital for investments

affecting federal tax revenues and interstate commerce, and most importantly, to

12

protect the income of the retired workers and beneficiaries. Further, the Secretary

13

of Labor has a separate interest when he intervenes so as to prevent the

establishment of harmful legal precedent as well as to ensure uniformity in

14

the enforcement and application of ERISA laws.

15 Id. at 696.7 See also Herman v. S. Carolina Nat. Bank, 140 F.3d 1413, 1424 (11th Cir.

16 1998) (same) (citing Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991)); Donovan v.

17 Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983)).

18

The Supreme Court has addressed the situation where the government seeks

19 injunctive relief which is potentially duplicative of relief already afforded to a private

20 party. In United States v. Borden Co., the Supreme Court held a private plaintiff’s

21 injunctive relief did not bar the federal government from bringing suit for injunctive

22 relief under the Clayton Act, 15 U.S.C. § 25. 347 U.S. 514, 520 (1954). The district court

23 had held the violations described in the government’s complaint and shown at the trial

24 were, “for the most part, old violations . . . [and] the [private injunction] assure[d], as

25

26

7 The court went so far as to conclude “private parties can never be representatives

27

of this clear, specific, and unambiguous national interest of the Secretary,” id., and “even if one were to assume that the interests of the Secretary and the class plaintiffs were the

28

same . . . where the Secretary did not participate in structuring the settlement agreement it is impossible to conclude that the private plaintiffs had adequately represented the

Secretary’s interests.” Id. at 695, n. 16.

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1 completely as any decree can assure, that there will be no new violations.” Id. at 517-518

2 (internal quotation marks and citation omitted). The Supreme Court reversed, holding

3 that the district court’s reasoning ignored “the prime object of civil decrees secured by

4 the Government—the continuing protection of the public, by means of contempt

5 proceedings, against a recurrence of [] violations.” Id. at 519. The Court continued:

6

Should a private decree be violated, the Government would have no right to bring

contempt proceedings to enforce compliance; it might succeed in intervening in

7

the private action but only at the court’s discretion. The private plaintiff might find

8

it to his advantage to refrain from seeking enforcement of a violated decree; for

example, where the defendant’s violation operated primarily against plaintiff’s

9

competitors. Or the plaintiff might agree to modification of the decree, again

10

looking only to his own interest. In any of these events it is likely that the public

interest would not be adequately protected by the mere existence of the private

11

decree. It is also clear that Congress did not intend that the efforts of a private

12

litigant should supersede the duties of the Department of Justice in policing an

industry. Yet the effect of the decision below is to place on a private litigant the

13

burden of policing a major part of the milk industry in Chicago, a task beyond its

14

ability, even assuming it to be consistently so inclined.” Id. at 519.

15 Thus, the Supreme Court recognized the government’s interest in enforcing the

16 provisions of a privately-held injunction, as well as its duty to enforce its laws may

17 justify a second injunction. The private decree was to be considered in determining

18 whether the government could show a likelihood of recurring illegal activity, but it was

19 not dispositive of that question. Id. at 520.

20

The Supreme Court also determined that, in stating the United States district

21 attorneys and the Attorney General had a duty to institute equity proceedings to enforce

22 antitrust laws while also allowing private plaintiffs to obtain injunctive relief, the Clayton

23 Act created a scheme in which “private and public actions were designed to be

24 cumulative, not mutually exclusive.” Id. at 518.

25

A similar conclusion applies to Title VI, one of the statutes under which the

26 United States’ brings its claims. Title VI is part of the Civil Rights Act of 1964, a

27 sweeping piece of legislation which banned racial discrimination in voting, schools,

28 workplaces, and public accommodations and created mechanisms through which the

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1 federal government could enforce each provision. The Act was passed in the context of

2 widespread conflict and unrest regarding racial desegregation, including resistance to

3 desegregation by state and local governments and private individuals. Its purpose was to

4 harness the power of the federal government to eradicate racial discrimination throughout

5 the United States, regardless of local bias. The Supreme Court has held private plaintiffs

6 may bring suit under Title VI for violations caused by intentional discrimination but not

7 disparate impact discrimination. Alexander v. Sandoval, 532 U.S. 275 (2001). The federal

8 government, by contrast, may sue for either intentional or disparate impact

9 discrimination. See infra, Part III(A). And federal agencies which extend federal financial

10 assistance are both “authorized and directed to effectuate [its] provisions.” 42 U.S.C. §

11 2000d (emphasis added). Just as in Borden Co., the statutory scheme of Title VI and the

12 Civil Rights Act of 1964 lends itself to and is enhanced by viewing private enforcement

13 action as supplemental and cumulative to government enforcement action.

14

The other statute under which the United States brings these claims, the Violent

15 Crime Control and Law Enforcement Act of 1994, may be best known for its crime
16 prevention measures, including a federal ban on assault weapons and increased federal
17 funding of local law enforcement. See Rachel A. Harmon, Federal Programs and the
18 Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 883 n. 35-36 (2015). But the Act also
contains provisions directed at reforming law enforcement. For instance, under § 14141, 19
the relevant section here, the Attorney General has discretion to bring civil actions to 20
obtain appropriate equitable and declaratory relief to eliminate the pattern or practice of 21
law enforcement that violates constitutional rights and privileges. 22
Portions of the United States’ claims of discriminatory policing involve conduct 23
addressed in Melendres—discriminatory vehicle stops related to immigration 24
enforcement. But the United States’ claims also include allegations regarding 25
discriminatory home raids, worksite raids, and non-motor vehicle related arrests and 26
detentions, which are different in important respects from those presented in Melendres. 27
For one, the United States’ claims are not confined to immigration enforcement, but 28
extend to discrimination in general law enforcement.

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1

Despite this overlap, the United States possesses a unique interest, which supports

2 the finding of a live controversy as to allegations regarding discriminatory traffic stops.

3 Furthermore, the purposes of Title VI and § 14141 would be served by permitting the

4 United States to bring its own enforcement actions, regardless of previous action taken by

5 private plaintiffs. The United States’ interest in this case is distinct from those of private

6 plaintiffs’ in Melendres. As with the Secretary of Labor in Fitzsimmons, the federal

7 government has an interest in the uniform and robust enforcement of federal civil rights

8 legislation nationwide. Its interest in preventing the type of discrimination charged in this

9 case extends beyond the well-being of a defined class of plaintiffs to the safety, security,

10 and just and harmonious coexistence of all citizens. The United States likewise has an

11 interest in ensuring confidence in law enforcement activities which utilize federal funding

12 and may affect interstate commerce. In addition, the findings in Part III(A), infra, show

13 congressional intent to permit the federal government to bring an enforcement action. To

14 paraphrase Fitzsimmons, to hold mootness doctrine bars the Attorney General from

15 independently pursuing enforcement of Title VI would effectively limit the authority of

16 the Attorney General under the statute—something a court will not do in the absence of

17 an explicit legislative directive. See Fitzsimmons, 805 F.2d at 691.

18

In addition, the Melendres injunction does not moot the portions of the United

States’ claims which overlap with Melendres because continued violations by Arpaio and 19

MCSO following the issuance of the injunction demonstrate a real and immediate threat 20

of future harm, as well as the importance of granting the United States authority to 21
enforce injunctive relief addressing MCSO’s discriminatory traffic stops. See Borden 22
Co., 347 U.S. at 519; (2:07-CV-2513-GMS, Doc. 948) (Arpaio’s stipulation to violations 23
of the Melendres injunction by Arpaio and MCSO); (2:07-CV-2513-GMS, Doc. 0127 at 24
118-125). In addition, in the context of the United States’ broader claims, its claims 25
regarding traffic stops may lead to different injunctive measures than those put forth in 26
Melendres, where the allegations of discriminatory traffic stops were brought in isolation.
27 In other words, the Melendres injunction may afford some, but only partial relief for the

28 United States’ claims. See Flagstaff Med. Ctr., Inc., 962 F.2d at 885.

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1

In sum, it is premature for the Court to conclude the United States’ allegations

2 would lead to a replica of the Melendres injunction. And, even if portions of the order

3 were replicated, the United States’ unique interest in enforcing those provisions and the

4 continuing threat of future harm it faces render the claims justiciable.

5

B. Justiciability of Claims Against Maricopa County

6

Maricopa County argues the United States does not have standing because it has

7 failed to show “the harms it alleges are ‘likely to be redressed’ by a judgment against the

8 County.” (Doc. 334 at 8). The United States contends it has shown a likelihood of redress

9 and that the “law of the case” precludes the County’s argument. (Doc. 348 at 8).

10

To have Article III standing, a plaintiff must demonstrate: (1) it has suffered

11 “injury in fact—an invasion of a legally protected interest which is . . . concrete and

12 particularized”; (2) “a causal connection between the injury and the conduct complained

13 of”; and (3) the likelihood “the injury will be redressed by a favorable decision.” Lujan v.

14 Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (internal quotation marks and

15 citations omitted).

16

In a previous order, the Court held, “Under Arizona law, the Sheriff has final

17 policymaking authority with respect to County law enforcement and jails, and the County

18 can be held responsible for constitutional violations resulting from these policies,” (Doc.

56 at 13), and denied Maricopa County’s motion to dismiss, including the allegation of 19
lack of standing.8 20
“Law of the case” doctrine “preclude[s a court] from reexamining an issue 21
previously decided by the same court, or a higher court, in the same case.” United States 22
v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) (citation omitted). The doctrine applies 23
where an issue was “decided explicitly or by necessary implication in [the] previous 24
disposition.” Id. (internal quotation marks and citation omitted). 25
In finding Maricopa County could be held responsible for Arpaio’s constitutional 26
violations, the Court ruled, by necessary implication, the County was capable of
27

28

8 The Court reaffirmed this decision in denying Maricopa County’s motion for

reconsideration. (Doc. 73).

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 16 of 52

1 redressing those violations. Nonetheless, Maricopa County now claims the Court’s

2 previous analysis was flawed because it relied on precedents from § 1983 cases involving

3 claims for monetary, rather than injunctive relief. Maricopa County acknowledges A.R.S.

4 § 11-201 gives it the power to determine MCSO’s budget, but maintains that authority is

5 insufficient to influence or control how MCSO is run. Maricopa County also claims: 1)

6 the County cannot “cure the alleged violations here” (Doc. 356 at 10); 2) the United

7 States has failed to show Arpaio and MCSO engage in “assessing, collecting,

8 safekeeping, managing or disbursing the public revenues” such that they would fall under

9 Maricopa County’s supervisory authority pursuant to A.R.S. § 11-251(1); and 3) A.R.S. §

10 11-444 severely limits its authority to withhold funding.

11

Although the cases on which the Court’s previous order relied involved claims

12 under § 1983, which allows for monetary as well as injunctive relief, the reasoning

13 applied to find Maricopa County potentially liable for MCSO’s constitutional violations

14 was not premised on the form of relief sought, but rather on the bases for “policymaker”

15 liability. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378 (Ct. App. 2002).

16

As will be discussed at greater length in Part III(B)(i), infra, the logic of

17 “policymaker” liability under § 1983 applies to produce institutional liability under Title

18 VI and its sister statute, Title IX, as well. See Pers. Adm’r of Mass. v. Feeney, 442 U.S.

256, 279 (1979) (holding that a successful showing of a Title VI violation rests on the 19

actions of a decisionmaker). The Court’s previous order relied on numerous state court 20
decisions identifying the sheriff as a policymaker for Maricopa County, United States v. 21
Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1082-84 (D. Ariz. 2012), (Doc. 56), and 22
that determination is the law of this case. See United States v. Jingles, 702 F.3d 494, 499 23
(9th Cir. 2012). 24
Regarding Maricopa County’s argument that its inability to “cure the alleged 25
violations” destroys the United States’ standing, the United States is correct that it need 26
only show the potential for partial redress. See Meese v. Keene, 481 U.S. 465, 476
27

28

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 17 of 52

1 (1987).9

2

The sheriff is independently elected. Ariz. Const. art. XII, § 3. And his duties are

3 statutorily required. A.R.S. § 11-441. Those duties range from “[p]reserve[ing] the

4 peace” to “[a]rrest[ing] . . . persons who attempt to commit or who have committed a

5 public offense” to “[t]ak[ing] charge of and keep[ing] the county jail.” A.R.S. § 11-441.

6

However, A.R.S. § 11-251(1) provides:

7

The board of supervisors, under such limitations and restrictions as are prescribed

by law, may: . . . Supervise the official conduct of all county officers and officers

8

of all districts and other subdivisions of the county charged with assessing,

9

collecting, safekeeping, managing or disbursing the public revenues, see that such

officers faithfully perform their duties and direct prosecutions for delinquencies. 10

11 A.R.S. § 11-251(1). And the Arizona Court of Appeals has held the sheriff is an “officer”

12 within the definition provided in this subsection. Fridena v. Maricopa Cnty., 18 Ariz.

13 App. 527, 530 (Ct. App. 1972). Therefore, the Board of Supervisors is charged with

14 supervising the sheriff under the statute.

15

The Board’s authority over the sheriff’s budget is somewhat constrained by A.R.S.

16 § 11-444(A), which states: “The sheriff shall be allowed actual and necessary expenses

17 incurred by the sheriff in pursuit of criminals, for transacting all civil or criminal

18 business.” But the statute also provides that the Board meet monthly to allocate funds to

the sheriff for the payment of such expenses and that the sheriff “render a full and true 19

account of such expenses” every month to the Board. A.R.S. § 11-444(B)-(C). 20
In 1965, the Arizona Attorney General’s Office issued an opinion interpreting 21
A.R.S. § 11-444,10 which stated: 22
[T]he board of supervisors, being the agency of the county vested with 23

24

9 It is also worth noting that policymaker liability under § 1983 is not premised on

25

complete control of the principal over the official in question. Rather, the amount of control the defendant, i.e. the county board of supervisors, possesses over the official is

26

but one factor in the determination of whether that official qualifies as a policymaker for the municipal government. Goldstein v. City of Long Beach, 715 F.3d 750, 755 (9th Cir.

27

2013) cert. denied sub nom. Cnty. of Los Angeles, Cal. v. Goldstein, 134 S. Ct. 906, 187 L. Ed. 2d 778 (2014).

28

10 The relevant language of A.R.S. § 11-444 in 1965 was substantially similar to

its present form.

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 18 of 52

1

responsibility for allowing claims, must be satisfied in each instance when

2

examining the claims of sheriffs . . . that the expenses claimed are for a public

purpose and are the actual and necessary expenses thereof.

3

4 Op. Atty. Gen. No. 65-18. This reading harmonizes the funding requirements of A.R.S. §

5 11-444 with the Board’s duty under A.R.S. § 11-251(1) to “see that such officers
6 faithfully perform their duties and direct prosecutions for delinquencies.” A.R.S. § 11-
251(1). Cf. Pinal Cnty. v. Nicholas, 179 P. 650, 651-52 (Ariz. 1919) (holding, in 7
executing its duty to pay “necessary expenses” of the County Attorney, “the board of 8
supervisors is charged with the duty of supervising all expenditures incurred by him, and 9
rejecting payment of those which are illegal or unwarranted”). Therefore, the Board can 10
refuse to fund inappropriate activities, which is exactly what the United States wants 11
Maricopa County to do. 12
Maricopa County’s argument centers on its purported inability to initiate any 13
authorized action to affect Arpaio’s compliance with the law or a court order, given the 14
sheriff’s statutory duties and electoral independence and the Board’s statutory obligation 15
to fund his activities. But Maricopa County admits it has the ability and duty “to facilitate
16 compliance of the Sheriff and other constitutional officers with judicial orders.” (Doc.
17 334 at 9, n. 2). And the United States identified numerous ways in which Maricopa
18 County could, within its authority, exercise oversight and influence over Arpaio. For

19 instance, Maricopa County could put the sheriff on a line-item budget and use its power

20 to withhold approval for capital expenditures, salary increases and the like to encourage

21 compliance with court orders. (Docs. 348 at 10-12; 349 at ¶13-26). The United States

22 also discussed actions Maricopa County has already taken to oversee and control

23 MCSO’s fiscal management to ensure its compliance with county policy. (Docs. 348 at

24 13; 349 at ¶13). In the name of sound fiscal management, and at least partially in

25 response to constituent complaints, the Board has, in the past, ordered audits and

26 “operational efficiency reviews” of MCSO’s vehicle use, extradition and travel policy,

27 and staffing practices and ordered “oversight functions” be performed by the County

28 Office of Management and Budget. (Docs. 349-2, 349-3). In fact, Maricopa County’s

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 19 of 52

1 own initial response to DOJ’s investigation stated the County could deny MCSO

2 reimbursement for funds expended in an effort to resist the investigation, as such

3 resistance was “outside the scope of the employment of any elected or appointed

4 official.” (Doc. 333-3 at 10). This evidence and the Arizona Attorney General’s

5 interpretation of the relevant statutes, show Maricopa County has the ability to afford at

6 least partial redress for violations committed by Arpaio, MCSO, and Maricopa County.

7

In addition, another district court recently upheld taxpayers’ standing to sue

8 Maricopa County in challenging the expenditure of municipal funds for MCSO’s

9 enforcement of an allegedly discriminatory statute. Puente Arizona v. Arpaio, No. CV-
10 14-01356-PHX-DGC, 2015 WL 58671 at *11 (D. Ariz. Jan. 5, 2015) (“[A] favorable
11 decision would . . . prevent[] further expenditures for enforcement of the identity theft
12 laws.”) (citing Hinrichs v. Bosma, 440 F.3d 393, 397–98 (7th Cir. 2006) (“Such an injury
13 is redressed not by giving the tax money back . . . but by ending the unconstitutional 14 spending practice.”)).11 See also We Are Am./Somos Am., Coal. of Arizona v. Maricopa
15 Cnty. Bd. of Supervisors, 809 F. Supp. 2d 1084, 1104 (D. Ariz. 2011) (finding plaintiffs
16 had alleged injury sufficient to confer standing to sue county/Board of Supervisors, the 17 sheriff, and others in action seeking suspension of the use of municipal funds for MCSO 18 enforcement of discriminatory policy). In Puente, as here, Maricopa County argued its
inability to control the County’s criminal law enforcement meant that allowing Maricopa 19
County to remain a party “could result in it being ‘bound by an injunction that is not 20
within its authority to comply with under Arizona law.’” 2015 WL 58671 at *25. The 21
court held “[t]his fact might limit [Maricopa County’s] exposure to contempt or other 22
remedies if an injunction is disregarded, but it does not alter the fact that the County is a 23
proper defendant.” Id. 24
Even assuming Maricopa County’s control over MCSO’s operations is limited to 25
control over funding, as opposed to direct and complete oversight and control of 26
enforcement operations, that control establishes Maricopa County could contribute to the 27

28

11 Arpaio and Maricopa County’s arguments against standing in that case focused

on injury, not redressability.

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1 requested relief, which is all the law requires to create standing. Therefore, summary 2 judgment on this issue will be denied.12

3 III. Maricopa County’s Liability Under Title VI and 42 U.S.C. § 14141

4

Maricopa County advances several arguments for granting summary judgment in

5 its favor with respect to the United States’ claims under Title VI (Counts Three, Four,

6 and Five) and § 14141 (Counts One, Two, and Six). First, Maricopa County claims Title

7 VI does not authorize the United States to file suit to enforce its provisions. Next,

8 Maricopa County claims neither Title VI nor § 14141 authorize imputation of liability

9 from Arpaio and MCSO to Maricopa County. Alternatively, Maricopa County argues

10 even if the statutes authorize imputation, the County would not be liable for the alleged

11 violations. Finally, Maricopa County claims the United States failed to comply with the 12 notice requirements of Title VI.13

13

A. Authorization to File Suit Under Title VI

14

Maricopa County argues summary judgment in its favor as to Counts Three, Four,

15 and Five is required because Title VI does not authorize the United States to bring suit to
16 enforce its provisions. Maricopa County draws a comparison between Title VI and Title
17 IV, the latter of which explicitly authorizes the Attorney General “to institute . . . in the
18 name of the United States a civil action . . . against such parties and for such relief as may be appropriate.” 42 U.S.C. § 2000c-6. Maricopa County claims that because “Congress
19 knew how to authorize a lawsuit by [the United States],” there is “‘strong evidence’ that
20 no lawsuit was authorized here.” (Doc. 334 at 6). The United States challenges this
21 assertion through interpretation of the phrase “any other means authorized by law” in
22 Title VI. 42 U.S.C. § 2000d-1.
23 Under Title VI, compliance may be effected “by termination of or refusal to grant
24

25

12 The Ninth Circuit’s recent decision in substituting Maricopa County for MCSO

26

in Melendres, although it does not discuss Maricopa County’s capability of redressing the wrongs found in that case or implementing the Melendres injunction, supports a finding

27

of standing against Maricopa County in this case. Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015).

28

13 The standing argument raised by Maricopa County was addressed in the

previous section. See Part II(B), supra.

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 21 of 52

1 or to continue assistance” or “by any other means authorized by law.” 42 U.S.C. § 2000d-

2 1. The parties focus on the interpretation of the phrase “any other means authorized by

3 law.” The United States relies on National Black Police Association, Inc. v. Velde, 712

4 F.2d 569, 575 (D.C. Cir. 1983) and United States v. Baylor University Medical Center,

5 736 F.2d 1039, 1050 (5th Cir. 1984), each of which recognizes “any other means

6 authorized by law” as including enforcement options beyond administrative action. See

7 also Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 630

8 (1983) (J. Marshall, dissenting) (“[I]n extending grants the United States has always

9 retained an inherent right to sue for enforcement of the recipient’s obligation.”).

10 Maricopa County claims Velde and Baylor University Medical Center do not represent

11 the current approach to statutory interpretation which was abandoned by the Supreme

12 Court in Alexander v. Sandoval. 532 U.S. 275 (2001).

13

In Sandoval, the Supreme Court condemned lower courts’ liberal implication of

14 private rights of action “to provide remedies as are necessary to make effective []

15 congressional purpose” and established a stricter standard requiring more explicit
16 findings of congressional intent to support such causes of action. 532 U.S. 275, 287
17 (2001). In determining the congressional intent behind § 602 of Title VI the Court 18 endeavored to discern the “focus” of the provision. Sandoval, 532 U.S. at 288-289.14 The
Court held: “Statutes that focus on the person regulated rather than the individuals 19
protected create ‘no implication of an intent to confer rights on a particular class of 20
persons.’” Id. at 289. It found § 602 focused neither on persons regulated nor individuals 21
protected, but instead exclusively on federal agency enforcement. Id. (“[Section] 602 is 22
‘phrased as a directive to federal agencies engaged in the distribution of public funds,’ . . 23
. . When this is true, ‘[t]here [is] far less reason to infer a private remedy in favor of 24
individual persons.’”). The implication, then, is that where a statutory provision focuses 25

26

14 DOJ promulgated regulations under § 602 prohibiting disparate impact racial 27 discrimination in federally-funded programs. 28 CFR § 42.104(b)(2) (2000). Sandoval

28

did not affect previous decisions establishing a private right of action to enforce § 601, which prohibits intentional discrimination based on race in federally-funded programs.

Id. at 281.

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 22 of 52

1 on a particular party, it is more likely Congress intended to confer a right of action on that

2 party to enforce the provision. The logic of Sandoval, therefore, supports finding a right

3 of action for federal agency enforcement under § 602 of Title VI.

4

The Sixth Circuit appears to be the only federal court of appeals to have addressed

5 the meaning of “any other means authorized by law” as it applies to means of

6 government enforcement following Sandoval. The Sixth Circuit acknowledged the pre-

7 Sandoval understanding of the phrase and found it authorized the government to bring 8 suit to enforce a statutory provision.15 United States v. Miami Univ., 294 F.3d 797, 808

9 (6th Cir. 2002) (“We believe that the fourth alternative [‘take any other action authorized

10 by law with respect to the recipient’] expressly permits the [agency] to bring suit to

11 enforce the [statutory] conditions in lieu of its administrative remedies.”) (citing Baylor

12 Univ. Med. Ctr., 736 F.2d at 1050; Nat’l Black Police Ass’n, 712 F. 2d at 575). Cf. United

13 States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 611 (5th Cir. 1980) (“[T]he

14 government’s right to sue to enforce its contracts exists as a matter of federal common

15 law, without necessity of a statute . . . Congress may nullify the right, but, as the Supreme

16 Court has repeatedly emphasized, courts are entitled to conclude that Congress has done

17 so only if the evidence of Congress' intent is extremely, even unmistakably, clear.”).

18

Maricopa County claims Congress rejected an amendment to Title VI explicitly

authorizing public judicial enforcement of Title VI. The rejected amendment provided 19

that a recipient of federal funds “assume[d] a legally enforcible [sic] undertaking . . . [and 20
the] United States district courts [would] have jurisdiction [over] civil actions brought in 21
connection with such undertakings by either the United States or by any recipient 22
aggrieved by action take under any such undertaking.” 110 Cong. Rec. 2493-94 (1964). 23
The author of the proposed amendment, Congressman Meader, envisioned such disputes 24
being governed by the law of contracts. 110 Cong. Rec. 2493 (1964). But the amendment 25
was rejected in favor of the broader provision for enforcement of contractual obligations 26
not only through the courts, but by “any . . . means authorized by law.” In the words of
27

28

15 The phrase, as interpreted, appeared in the Family Educational Rights and

Privacy Act (“FERPA”).

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 23 of 52

1 Congressman Celler, the Meader Amendment would have “den[ied] much needed

2 flexibility to the Federal agencies to effectuate their nondiscrimination policy . . . [in

3 contrast to the version using ‘any other means authorized by law’ which] seeks to

4 preserve [] the maximum [] existing procedures . . . including any judicial review.” 110

5 Cong. Rec. 2494 (1964). The record of the congressional debate surrounding this

6 amendment clearly shows Congress’s intent that the provisions of Title VI be enforceable

7 through lawsuits to allow enforcement by judicial review.

8

Furthermore, to the extent the phrase “any other means authorized by law” may be

9 ambiguous as it appears in Title VI, the Court must defer to DOJ’s interpretation. See

10 City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (citing Chevron U.S.A.

11 Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). DOJ regulations

12 interpret the phrase “any other means authorized by law” in Title VI to include

13 “[a]ppropriate proceedings brought by the Department to enforce any rights of the United

14 States under any law of the United States (including other titles of the Act), or any

15 assurance or other contractual undertaking.” 28 C.F.R. § 42.108(a)(1).

16

Based on the foregoing, summary judgment for Maricopa County regarding the

17 United States’ ability to enforce Title VI through lawsuits will be denied.

18

B. Imputation of Liability

Maricopa County claims neither Title VI nor § 14141 authorize imputation of 19

liability from Arpaio and MCSO to Maricopa County. It contrasts these statutes with 42 20
U.S.C. § 1983, which explicitly creates liability for entities which cause others to commit 21
constitutional violations. The United States claims the Court already decided Maricopa 22
County can be held liable for Arpaio’s violations in its order on the early motion to 23
dismiss. It also contends Arpaio’s actions constitute the actions of Maricopa County for 24 purposes of liability under § 14141 and Title VI.16 25

26

16 In its recent Melendres decision, the Ninth Circuit held, on remand, the district 27 court could consider whether dismissal of Sheriff Arpaio in his official capacity was

28

warranted because, typically, a suit against a person in his official capacity is, “in all respects other than name, [] treated as a suit against the entity.” Melendres v. Arpaio, 784

F.3d 1254, 1260 (9th Cir. 2015). Because the court did not specify whether Arpaio is or is

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1

i. Title VI (42 U.S.C. §§ 2000d-2000d-7)

2

Maricopa County refers to itself as “the Board,” as in, the Board of Supervisors.

3 (Doc. 334 at 12). The United States argues for a broader understanding of persons

4 comprising county government for purposes of Title VI liability. It argues Maricopa

5 County’s policymakers constitute the County under the statute and that Maricopa County

6 violated Title VI in two ways: First, through the Board, by failing to live up to its

7 contractual obligations, and second, through the pattern, practice, and policy of

8 discrimination promulgated by Arpaio, the County’s policymaker.

9

Section 1983 explicitly provides liability for government entities which cause

10 others to violate constitutional rights. 42 U.S.C. § 1983. Under § 1983, municipal liability
11 for officers’ actions is not automatic but attaches “when execution of [the] government’s
12 policy or custom, whether made by its lawmakers or by those whose edicts or acts may
13 fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc.
14 Servs. of City of New York, 436 U.S. 658, 694 (1978). In other words, a violation caused
15 by a municipal policy, e.g. a policy made by a municipal policymaker, is a violation by
16 the municipality. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378, 54 P.3d 837, 847 17 (Ct. App. 2002) (“Liability [under § 1983] is imposed, not on the grounds of respondeat 18 superior, but because the agent’s status cloaks him with the governmental body’s
authority.”). 19
“To hold a local government liable for an official’s conduct [under § 1983], a 20
plaintiff must first establish that the official (1) had final policymaking authority 21
‘concerning the action alleged to have caused the particular constitutional or statutory 22
violation at issue’ and (2) was the policymaker for the local governing body for the 23
purposes of the particular act.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 24
2000) (citing McMillian v. Monroe County Alabama, 520 U.S. 781, 785 (1997)). In 25
analyzing the second question—whether a policymaker may be associated with a 26

27 not an appropriate party and because no party has argued this point, the Court will not

28

decide it. The Ninth Circuit’s statement does, however, bolster the Court’s assessment of the relationship between Maricopa County and Arpaio and the potential for Maricopa

County’s liability.

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1 particular government entity for purposes of liability—the amount of control the

2 government entity, i.e. the county board of supervisors, possesses over the official is but

3 one factor. Goldstein v. City of Long Beach, 715 F.3d 750, 755 (9th Cir. 2013) cert.

4 denied sub nom. Cnty. of Los Angeles, Cal. v. Goldstein, 134 S. Ct. 906, 187 L. Ed. 2d

5 778 (2014). Other factors include the county’s obligation to defend or indemnify the

6 official, the scope of the official’s duties, and the official’s definition in the state

7 constitution. Goldstein, 715 F.3d at 755-762. The Court’s previous order held Arpaio

8 “has final policymaking authority with respect to County law enforcement and jails, and

9 [based on that,] the County can be held responsible for constitutional violations resulting

10 from these policies.” United States v. Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1082-

11 84 (D. Ariz. 2012); (Doc. 56).

12

Title VI does not explicitly provide liability for entities which cause others to

13 violate the statute. Title VI provides: “No person in the United States shall, on the ground

14 of race, color, or national origin, be excluded from participation in, be denied the benefits

15 of, or be subjected to discrimination under any program or activity receiving Federal
16 financial assistance.” 42 U.S.C. § 2000d. The section is enforceable through termination
17 or refusal of federal funding or “by any other means authorized by law.” 42 U.S.C. §
18 2000d-1. Termination or refusal of funding is “limited to the particular political entity, or part thereof, or other recipient as to whom [an express finding on the record . . . of a
19 failure to comply] has been made and, shall be limited in its effect to the particular
20 program, or part thereof, in which such noncompliance has been so found.” 42 U.S.C. §
21 2000d-1.
22 No court has directly confronted the question of whether “policymaker” liability
23 applies under Title VI. But case law on Title IX, which parallels Title VI,17 is instructive.
24

25

17 See Cannon v. Univ. of Chicago, 441 U.S. 677, 684 (1979) (stating Title IX was 26 patterned on Title VI). Title IX prohibits discrimination in federally funded educational

27

programs on the basis of gender instead of race. 20 U.S.C. § 1681. Like Title VI, Title IX authorizes termination or refusal of funding for “the particular political entity, or part

28

thereof, or other recipient as to whom [an express finding on the record . . . of a failure to comply] has been made and, shall be limited in its effect to the particular program, or part

thereof, in which such noncompliance has been so found,” as well as enforcement

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1 Like Title VI, Title IX does not explicitly provide liability for causing others to violate

2 the statute, nor for classic respondeat superior liability. In Gebser v. Lago Vista

3 Independent School District, the Supreme Court held “Congress did not intend to allow

4 recovery [under Title IX] where liability rests solely on principles of vicarious liability or

5 constructive notice.” 524 U.S. 274, 288 (1998). See also Davis Next Friend LaShonda D.

6 v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999) (“[A] recipient of federal funds

7 may be liable in damages under Title IX only for its own misconduct.”). Instead, a

8 principal can be held liable for “employees’ independent actions” only if, after actual

9 notice to an “appropriate person,”18 the principal fails to adequately respond to the

10 employees’ violations, thus demonstrating “deliberate indifference” to the alleged

11 violation. Gebser, 524 U.S. at 289-291 (“It would be unsound, we think, for a statute’s

12 express system of enforcement to require notice to the recipient and an opportunity to

13 come into voluntary compliance while a judicially implied system of enforcement permits

14 substantial liability without regard to the recipient’s knowledge or its corrective actions

15 upon receiving notice.”) (emphasis in original). This sort of “deliberate indifference” is a

16 form of intentional discrimination by the employer/principal directly, not a form of

17 vicarious liability. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005).

18

An institution is also directly liable for its “own official decision[s].” Gebser, 524

19

20 through “any other means authorized by law.” 20 U.S.C. § 1682.

18 An “appropriate person,” under Title IX is, “at a minimum, an official of the 21 recipient entity with authority to take corrective action to end the discrimination.” Id. at

22

290. In the context of schools (the primary entities governed by Title IX), “appropriate person” can refer to teachers, principals, or school boards, depending on the authority of

23

those actors within a particular educational system. See Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1020-21 (7th Cir. 1997) (“While a principal has some authority

24

over the activities within his school, the [state] statutes place institutional control over ‘program or activities’ with the school district and school board . . . [and] does not give

25

assistant principals administrative control over educational programs or activities. . . . Thus neither a principal nor an assistant principal can be considered a grant recipient.”).

26

Notice to an “appropriate person” is also required under Title VI. And at least one

27

district court has extended the Supreme Court’s interpretation of this phrase in Title IX to Title VI, holding a person with “authority to take corrective action to end the alleged

28

discrimination” can be liable under Title VI if, after notice of another’s violation of the statute, the authority fails to take corrective action. Rubio ex rel. Z.R. v. Turner Unified

Sch. Dist. No. 202, 475 F. Supp. 2d 1092, 1098-99 (D. Kan. 2007).

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1 U.S. at 290-291. The Ninth Circuit and others have held a separate finding of “deliberate

2 indifference” is not necessary when an institutional policy violates the statute.

3 Mansourian v. Regents of Univ. of California, 602 F.3d 957, 967-969 (9th Cir. 2010). See

4 also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007) (“[A]

5 funding recipient can be said to have ‘intentionally acted in clear violation of Title IX,’

6 when the violation is caused by official policy.”) (citing Davis, 526 U.S. at 642). Because

7 a “policymaker” is not acting individually, but on behalf of the institution/entity, and his

8 policies are the policies of the entity, no imputation takes place in charging the entity

9 with violations stemming from those policies—they are the policies of the entity, not

10 merely the individual.

11

This logic parallels the reasoning that undergirds the law establishing

12 “policymaker” liability under § 1983 and applies with equal force to Title VI. Maricopa

13 County is directly liable for violations resulting from its official policy, which includes

14 policy promulgated by Arpaio. See United States v. Maricopa Cnty., Ariz., 915 F. Supp.

15 2d 1073, 1082-84 (D. Ariz. 2012). These policies constitute intentional acts by Maricopa

16 County for which no imputation is required. Therefore, summary judgment on the

17 grounds of impermissible imputation (i.e. vicarious liability) under Title VI will be

18 denied.

19

ii. 42 U.S.C. § 14141

Maricopa County claims § 14141 imposes liability only on an entity which 20

engages directly in conduct that results in constitutional injury. 21

The Violent Crime Control and Law Enforcement Act of which § 14141 is a part

22

provides, among other things, grants for state and local law enforcement agencies to

23

improve police training and practices and help prevent crime. Pub. L. 103-322, 42 U.S.C.

24

Ch. 136, §§ 13701-14223. Section 1414, specifically, provides:

25

It shall be unlawful for any governmental authority, or any agent thereof, or any

26

person acting on behalf of a governmental authority, to engage in a pattern or

27

practice of conduct by law enforcement officers or by officials . . . that deprives

persons of rights, privileges, or immunities secured or protected by the

28

Constitution or laws of the United States.

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1

2 42 U.S.C. § 14141 (emphasis added).

3

The Court is unable to find a case speaking directly to the question of vicarious or

4 imputed liability under § 14141. However, again, the logic of policymaker liability

5 discussed in the preceding section would render Maricopa County directly, not indirectly

6 liable under the statute. In addition, the United States has sued and settled under the

statute with various governments for violations committed by law enforcement 7

departments. See United States v. State of New Jersey, et al., 3:99-cv-05970-MLC-JJH; 8

United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013); United States v. 9

Puerto Rico, 922 F. Supp. 2d 185 (D.P.R. 2013). All of these cases ended in settlement 10

and in none did the defendant government challenge liability by arguing vicarious or 11
imputed liability was unavailable under § 14141. Therefore, the case law suggests 12
liability is available to sue governments whose law enforcement violates the statute.

13 Summary judgment will not be granted to Maricopa County on this issue of imputation of

14 liability under § 14141.

15 C. Liability Under Title VI and 42 U.S.C. § 14141

16

Maricopa County argues it is entitled to summary judgment regarding its liability

17 under Title VI and § 14141, even if imputation is permitted because “the County cannot

18 control the Sheriff’s policies and practices relating to law enforcement or jailing.” (Doc.

19 334 at 18). This argument was addressed in Part II(B), supra. Maricopa County has

20 sufficient authority to provide some redress for violations committed by Arpaio and

21 MCSO. Therefore, the argument is without merit.

22

Maricopa County further claims its contractual assurances under Title VI must be

23 read in accordance with Arizona law, including statutory limitations on the Board of

24 Supervisors’ authority regarding the Sheriff. To the extent Maricopa County entered into

25 a contract for which it lacked the authority to agree, Maricopa County argues, the

26 contract is void. (Doc. 351 at 13).

27

The United States has the power to sue to enforce its contracts. See Cotton v.

28 United States, 52 U.S. 229, 231, 13 L. Ed. 675 (1850); Rex Trailer Co. v. United States,

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1 350 U.S. 148, 151 (1956). And “[f]ederal law governs the interpretation of contracts

2 entered pursuant to federal law where the federal government is a party.” Chickaloon-

3 Moose Creek Native Ass’n., Inc. v. Norton, 360 F.3d 972, 980 (9th Cir. 2004).

4

Neither party offered authority addressing how courts treat the enforcement of an

5 ultra vires contract between a county and the federal government. But the Court rejected

6 the contention that Maricopa County lacked any authority to enforce the

7 nondiscrimination mandate that attaches to federal funds under Title VI. See Part II(B),

8 supra; (Doc. 56). Even if “persons dealing with public officers are bound, at their peril, to

9 know the extent and limits of their power,” the United States is, at the very least, entitled

10 to hold Maricopa County accountable for failing to take action it was authorized to take

11 under Arizona law with respect to Arpaio and MCSO, which could have helped prevent

12 violations of Maricopa County’s contractual obligations under Title VI. See Pinal Cnty.

13 v. Pomeroy, 60 Ariz. 448, 455 (1943). Therefore, summary judgment will be denied on

14 the issues of Maricopa County’s liability for its contractual assurances and violations

15 under § 14141.

16

D. Notice of Maricopa County’s Violations

17

Finally, Maricopa County argues the United States failed to provide notice

18 regarding “any alleged improper conduct on its [Maricopa County’s] part,” as required by

Title VI. (Doc. 334 at 5). The United States claims it provided Maricopa County with 19

proper notice of the violations for which it seeks to hold the County accountable. 20

Title VI provides: “no [] action shall be taken until the department or agency 21
concerned has advised the appropriate person or persons of the failure to comply with the 22
requirement and has determined that compliance cannot be secured by voluntary means.” 23
42 U.S.C.A. § 2000d-1. The regulations state notification of “failure to comply and action 24
to be taken to effect compliance” must be given to the “[funding] recipient or other 25
person.” 28 C.F.R. § 42.108(d)(3). The Supreme Court has interpreted “appropriate 26
person” under Title IX, a parallel statute, to mean “at a minimum, an official of the
27 recipient entity with authority to take corrective action to end the discrimination.” Gebser

28 v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). The notice provision in Title

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1 IX, which requires actual, not constructive notice, however, only applies “when the

2 alleged Title IX violation consists of an institution’s deliberate indifference to acts that

3 ‘do not involve official policy of the recipient entity.’” Mansourian v. Regents of Univ. of

4 California, 602 F.3d 957, 967 (9th Cir. 2010) (citing Gebser, 524 U.S. at 290). Again, the

5 Court interprets the provisions of Title VI in parallel with those of its sister statute, Title

6 IX. See n. 19, supra.

7

Maricopa County first responded to DOJ’s notice of MCSO’s noncompliance with

8 its obligation to cooperate in DOJ’s investigation in August of 2010. (Doc. 333-3 at 9). In

9 that response, Maricopa County characterized DOJ’s correspondence as a “Notice Letter”

10 and appeared to embrace its own obligation to assist in the investigation, including by

11 denying MCSO funding for expenses for activities contrary to the law. Id. But on

12 December 15, 2011, in response to DOJ’s Findings Letter, discussing the results of its

13 investigation, Maricopa County Attorney Bill Montgomery (“Montgomery”) responded

14 that the United States had “noticed the wrong party” and directed DOJ to Jones, Skelton

15 & Hochuli, P.L.C. (“Jones Skelton”), MCSO’s counsel of record. (Doc. 333-3 at 12).

16 Approximately one month after Montgomery sent his letter, on January 17, 2012, DOJ

17 replied, stating:

18

It has not always been clear who represents the [MCSO] with respect to different matters, so we felt it made sense to provide notice to both you and the attorneys

19

who represented MCSO with respect to our [a previous] lawsuit. Since our current

investigation potentially affects Maricopa County as the conduit of federal

20

financial assistance to MCSO, we will continue to carbon copy you on significant

21

correspondence between us and [Jones Skelton].

22 (Doc. 333-3 at 14) (emphasis added).

23

DOJ continued to copy Montgomery and Maricopa County on its correspondence

24 with Jones Skelton, which revealed the United States’ position that Jones Skelton and

25 MCSO were not engaging in good faith negotiations with the federal government. (Doc.

26 333-3 at 15-20). On May 9, 2012, the United States wrote to Jones Skelton and

27 Montgomery separately to advise each of its plans to file suit. In its letter to Montgomery,

28 the United States stated MCSO’s counsel had chosen to “cancel negotiations” and that

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1 the United States had “determined the [MCSO’s] compliance . . . [could not] be secured

2 through voluntary means.” (Doc. 333-3 at 25). Finally, the letter stated:

3

Based on the foregoing, please be advised that in accordance with the notice

4

requirements set forth in DOJ’s Title VI regulations, 42 C.F.R. § 108(d)(3) [sic], it is the intention of the Department of Justice to file a civil action against Maricopa

5

County, [MCSO], and [Arpaio] in order to remedy the serious Constitutional and

6

federal law violations . . . noted in our December 15, 2012 [sic] Findings Letter.

7 (Doc. 333-3 at 25-26).

8

Maricopa County argues that because the Findings Letter refers only to Title VI

9 violations by MCSO, not Maricopa County, the letter cannot constitute proper notice to

10 Maricopa County under the statute. The United States argues the notice provided to

11 Maricopa County via the January 17, 2012 letter, “numerous communications” between

12 attorneys for the United States and Maricopa County, and meetings between DOJ and “at

13 least two county commissioners” was sufficient to place Maricopa County on notice of its

14 liability and provide it with an opportunity to respond.19 The United States also argues

15 that because MCSO is not a jural entity separate, for legal purposes, from Maricopa 16 County, its communications with MCSO count towards notice to Maricopa County.20

17

To the extent Maricopa County attempts to defeat claims based on official policies

18 which allegedly violated Title VI, its argument fails. The Supreme Court has held notice

19

20

19 DOJ’s meeting with county supervisors highlights an issue which has yet to be

21

resolved by the facts presented, but which is not necessary to the issue of notice. Maricopa County points out that DOJ’s meeting with the supervisors took place without

22

Montgomery or any representative from the Maricopa County Attorney’s Office (“MCAO”) and that this could mean one of two things: either (1) the United States did

23

not believe the Board of Supervisors (in other words, Maricopa County) was represented by MCAO, or (2) the United States did believe the Board of Supervisors was represented

24

by MCAO and committed an ethical violation by meeting with the Board without MCAO’s presence, notification, or consent. If the first option is true, communications

25

with Montgomery would be irrelevant to the question of notice. If the second is true, communications with Montgomery would be relevant, but the United States would have

26

also committed an ethical violation. Maricopa County’s motion does not clarify one way or another whether MCAO was representing Maricopa County at the time of the United

27 States’ communications or whether the United States believed it to be.

20 All of the communications the United States claims constituted notice occurred 28 after the Arizona Court of Appeals ruling in Braillard v. Maricopa County, 224 Ariz.

481, 487 (Ct. App. 2010) (establishing MCSO as a non-jural entity).

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1 requirements like the one contained in Title VI only apply where the violation stems from

2 the practices of individual actors or staff, not institutional decisions such as those

3 embodied by official policy. See Gebser, 524 U.S. at 290 (holding notice required in case

4 not involving official policy of recipient entity); Mansourian, 602 F.3d at 967-969

5 (“[T]he Supreme Court has made clear that no notice requirement is applicable to Title

6 IX claims that rest on an affirmative institutional decision [such as the promulgation of

7 institutional policies]”).

8

Even if notice was required to hold Maricopa County liable for Arpaio and

9 MCSO’s actions (as opposed to its policies), Maricopa County’s argument that “[t]elling

10 a party that an investigation ‘potentially affects’ them is a far cry from providing notice
11 ‘of the failure to comply with [Title VI],’” (Doc. 356 at 9), is not facially apparent from
12 the correspondence, and Maricopa County cites no law to support it. On its face, the
13 Findings Letter constitutes notice of Maricopa County’s liability “as the conduit of
14 federal financial assistance to MCSO” for violations of its contractual assurances under
15 Title VI. Maricopa County concedes the Findings Letter put it on notice of MCSO’s
16 violations and does not argue this notification was sent to an “inappropriate person.” 17 Furthermore, earlier correspondence from August of 2010 indicates Maricopa County 18 was fully aware not only of potential violations by MCSO, but also of its own obligation
to cooperate with and assist DOJ in investigating and remedying those violations. 19
Therefore, summary judgment on the issue of the adequacy of notice under Title VI will 20
be denied. 21
IV. Non-Mutual, Offensive Issue Preclusion and Counts One, Three, and Five 22
Having resolved that liability is possible, the next issue is whether the United 23
States has actually proven such liability. 24
The United States seeks to preclude Arpaio and Maricopa County from contesting 25
the issues decided in Melendres which reappear in this case and argues those issues 26
entitle the United States to summary judgment on portions of its discriminatory policing 27
claims contained in Counts One, Three, and Five. These counts, as set forth in the 28
complaint, are based on alleged discrimination in multiple areas of law enforcement:

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1 traffic stops, workplace raids, home raids, and jail operations. The Melendres court found

2 discrimination in one of those areas: traffic stops. In effect therefore, the United States is

3 seeking summary judgment on a narrower form of the counts it outlined in its original

4 complaint. It argues the Court can grant summary judgment on these narrow grounds and

5 allow the United States to prove additional grounds at trial.

6

A. Application of Non-Mutual, Offensive Issue Preclusion to Arpaio

7

Arpaio claims applying non-mutual, offensive issue preclusion as to the findings

8 from Melendres would be unfair and, therefore, cannot apply. The United States argues

9 non-mutual, offensive issue preclusion should apply because an identity of issues exists,

10 the issues were actually litigated and decided, and the United States did not improperly

11 interfere in the previous litigation or adopt a “wait and see” strategy.

12

Issue preclusion, formerly known as collateral estoppel, has the “dual purpose of

13 protecting litigants from the burden of relitigating an identical issue . . . and of promoting

14 judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439

15 U.S. 322, 326 (1979). However, the offensive use of issue preclusion may have the
16 opposite effect, encouraging plaintiffs to “wait and see” in a way which may “increase
17 rather than decrease the total amount of litigation.” Id. at 330. Thus, special care must be 18 taken when considering whether to apply non-mutual, offensive issue preclusion.
Ordinary issue preclusion requires a party show: “(1) the issue sought to be 19
litigated is sufficiently similar to the issue presented in an earlier proceeding and 20
sufficiently material in both actions to justify invoking the doctrine, (2) the issue was 21
actually litigated in the first case, and (3) the issue was necessarily decided in the first 22
case.” Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir. 2003).21 A 23

24 21 An “identity of issues” exists where:
25

26

(1) There is substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first,

27

(2) The new evidence or argument involves the application of the same rule of law

28 as that involved in the prior proceeding,

(3) Pretrial preparation and discovery related to the matter presented in the first

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1 plaintiff seeking non-mutual, offensive issue preclusion, however, must also show its

2 application would not be unfair. See Parklane Hosiery Co., 439 U.S. 322, 330-331

3 (1979). A number of circumstances may render offensive issue preclusion unfair and

4 therefore impermissible. For instance, where a defendant “may have little incentive to

5 defend vigorously, particularly if future suits are not foreseeable . . . [or] if the judgment

6 relied upon as a basis for the estoppel is itself inconsistent with one or more previous

7 judgments . . . [or] where the second action affords the defendant procedural

8 opportunities unavailable in the first action that could readily cause a different result.” Id.

9 at 330-331.

10

Arpaio does not contest the identity of issues between Melendres and certain

11 aspects of the United States’ complaint. Nor does he argue these issues were not actually

12 litigated or necessarily decided. Instead, Arpaio focuses entirely on the question of

13 fairness. He first argues the United States adopted a “wait and see” strategy in the

14 Melendres litigation and that it deliberately withheld suit until the Melendres decision so
15 that it could use the findings from that case in this suit. “Wait and see” was explicitly
16 denounced by the Supreme Court as contrary to judicial economy and a factor
17 disfavoring application of non-mutual, offensive issue preclusion. Id. at 329. As proof of 18 this strategy, Arpaio offers Maricopa County’s motion to stay Melendres pending the
outcome of DOJ’s investigation. But Arpaio himself opposed the stay, as did the 19
Melendres plaintiffs, and ultimately, the court denied the motion. The Melendres court 20
reasoned: “[I]t is doubtful that the DOJ investigation will necessarily overlap with the 21
issues of this case sufficient to prove markedly beneficial. Even if they did, the length of 22
the stay proposed by the County undercuts any such utility.” Melendres v. Maricopa 23
Cnty., No. 07-CV-02513-PHX-GMS, 2009 WL 2515618, at *2 (D. Ariz. Aug. 13, 2009). 24

25

26

action can reasonably be expected to have embraced the matter sought to be presented in the second,

27

(4) The claims involved in the two proceedings are closely related.

28 Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir. 1995) opinion amended on reh’g sub nom. Kamilche v. United States, 75 F.3d 1391 (9th Cir. 1996).

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1 At the time of the court’s ruling, discovery in Melendres was closed and the dispositive

2 motion deadline had passed. It was unclear when DOJ’s investigation, which had begun a

3 few months prior, would be complete. Not only was the Melendres court’s denial of the

4 stay reasonable, it is not a basis for attributing a “wait and see” strategy to the United

5 States now. In addition, despite being aware of DOJ’s ongoing investigation, neither

6 Arpaio nor any other party moved to join the United States as a party in Melendres.

7

The evidence also does not support Arpaio’s argument that the United States was

8 “heavily involved in the Melendres litigation” in such a way as would render application

9 of non-mutual, offensive issue preclusion unfair. (Doc. 346 at 8). Arpaio attempts to

10 characterize the United States as seeking influence and control in Melendres, but the
11 United States more accurately describes its actions as “routine efforts to stay apprised of
12 related litigation.” (Doc. 354 at 6). The United States requested and was denied the
13 opportunity to attend depositions. Melendres v. Arpaio, No. CV-07-02513-PHX-GMS,
14 2009 WL 3489402, at *1 (D. Ariz. Oct. 28, 2009). It ordered transcripts, requested a
15 protective order for documents the parties sought in discovery, attended status
16 conferences relevant to its document production, and requested a related case be 17 transferred to the judge who was handling Melendres. The United States’ statement of 18 interest, filed after the Melendres court published its decision, offered the services and
suggestions of the federal government regarding addressing constitutional violations in 19
law enforcement agencies. The statement even discussed the possibility of a “global 20
settlement encompassing the United States’ claims,” an option the Melendres litigants, 21
including Arpaio, failed to pursue. (2:07-CV-02513-GMS, Doc. 580). 22
Finally, contrary to the few non-controlling and distinguishable cases Arpaio cites, 23
this is not a case in which the United States could have easily joined the prior litigation. 24
Cf. Charles J. Arndt, Inc. v. City of Birmingham, 748 F.2d 1486, 1494 (11th Cir. 1984) 25
(individual plaintiff was aware of and testified in the earlier suit); In re Air Crash 26
Disaster at Stapleton Int’l Airport, Denver, Colo., on Nov. 15, 1987, 720 F. Supp. 1505, 27
1523 (D. Colo. 1989) rev’d on other grounds by Johnson v. Cont’l Airlines Corp., 964 28
F.2d 1059 (10th Cir. 1992) (plaintiffs were aware of, testified in, and were represented by

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1 the same counsel as plaintiffs in earlier suit). The timing issues discussed above, as well

2 as the differences between the federal government joining litigation versus an individual

3 plaintiff doing so, indicate the difficulty that would have been involved in consolidating

4 these two cases.

5

Because the United States did not “purpose[fully] elude[] the binding force of an

6 initial resolution of a simple issue” nor improperly interfere in the initial proceeding such

7 that this case would represent its second bite of the apple, non-mutual, offensive issue

8 preclusion would not be unfair and, therefore, should be granted in this case. Starker v.

9 United States, 602 F.2d 1341, 1349-1350 (9th Cir. 1979). Indeed, employing the doctrine

10 here will promote judicial economy and all parties’ interest in expeditious resolution.

11 Therefore, summary judgment on this issue will be granted, and the United States will be

12 permitted to offer the factual findings and rulings from Melendres in support of its

13 claims.

14

B. Application of Non-Mutual, Offensive Issue Preclusion to Maricopa

15 County

16

Maricopa County argues non-mutual, offensive issue preclusion should not apply

17 to the County, which was not a party to Melendres. The United States argues non-mutual,

18 offensive issue preclusion should apply to Maricopa County because the County was only

dismissed from the previous suit because of its identity with MCSO, which was a party 19

and, further, that Maricopa County is in privity with MCSO and Arpaio with respect to 20
the previous litigation and was adequately represented therein. 21
“A person who was not a party to a suit generally has not had a ‘full and fair 22
opportunity to litigate’ the claims and issues settled in that suit.” Taylor v. Sturgell, 553 23
U.S. 880, 892 (2008). But the Supreme Court has recognized six categories of exceptions 24
to this general principle. A nonparty may be precluded from relitigating an issue from a 25
prior case when: (1) the nonparty agreed to be bound by the determinations of the prior 26
case; (2) the nonparty had a “pre-existing ‘substantive legal relationship’” with a party
27

28

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1 bound by the judgment;22 (3) the nonparty was “adequately represented by someone with 2 the same interests who [wa]s a party”;23 (4) the nonparty “‘assume[d] control’ over the

3 litigation in which [the] judgment was rendered;” (5) a party to the previous litigation

4 was a “designated representative” or proxy of the nonparty; and (6) a special statutory 5 scheme “expressly foreclose[es] successive litigation by nonlitigants.”24 Sturgell, 553

6 U.S. at 893-895. The third exception, adequate representation, requires: (1) the interests

7 of the nonparty and the party to the prior litigation were aligned in the litigation; (2) the

8 party to the prior litigation either understood itself to be acting in a representative

9 capacity or the original court took care to protect the interests of the nonparty; and, in

10 certain circumstances, (3) the nonparty had notice of the original suit. Id. at 900.25

11

The Sturgell decision represented a retreat from what the Supreme Court

12 characterized as lower courts’ expansive readings of “privity” doctrine as it applied to

13 issue preclusion. The phrase “substantive legal relationship” was deliberately substituted

14 for “privity” in an attempt to narrow the scope of the exception. See id. at 894, n. 8.

15 Previously, the Supreme Court had held issue preclusion could be applied to a nonparty
16 of the previous case when the nonparty was in privity with a party to the prior litigation.
17 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-403 (1940). In Adkins, the
18 Supreme Court held a suit involving the National Bituminous Coal Commission, a federal entity, was binding on the entire federal government. Adkins, 310 U.S. at 402
19 (“There is privity between officers of the same government.”). “The crucial point,” the
20 Court stated, “[was] whether or not in the earlier litigation [the party] had authority to
21 represent [the nonparty’s] interests in a final adjudication of the issue in controversy.” Id.
22 at 403. The Ninth Circuit and other courts subsequently went further, holding that when
23

24

22 “Qualifying relationships include, but are not limited to, preceding and

25 succeeding owners of property, bailee and bailor, and assignee and assignor.” Id. at 894.

23 E.g. Class actions. 26

24 I.e. Bankruptcy proceedings. 27

25 Sturgell does not make clear whether the three additional factors articulated as 28 the requirements of “adequate representation” apply to all of the categories for proper

nonparty issue preclusion or just the one for “adequate representation.”

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1 interests are sufficiently aligned, there may even be privity between “governmental

2 authorities as public enforcers of ordinances and private parties suing for enforcement as

3 private attorneys general.” In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997). In

4 Sturgell, the Supreme Court reframed its precedent as “endeavor[ing] to delineate

5 discrete exceptions [to the bar against nonparty preclusion] that apply in ‘limited 6 circumstances.’” Sturgell, 553 U.S. at 888.26

7

The parties in Melendres jointly stipulated to dismiss Maricopa County as “‘not . .

8 . necessary’ to obtain ‘complete relief.’” See (2:07-CV-02513-GMS, Doc. 178); Ortega

9 Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1039 (D. Ariz. 2009). But the stipulation was
10 made before the Arizona Court of Appeals ruled on MCSO’s status as a non-jural entity.
11 The stipulation was likely related to the County’s funding structure. Because Maricopa
12 County funds MCSO, “[w]hether the County or the Sheriff is liable is of no practical
13 consequence . . . they both lead to the same money.” Payne v. Arpaio, No. CV09-1195-
14 PHX-NVW, 2009 WL 3756679, at *6 (D. Ariz. Nov. 4, 2009). MCSO is not a separate 15 legal entity from the County. Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. 16 Ct. App. 2010). In its motion to dismiss in Melendres, Maricopa County called MCSO its 17 political subdivision. (Doc. 355-1 at 20). Therefore, there is little doubt Maricopa County 18 would qualify for the “substantive legal relationship” exception to the bar against
nonparty issue preclusion. 19
Even if the requirements for the “adequate representation” exception also apply, 20
Maricopa County qualifies for nonparty issue preclusion. Maricopa County argues its 21
interests were not aligned with MCSO because “the County contested its responsibility 22
for the Sheriff’s actions.” But MCSO also contested its liability for the Sheriff’s actions 23
and Maricopa County and MCSO together submitted a joint answer and joint motion to 24

25

26 The Supreme Court rejected the concept of “virtual representation,” which it

26

described as a more “expansive” basis for nonparty preclusion. “Virtual representation” had various definitions in the lower courts. The D.C. Circuit’s version held a nonparty

27

was virtually represented for purposes of preclusion where the nonparty: (1) shared an identity of interests with a party to the litigation, (2) was adequately represented in the

28

prior litigation, and (3) had either a close relationship with the putative representative, substantially participated in the prior case, or was tactically maneuvering to avoid

preclusion. Sturgell, 553 U.S. at 889-890.

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1 dismiss the complaint. Maricopa County argues MCSO could not have “‘understood

2 itself to be acting in a representative capacity’ for the County.” Again, Maricopa County

3 and MCSO’s joint representation by counsel in Melendres and their joint submissions,

4 defenses, and arguments for dismissal demonstrate both the alignment of their interests

5 and their understanding of themselves as indistinguishable legal entities for purposes of

6 defending the suit. In fact, the Ninth Circuit recently ordered the Melendres court—post-

7 trial and after the issuance of an injunctive order—to substitute Maricopa County for

8 MCSO due to MCSO’s status as a non-jural entity. Melendres v. Arpaio, 784 F.3d 1254

9 (9th Cir. 2015). Without discussing the issue, the Ninth Circuit appears to have assumed

10 Maricopa County was adequately represented in the preceding Melendres litigation such

11 that adding it as a party for purposes of injunctive relief was fair and reasonable.

12

Therefore, summary judgment on this issue will be granted. The same non-mutual,

13 offensive issue preclusion that applies to Arpaio in this case as a result of Melendres will 14 also apply to Maricopa County.27

15

C. The Effect of Non-Mutual, Offensive Issue Preclusion

16

Application of non-mutual, offensive issue preclusion here means the United

17 States will not have to relitigate facts and issues decided in Melendres which also

18 underlie parts of the United States’ current claims. Instead, those issues will be given

“conclusive effect” here. See Restatement (Second) of Judgments § 13 (1982). The issues 19

include MCSO’s performance of traffic stops in connection with purported immigration 20

and human smuggling law enforcement, including “crime suppression operations” and 21
“saturation patrols,” during which the officers unlawfully relied on race, color, or 22
national origin, as well as MCSO’s use of Hispanic ancestry or race as a factor in forming 23
reasonable suspicion that persons violated state laws relating to immigration status in 24
violation of the Equal Protection Clause of the Fourteenth Amendment. See Melendres v. 25
Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013). In sum, in deciding the merits of the United 26
States’ claims, the Court will treat the Melendres findings relating to discriminatory
27

28

27 Neither party attempts to argue Maricopa County lacked notice of the previous

case.

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1 enforcement of immigration laws through vehicle stops as findings of fact in this case.

2

The United States argues these findings from Melendres entitle it to summary

3 judgment on its discriminatory policing claims contained in Counts One, Three, and 4 Five.28

5

i. Count One

6

Count One claims violations of 42 U.S.C. § 14141 and the Fourteenth Amendment

7 based on MCSO’s law enforcement practices, including traffic stops, workplace raids,

8 home raids, and jail operations.

9

Section 14141 provides: “It shall be unlawful for any governmental authority, or

10 any agent thereof, or any person acting on behalf of a governmental authority, to engage

11 in a pattern or practice of conduct by law enforcement officers . . . that deprives persons

12 of rights, privileges, or immunities secured or protected by the Constitution or laws of the

13 United States.” 42 U.S.C. § 14141. A “pattern or practice” is “more than the mere

14 occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Int’l Bhd. of
15 Teamsters v. United States, 431 U.S. 324, 336 n.16 (1977). See also Obrey v. Johnson,
16 400 F.3d 691, 694 (9th Cir. 2005). In order to show a “pattern or practice,” one must
17 prove the conduct “was the [defendant’s] standard operating procedure the regular rather
18 than the unusual practice.” Teamsters, 431 U.S. at 336. There is no dispute that Arpaio is a “governmental authority” under the statute,
19 and the Melendres court found Arpaio and MCSO violated the Constitution, specifically
20 the Equal Protection Clause of the Fourteenth Amendment. See Melendres v. Arpaio, 989
21 F. Supp. 2d 822 (D. Ariz. 2013). Furthermore, the findings of Melendres amount to a
22 “pattern or practice” under the statute. The Melendres court found Arpaio and MCSO at
23 one time promulgated official policies which “expressly permitted officers to make racial
24 classifications.” Melendres, 989 F. Supp. 2d at 899. The court also found that even once
25

26

28 The following analysis focuses on the Melendres court’s findings as to Arpaio,

27

but applies equally to Maricopa County because, as discussed in Part III(B), supra, Maricopa County is directly liable for the actions of Arpaio as its official policymaker on

28 law enforcement matters and for MCSO, a non-jural subdivision of the County.

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1 these explicit policies were discontinued for facially race-neutral ones, intentional

2 discrimination on the basis of race continued to influence MCSO’s operations. Id. at 902-

3 904 (finding MCSO continued to instruct officers that although race could not be the only

4 basis for law enforcement action, it was a legitimate factor, among others, on which they

5 could base decisions pertaining to immigration enforcement). Overall, the court

6 concluded Arpaio and MCSO’s policies and procedures “institutionalize[d] the

7 systematic consideration of race as one factor among others in forming reasonable

8 suspicion or probable cause in making law enforcement decisions.” Id. at 898. These

9 findings clearly show a “pattern or practice.” The discrimination found by the Melendres

10 court was not of an isolated or accidental nature, but rather of standard operating

11 procedure throughout MCSO.

12

The United States has thus satisfied all of the elements for proving a portion of

13 Count One: violations of § 14141. However, the United States admits Count One is based

14 not only on the pattern of discriminatory conduct found in Melendres, but also on “three

15 other patterns or practices of unlawful conduct.” (Doc. 332 at 9). Thus, any injunctive
16 relief the Court ultimately grants will be based only on conduct it has found violated the
17 law. See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012)
18 (“Courts should not enjoin conduct that has not been found to violate any law.”).
Therefore, in order to obtain the full and greater relief it seeks under Count One, 19
including for allegations not decided in Melendres (namely a pattern or practice of 20
discrimination in workplace raids, home raids, and jail operations), the United States will 21
have the burden of proving those allegations at trial. 22
ii. Count Three 23
Count Three alleges violations of Title VI and its implementing regulations based 24
on Arpaio and MCSO’s disparate impact and disparate treatment of Latinos and the 25
office’s receipt of federal financial assistance. 26
Title VI and its implementing regulations prohibit discrimination against any 27
person on the basis of race, color, or national origin under “any program or activity 28
receiving Federal financial assistance.” 42 U.S.C. §§ 2000d; 28 C.F.R. §§ 42.104. A

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1 “program or activity” is defined as: “(i) A department, agency, . . . or other

2 instrumentality of a State or of a local government; or (ii) The entity of such State or

3 local government that distributes such assistance and each such department or agency

4 (and each other State or local government entity) to which the assistance is extended, in

5 the case of assistance to a State or local government . . . .” 28 C.F.R. § 42.102(d).

6

MCSO is clearly a department of local government under the statute, and Arpaio is

7 its head. It is undisputed that MCSO and Arpaio received federal financial assistance.

8 And the Melendres court found MCSO and Arpaio discriminated on the basis of race.

9 Thus, the United States has again shown the Melendres findings satisfy the elements of

10 its claim. Summary judgment on a portion of Count Three will be granted. Again, this

11 ruling only potentially entitles the United States to relief tailored to the findings in

12 Melendres. Any additional and greater relief will be contingent on the United States

13 proving additional Title VI violations at trial.

14

iii. Count Five

15

Count Five is for violations of contractual assurances associated with Title VI and

16 the receipt of federal financial assistance.

17

DOJ regulations under Title VI require each recipient of federal financial

18 assistance to include an assurance that the recipient and subrecipients will comply with

Title VI and its implementing regulations. See 28 CFR § 42.105(a), (b). Violations of 19

Title VI, therefore, automatically violate these contractual assurances. Based on the 20
foregoing, summary judgment on a portion of Count Five will be granted. Again, the 21
relief granted will be based on the facts found in Melendres and any further facts and 22
violations the United States may prove at trial.29 23
V. Claims Related to LEP Inmates 24
Arpaio argues he is entitled to summary judgment on the allegations of intentional 25
discrimination or disparate treatment regarding limited English proficient (“LEP”) 26

27

29 In addition to liability based on the actions of Arpaio and MCSO, Maricopa

28

County is also liable for this claim based on the contractual assurances given by its Board of Supervisors, the entity which distributes federal funds to various County departments,

including Arpaio and MCSO.

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1 inmates in Counts Four and Five. In reply, he also argues he is entitled to summary

2 judgment on allegations of disparate impact on LEP inmates. The United States claims it

3 has submitted ample evidence that Arpaio has and continues to intentionally discriminate

4 against LEP inmates in violation of Title VI. It also argues Arpaio did not initially move

5 for summary judgment on the disparate impact claims.

6

Whether or not Arpaio raised it in his initial motion, his argument that Title VI

7 applies only to intentional discrimination is not accurate. In Alexander v. Sandoval, the

8 Supreme Court held § 601 of Title VI created a private cause of action only for

9 intentional discrimination. 532 U.S. 275 (2001). But the Court chose to defer to

10 regulations promulgated by DOJ under § 602 of the law, which prohibited activities
11 having a disparate impact on the basis of race. Sandoval, 532 U.S. aqt 281-282. It
12 assumed without deciding that these regulations were reasonable and, therefore, valid. Id.
13 The focus in Sandoval was whether a private right of action existed to enforce the
14 disparate impact regulations DOJ had created. The Court held it did not, but declined to
15 address whether a disparate impact cause of action under Title VI existed. Id. As
16 discussed in Part III(A), supra, the Supreme Court’s analysis implies a cause of action for 17 disparate impact discrimination does lie. Therefore, summary judgment on the claim for 18 disparate impact discrimination will not be granted.
Regarding Arpaio’s motion with respect to intentional discrimination, Title VI 19
provides: “No person in the United States shall, on the ground of race, color, or national 20
origin, be excluded from participation in, be denied the benefits of, or be subjected to 21
discrimination under any program or activity receiving Federal financial assistance.” 42 22
U.S.C. § 2000d. DOJ’s implementing regulations specifically prohibit “[restricting] an 23
individual in any way in the enjoyment of any advantage or privilege enjoyed by others 24
receiving any disposition, service, financial aid, or benefit under the program,” 28 C.F.R. 25
§ 42.104(b)(1)(iv), or “[utilizing] criteria or methods of administration which have the 26
effect of subjecting individuals to discrimination . . . [or] defeating or substantially 27
impairing accomplishment of the objectives of the program as respects individuals of a 28
particular race, color, or national origin.” 28 C.F.R. § 42.104(b)(2) (emphasis added).

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1

DOJ guidance provides, a federal funding recipient must “take reasonable steps to

2 ensure ‘meaningful’ access to the information and services they provide [to LEP

3 inmates].” Department of Justice, Enforcement of Title VI of the Civil Rights Act of

4 1964—National Origin Discrimination Against Persons With Limited English

5 Proficiency; Policy Guidance, 65 FR 50123-01, 50124 (Aug. 16, 2000); Department of

6 Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI

7 Prohibition Against National Origin Discrimination Affecting Limited English Proficient

8 Persons, 67 Fed. Reg. 41455, 41469-70 (Jun 18, 2002).

9

The McDonnell Douglas burden shifting framework applies to Title VI disparate

10 treatment claims. Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014). “First,

11 the plaintiff has the burden of proving by [a] preponderance of the evidence a prima facie

12 case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case,

13 the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason

14 for the [treatment].’” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 248 (1981)

15 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

16

Arpaio argues he has made reasonable efforts to provide LEP inmates with

17 meaningful access to information and services, thus defeating the United States’ claim.

18 He cites his DI-6 Policy, which states LEP inmates are to have “the same rights and

protections mandated by federal, state, and local laws.” (Doc. 345 at 10). The United 19

States attacks these assertions on three grounds: (1) the DI-6 Policy on which Arpaio 20

relies was not enacted until October 2013—eighteen months after the U.S. brought suit; 21
(2) the pre-DI-6 Policy actions Arpaio took to address LEP discrimination were 22
insufficient to meet the “reasonable steps” requirement; and (3) notwithstanding the 23
enactment of the DI-6 Policy, evidence shows disparate treatment of a significant level of 24
continuing harm to LEP inmates. The DI-6 Policy was, indeed, enacted in 2013. But 25
Arpaio claims the policy memorialized “MCSO’s long standing, reasonable efforts to 26
ensure LEP inmates have meaningful access.” (Doc. 358 at 6). He contests the claim that
27 the United States’ evidence proves “a significant number of LEP beneficiaries” are being

28 deprived of access. Id. at 7 (emphasis in original). The arguments are fact-based, and the

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1 facts are in dispute, namely how Arpaio and MCSO were treating LEP inmates prior and

2 subsequent to the October 2013 enactment of the DI-6 Policy and the effects of that

3 treatment. (See Doc. 353 beginning at ¶ 65). Therefore, this issue is not appropriate for

4 summary judgment.

5 VI. Retaliation Claims

6

Arpaio argues he is entitled to summary judgment on Count Six: the United

7 States’ claim for retaliation pursuant to § 14141. Arpaio argues the claim is premised on

8 bar complaints, which are absolutely privileged under state law, and lawsuits, for which

9 the United States has failed to show he lacked reasonable suspicion or probable cause.

10 The United States claims the Arizona privilege for state bar complaints does not bar suits

11 for federal civil rights violations and that pleading a lack of probable cause is not

12 required for a claim of retaliation in violation of the First Amendment.

13

A. Bar Complaints

14

Arpaio claims his complaints to the state bar cannot function as grounds for a

15 claim for First Amendment violations. The United States contends the Arizona statute

16 providing privilege for bar complaints cannot block a suit based on federal law and, by

17 implication, can form the basis of such a suit.

18

Arizona courts have established “an absolute privilege extended to anyone who

files a complaint with the State Bar alleging unethical conduct by an attorney.” 19

Drummond v. Stahl, 127 Ariz. 122, 126 (Ct. App. 1980) (“[P]ublic policy demands the 20

free reporting of unethical conduct”). However, the Supreme Court and the Ninth Circuit 21
have held that “state law cannot provide immunity from suit for federal civil rights 22
violations.” Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000); Martinez v. State of 23
Cal., 444 U.S. 277, 285, n. 8 (1980) (“A construction of the federal statute which 24
permitted a state immunity defense to have controlling effect would transmute a basic 25
guarantee into an illusory promise; and the supremacy clause of the Constitution insures 26
that the proper construction may be enforced”). For example, in Imbler v. Pachtman, the
27 Court held common law prosecutorial immunity applies to cases under § 1983. 424 U.S.

28

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1 409 (1976).30 But the Fifth Circuit refused to extend prosecutorial immunity to decisions

2 to bring complaints before state ethics commissions, even where a state law also provides

3 absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.

4 2011) (“Lampton likely enjoys immunity from the state law claims under Mississippi

5 law. . . . [H]owever, federal law does not provide immunity to complainants before state

6 ethics committees . . . . In the absence of congressional action, we should not create that

7 immunity merely because it may be desirable for some policy reason.”).

8

Arpaio cites Donahoe v. Arpaio in support of his position. 869 F. Supp. 2d 1020

9 (D. Ariz. 2012) aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 2013). In
10 Donahoe, Arpaio had filed suit against various Maricopa County officials—including
11 members of the Board of Supervisors and judges—under the federal Racketeer
12 Influenced and Corrupt Organization Act (“RICO”). He claimed the officials were
13 improperly using their power to obstruct a criminal investigation. Arpaio’s allegations
14 spanned a variety of conduct and included his adversaries’ filing of bar complaints
15 against the County Attorney. Id. The officials sued Arpaio for retaliation for the exercise 16 of their First Amendment rights. Id. The district court held Arpaio’s alleged injuries were 17 not actionable under RICO, nor was the conduct on which the claim was based, including 18 bar complaints. Id. at 1053.
Donahoe is an anomaly. The case law cited above strongly indicates state law 19
immunities do not bar federal suits or prevent those suits from being based on elements 20
immune from suit under state law. The Donahoe court did not consider previous 21
decisions regarding the interaction between state law immunities and federal causes of 22
action, nor the Supremacy Clause issues on which those decisions were based. As an 23
outlier, Donahoe is not a proper basis on which to grant this motion. Therefore, summary 24
judgment will be denied on Arpaio’s claim that bar complaints cannot form the basis of a 25
retaliation claim. 26

27

28

30 The Court also held the scope of that immunity was fixed at what it was in 1871,

the year § 1983 was enacted.

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1

B. Probable Cause

2

Arpaio argues the United States’ retaliation claim must fail because the United

3 States does not and cannot show Arpaio lacked probable cause for the lawsuits it claims

4 were retaliatory. The United States argues it is not required to show lack of probable

5 cause to succeed in a claim for retaliatory law enforcement action.

6

To prove a claim for retaliation in violation of the First Amendment, a plaintiff

7 must show: (1) the defendant “took action that ‘would chill or silence a person of

8 ordinary firmness from future First Amendment activities’” and (2) the defendant’s

9 “desire to cause the chilling effect was a but-for cause of the defendant’s action.” Skoog

10 v. Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (citing Mendocino Envtl. Ctr.

11 v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.1999); Hartman v. Moore, 547 U.S.

12 250 (2006)).

13

At the time Skoog was decided, whether a plaintiff had to plead a lack of probable

14 cause in order to satisfy the second requirement was “an open question in [the Ninth

15 Circuit] and the subject of a split in other circuits.” Id. The Skoog court held “a plaintiff
16 need not plead the absence of probable cause in order to state a claim for retaliation.” Id.
17 The court contrasted this with the Supreme Court’s ruling in Hartman v. Moore, where
18 the Supreme Court held plaintiffs claiming retaliatory prosecution must plead lack of
probable cause. 547 U.S. 250 (2006). The reason, the Hartman Court stated, was that a 19
claim for retaliatory prosecution involves showing “an official bent on retaliation” 20
convinced a prosecutor to filed suit. Id. at 260-266. In an “ordinary” retaliation claim, by 21
contrast, the retaliatory action is performed directly by the retaliation-driven official. The 22
causal link between retaliatory animus and retaliatory action, therefore, is more readily 23
apparent in a case of pure retaliation than in a case of retaliatory prosecution where 24
“some evidence must link the allegedly retaliatory official to a prosecutor whose action 25
has injured the plaintiff[, and t]he connection, to be alleged and shown, is the absence of 26
probable cause.” Id. at 263. 27
The United States’ claim against Arpaio includes ordinary retaliation, as well as 28
retaliatory prosecution. It alleges, with retaliatory motive, Arpaio complained to the

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1 Arizona Commission on Judicial Conduct, ordered arrests, and initiated lawsuits through

2 then County Attorney Andrew Thomas (“Thomas”). (Doc. 1 at 23-25). Arpaio

3 acknowledges Skoog, but argues “the Ninth Circuit has shifted away from [its]

4 conclusion.” (Doc. 345 at 14). He cites Acosta v. City of Costa Mesa, for the proposition

5 that the Ninth Circuit has “affirmatively stated that the existence of probable cause is

6 dispositive of a retaliatory arrest claim.” (Doc. 345 at 14) (emphasis added); see Acosta

7 v. City of Costa Mesa, 718 F.3d 800, 825 (9th Cir. 2013). Acosta addressed the question

8 of whether arresting officers were entitled to qualified immunity for claims of retaliatory

9 arrest. The Ninth Circuit held, for purposes of qualified immunity, “there [was no] clearly

10 established First Amendment right to be free from a retaliatory arrest that is otherwise

11 supported by probable cause.” Acosta, 718 F.3d at 825 (citing Reichle v. Howards, 132 S.

12 Ct. 2088, 2097 (2012)) (emphasis added). The United States argues, whether or not this

13 right would have been clear to an arresting officer, it exists and applies here. The United

14 States is correct.

15

As the Ninth Circuit’s analysis in Ford v. City of Yakima shows, the question of

16 the substance of a constitutional right is distinct from the question of whether that right

17 was clearly established for purposes of qualified immunity. 706 F.3d 1188 (9th Cir.

18 2013). The Supreme Court has held Hartman’s impact on the requirements for a claim of

retaliatory arrest was “far from clear” at the time it was decided. Thus, an officer accused 19

of retaliatory arrest could assert the defense of qualified immunity because Hartman’s 20

rule regarding probable cause did not necessarily extend to the area of retaliatory arrests. 21
Reichle v. Howards, 132 S. Ct. 2088, 2095-96 (2012). But the Court specially noted, 22
unlike in a claim for retaliatory prosecution, “in many retaliatory arrest cases, it is the 23
officer bearing the alleged animus who makes the injurious arrest.” Id. at 2096. 24
Nevertheless, the Court stopped short of providing a definitive answer as to whether 25
proving lack of probable cause was necessary to succeed on a claim for retaliatory arrest. 26
Instead, the Court simply stated, “Hartman injected uncertainty into the law governing
27 retaliatory arrests.” Id. Since Hartman and Reichle, the Ninth Circuit has continued to

28 hold “an individual has a right ‘to be free from police action motivated by retaliatory

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1 animus but for which there was probable cause.’” Ford, 706 F.3d at 1193 (citing Skoog,

2 469 F.3d at 1235).

3

Arpaio does not assert the defense of qualified immunity in this motion (nor could

4 he in an action for declaratory or injunctive relief). The single issue is whether the United

5 States’ claim fails because it does not plead lack of probable cause. It does not. First,

6 again the claim is premised, in part, on conduct for which the United States would not

7 have to prove a lack of probable cause: judicial complaints and arrests. Second, Arpaio

8 has not shown as a matter of law there was probable cause for the lawsuits in question,

9 nor that the United States is incapable of proving there was not probable cause for the

10 suits. Therefore, summary judgment on these grounds will be denied.

11

C. Justiciability: Standing and Mootness

12

Arpaio denies he retaliated against his critics for voicing their disapproval of his

13 practices. He also claims the United States lacks standing to bring a retaliation claim

14 because the alleged conduct represents a past wrong with no real or immediate threat of

15 future retaliation. The United States argues standing does not require the immediate
16 threat of unlawful conduct, but rather injury, and that the harm caused by Arpaio’s past
17 retaliation persists. It also claims the “voluntary cessation” exception to mootness
18 doctrine applies, maintaining this claim’s justiciability.
In order for a case to be justiciable, “[t]he plaintiff must show that he ‘has 19
sustained or is immediately in danger of sustaining some direct injury’ as the result of the 20
challenged official conduct and the injury or threat of injury must be both ‘real and 21
immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 22
95, 101-02 (1983) (citations omitted). 23
“It is well settled that ‘a defendant’s voluntary cessation of a challenged practice 24
does not deprive a federal court of its power to determine the legality of the practice.’” 25
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) 26
(citation omitted). A case only becomes moot in the context of a voluntary cessation “if 27
subsequent events [make] it absolutely clear that the allegedly wrongful behavior could 28
not reasonably be expected to recur.” Id. (citing United States v. Concentrated Phosphate

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1 Export Ass’n., 393 U.S. 199, 203 (1968)) (emphasis added). “[A] voluntary governmental

2 cessation of possibly wrongful conduct [may be treated] with some solicitude.” Sossamon

3 v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009). But courts warn the

4 solicitude should only be applied where the “self-correction . . . appears genuine.”

5 Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988).

6

Arpaio does not contest that he and MCSO filed the lawsuits, submitted bar

7 complaints, and performed the arrests the United States alleges. What Arpaio contests is

8 the allegation that these actions were performed in retaliation for criticism he and his

9 office received. In other words, that they were done with retaliatory animus. But the

10 United States’ facts are sufficient to raise a reasonable inference that Arpaio’s actions

11 were performed out of retaliatory animus. Arpaio’s conclusory denials do not defeat this

12 evidence. Therefore, summary judgment will not be granted on these grounds.

13

Arpaio’s second argument—even if he at one time retaliated against critics in the

14 manner alleged, there is insufficient proof the threat continues—is not persuasive. If the

15 United States’ allegations of past retaliation are true, there is a genuine issue of material
16 fact as to the ongoing effect of those actions. Arpaio remains Sheriff of Maricopa County
17 and retains the power he allegedly misused to perform acts of retaliation. He has offered
18 no facts showing any fear or chilling his actions may have caused has permanently ended
or abated since his claimed cessation. Therefore, summary judgment on this issue will be 19
denied. 20
VII. Obey the Law Injunction 21
Arpaio claims the United States’ prayer for relief is an improper “obey the law” 22
injunction, which entitles him to summary judgment on all counts. The United States 23
argues the Court has broad discretion to shape remedies and it “would be premature to 24
determine the availability of any injunctive relief without first hearing the evidence in 25
dispute.” (Doc. 350 at 17). 26
Under the federal rules, “[e]very order granting an injunction and every restraining 27
order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) 28
describe in reasonable detail—and not by referring to the complaint or other document—

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1 the act or acts restrained or required.” Fed. R. Civ. P. 65(d). As such, “blanket injunctions

2 to obey the law are disfavored.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,

3 518 F. Supp. 2d 1197, 1226 (C.D. Cal. 2007) (quoting Mulcahy v. Cheetah Learning

4 LLC, 386 F.3d 849, 852 n. 1 (8th Cir. 2004)) (internal quotation marks omitted). But

5 district courts have broad discretion to shape equitable remedies. See Monsanto Co. v.

6 Geertson Seed Farms, 561 U.S. 139, 175 (2010). When an appellate court finds a trial

7 court abused its discretion by issuing an overly broad order, it may strike those provisions

8 “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express

9 Pub. Co., 312 U.S. 426, 435 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th

10 Cir. 2005) (holding general “obey-the-law” injunctions unenforceable).

11

The purpose of Rule 65(d) is to ensure defendants have fair notice of what conduct

12 is prohibited and to avoid undue restraint. The Ninth Circuit has “not adopted a rule

13 against ‘obey the law’ injunctions per se.” F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 944

14 (9th Cir. 2012). Instead the court recognizes, in certain circumstances, “injunction[s] . . .

15 framed in language almost identical to the statutory mandate . . . [are not] vague” because
16 they “adequately describe the impermissible conduct.” United States v. Miller, 588 F.2d
17 1256, 1261 (9th Cir. 1978). See also E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th
18 Cir. 2013) (holding “obey-the-law” injunctions may be an “appropriate” form of
equitable relief where evidence suggests the proven illegal conduct may continue or be 19
resumed, for example, when those responsible for workplace discrimination remain with 20
the same employer or some other factor “convinces the court that voluntary compliance 21
with the law will not be forthcoming”). 22
A request for an injunction is not determinative of the type of relief the court will 23
ultimately issue. Only if the court ultimately issues an inappropriately broad or non24
specific injunction might a defendant be entitled to relief from that order. Hence, an 25
overbroad request does not entitle the defendant to judgment as a matter of law on the 26
underlying claims. Furthermore, in the Ninth Circuit, injunctions tracking statutory 27
language are not per se invalid. Therefore, it is premature for Arpaio to challenge an 28
injunctive order that has yet to be issued in a case in which numerous matters remain to

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Case 2:12-cv-00981-ROS Document 379 Filed 06/15/15 Page 52 of 52

1 be decided. Summary judgment on these grounds will not be granted.

2

Accordingly,

3

IT IS ORDERED Defendant Maricopa County’s Motion for Summary Judgment,

4 (Doc. 334), is DENIED.

5

IT IS FURTHER ORDERED Defendant Arpaio’s Motion for Partial Summary

6 Judgment, (Doc. 345), is DENIED. His prior motion for partial summary judgment,

7 which exceeded page limits, (Doc. 336), is STRICKEN.

8

IT IS FURTHER ORDERED Plaintiff the United States’ Motion for Partial

9 Summary Judgment, (Doc. 332), is GRANTED. Non-mutual, offensive issue preclusion

10 bars relitigation of issues previously decided in Melendres v. Arpaio. As a result,

11 summary judgment is granted regarding the discriminatory traffic stop claims in Counts

12 One, Three, and Five.

13

Dated this 15th day of June, 2015.

14

15

16

Honorable Roslyn O. Silver

17

Senior United States District Judge

18

19

20

21

22

23

24

25

26

27

28

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 </s> Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 1 of 7

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 United States of America,

9

Plaintiff,

10 v.

11 Maricopa, County of, et al.,

12

Defendants.

13

No. CV-12-00981-PHX-ROS ORDER

14

15

Before the Court is the parties’ joint motion to approve settlement. (Doc. 391). In

16 response to the Court’s July 21, 2015 order, (Doc. 399), the parties have filed a

17 supplemental brief in support of their joint motion to approve settlement. (Doc. 405). In

18 addition, the parties have submitted a joint notice of intervention and proposal for

19 resolution of the case, which the Court will also address. (Doc. 406).

20 I. Legal Standard for Consent Decree

21

Settlements subject to continued judicial policing, or consent decrees, are a

22 “judicial act.” United States v. Swift & Co., 286 U.S. 106, 115 (1932); United States v.

23 State of Or., 913 F.2d 576, 580 (9th Cir. 1990). These sorts of agreements “offer more

24 security to the parties than a settlement agreement where ‘the only penalty for failure to

25 abide by the agreement is another suit’ . . . [because they have] the force of res judicata,

26 and [] may be enforced by judicial sanctions, including . . . citations for contempt.”

27 S.E.C. v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984).

28

In order to achieve court approval, such settlements must be “fundamentally fair,

Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 2 of 7

1 adequate and reasonable” and “conform to applicable laws.” State of Or., 913 F.2d at

2 580. Such an agreement “need not impose all the obligations authorized by law” but

3 rather must afford “rough justice.” Id. at 581 (quoting Officers for Justice v. Civil Serv.

4 Comm’n of City & Cnty. of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982)) (internal

5 quotation marks omitted). Settlements negotiated and submitted by government agencies

6 are granted particular deference and, while the agreement must serve the public’s interest,

7 it need not serve “the public’s best interest.” Randolph, 736 F.2d at 529 (emphasis in

8 original).

9 II. Settlement Process

10

Over the past three years, the parties have engaged in hard fought litigation and

11 have often conferred to reach agreement on various disputes. See Docs. 287-8 (expressing

12 disagreement over documents requested in United States’ investigation, but stating goal

13 of cooperation and resolution), 287-11 (discussing contradictions between Maricopa

14 County Attorney’s statements in private meeting with United States and his statements at

15 a public press conference). Recent developments in another, related case involving

16 Sheriff Arpaio and Maricopa County (collectively, “Defendants”) prompted the parties to

17 engage in serious settlement negotiations. They estimate “hundreds of attorney hours

18 over dozens of days in negotiations, as well as many more hundreds of hours conferring

19 with their clients and crafting settlement proposals” were spent. (Doc. 405 at 4). What is

20 more, apparently the particular claims resolved through this settlement were subject to

21 “especially extensive factual development” through depositions and document discovery.

22 The Maricopa County Board of Supervisors, the governing body of Maricopa County,

23 voted unanimously to approve the settlement.

24

The very adversarial nature of this litigation and completion of massive discovery

25 presupposes the procedural fairness of the proposed settlement agreement. In addition, all

26 parties represent government bodies with no ambition but to serve the public interest and

27 do justice, which supports a finding that the terms of the settlement were evaluated on

28 equal, informed footing and in good faith. Finally, all of the parties were represented by

- 2 -

Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 3 of 7

1 experienced and competent counsel.

2

Furthermore, the circumstances supply ample reason for the parties to settle rather

3 than litigate the claims in question. The case has been pending for more than three years.

4 The limited resources of the governments, particularly the local ones, have been strained,

5 the parties have completed comprehensive discovery and filed thorough dispositive

6 motions, and Defendants are involved in an ongoing, substantial parallel suit in which the

7 United States has been granted the right to intervene. For all of these reasons, as well as

8 those discussed below, the Court will accept the parties’ reasonable compromise reached

9 in good faith.

10 III. Settlement Terms

11

The proposed settlement involves two of the United States’ claims: Claims Two

12 and Six, and resolves the portions of those claims involving worksite operations and 13 retaliation, respectively.1 The United States’ second claim for relief was brought

14 pursuant to 42 U.S.C. § 14141 and the Fourth Amendment. The United States’ sixth

15 claim for relief was likewise brought under § 14141 and the First Amendment. Section

16 14141 authorizes the Attorney General to sue a government engaged in a pattern or

17 practice of law enforcement which violates the Constitution in order to “obtain

18 appropriate equitable and declaratory relief to eliminate the pattern or practice.” 42

19 U.S.C. § 14141(b).

20

A. Fourth Amendment Violations

21

The allegations of the United States regarding worksite operations and violations

22 of the Fourth Amendment include that Sheriff Arpaio and the Maricopa County Sheriff’s

23 Office (“MCSO”) used its Criminal Employment Squad (“CES”) to target Latino workers

24 for enforcement of state identity theft laws in a way that resulted in the seizure of Latinos

at worksites without reasonable suspicion. (Doc. 1 at 12). MCSO has since disbanded 25
CES and announced it will no longer enforce state identity theft laws relating to obtaining 26

27

28

1 The parties have also reached a settlement regarding Claim Four of the United States’ complaint, but do not seek Court approval or an order memorializing that

agreement.

- 3 -

Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 4 of 7

1 or continuing employment.

2

The complaint also alleged Defendant Maricopa County, which is responsible for

3 funding and oversight of MCSO, failed to ensure that MCSO’s programs and activities

4 complied with the Constitution and federal law. (Doc. 1 at 2).

5

The proposed settlement agreement focuses on potential future worksite identity

6 theft operations, which it defines as “any pre-planned MCSO law enforcement operation

7 at a place of business to execute a search warrant for evidence of or for persons suspected

8 of committing identity theft or crimes incident thereto, such as forgery.” (Doc. 391-2 at

9 3). The proposed settlement provides, if such operations are ever re-initiated, “[Sheriff]

10 Arpaio shall cause the MCSO to first establish a set of written policies or protocols”
11 governing the operations and take suggestions on those policies from the United States.
12 (Doc. 391-2 at 3-4). MCSO must ensure the final policies are communicated to all
13 personnel participating in worksite identity theft operations. (Doc. 391-2 at 4). And
14 MCSO must take reasonable steps to “ensure that all MCSO personnel comply with such
15 policies, and protocols in carrying out any Worksite Identity Theft Operations.” (Doc.
16 391-2 at 4). Following any of these operations, MCSO must timely comply with 17 reasonable requests for information from the United States. (Doc. 391-2 at 4). If the 18 United States discovers a violation of federal law in a post-settlement operation, it agrees 19 to confer with Sheriff Arpaio and Maricopa County to seek an agreement remedying the 20 violations before initiating any judicial action, which it may do after 60 days of
unsuccessful negotiation. (Doc. 391-2 at 5). 21
Given the United States’ allegations and MCSO’s current suspension of identity 22
theft enforcement related to obtaining and continuing employment, the proposed 23
contingencies for future operations are fundamentally fair, adequate, and reasonable with 24
regard to MCSO. The provisions serve the public’s interest by providing federal 25
oversight and protection for potential future operations. The proposed agreement 26
addresses the need for clear, lawful directives from MCSO senior management for any 27
future operations, and requires enforcement of those directives, all of which will be 28
subject to the added protection of federal oversight. In lieu of a court-appointed monitor,

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Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 5 of 7

1 the proposed agreement creates a system for direct federal monitoring of the operations.

2 Furthermore, the agreement encourages out-of-court resolution, potentially saving

3 significant taxpayer funds, but does not hamstring the United States’ ability to resort to

4 judicial action if necessary to protect the public.

5

B. First Amendment Violations

6

The United States’ allegations regarding retaliation and violations of the First

7 Amendment include that deputies of MCSO, acting on behalf of Sheriff Arpaio and the

8 MCSO, filed unsubstantiated complaints with the Arizona State Bar and the Arizona

9 Commission on Judicial Conduct, and that through the Maricopa County Attorney,

10 Sheriff Arpaio and MCSO filed frivolous lawsuits against persons who had publicly

11 criticized MCSO. (Doc. 1 at 23). In addition, the United States claims Sheriff Arpaio and

12 MCSO conducted retaliatory arrests against critics of their practices. (Doc. 1 at 24-25).

13

The proposed settlement requires MCSO establish an official policy prohibiting

14 retaliation against any individual for a lawful expression under the First Amendment.

15 (Doc. 391-2 at 5).2 The agreement also obligates MCSO to notify all of its personnel of

16 the policy. (Doc. 391-2 at 6). And in their supplemental briefing, the parties’ state MCSO

17 employees will be subject to discipline for violating the anti-retaliation policy. (Doc. 405

18 at 7).

19

The parties’ agreement to a specifically-worded anti-retaliation policy to take

20 effect at MCSO goes a long way towards addressing the concerns raised in the United
States’ complaint. Like the provisions addressing worksite raid operations, the anti21
retaliation policy will represent a top-down directive from MCSO leadership which will 22
then be communicated to every present and future MCSO employee. Given the 23
deferential standard applied to government parties, the implementation of such a policy is 24
a fundamentally fair means of addressing the United States’ claim for violations of the 25
First Amendment. 26

27

2 The policy shall read: “It is the policy of the Maricopa County Sheriff’s Office to

28

respect the First Amendment rights of all individuals. MCSO personnel will not take action against any individual in retaliation for any individual’s lawful expression of

opinions in the exercise of the First Amendment right to the freedom of speech.”

- 5 -

Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 6 of 7

1

C. Role of Maricopa County

2

Although the proposed agreement does not provide for a clear and specific role for

3 Maricopa County in addressing the United States’ claims, it provides the United States

4 will notify both Defendants of any perceived violation of the agreement and work with

5 both to attempt to resolve the issue outside of the Court before seeking judicial

6 resolution. (Doc. 391-2 at 6-7). Thus, the Court interprets the parties’ agreement to mean

7 that Maricopa County will become actively involved if the United States notifies it of an

8 issue of non-compliance. This agreement represents a compromise sufficient to satisfy

9 the fairness requirement.

10 IV. Resolution of the Case

11

The United States requests the Court maintain the case on its docket under a stay

12 until the Melendres court finds Defendants have maintained full and effective compliance

13 with its injunction for three years. Defendants argue that request is inappropriate given

14 the United States’ prior representations that it would terminate this case in the event

15 intervention in the Melendres case were to be granted. Defendants are correct.

16

Indeed, in its motion to stay this case pending resolution of its motion to intervene

17 in Melendres, the United States stated:

18

[S]hould the Melendres Court grant the United States intervention, the United States would enforce the already-existing injunction in Melendres

19

rather than pursue additional remedies in this action for its discriminatory

20

policing claims. Further remedial proceedings in this case, beyond enforcement of the Settlement Agreement reached by the parties, would not

21

be necessary.

22 (Doc. 395 at 4). The United States made a similar and specific representation in its 23 motion to intervene in Melendres. (See 07-CV-2513, Doc. 1177). Based on these 24 representations, Defendants did not oppose the United States’ motion to intervene, which 25 the Melendres court granted. The United States cannot now renege on its promise. 26 Therefore, the Court will not retain jurisdiction over the United States’ claims. The case 27 will be terminated, and the United States may pursue relief in Melendres, as it stated it

28 would.

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Case 2:12-cv-00981-ROS Document 407 Filed 09/02/15 Page 7 of 7

1

Accordingly,

2

IT IS ORDERED The parties’ joint motion to approve settlement, (Doc. 391), is

3 GRANTED.

4

IT IS FURTHER ORDERED the Settlement Agreement, attached to the parties’

5 Joint Motion to Approve Settlement Agreement, concerning the United States’ worksite

6 operations and retaliation claims in the above captioned case hereby is approved and

7 entered by the Court.

8

IT IS FURTHER ORDERED the Clerk of Court shall dismiss the United States’

9 remaining claims, enter final judgment in favor of the United States on Claims One,

10 Three, and Five, and terminate the case. Pursuant to the United States’ representations, all

11 injunctive relief on Claims One, Three, and Five will be pursued in Melendres v. Arpaio,

12 No. 07-CV-2513-PHX-GMS.

13

Dated this 2nd day of September, 2015.

14

15

16

Honorable Roslyn O. Silver

17

Senior United States District Judge

18

19

20

21

22

23

24

25

26

27

28

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

1 Thomas E. Perez

2

Assistant Attorney General Dennis K. Burke

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10 Michael M. Walker (AZ Bar #20315)

11

Assistant U.S. Attorney Two Renaissance Square

12

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

13

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

14 Attorneys for the United States

15

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18

19 United States of America,

20

Plaintiff,

21

v.

22 Maricopa County, Arizona; Maricopa

23

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

24 Maricopa County, Arizona,

25

Defendants.

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

26

27

28

1 


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

1

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

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

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

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

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

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

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

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

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

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

11 Agreement and move for dismissal.

12

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

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

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

15

16 Dated: June 2, 2011

Respectfully submitted,

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

United States Department of Justice
 Civil Rights Division 


18 /s/ Joseph J. Popolizio

19

William R. Jones, Jr. John T. Masterson

20

Joseph J. Popolizio 2901 North Central Avenue, Suite 800

21

Phoenix, Arizona 85012 Attorneys for named

Defendants

22

Maricopa County Sheriff’s Office and Joseph M. Arpaio

23

24

25

26

27

28

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

2 


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

1

Michael M. Walker 


2

Assistant U.S. Attorney
 Two Renaissance Square 


3

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


4

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


5

Attorneys for the United States

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 


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

1 CERTIFICATE OF SERVICE
2

3

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

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

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

6

7

Thomas K. Irvine

Polsinelli Shughart PC

8

3636 N. Central Avenue, Suite 1200

9

Phoenix, AZ 85012

10

Cynthia Renee Estrella

11

Polsinelli Shughart PC

1 E. Washington Street, Suite 1200

12

Phoenix, AZ 85004

13

William R. Jones, Jr.

14

Jones Skelton & Hochuli PLC

15

2901 N. Central Avenue, Suite 800

Phoenix, AZ 85012

16

17

John T. Masterson

Jones Skelton & Hochuli PLC

18

2901 N. Central Avenue, Suite 800

19

Phoenix, AZ 85012

20

Joseph John Popolizio

21

Jones Skelton & Hochuli PLC

2901 N. Central Avenue, Suite 800

22

Phoenix, AZ 85012

23

24

Attorneys for Defendants

25 /s/ Amin Aminfar

26

Amin Aminfar

27

28

4 


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

UNITED STATES DISTRICT COURT
 DISTRICT OF ARIZONA


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

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

Defendants.

AGREEMENT
I. INTRODUCTION
1. The parties to this Agreement, the United States of America, represented by the United States Department of Justice (“DOJ”), and Joseph M. Arpaio, the Sheriff of Maricopa County, Arizona, represented by Jones, Skelton & Hochuli, P.L.C., agree on the terms and conditions set forth below (the “Agreement”).
2. The Sheriff of Maricopa County, Joseph M. Arpaio, is the elected official responsible for the operation of the Maricopa County Sheriff’s Office (“MCSO”). The Sheriff shall make reasonable efforts to ensure that employees of MCSO take all reasonable actions necessary to comply with the provisions of this Agreement.
3. On March 10, 2009, the United States informed MCSO that it was initiating an investigation under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7 (“Title VI”), and other statutes. Among the matters under investigation was alleged national origin discrimination in MCSO’s police practices and jail operations. Title VI, its implementing regulations, and related assurance agreements, require MCSO to provide the United States with access to pertinent sources of information, thereby enabling the United States to determine whether MCSO is in fact complying with Title VI mandates.
4. On March 25, 2009, the United States submitted its First Request for Documents and Information, consisting of 51 requests for documents and information. Shortly
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Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 2 of 17
thereafter, the United States informed MCSO that its investigation would involve document review, tours of MCSO detention facilities, and interviews with MCSO staff and jail inmates. 5. On September 2, 2010, the United States filed this action against Sheriff Joseph M. Arpaio, in his official capacity, MCSO and Maricopa County.
6. Pursuant to DOJ’s requests, DOJ has completed and MCSO has allowed, requested tours of Maricopa County Jail facilities, as well as interviews of MCSO staff, detention officers, posse members, and command staff, including two interviews of Sheriff Joseph Arpaio. DOJ has also conducted interviews of inmates in the Maricopa County Jails. In addition, MCSO has produced documentation in response to each of DOJ’s March 25, 2009, document requests, and is compiling additional documents to satisfy additional requests.
7. Taking into consideration the cooperation the United States has received from MCSO, and MCSO’s expressed commitment to continuing cooperation, the United States has concluded that it can obtain any additional information it needs to complete its investigation without resorting to costly and protracted litigation.
8. Because MCSO's cooperation with the United States’ investigation obviates the need for any further litigation, the parties agree to resolve this matter pursuant to this Agreement. Within twenty-four hours of signing this Agreement, the parties will file this Agreement in the United States District Court for the District of Arizona, together with a motion to remove the action from the Court's active docket to its inactive docket and to further stay any proceedings on the parties’ pending motions for summary judgment. The parties further agree that this case will remain on the Court’s inactive docket for 60 calendar days, after which time, subject to substantial compliance with the terms of this Agreement, the DOJ will file a motion to dismiss the United States’ Complaint without prejudice pursuant to Fed. R. Civ. P. 41(a)(2).
9. It is the explicit intention of the parties to this Agreement that this Agreement is binding on the Sheriff’s successors, should the Agreement exceed the length of Sheriff Arpaio’s term as Sheriff.
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Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 3 of 17
II. DEFINITIONS
10. “Discriminatory policing” shall refer to law enforcement policies and/or practices by law enforcement agencies that unlawfully discriminate against an individual due to his or her national origin, race, or color.
11. “Sheriff” shall refer to the Maricopa County Sheriff and his or her deputies, employees (sworn and unsworn), and successors in office.
12. “Personnel” and “MCSO personnel” shall both refer to all persons employed by MCSO in any capacity, including the Maricopa County Sheriff, command staff, sworn staff, unsworn staff, administrative staff, and volunteers, including posse members.
13. “Documents” and “MCSO documents” shall refer to any documents or records, whether electronic or paper, in whole or in part, in the possession of MCSO, subject to DOJ's understanding that certain documents may be subject to privacy, privilege, and/or other protections under federal and/or state laws.
14. “Effective date” shall mean the date this Agreement is signed by all the parties.
15. Throughout this Agreement, the term “substantial compliance” is used when discussing compliance under this Agreement. “Substantial compliance” shall mean that MCSO has achieved compliance with most or all components of the relevant provisions of the Agreement.
III. SUBSTANTIVE PROVISIONS
A. Access to Documents
16. MCSO shall comply with the access requirements of Title VI.
17. MCSO shall comply with all reasonable, relevant and necessary requests for documents, subject to privacy, privilege and other protections under federal and/or state laws, in their original format unless DOJ reasonably requests otherwise. Hard copy reproduction of any documentation that MCSO provides in electronic format shall occur at DOJ’s expense.
18. MCSO shall identify the software program and version required to read documents provided in electronic form, and provide any explanatory information reasonably necessary to understand the organizational scheme of the information provided.
19. MCSO shall notify DOJ within a reasonable time period but no more than 20 calendar days after receiving a request from DOJ of any inability to provide documents to DOJ outside of their original electronic formats.
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Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 4 of 17
20. MCSO shall, if requested by DOJ, identify the source for the response to each document request, including integral MCSO staff member(s) or volunteer(s), assisting with, compiling, and/or providing the response and any electronic or database sources utilized to provide a partial or complete response, subject to DOJ’s understanding that the Sheriff may have limited ability to compel volunteers, posse members and employees to comply with any of the DOJ's requests arising under this Agreement. DOJ shall have the reasonable opportunity to communicate with said integral MCSO staff member(s) or volunteer(s), in order to better understand documents produced by MCSO, upon reasonable notice, during business hours and in the presence of counsel.
21. MCSO shall notify DOJ within a reasonable time period but no more than 20 calendar days of the effective date if a requested document does not exist.
22. MCSO shall provide DOJ with the following documents and information detailed in ¶¶ 23 to 38 of this Agreement within 45 calendar days of the effective date, unless otherwise noted.
a) General Policies and Procedures
23. All after Action Reports produced by Operations Command following large-scale law enforcement operations, often referred to as “crime suppression operations” and “workplace and workplace identity fraud enforcement operations” from July 2008 to the date of production.
b) Detention Facilities
24. MCSO’s current contract with the AT&T language line service and invoices documenting usage of the service from July 1, 2008, to the date of production.
25. A Spanish language copy of the Inmate Visitation form, which shall note its original date of formulation, currently being used in its detention facilities.
26. A Spanish language copy of the Disciplinary Action Report Appeal, which shall note its original date of formulation, currently being used in its detention facilities.
27. Representative samples of Online Journal entries for the Durango and Estrella detention facilities, including a month of entries for every three month period between January 1, 2008, and the date of production.
28. Attendance lists for all ESL classes offered at the Durango and Estrella detention facilities between July 2008 and the date of production. Unless ordered to do so by a court of competent jurisdiction, under no circumstances will the parties to this Agreement disclose or circulate these attendance lists, or the names or any identifying information of any individual on these lists, to anyone other than their respective
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Case 2:10-cv-01878-GMS Document 58-1 Filed 06/02/11 Page 5 of 17
attorneys, representatives and experts involved in this action for the purposes of this action and the related investigations.
c) Computer Aided Dispatch
29. Computer Aided Dispatch (“CAD”) Database for 2005 through 2010, as follows:
a. The produced database should contain every table and all fields from the source CAD database maintained by MCSO. If the fields or their variables have changed between years or in any other manner, MCSO shall provide a written explanation of the change to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
b. The produced database shall be accompanied by an explanation describing in detail the meaning of the various tables and fields in the database and the meaning of the values that may be used for each field. This explanation should also include who is responsible for inputting data into each field, i.e., the officer, the dispatcher, some other individual or whether the fields are completed automatically by the CAD software. Further, the explanation should identify any field that is routinely left blank as a matter of practice or policy. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
c. The produced database should be accompanied by a complete and unfiltered Premise Information file, along with an explanation of the function of the Premise Information file. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO’s dissemination of such information.
d. The produced database should be identical to the source CAD database, filtered only according to the years requested. MCSO will provide any information requested pursuant to this paragraph to the extent possible and subject to limitations and/or restrictions imposed by the CAD vendor (Northrop Grumman Public Safety, Inc. (“NG”)) on MCSO's dissemination of such information.
30. The names of MCSO personnel who are most familiar with the sources of information described in ¶29, specifically, all fields of the CAD database, including those that are presently unused and how all fields are populated, including fields listed as inaccurate. These personnel shall be made reasonably available for questions concerning the CAD database. Such MCSO personnel will provide any information requested pursuant to this paragraph to the extent possible and subject to
2554236. 15

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

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

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

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

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

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

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

Appendix A 


Case 2:10-cv-01878-GMS

Document

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

Page 11 Justice

of

17

Civil Rights Division

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

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

Via Facsimile and U.S. Mail

January 14,2011

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

Dear Messrs. Masterson and Popolizio:

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

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

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

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

-2-

an interview, Defendants will assure, barring exceptional circumstances

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

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

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

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

the Defendants. Attorneys representing individual personnel and inmates

may be present.

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

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

I.

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

inmates to consent to having their interviews recorded by the United

States.

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

U.S. Attorney's Office.

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

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

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

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

Sincerely,
~
Avner Shapiro Special Counsel Special Litigation Section

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


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

January 20, 2011

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

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

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

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

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

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

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

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

JTM/jag

John T. Masterson For the Firm

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

1

2

3

4

5

6

UNITED STATES DISTRICT COURT 


7

DISTRICT OF ARIZONA 


8

9 United States of America,

10

Plaintiff,

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

11

v.

[PROPOSED] ORDER

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

15

Defendants.

16

17

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

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

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

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

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

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

23

IT IS SO ORDERED.

24

25

26

27

28

 </s> 15 diciembre 2011

Lcdo. Bill Montgomery Abogado de Condado Condado de Maricopa 301 West Jefferson Street Phoenix, AZ 85003++

Asunto:

Investigación de los Estados Unidos sobre la Oficina del Alguacil del Condado de Maricopa

Estimado Lcdo. Montgomery:

Le escribimos para informarle los hallazgos de la División de Derechos Civiles en cuanto a las infracciones contra los derechos civiles por parte de la Oficina del Alguacil del Condado de Maricopa (“MCSO”). Nuestra investigación inicial comenzó en junio del año 2008, y se centró en el cumplimiento por parte de MCSO de la Ley de Control de Crímenes Violentos y Orden Público de 1994, 42 U.S.C. § 14141 (“Sección 14141”) y el Título VI de la Ley de Derechos Civiles de 1964, 42 U.S.C. §§ 2000d a 2000d-7 y su correspondiente reglamento en 28 C.F.R. § 42.101 y siguientes (“Título VI”). La Sección 14141 prohíbe a las agencias del orden público como MCSO involucrarse en actividades que conforman un patrón o práctica de violaciones a la Constitución o leyes de los Estados Unidos. El Título VI y sus regulaciones aplicables disponen que los recipientes de asistencia federal financiera, como MCSO, no deberán discriminar en base a raza, color u origen. Por medio de estas leyes, los Estados Unidos tiene la facultad de entablar una demanda legal y obtener el remedio necesario para asegurar el cumplimiento con la Constitución y leyes de los Estados Unidos.
En marzo del 2009 informamos a MCSO el inicio de nuestra investigación formal.1 Durante la misma, asistidos por cuatro destacados especialistas en prácticas policiacas, un

1 Nuestra investigación se vio interrumpida cuando en repetidas ocasiones MCSO no quiso proporcionar a los Estados Unidos acceso al material y personal pertinente. Después de varios intentos para resolver la controversia, en ausencia de litigio, los Estados Unidos entablo una demanda en septiembre del año 2010 para asegurarse que MCSO cumpliera con sus obligaciones legales de proporcionar la información necesaria para nuestra investigación. En junio de 2011, los Estados Unidos y MCSO llegaron eventualmente a una solución en este caso luego que MCSO acordó proporcionarnos la información y el acceso al material que estábamos solicitando.

-2-
especialista en cárceles y un especialista en análisis estadístico, revisamos decenas de miles de páginas con evidencia documentada; realizamos un recorrido por las cárceles de MCSO; entrevistamos a más de 400 individuos, incluyendo aproximadamente 150 reclusos entre antiguos y actuales, y más de 75 miembros del personal antiguo y actual de MCSO, incluyendo al Alguacil, al Jefe de Aplicación de la Ley, al Jefe de Patrulla, al Comandante de Investigación Administrativa, al Sargento al mando de la Escuadra de Empleo Penal de MCSO, y al Teniente que lidera la Unidad de Contrabando Humano de MCSO.
Basados en nuestra extensa investigación, encontramos que existen causas razonables para creer que MCSO está involucrada en patrones o prácticas policiacas anticonstitucionales. Específicamente, descubrimos que MCSO, a través de las acciones de sus agentes, personal de supervisión y personal de mando, se involucra en la elaboración de perfiles raciales contra los latinos; detiene, retiene y arresta ilegalmente a latinos; y comete actos ilegales de represalia contra las personas que se quejan o critican las políticas o prácticas de MCSO, todo en violación a la Sección 14141. La conducta policiaca discriminatoria de MCSO además viola el Título VI y su correspondiente reglamento.
Asimismo encontramos causa razonable para creer que MCSO opera sus cárceles en una forma discriminatoria en contra de los reclusos latinos con conocimientos limitados del idioma inglés (“reclusos latinos LEP”). Específicamente, descubrimos que MCSO, a través de las acciones de sus agentes, oficiales de custodia, personal de supervisión y personal de mando, castigan de manera rutinaria a los reclusos latinos LEP por no entender las órdenes que se imparten en inglés y les niegan servicios esenciales proporcionados a otros reclusos, todo en violación al Título VI y su correspondiente reglamento.
La ausencia de políticas y procedimientos transparentes para garantizar un control policiaco efectivo y constitucional, junto con el hecho de haberse apartado de controles policiacos y prácticas correccionales ampliamente aceptados, y la falta en implementar estructuras de supervisión y responsabilidad significativas, han contribuido a una cultura crónica que consiste en ignorar obligaciones legales y constitucionales básicas.
Además de los hallazgos antes mencionados, identificamos otras tres áreas de considerable preocupación que, si bien no ameritan en este momento un hallazgo de patrón o práctica formal, requieren una investigación más a fondo. Primero, nuestra investigación reveló una serie de incidentes perturbadores que involucran el uso de fuerza excesiva en contra de los latinos por parte de los agentes de MCSO. Segundo, observamos que MCSO ha implementado su programa de inmigración de tal forma que ha creado una “barrera de desconfianza” entre los oficiales de MCSO y los residentes latinos del Condado de Maricopa—una barrera de desconfianza que ha comprometido significativamente la capacidad de MCSO de proporcionar protección policiaca a los residentes latinos del Condado de Maricopa.2 Tercero, nuestra investigación se amplió para incluir un examen de alegaciones serias que MCSO no ha investigado un gran número de crímenes sexuales.
2 Durante una de nuestras entrevistas, un agente de MCSO usó el término “barrera de desconfianza” para describir el efecto adverso de las políticas de MCSO para la aplicación de la ley de inmigración en la relación existente entre MCSO y la comunidad latina.

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Dada la naturaleza sistémica de las violaciones constitucionales cometidas por MCSO, consideramos que será necesario desarrollar un acuerdo integral escrito, complementado con una supervisión judicial a nivel federal a fin de lograr una solución efectiva de este tema. Preferimos resolverlo sin tener que recurrir a un juicio, aunque no dudaremos en entablar una demanda si es necesario. Nos gustaría iniciar de inmediato una dialogo constructivo sobre formas integrales y sostenibles de remediar las violaciones identificadas a la Constitución de los Estados Unidos y la ley federal. Si a MCSO le interesa seguir este curso de acción, agradeceremos nos lo haga saber para el 4 enero de 2012 antes de finalizar la jornada laboral. Si a MCSO no le interesa, o si consideramos que no despliega esfuerzos de buena fe para cumplir voluntariamente con lo antes mencionado, estamos preparados para entablar una demanda civil para obligarlos a cumplir con lo antedicho.
En lo que queda de esta carta, resaltaremos nuestros hallazgos de hechos y legales, describiremos ampliamente nuestra investigación sobre las prácticas de MCSO, delinearemos los hechos concretos que hemos descubierto en forma bastante detallada de manera que les ofrezcamos notificación justa sobre las infracciones cometidas, describiremos brevemente como estos hechos concretos se relacionan con las violaciones que ha cometido MCSO a la ley federal y delinearemos las medidas correctivas que MCSO deberá tomar para cumplir con la ley.
RESUMEN DE HALLAZGOS
Prácticas Policiacas Discriminatorias
Nuestros hallazgos de hechos relacionados con las prácticas policiacas discriminatorias incluyen, entre otros, lo siguiente:
• Basado en un estudio estadístico reciente sobre las actividades de MCSO en relación con la detención de vehículos en las carreteras del Condado de Maricopa, y que fue encargado por el Departamento de Justicia (“Departamento”), los conductores latinos son de cuatro a nueve veces más probable de ser detenidos en comparación a conductores que no son latinos y que están en similar situación.
• Nuestra revisión de todos los informes de incidentes de tráfico generados por la Unidad de Contrabando Humano (“HSU”) de MCSO en un periodo de tres años (que se llevó a cabo con la asistencia de consultores especialistas en orden público) demostró que aproximadamente una quinta parte de los informes, la mayoría de los cuales involucraba a conductores latinos, contenía información que indicaba que las órdenes de detención de vehículos se hicieron violando la Cuarta Enmienda que prohíbe registros e incautaciones ilegales.
• Atestiguaciónes individuales sobre agentes de MCSO que detienen a latinos basándose en su apariencia corroboran el uso de prácticas policiacas discriminatorias.
• Nuestra investigación identificó una serie de casos en los cuales se iniciaron actividades para combatir delitos migratorios en la comunidad tan pronto como MCSO recibió quejas en las cuales no se describía ninguna actividad delictiva, sino que se referían, por ejemplo, a personas con "piel oscura" que se congregaban en una zona o personas que

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hablaban en español en un negocio local. El uso de este tipo de indicadores parcializados como base para hacer cumplir la ley contribuye a la gran cantidad de detenciones e incautaciones carentes de justificación legal.
Prácticas Discriminatorias en las Cárceles
Con respecto a las prácticas carcelarias de MCSO, MCSO nos hizo llegar una carta de 53 páginas reconociendo su obligación de tratar a los reclusos latinos LEP de acuerdo con las disposiciones amparadas por la ley federal y proporcionaba ejemplos de la forma en que presuntamente cumplía con dichas obligaciones. Sin embargo, nuestra investigación descubrió lo siguiente:
• Los oficiales de corrección de MCSO castigaban discriminadamente a los reclusos latinos LEP que no entienden las órdenes impartidas en inglés, por ejemplo, encerrándolos en sus celdas (lo que incrementa el riesgo de violencia entre los reclusos) o imponiéndoles una segregación disciplinaria (confinamiento solitario).
• Los oficiales de corrección de MCSO se negaban a aceptar los formularios que completaban los reclusos latinos LEP en español. Dichos formularios permiten que los reclusos puedan solicitar servicios diarios básicos e incluyen formularios de queja, permitiéndoles identificar y abordar sobre supuestos maltratos. Aún en los casos en que se aceptan solicitudes en español, los reclusos latinos LEP enfrentan demoras en los servicios por no remitir sus formularios de solicitudes y quejas en inglés.
• MCSO presiona a los reclusos latinos LEP para que firmen formularios de repatriación voluntaria sin asistencia lingüística.
• Los reclusos latinos LEP no tienen las facilidades para acceder servicios importantes, tales como aquellos que posibilitan la liberación anticipada y se les niega el acceso a información básica sobre programas y servicios, ya que la mayoría de los anuncios se hace solamente en inglés.
Hallazgos Relacionados con la Práctica Policiaca y Carcelaria
• MCSO toma represalias contra las personas que critican sus prácticas policiacas, incluso las prácticas relacionadas con el tratamiento discriminatorio hacia los latinos, sometiendo a los que critican a órdenes de detención y arrestos sin causa, demandas judiciales civiles sin justificación y otras quejas sin fundamentos.
• MCSO alienta y continúa ejerciendo prácticas policiacas y carcelarias discriminatorias al no operar de acuerdo con prácticas policiacas y correccionales básicas y al no cumplir con desarrollar e implementar prácticas policiacas y correccionales en contra de la discriminación en áreas como sistemas de capacitación, supervisión y responsabilidad.
• La naturaleza persistente de tratamiento discriminatorio de MCSO hacia los latinos refleja una cultura general de prejuicio dentro de MCSO.

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Hallazgos Legales en Virtud de la Sección 14141 & el Título VI y su Reglamento Aplicable
La evidencia descubierta durante nuestra investigación respalda las siguientes conclusiones/determinaciones legales:
• MCSO discrimina en contra de los latinos al involucrarse en prácticas policiacas que violan la Cláusula de Igualdad de Protección de la Decimocuarta Enmienda de la Constitución de los Estados Unidos a la Sección 14141, Título VI y las regulaciones aplicables del Título VI del Departamento.
• MCSO discrimina contra sus reclusos latinos LEP basado en su origen nacional en violación al Título VI y las regulaciones aplicables del Título VI del Departamento.
• MCSO se involucra en un patrón o práctica de registros e incautaciones ilegales, incluyendo detenciones y arrestos injustificados de latinos en violación a la Cuarta Enmienda de la Constitución de los Estados Unidos y la Sección 14141.
• MCSO se encuentra involucrada en un patrón o práctica de acciones de represalia contra las personas que se quejan de la conducta de MCSO o que critican sus operaciones o políticas, especialmente las políticas relacionadas con inmigración, en violación de la Primera Enmienda de la Constitución de los Estados Unidos y la Sección 14141.
HISTORIA DE LA INVESTIGACIÓN
En junio del año 2008, después de considerar la información pública disponible, la División de Derechos Civiles abrió una investigación preliminar sobre alegaciones de que MCSO estaba involucrada en patrones o prácticas de conducta ilegal. La investigación no estaba relacionada a una investigación anterior de las cárceles del Condado de Maricopa referente al uso de fuerza en contra de reclusos y la indiferencia deliberada por parte de MCSO hacia sus necesidades medicas.3 El 10 de marzo de 2009, notificamos a MCSO y al Alguacil Joseph Arpaio que estábamos investigando alegaciones sobre prácticas policiacas discriminatorias, registros e incautaciones ilegales y trato discriminatorio hacia los reclusos latinos LEP. Poco después de esto, MCSO se negó a proporcionar al Departamento acceso a documentos pertinentes, instalaciones y personal. Por más de dieciocho meses, MCSO se rehusó consistentemente a cooperar con nuestra investigación. Por esa razón, tuvimos que hacer valer nuestros derechos de acceder a fuentes de información pertinentes. El 2 de septiembre de 2010, los Estados Unidos presentó una demanda en contra de MCSO bajo el Título VI, su reglamento aplicable y las garantías contractuales que MCSO había celebrado con los Estados Unidos, todas las cuales exigen que MCSO, como recipiente de asistencia financiera federal, coopere con las
3 En agosto de 1995, la División de Derechos Civiles inició una investigación para determinar si las condiciones en las cárceles de MCSO violaban los derechos constitucionales de los reclusos, según la Ley de Derechos Civiles de Personas Recluidas, 42 U.S.C. § 1997 y siguientes. Concluimos que condiciones inconstitucionales existían en las cárceles con respecto a (1) el uso de fuerza excesiva en contra de reclusos y (2) indiferencia deliberada hacia las necesidades medicas de los reclusos. En octubre de 1997 los Estados Unidos y MCSO llegaron a un acuerdo.

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investigaciones relacionadas con la aplicación del Título VI. Durante este periodo, continuamos con nuestra investigación, sin la cooperación de MCSO, recopilando y revisando documentos de varias fuentes externas a MCSO y entrevistando a numerosos residentes del Condado de Maricopa que proporcionaron versiones de haber sido víctimas de las prácticas policiacas discriminatorias de MCSO.
Después de haber presentado nuestra demanda en virtud del Título VI, MCSO se retractó y comenzó a ofrecernos la cooperación que habíamos estado buscando. Como se ha indicado anteriormente, MCSO permitió que los abogados del Departamento y los especialistas entrevistaran al Alguacil Arpaio; condujeran decenas de entrevistas, incluyendo al personal de mando, agentes, oficiales de corrección, supervisores de primera línea y de reclusos encarcelados. MCSO también permitió visitas guiadas a sus seis instalaciones y respondió a nuestra solicitud original de documentos. Además, de conformidad con los términos de un acuerdo judicial firmado el 2 de junio de 2011, MCSO se comprometió a proporcionar al Departamento el acceso que necesitaba para completar su investigación.
Nuestros hallazgos se basan en la información recibida antes de y como resultado del proceso judicial en virtud del Título VI y el subsiguiente acuerdo, incluyendo la revisión de documentos oficiales y entrevistas a numerosos oficiales de MCSO y residentes del Condado de Maricopa. Adicionalmente, nuestros hallazgos incorporaron los análisis de especialistas, incluyendo cuatro ejecutivos policiacos tanto actuales como antiguos con conocimiento extenso de los estándares y prácticas policiacas, un especialista correccional con experiencia sustancial como administrador correccional y un auditor de cárceles y prisiones, y un estadístico con amplia experiencia en la revisión de prácticas policiacas.
HALLAZGOS DE HECHOS
Encontramos que los agentes, oficiales de corrección, personal de supervisión, y personal de mando de MCSO, incluyendo al Alguacil Arpaio, se han involucrado en un patrón generalizado de orden público y actividades carcelarias que discrimina en contra de los latinos. Esta discriminación fluye directamente de una cultura de prejuicio y de deficiencias institucionales que resultan en el tratamiento discriminatorio hacia los latinos.
A. Prácticas Policiacas Discriminatorias
Tanto la Constitución como el Título VI prohíben la discriminación intencional en base a raza, color u origen nacional. Los reglamentos aplicables del Título VI prohíben a los recipientes de fondos federales involucrarse en actividades que tienen un efecto discriminatorio basándose en cuestiones de raza, color u origen nacional.
Es prerrogativa de MCSO establecer las prioridades para orden público. Al mismo tiempo, en el curso de implementar las prioridades para orden público, MCSO debe cumplir con la Constitución y las leyes de los Estados Unidos. De manera general desde el 2007, durante la implementación del programa para hacer cumplir la ley de inmigración, MCSO ha implementado prácticas que tratan a los latinos como si todos fueran indocumentados, independientemente de que exista o no una base de hechos legítimos para sospechar que una persona es indocumentada. Al enfatizar sus esfuerzos para hacer cumplir la ley de inmigración sin seguir los protocolos

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policiacos básicos y sin implementar ninguna medida de protección coherente contra las prácticas policiacas discriminatorias, MCSO se ha visto involucrada en una serie de prácticas que han afectado a los latinos de manera adversa y desproporcionada. Si bien MCSO ha realizado algunos cambios recientes en su personal de mando, estos problemas han continuado y no hemos observado cambios fundamentales en la política, protocolos o prácticas policiacas de MCSO.
En primer lugar, los agentes de MCSO tienen en la mira a los conductores latinos. Un análisis estadístico de las detenciones de vehículos que realiza MCSO a partir del inicio del programa para hacer cumplir la ley de inmigración—en el que predomina el uso de detenciones utilizadas como pretexto—demuestran que las prácticas de MCSO para hacer cumplir la ley están teniendo un efecto discriminatorio sobre los conductores latinos. Un experto especialista en medir perfiles raciales a través de análisis estadísticos examinó las órdenes de detención de vehículos que había efectuado MCSO. El especialista descubrió que los conductores latinos tienen entre cuatro y nueve veces más probabilidades de que se les detenga que otros conductores que no son latinos y que se encuentran en situaciones similares. En general, el especialista llegó a la conclusión de que este caso involucra la discriminación racial más flagrante que jamás haya visto en los Estados Unidos durante el desarrollo de su trabajo, o que haya observado en algún juicio o revisado en material de lectura profesional.
En segundo lugar, la HSU de MCSO, que presumiblemente se enfoca en interceptar tanto a los traficantes de personas como a sus víctimas, se involucra en conductas ilegales en su intento por hacer cumplir las leyes relacionadas con la ley de inmigración. Los agentes de HSU, detienen, hacen parar y/o arrestan a conductores latinos sin que medie una causa adecuada. Cuando revisamos todos los informes de incidentes relacionados con detenciones de tráfico generados por HSU desde marzo de 2006 hasta marzo de 2009, descubrimos que aproximadamente el 20% de los informes contenían información que indicaba que las órdenes de detención, casi todas involucrando a conductores latinos, se efectuaron sin mediar una sospecha razonable o causa probable. Además, las acciones de HSU vinculadas con la aplicación de la ley casi nunca resultaban en arrestos de personas. Durante nuestras entrevistas, un agente de HSU remarcó que su unidad realizaba una “tonelada de detenciones” y él estimaba que el “índice de aciertos” (índice de éxito medido por la frecuencia de arrestos por tráfico de personas) era de 10% a 15%. Por lo tanto, el 85% a 90% de los vehículos que HSU detiene basado supuestamente en sospechas de infracciones a la ley de inmigración, han como mucho, cometido simplemente una infracción de tránsito. Detenciones de tráfico motivadas por prejuicio de raza, o que son el producto de una política de enfocar el esfuerzo de la ley en un grupo protegido, no son permitidas. La característica típica de los esfuerzos que hace HSU para hacer cumplir la ley es entonces en mayor grado el enfoque y acoso a los conductores latinos que la aplicación efectiva de la ley de inmigración; siendo este un elemento del patrón general discriminatorio de MCSO en contra de los latinos del Condado de Maricopa.
En tercer lugar, las versiones de los testigos concuerdan con los datos: las prácticas de MCSO para hacer cumplir la ley de inmigración son anticonstitucionales y están perjudicando a latinos inocentes. A continuación presentamos solo dos de los muchos ejemplos que hemos descubierto durante nuestra investigación:
• A.A., un residente legal de los Estados Unidos que es latino, fue detenido por un agente de MCSO en junio de 2008, durante un operativo para erradicar el crimen en Mesa

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debido a supuestamente no haber usado la señal para voltear. El agente solicitó a A.A. su licencia de conducir y otros documentos. A.A. no le entregó la licencia de conducir, pero sí le entregó al agente su tarjeta de identificación de Arizona, una visa de trabajo vigente, una tarjeta del Seguro Social y un pasaporte mexicano. Sin tener ninguna evidencia de que A.A. estuviera involucrado en una actividad delictiva, el agente le ordenó sentarse en el borde de la calle por 15 minutos. Entonces, el agente arrestó a A.A. por no haber presentado ningún tipo de documentación apropiada, aún cuando A.A. le había entregado múltiples documentos cumpliendo con la ley de Arizona con respecto a los conductores sin licencia. A.A. fue encarcelado por 13 días antes de que se desestimara su citación.
• B.B., un residente legal de los Estados Unidos, y su hijo de 12 años, un ciudadano estadounidense, son ambos latinos. En mayo de 2009, un grupo de agentes de MCSO efectuaron un allanamiento a una casa vecina de la residencia de B.B. que los agentes sospechaban era una “casa de contacto” para el tráfico de personas. En algún momento durante el allanamiento, dos de los agentes de MCSO involucrados ingresaron al hogar de B.B. después de que se les permitió el ingreso. Sin haber obtenido la autorización correspondiente para realizar una búsqueda, los agentes inspeccionaron la casa sin tener una orden judicial. A pesar de que no encontraron evidencia alguna de actividad delictiva en la residencia, los agentes de MCSO esposaron a B.B. y a su hijo y los sacaron de la casa. Los agentes les ordenaron a ambos que se sentaran en la vereda al lado de unas diez personas que habían sido sacadas de la residencia vecina. MCSO liberó a B.B. y a su hijo sin darles ninguna citación después de haberlos detenido e inmovilizado por más de una hora.
En cuarto lugar, descubrimos que los operativos habituales y altamente publicados denominadas “operaciones para erradicar el crimen” de MCSO tienen un efecto adverso en los latinos. Durante estos operativos, que con frecuencia utilizan una gran cantidad de personal por una gran cantidad de horas y sobre las cuales se refirió un teniente de MCSO como “redadas de extranjeros ilegales”, se alienta a los agentes a realizar una gran cantidad de detenciones esgrimiendo como pretexto infracciones de tráfico en localidades objetivo. Hemos identificado y entrevistado a personas latinas que, aunque residen legalmente en los Estados Unidos, fueron arrestadas o detenidas sin motivo como consecuencia de estas operaciones.
En quinto lugar, los agentes de la Brigada de Empleo Delictivo (“CES”) de MCSO que tienen la tarea de interceptar a personas indocumentadas aplicando leyes estatales de falsificación y robo de identidades, allanan rutinariamente diversos negocios en una forma que perjudica a los trabajadores latinos. En especial, los agentes de CES detienen e investigan el estatus migratorio de todos los empleados en los centros de trabajo, sea o no que estén incluidos en la orden de allanamiento. CES utiliza como blanco centros de trabajo donde los empleados es su mayoría, si no todos, son latinos.
En sexto lugar, MCSO, al seleccionar los lugares para llevar a cabo actividades para verificar la aplicación de la ley de inmigración, utiliza datos no verificados y/o denuncias de ciudadanos en cuanto a la presencia de latinos, que no solo son totalmente parcializadas sino que no contienen información creíble en cuanto a actividades delictivas o infracciones a la ley de inmigración. Esta práctica ha tenido también un impacto variado y adverso sobre los residentes latinos del Condado de Maricopa. Por ejemplo:

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• El Alguacil Arpaio recibió una carta en agosto de 2008 expresando preocupación por el hecho de que los empleados de un McDonald's en Sun City no hablaban inglés y sugiriendo que el Alguacil Arpaio "verificar esto" y “investigar a Sun City”. Como la carta solo alegaba que un negocio tenía empleados que hablaban español, el único fundamento que se daba para obtener una respuesta a nivel de intervención policiaca era la suposición de que hablar español era indicativo de ser indocumentado. A pesar de que la carta no describía ninguna conducta ilegal, el Alguacil Arpaio escribió una nota en la carta de respuesta agradeciendo a la persona que la escribió “por la información” y asegurándole que lo “investigaría”. Asimismo, el Alguacil Arpaio envió la carta al Jefe de Orden Público de MCSO Brian Sands con una indicación a mano que decía “para nuestro operativo”. Dos semanas después, MCSO realizó un operativo para verificar el cumplimiento de la ley de inmigración en Sun City.
• El Alguacil Arpaio también recibió una carta en mayo de 2008 quejándose de que la policía no había detenido a los jornaleros en Mesa “con el fin de determinar si estos trabajadores se encontraban allí en circunstancias legítimas” aunque el autor de la carta “pensaba que se encontraban en el país de manera ilegal”. El Alguacil Arpaio marcó las secciones de la carta con comillas considerando que correspondían a “inteligencia” y se la reenvió al Jefe Sands. Más adelante, el Alguacil Arpaio testificó que ser jornalero no es un delito. Entonces, ese mes el Alguacil Arpaio recibió una carta similar diciendo que Mesa necesitaba una “barrida terrible” y acusando específicamente a los miembros latinos de MCSO y al Departamento de Policía de Mesa de negligencia al perseguir a los “ilegales”. El Alguacil ordenó que se escribiera una carta de agradecimiento, indicando que “iría a Mesa”, y reenvió la carta al Jefe Sands. Después, el Jefe Sands testificó que él asumió que el autor de la carta correlacionó a las personas indocumentadas con “personas de tez oscura”. A pesar del prejuicio evidente en ambas cartas, MCSO condujo operativos para erradicar el crimen en Mesa el 26 y 27 de junio de 2008, y el 14 de julio de 2008.
En séptimo lugar, notamos que la prioridad dada por MCSO para aplicar la ley de inmigración puede haber comprometido su capacidad de garantizar la seguridad de los residentes del Condado de Maricopa. Desde que MCSO cambió su enfoque hacia la lucha contra la inmigración ilegal, los índices de delitos violentos en el condado han aumentado de manera significativa en comparación con jurisdicciones que se encontraban en situación similar.4 Desde el 2004 hasta fines de 2007, el incremento de la violencia superó el 69%, incluyendo un 166% de aumento en homicidios en un periodo de tres años.5 Desde el 2008, el índice de delitos violentos
4 Clint Bolick, Mission Unaccomplished: The Misplaced Priorities of the Maricopa Sheriff’s Office 229 Goldwater Institute Policy Report, Dec. 2, 2008 en 1, (citando Estadísticas delictivas uniformes del FBI); Véase también, Ryan Gabrielson yPaul Giblin, Reasonable Doubt, East Valley Tribune (July 9-13, 2008), http://www.eastvalleytribune.com/special_reports/reasonable_doubt/ (July 9-13, 2008); y Jacques Billeaud, Critics: “Tough” Sheriff Botched Sex-Crime Cases, Associated Press (Dec. 4, 2011), http://abcnews.go.com/US/wireStory/critics-tough-sheriff-botched-sex-crime-cases (reportando que MCSO falló en adecuadamente investigar aproximadamente 70 en El Mirage y más de 400 crímenes sexuales a nivel del Condado respectivamente—incluyendo docenas de abuso sexual contra menores-durante un periodo de tres años culminado en el 2007).
5 Bolick, supra nota 4, en 4.

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ha permanecido más o menos al mismo nivel en el Condado de Maricopa, mientras que se redujo en más del 10% en jurisdicciones similares.6
B. Prácticas Carcelarias con Discriminación de Acceso Lingüístico
La discriminación por origen nacional prohibida por el Título VI y su reglamento aplicable incluye prácticas y procedimientos que niegan el acceso significativo a las minorías lingüísticas sujetas a la jurisdicción de un recipiente de asistencia económica federal. MCSO, a través de sus oficiales de corrección, personal de supervisión y personal de mando implementan las prácticas de acceso lingüístico que tienen un efecto discriminatorio en los latinos (que constituyen la gran mayoría de los reclusos LEP de MCSO). En su Declaración de Política de junio de 2010, MCSO reconoció la importancia de la comunicación en español con los reclusos de habla hispana: “Debido a la gran cantidad de reclusos de habla hispana, el uso del español no es solo importante en la comunicación diaria, es esencial para la operación en general de las cárceles y la seguridad de los reclusos y de los oficiales". No obstante, las prácticas de acceso lingüístico de MCSO son mucho menores de las que se requieren y perjudican en forma desproporcionada a los latinos de diversas maneras.
En primer lugar, nuestra investigación revelo que los funcionarios se han rehusado a aceptar los formularios completados por reclusos LEP en español, incluyendo órdenes para la entrega de efectos personales, que contienen solicitudes de los servicios carcelarios más básicos y del día a día, y formularios de quejas, permitiendo a los reclusos identificar y abordar supuestos maltratos. En un incidente, un recluso reportó que un custodio o vigilante le dijo: “Esto es América. Tienes que llenar [tu formulario] en inglés”. Los oficiales de corrección confirmaron que sus compañeros oficiales hacían este tipo de comentarios. Asimismo, cuatro oficiales de corrección admitieron que no aceptan solicitudes de los reclusos escritas en español. Un oficial de corrección femenina indicó que ella devolvía las órdenes en español e instruía a la reclusa que obtuviera una traducción en inglés.
En segundo lugar, a los reclusos latinos LEP se les ordena firmar formularios importantes escritos en inglés sin la ayuda lingüística apropiada. Por ejemplo, testigos informan que los oficiales de MCSO presionan a los reclusos latinos LEP para que firmen formularios de repatriación voluntarios en idioma inglés con gritos, no avisándoles como rutina sobre sus derechos, y confinándolos en celdas incómodas y frías por largos periodos. Aunque es posible que firmar un formulario de repatriación voluntaria permite que una persona evite una orden formal de traslado—un tipo de expulsión de los Estados Unidos que acarrea consecuencias migratorias más graves para la persona expulsada—una persona que firma un formulario de repatriación voluntaria acepta, en efecto, abandonar los Estados Unidos sin intentar (o trabajar con un abogado para intentar) hacer valer cualquier derecho que pudiera ejercer para quedarse.
En tercer lugar, los oficiales de corrección castigan, directa e indirectamente a los reclusos latinos LEP por su incapacidad para entender a cabalidad o hablar con fluidez el inglés.
6 Estadísticas delictivas uniformes del FBI para la MCSO, Departamento de Policía de Mesa y el Departamento de Policía de Phoenix, http://www.ucrdatatool.gov/.

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Descubrimos que la incapacidad de un recluso latino LEP para entender una orden dada en inglés puede resultar en el confinamiento (“encierro”) de una casa entera o celda. Los encierros pueden durar aproximadamente hasta 72 horas. Cuando se ordena un encierro, los reclusos deben retornar a sus celdas y se les niega el acceso al área de visitas, área de recreación del comedor, televisión, llamadas telefónicas no legales y programas para reclusos. Castigar a otros reclusos por la incapacidad de un recluso latino LEP para entender las órdenes en ingles, puede poner en peligro al recluso latino LEP. La incapacidad de un recluso latino LEP para entender las instrucciones en el idioma inglés de un custodio o vigilante también puede hacer que el custodio o vigilante envíe al recluso a segregación disciplinaria, a lo que comúnmente se denomina que fue enviado al “hueco”. Los reclusos enviados al hueco son confinados 23 horas cada día, y se les niega el teléfono de uso no legal, visitas regulares, televisión, participación en programas (incluso los servicios de la iglesia), y acceso al área de suministros (con excepción de artículos de higiene). Tales acciones disciplinarias son bastante problemáticas si se considera que muchos reclusos latinos LEP reportaron que nunca recibieron una copia del Reglamento y Normas del Recluso, o que no recibieron copia en un idioma que podían entender, denegándoseles el entendimiento básico de las políticas carcelarias.
En cuarto lugar, MCSO discrimina contra los reclusos latinos LEP al no proporcionarles acceso equitativo a una variedad de servicios, oportunidades y beneficios disponibles para otros reclusos. Por ejemplo:
• Los oficiales de corrección les han negado solicitudes sanitarias de ropa o sábanas nuevas cuando dichas prendas están sucias debido a que los reclusos hicieron sus solicitudes en español. Una reclusa latina LEP intentó utilizar a una compañera reclusa como intérprete para explicar que sus sábanas estaban sucias. El oficial de corrección rechazó la solicitud, insistiendo en que la reclusa debía hacer personalmente su solicitud.
• A los reclusos latinos LEP se les niega con frecuencia el acceso a información básica sobre programas y servicios ya que la mayoría de los anuncios se hacen solamente en inglés, incluso los anuncios sobre recreación y recopilación de quejas.
• A los reclusos latinos LEP se les niega con frecuencia la oportunidad de ocupar puestos de confianza donde ciertos reclusos ayudan con tareas diarias en las cárceles, lo cual afecta adversamente a los reclusos latinos LEP, ya que los reclusos seleccionados para efectuar estas tareas reciben un trato preferencial, como alimento adicional, cambio de ropa y mayor libertad de movimiento.
• A los reclusos latinos LEP se les niega el acceso a actividades importantes, incluyendo acceso a un programa que les permite obtener libertad anticipada a través del desarrollo del servicio comunitario.
C. Evidencia Directa de Parcialidad Discriminatoria
Encontramos en MCSO una cultura centrada en la discriminación contra los latinos que alcanza los niveles más altos de la agencia. Los supervisores de los operativos policiacos de MCSO, incluyendo por lo menos a un supervisor de HSU, han enviado correos electrónicos a los miembros del personal de mando, agentes, y al grupo de voluntarios que degradan y ridiculizan a

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los latinos utilizando con frecuencia las cuentas de correo electrónico del condado. Un mensaje de correo electrónico se burla de las personas de origen mexicano incluyendo como adjunto una licencia de conducir falsa emitida a un individuo mexicano caricaturizado como originario de “Mexifornia” con una clase de conductor de “extranjero ilegal”. Otro correo electrónico muestra dos figuras pretendiendo ilustrar la diferencia entre “Yoga de la India” y “Yoga de México”, comparando la figura de un hombre en una posición de yoga y un hombre aparentemente embriagado tendido boca abajo en el suelo.
En las cárceles de MCSO, los oficiales de corrección dirigen insultos raciales a los reclusos latinos. Los oficiales de corrección también insultan o ignoran a los reclusos latinos cuando intentan comunicarse en español. Un oficial de corrección confirmó que en su turno con frecuencia los oficiales exigían a los reclusos latinos LEP hablar en inglés. Otros oficiales de corrección realizaban hostilidades similares: Los oficiales de corrección aprenden a maldecir en español, lo que les permitía insultar a los reclusos latinos, y reportaban que escuchaban al personal usando insultos al referirse a los latinos. Nuestra investigación también descubrió que los oficiales de corrección de MCSO llamaban a los latinos “espaldas mojadas”, “putas mexicanas”, “mexicanos de mierda” y “mexicanos estúpidos” cuando hablaban entre ellos o cuando se dirigían a los reclusos latinos.
Las propias acciones del Alguacil Arpaio han ayudado a alimentar la cultura parcializada de MCSO. Por ejemplo, el Alguacil Arpaio distribuía con frecuencia cartas de ciudadanos cargadas de racismo, incluyendo en las cartas notas manuscritas que aparentaban endosar el contenido de la carta, circulando la carta a otros miembros del personal de mando, y/o guardando las cartas en su carpeta personal. Muchas de estas no contienen una descripción significativa de alguna actividad delictiva—simplemente contienen lenguaje crudo, étnicamente despectivo sobre los latinos. Por ejemplo, el Alguacil Arpaio recibió una carta solicitándole efectuar una “redada” en la Calle 29 de Greenway en Phoenix. La carta justificaba la solicitud de acción de parte de la policía afirmando que “[s]i tienes piel oscura, entonces tienes piel oscura. Lamentablemente, esa es la apariencia de los mexicanos ilegales que se encuentran aquí de manera ilegal”. En lugar de ignorar la solicitud de enfocarse en las personas de “piel oscura”, el Alguacil Arpaio, pensando que la carta era “inteligencia” de importancia, se la pasó a un miembro de su personal de mando con una nota indicándole que “[e]ncargara a alguien el manejo de este tema”. Etiquetando de “inteligencia” una carta que en forma explícita equiparaba el color de la piel con la infracción de la ley y sus instrucciones a un subordinado que se encargara de este tema son ejemplos flagrantes de la forma en la que el Alguacil Arpaio ha promovido una cultura de parcialidad en su organización, comunicando claramente a sus oficiales que no solo se toleraba la actividad policiaca parcializada sino que también se alentaba.
D. Desviaciones de los Estándares y Procedimientos Policiacos y Correccionales
MCSO ha adoptado y mantiene políticas y procedimientos deficientes que difieren de los estándares policiacos y correccionales y llevan a la violación de los derechos constitucionales y federales. Encontramos que la supervisión y responsabilidad, la capacitación de la actividad policial no parcializada y las políticas de conducta de los agentes de MCSO difieren sustancialmente de los estándares policiacos generalmente aceptados. Estas prácticas son con frecuencia enormemente deficientes cuando están relacionadas directamente con el programa de aplicación de la ley de inmigración de MCSO.

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Contrariamente a los estándares de prácticas policiacas en todo el país, los supervisores de MCSO han efectuado una variedad de declaraciones en las que se subvalora el uso de las estadísticas y recopilación de datos para la efectiva aplicación de la ley. MCSO no exige que agentes en patrulla mantengan una bitácora de sus actividades, ya que solo deben ingresar una muy limitada cantidad de información en el sistema de Despacho Asistido por Computadora y registran solo las citaciones y arrestos. En consecuencia, cuando uno de sus agentes detiene a un conductor sin emitir una citación, MCSO no puede revisar la justificación por haberlo detenido ni rastrear directamente la raza del conductor al que se ha detenido. La decisión de MCSO de permitir a sus agentes hacer su trabajo de tráfico sin tener que reportar muchas de las veces que detienen a un conductor, demuestra que MCSO no tendrá la capacidad de monitorear adecuadamente la labor de los agentes en su trabajo de tráfico ni identificar a los oficiales involucrados en la elaboración de perfiles raciales. En las cárceles, MCSO no cuenta con un método confiable para definir qué reclusos tienen conocimientos limitados del idioma inglés, dejando que los custodios adivinen sus necesidades en cuanto al idioma.
MCSO no ha establecido estructuras de supervisión y responsabilidad apropiadas. Tales estructuras incluyen sistemas para documentar la actividad del agente o encargado de la detención y para manejar las quejas. MCSO se aleja significativamente de los estándares policiacos generalmente aceptados en la implementación de estos sistemas. Con respecto a las quejas, MCSO tiene la política de dirigir todas las quejas de mal comportamiento al supervisor inmediato del agente involucrado. El supervisor de primera línea tiene la posibilidad de cerrar la investigación a su discreción sin necesidad de involucrar a la estructura de mando o Asuntos Internos y sin documentar la queja de alguna otra manera. En consecuencia, MCSO no hace un seguimiento de las quejas dirigidas a los agentes o unidades dentro de la organización. Más aún, debido a que la mala conducta de un agente con frecuencia refleja deficientemente las acciones o falta de acción del supervisor de primera línea, el sistema de MCSO de depender de los supervisores de primera línea coloca la determinación fundamental de seguir o no con una investigación en las manos de una persona con un conflicto de intereses inherente en cuanto a investigar el tema profundamente.
El proceso de quejas tambien es deficiente en las cárceles. Cuando los reclusos presentan quejas en contra de los oficiales de corrección, es práctica común que el oficial mencionado en la queja resuelva la queja presionando al recluso para que firme una liberación, lo que logra que no se continúe con la revisión del caso.
Contrario a las prácticas estándar de aplicación de la ley, MCSO ni ofreció ni requirió capacitación sobre cómo evitar involucrarse en prácticas policiacas parcializadas hasta hace poco en el año 2010 (más de un año después de haber notificado a MCSO en cuanto al inicio de nuestra investigación sobre prácticas policiacas parcializadas). Si bien MCSO nos proporcionó listas demostrando que la mayoría de sus agentes habían completado la capacitación, la mayoría de los agentes y supervisores entrevistados en enero de 2011, inclusive aquellos involucrados rutinariamente en la aplicación de la ley de inmigración, declararon que nunca recibieron dicha capacitación o que sabían poco o nada respecto al tema de la capacitación.
Así como MCSO no cumplió con brindar capacitación para evitar una práctica policiaca parcializada, la capacitación de MCSO para trabajar con reclusos LEP ha sido inadecuada. A pesar de que hay una referencia sobre barreras del idioma en el curriculum de Diversidad en la

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cárcel de MCSO, el material es tan escaso que un custodio que ha completado su capacitación solo unos meses antes de su entrevista, no recordaba haber recibido instrucciones al respecto.7
Las desviaciones más graves en las normas policiacas se relacionan con la forma en que MCSO opera las dos unidades que están más directamente comprometidas en las actividades de aplicación de la ley de inmigración—HSU y CES. Los procedimientos policiacos estándar requieren que MCSO supervise más las actividades de estas dos unidades debido a la naturaleza sensible de su trabajo. Sin embargo, MCSO ha proporcionado a los agentes en estas unidades muy poco con referencia a la orientación en políticas, capacitación y supervisión. Por ejemplo, HSU depende mucho de las detenciones de tráfico como pretexto, pero no tiene políticas significativas que indiquen cuando el pretexto de las detenciones es apropiado, su legalidad o cualquier otro aspecto de su conducta. De la misma forma, MCSO no ha podido apreciar la necesidad de desarrollar protocolos fundamentales que garanticen el cumplimiento de requisitos constitucionales y estatutarios importantes.
Con respecto a los estándares correccionales, MCSO no ha cumplido con sus obligaciones LEP bajo el Titulo VI, con el reglamento de implementación del Título VI ni con los estándares que MCSO estableció para satisfacer estas obligaciones. El 14 de junio de 2010, un año después de haber informado a MCSO sobre nuestra investigación con respecto al trato que le dan a los reclusos latinos LEP, MCSO emitió una Declaración de Situación en la cual expone ante los Estados Unidos que ha tomado una serie de medidas con el fin de garantizar el acceso lingüístico para los reclusos con conocimientos limitados del idioma inglés LEP. Sin embargo, cuando hicimos una visita guiada a las instalaciones de la cárcel de MCSO en enero del año 2011, descubrimos que la Declaración era inconsistente con la situación actual de asuntos en las cárceles. Por ejemplo, en contra de lo expuesto en la Declaración, los oficiales de corrección se negaban a aceptar solicitudes de los reclusos escritas en español, no cumplieron con usar o depender de una lista que brindara Capacidades en Idiomas Extranjeros, y continuaron confiando en los reclusos para brindar asistencia de idioma a otros reclusos. Tampoco cumplieron con tener un servicio de interpretación telefónica disponible o solicitar a colegas bilingües para que los asistieran en su comunicación con los reclusos LEP. Consideramos que la práctica de MCSO de confiar en los reclusos para las interpretaciones o traducción es peligrosa tanto para los reclusos como para los oficiales de corrección y es una desviación de las prácticas correccionales generalmente aceptadas.
7 En una comunicación a la División de Derechos Civiles del 28 de Julio de 2011, el representante legal de MCSO proporcionó una copia preliminar de un documento en PowerPoint de junio de 2011 titulado “Limited English Proficiency” (“Conocimientos limitados del idioma inglés”), y un borrador de nueve páginas sin fecha “Lesson Plan: Limited English Proficiency” (Plan de estudio: Conocimientos limitados del idioma inglés). Este currículo revisado no aborda muchas de las deficiencias en las disposiciones del servicio de idiomas de MCSO que se identifican en esta carta, incluyendo, por ejemplo, no instruir a los oficiales de corrección en la forma de hacer anuncios en español, traducir los formularios de los reclusos llenados en español, y comunicarse con los reclusos en unidades de vivienda donde no había disponibilidad de de servicios de traducción.

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E. Acciones de Represalias
Descubrimos que el personal de mando de MCSO y sus agentes se involucraron en una forma o práctica de represalias contra las personas por ejercer su derecho de libertad de expresión bajo la Primera Enmienda. Dirigidos por el Algualcil Arpaio y otros miembros del personal de mando, los agentes de MCSO han buscado silenciar a las personas que hablaron públicamente y que participaron en demostraciones protegidas en contra de políticas y prácticas de MCSO, en particular sobre sus políticas de inmigración. El personal de mando y los agentes de MCSO han arrestado a personas sin motivo alguno, han presentado quejas sin validez contra los adversarios políticos del Alguacil Arpaio, e iniciaron procesos judiciales civiles infundados e investigaciones en contra de personas que criticaron las políticas y prácticas de MCSO.
• Una de las víctimas de represalias de MCSO es C.C., un organizador con una organización de derechos comunitarios de inmigración quien por muchos años estuvo involucrado en discursos públicos de crítica a las prácticas de MCSO y el trato que daba a los latinos. El 29 de julio de 2010, C.C. participó en una protesta pacífica contra MCSO. En el curso de la protesta, MCSO lo arrestó y presentó cargos por no obedecer a un oficial de policía y por bloquear la vía pública. C.C. fue liberado esa noche. El 30 de julio de 2010, C.C. estaba parado al otro lado de la calle observando una protesta pública de Lower Buckeye Jail. Una grabación de video muestra a seis o más agentes de MCSO acercándose y arrestando a C.C. que estaba simplemente parado con sus manos a los lados en ese momento. El Jefe Sands declaró que C.C. fue arrestado por infringir su orden de liberación. A medida que se revelaba el incidente, el Alguacil Arpaio publicó una serie de mensajes de aprobación en Twitter.
• C.C. fue detenido en la cárcel de Fourth Avenue, dejando pendiente su comparecencia inicial en la corte, y no se le permitió conversar con su abogado mientras estuvo allí. Los agentes de MCSO presentaron cargos contra él por obstruir un proceso judicial, pero el 3 de agosto de 2010, el abogado del Condado de Maricopa, Rick Romley retiró el cargo, admitiendo que no hubo causa probable para el arresto.
Los agentes de MCSO también tomaron represalias contra los miembros de Ciudadanos de Maricopa a favor de la Seguridad y Responsabilidad (“MCSA”), una organización que criticaba ampliamente el trato discriminatorio en contra de los latinos por parte de MCSO. En diciembre de 2008, durante dos reuniones públicas por separado de la Junta de Supervisores del Condado, los agentes de MCSO arrestaron a miembros de MCSA que intentaron expresar su oposición a ciertas acciones de MCSO. Se acusó a todas las personas arrestadas de delito de violación de propiedad y a otros por conducta contra el orden y la tranquilidad pública. Ninguno de los cargos resultaron en una condena, y aquellos a los que se les presentaron cargos, posteriormente entablaron una demanda civil en contra del Condado de Maricopa y MCSO por arresto ilegal, persecución maliciosa y violación de derechos civiles. El 6 de julio de 2010, las partes llegaron a un acuerdo por mediación.
Finalmente, los oficiales de MCSO han recurrido al uso del acoso oficial para silenciar a los críticos de MCSO. Entre octubre de 2007 y noviembre de 2009, el ex Jefe Adjunto David Hendershott, en su capacidad oficial, presentó quejas infundadas ante el Colegio de Abogados del Estado de Arizona contra cinco abogados, alegando que habían incurrido en violaciones

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éticas. Cada una de las quejas se presentó contra personas que hicieron declaraciones de crítica sobre las políticas carcelarias, tácticas de investigación y/o prácticas policiacas de MCSO.
De manera similar, el 30 de noviembre de 2009, Hendershott, actuando en su capacidad oficial, presentó cuatro quejas ante la Comisión de Arizona sobre Conducta Judicial, en contra de jueces que hicieron comentarios públicos de crítica contra MCSO y el Alguacil Arpaio o que presentaron decisiones que perjudicaban los intereses de MCSO. Todas estas quejas ante el Colegio de Abogados y ante el Tribunal, fueron desestimadas como insuficientes para justificar aunque fuera una investigación.
En una acción relacionada, el Alguacil Arpaio participó como demandante nombrado en un proceso civil federal de extorsión entablado en contra de los mismos jueces objeto de blanco por Hendershott, así como a una serie de otros funcionarios del Condado. Las demandas en contra de los jueces hicieron eco de dichas demandas en las quejas presentadas por Hendershott. La acción judicial fue eventualmente abandonada.
Los arrestos y acoso emprendidos por MCSO se autorizaron en los más altos niveles de la agencia y constituyen un patrón de acciones de represalia para silenciar a los críticos de MCSO.
E. Áreas Adicionales de Preocupación Significativa
En adición a las violaciones a la Constitución y ley federal descritas anteriormente, nuestra investigación reveló tres áreas adicionales de preocupación significativa. En este momento, no hemos determinado un patrón formal o hallazgo concreto, pero nuestra investigacion continua. Estas areas de preocupación significativa son:
• Uso de fuerza excesiva en contra de latinos; • Reducción de servicios policiacos a las comunidades latinas; y • Prejuicio de género y origen nacional al no investigar crímenes sexuales.
Por si solos, estos tres asuntos son preocupantes y es probable que son relacionados a nuestros hallazgos finales con respecto a las prácticas policiacas discriminatorias de MCSO. Una indiferencia deliberada para proveer servicios policiacos, o una indiferencia deliberada a las necesidades de seguridad y orden de ciertas comunidades, involucra protecciones constitucionales importantes y puede comprometer la seguridad pública y dañar la confianza del público en MCSO. Para propósitos de la Constitución y leyes federales, no importa si es un acto de comisión u omisión.
En relación con el uso de fuerza, encontramos múltiples instancias de agentes de MCSO que utilizaban fuerza excesiva, una tendencia que se vuelve más problemática al no cumplir MCSO con establecer sistemas significativos de responsabilidad y supervisión. Dichos sistemas son así mismo componentes cruciales para disuadir y abordar el uso de la fuerza excesiva, y su carencia es una falla evidente en las prácticas institucionales de MCSO relacionadas con el uso de la fuerza. Es posible que el uso de fuerza excesiva por parte de MCSO constituya un patrón o práctica de violaciones a la Cuarta Enmienda bajo la Sección 14141, y nuestra investigación sobre esta conducta continúa.

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• En febrero de 2009, D.D. un ciudadano latino estadounidense, se encontraba conduciendo hacia su hogar cuando un agente de MCSO encendió sus luces de emergencia para indicar una detencion de tráfico, presumiblemente por una falla en la luz de freno del vehículo de D.D. El agente de MCSO no activó su sirena, y D.D. condujo la pequeña distancia que le quedaba hasta llegar a su casa porque temía el trato de que iba a ser objeto por parte del agente de MCSO por causa de su origen latino. Cuando D.D. salió de su auto, el agente de MCSO premeditadamente golpeó a D.D. con su auto patrulla, enviando a D.D. debajo del vehículo y arrastrándolo por más de diez pies. El agente de MCSO no intentó retirar a D.D., e instruyó a otros agentes que “lo dejaran allí”. El departamento de bomberos local eventualmente extrajo a D.D. debajo del auto. Las acciones del agente le ocasionó a D.D. lesiones graves, inclusive huesos rotos, quemaduras y otras lesiones. D.D. demandó a MCSO por sus lesiones; la demanda judicial, se acordó eventualmente por $600,000. El agente de MCSO reclamó que el incidente fue originado por el intento de D.D. de huir de su vehículo. MCSO arrestó al agente y se le presentaron cargos por agresión personal agravada.
• En mayo de 2009, un agente de MCSO detuvo a E.E., un ciudadano latino estadounidense, después que este recogió a un jornalero latino. El agente le dijo a E.E. que lo había hecho detenerse por ir a alta velocidad, pero E.E. sospechó que lo había detenido debido a que él y su compañero eran latinos. E.E. le cuestionó al agente el motivo por el cual lo hacía detenerse. El agente, junto con otros agentes de MCSO que llegaron al lugar de la escena, respondieron sacando a E.E. a la fuerza de su vehículo, torciéndole el brazo, la cabeza y el cuello y haciendo que se cayera y golpeara la cara contra el pavimento. Los agentes de MCSO mantuvieron a E.E. en el suelo, lo esposaron y registraron. E.E. estaba sangrando debido a múltiples laceraciones en la cara, y experimentaba dolor de cuello y espalda por la fuerza con que los agentes lo había sacado del vehículo. E.E. fue, finalmente, conducido a una instalación médica donde recibió tratamiento para las lesiones de la cara, cuello, hombros y espalda. Nunca se le presentaron cargos a E.E. por ningún delito que pudiera explicar la fuerza utilizada por los agentes. En lugar de ello, se le presentaron cargos por alta velocidad y por no presentar identificación. Eventualmente, se retiraron ambos cargos.
Continuamos investigando si MCSO ha implementado su programa de aplicación de la ley de inmigración con indiferencia deliberada hacia la forma en la que el programa compromete la capacidad de MCSO para brindar servicios policiacos efectivos a los residentes latinos del Condado de Maricopa. Hay indicadores de que MCSO ha debilitado su propia capacidad de proporcionar actividades policiacas efectivamente en la comunidad latina. Gran parte de la eficacia de una agencia de policía moderna se basa en la construcción de una relación de confianza con todos los sectores de la comunidad. MCSO ha hecho casi nada para construir una relación con los residentes latinos de Maricopa. La ausencia de confianza ha comprometido sustancialmente las actividades policiacas de MCSO al limitar la voluntad de los testigos y las víctimas a denunciar los delitos y también en hablar con la policía sobre actividad criminal.
Los agentes de MCSO que entrevistamos admitieron que el programa de aplicación de la ley de inmigración, que adolece de falta de medidas básicas de control de calidad y responsabilidad y se caracteriza por efectuar operaciones de “supresión delictiva” de amplio espectro y pobremente planificadas, ha afectado adversamente su capacidad de obtener

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información y cooperación de los latinos del Condado. Un agente nos informó que los esfuerzos de interdicción de inmigración “agresivos” de MCSO crean una “barrera de desconfianza” que divide a la comunidad latina y a MCSO. A otro agente le dijeron sus supervisores que esperara encontrar hostilidad por parte de las personas que consideraban que las detenciones se debían a su raza. Un agente de MCSO distinto se lamentó del impacto de las operaciones de MCSO relacionadas con inmigrantes, enfatizando que aquellas “afectan nuestra capacidad de trabajar en una comunidad que nos odia”. El Foro de Investigación Ejecutiva de la Policía, una organización nacional independiente, formada por ejecutivos policiacos, entrevistaron a oficiales encargados del orden público en el Condado de Maricopa que piensan que MCSO aplica la ley de inmigración de manera tal que ha envenenado la relación entre los encargados de aplicar la ley y los latinos, dificultando los esfuerzos generales de aplicación de la ley en la comunidad latina.8 Nuestra investigación no encontró evidencia adicional sobre acciones que haya tomado MCSO para mejorar su relación con la comunidad latina, prefiriendo en su lugar, continuar simplemente con las prácticas que han comprometido su efectividad en la comunidad latina.
Por último, continuamos nuestra revisión de las acusaciones de que MCSO no ha investigado un gran número de delitos sexuales.9 La oficina del Sheriff ha reconocido que 432 casos de asalto sexual y abuso sexual de menores no fueron debidamente investigados durante un período de tres años concluyendo en el 2007.10 Estos casos sólo salieron a la luz después de una revisión por el Departamento de Policía de El Mirage de un período en el que MCSO estaba bajo contrato de prestación de servicios de policía a esa comunidad. Parece que muchas de las víctimas podrían haber sido latinos. Si se establece, esto puede constituir una falta de prestación de servicios de la policía en una forma que constituye discriminación de género y / o discriminación por origen nacional, en violación de la garantía de igual protección de la Constitución de los Estados Unidos. 11 Nuestra revisión no se limitará a los casos anteriores a 2007, pero incluye todas las denuncias de que la práctica continuó después de ese tiempo.
ANÁLISIS LEGAL
A. Prácticas Policiacas Discriminatorias
La Sección 14141, una disposición de la Ley de Control de Crímenes Violentos y Orden Público de 1994, otorga a los Estados Unidos la autoridad para entablar acción legal en contra de un gobierno estatal o local para obtener una reparación judicial justa y declaratoria cuando una “autoridad de gobierno … se involucra en un patrón o prácticas de conducta de sus agentes del
8 Debra A. Hoffmaster, et al. Police and Immigration: How Chiefs are leading their communities through the challenges. Police Executive Research Forum 39 (2010). 9 Gabrielson, supra nota 4; Billeaud, supra nota 4. 10 Sheriff Joe Arpaio apologizes for botched El Mirage sex-crime cases, Associated Press, Dec. 5, 2011, http://www.azcentral.com/news/articles/2011/12/05/20111205arpaio-apologizes-botched-cases.html 11 Véase Investigación del Departamento de Policía de New Orleans, Departamento de Justicia de los Estados Unidos, División de Derechos Civiles. pp. 43-49. 16 de marzo, 2011, http://www.justice.gov/crt/about/spl/nopd.php

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orden público… que priva a las personas de sus derechos, privilegios o inmunidades amparadas o protegidas por la Constitución o las leyes de los Estados Unidos”.
Una Agencia como MCSO viola la Cláusula sobre Protección Igual de la Leyes cuando el responsable de las decisiones adopta una política o práctica aparentemente neutral con intención discriminatoria, y esa política o práctica tiene un efecto discriminatorio. Washington v. Davis, 426 U.S.229, 239-40 (1976). Si bien la intención discriminatoria no es necesariamente la única motivación, ocurre una violación de la protección igual de la leyes cuando las pruebas circunstanciales demuestran que se adoptó una política en cuestión “debido a sus efectos negativos sobre un grupo identificable y no a pesar de ellos”. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Para evaluar si el proceso de la decisión se vio afectado por una intención discriminatoria, las Cortes examinan la totalidad de las circunstancias con particular atención en los factores que la Corte Suprema ha identificado como los más probatorios de la intención discriminatoria. Village of Arlington Heights v. Metro. Hous. Redev. Corp., 429 U.S. 252 (1977). Estos factores incluyen: evidencia del efecto discriminatorio; evidencia de desvío de los procedimientos normales; la secuencia específica de los hechos que llevaron a las prácticas discriminatorias en cuestión; y declaraciones contemporáneas de una de las personas responsables de las decisiones que revelen la intención discriminatoria. Id. en 26668.
Como ya se describió anteriormente, nuestra investigación reveló evidencia sustancial del tipo identificado por la Corte Suprema en Arlington Heights, que demuestra que el Alguacil Arpaio decidió intencionalmente implementar su programa de inmigración de una manera que discrimina a los latinos. Nuestras pruebas muestran, además, que la discriminación contra los latinos está presente en una amplia gama de prácticas de MCSO. Hemos obtenido pruebas estadísticas contundentes que demuestran que los agentes de MCSO detienen a los latinos de manera rutinaria en un número mayor que a otras personas que no son latinas en situaciones similares en las carreteras del Condado de Maricopa. Esta evidencia apunta directamente tanto a los efectos como a las motivaciones discriminatorias de los agentes de MCSO a cargo del tránsito. Es difícil concebir una explicación válida, no discriminatoria, para que se detenga a conductores latinos entre 4 y 9 veces más que a conductores no latinos en situaciones similares. Además de esta evidencia estadística, otros datos y testimonios muestran que los oficiales de MCSO, en particular miembros de HSU o CES, con frecuencia detienen y/o arrestan a conductores latinos sin causa alguna. Adicionalmente, la evidencia de una cultura de prejuicio en MCSO señalada anteriormente tiene relación directa con las inaceptables motivaciones detrás de las acciones de los agentes de MCSO. Por éstas y otras razones, la evidencia demuestra que MCSO incurre en un patrón o práctica de violación de la protección igual de la leyes.
La aplicación de actividades discriminatorias de orden público se encuentra también prohibidas en el Título VI. El Título VI dispone que “ninguna persona en los Estados Unidos será excluida, por razón de su raza, color u origen nacional, de participar en programas o actividades que reciban asistencia económica federal; tampoco se les denegará beneficios ni serán objeto de discriminación bajo dichos programas”. 42 U.S.C. § 2000d. Asimismo, el reglamento de aplicación del Título VI excluye “criterios o métodos de administración” que ejerzan un efecto discriminatorio basado en raza, color u origen nacional. 28 C.F.R. § 42.104(b)(2). Por las razones detalladas en la sección de conclusiones que antecede, la evidencia obtenida a la fecha establece que MCSO ha violado el reglamento mencionado.

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B. Incautaciones Irrazonables
Concluimos que MCSO se ha involucrado en un patrón o práctica de conducta a través de sus agentes de orden público que ha privado a muchos residentes latinos del Condado de Maricopa de su derecho, amparado por la Cuarta Enmienda de la Constitución, a “la seguridad de sus personas, domicilios, papeles y efectos contra … allanamientos irrazonables”. Cuarta Enmienda de la Constitución de los Estados Unidos. “El enfoque general de la Cuarta Enmienda requiere que las Cortes examinen la totalidad de las circunstancias para determinar si un allanamiento … es o no razonable”. United States v. Guzman-Padilla, 573 F.3d 865, 876 (9th Cir. 2009) (citando United States v. Knights, 534 U.S. 112, 118 (2001)). Para calificar como “razonables”, los arrestos deben basarse en causa probable para pensar que la persona arrestada ha cometido o está cometiendo un delito e, incluso, detenciones breves, como detenciones de tránsito, deben basarse en sospecha razonable de actividad delictuosa. Véase Terry v. Ohio, 392 U.S. 1, 20-21 (1968). La sospecha razonable es, como mínimo, “una base particularizada y objetiva para sospechar que la persona en particular ha perpetrado un delito”. United States v. King, 244 F.3d 736, 738 (9th Cir. 2001).
En este caso, contamos tanto con información como con testimonios de testigos que demuestran que en el curso de sus actividades relacionadas a la aplicación de la ley de inmigración, los oficiales de MCSO detienen o arrestan con frecuencia a latinos, incluso sin tener causa probable o razonable. Como se señaló anteriormente, los informes de HSU que examinamos nos proporcionan causa razonable para pensar que los oficiales de HSU detienen de manera rutinaria a conductores latinos sin causa razonable. Más aún, existen otras prácticas relacionadas con el programa de aplicación de la ley de inmigración de MCSO que con frecuencia tienen como resultado violaciones a la Cuarta Enmienda. Por ejemplo, nuestra investigación reveló que oficiales de CES detienen generalmente a todos aquellos presentes en los alrededores del lugar que allanan. En algunos casos, estas detenciones masivas de personas inocentes han sido por extensos periodos de tiempo y, en por lo menos un caso, aproximadamente dos horas. Este tipo de detenciones prolongadas de personas inocentes, sin evidencia específica de actividad delictuosa, constituye violación a la Cuarta Enmienda. Véase Ganwich v. Knapp, 319 F.3d 1115, 1121 (9th Cir. 2003).
C. Prácticas Carcelarias Discriminatorias
El Título VI autoriza a los Estados Unidos a iniciar acciones legales en una corte federal para obtener amparo judicial en contra de un recipiente de asistencia económica federal cuyo programa o actividad viole el Título VI o su reglamento aplicable. 42 U.S.C. § 2000d-1; 28 C.F.R. § 42.108. Los procedimientos de acceso lingüístico de MCSO violan el Título VI si MCSO mantiene estos procedimientos para ejercer discriminación intencionalmente en contra de los latinos. 28 C.F.R. § 42.104(b)(2); N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995). En este caso, los procedimientos y prácticas de acceso lingüístico de MCSO tienen un efecto discriminatorio. Como se detalla más arriba, los reclusos LEP de MCSO, que son mayoritariamente latinos, no reciben los mismos servicios y beneficios que los reclusos que no son LEP, se les presiona para que suscriban importantes documentos relacionados con inmigración sin asistencia con el idioma y se les señala para castigos, como por ejemplo, ser sometidos a encierros o a segregación disciplinaria por no comprender las órdenes en inglés.

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Nuestra investigación demuestra que los procedimientos de acceso lingüístico de MCSO discriminan intencionalmente contra los latinos. Existe suficiente evidencia que los prejuicios contra los latinos han influido en la decisión de MCSO de mantener sus prácticas y procedimientos actuales de acceso lingüístico. MCSO tiene conocimiento desde hace muchos años, de su obligación legal de tratar a los reclusos con limitado dominio del inglés sin discriminación. En el año 2002, el Departamento de Justicia emitió normas de acceso no discriminatorio sobre el idioma, aplicables a las funciones correccionales de las agencias del orden público que reciben fondos federales, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting LImited English Proficient Persons, 67 Fed. Reg. 41,455 (Junio 18, 2002). Al aceptar subvenciones del Departamento, los oficiales de MCSO suscribieron compromisos obligándose a acatar el Título VI, incluyendo un compromiso por el cual MCSO se obliga a “garantizar, de acuerdo con las directivas del Departamento de Justicia (Junio 18, 2002, Registro Federal (Volumen 67, Número 117, páginas 41455-41472)) bajo el Título VI de la Ley de Derechos Civiles de 1964, acceso significativo a sus programas y actividades, a personas con dominio limitado del idioma inglés”. En marzo de 2009, informamos a MCSO que estábamos investigando acusaciones acerca de que su programa de asistencia con el idioma en sus prisiones ejercía discriminación en contra de los reclusos latinos con dominio limitado del idioma inglés, poniendo a MCSO en conocimiento, de este modo, que los Estados Unidos habían recibido denuncias expresando serias preocupaciones relacionadas con su programa de acceso lingüístico. Finalmente, se advirtió también a MCSO sobre su falta de servicios para reclusos latinos LEP, sobre la base de denuncias interpuestas por reclusos latinos LEP, particularmente con respecto a la falta de acceso a servicios religiosos. Aún cuando MCSO tiene una amplia manera de saber que sus políticas le niegan acceso a los reclusos latinos LEP, persiste en mantener muchas de sus prácticas discriminatorias.
Las políticas y prácticas de MCSO de acceso lingüístico afectan de manera desproporcionada y negativa a los reclusos latinos en las prisiones de MCSO. Véase Lau v. Nichols, 414 U.S. 563 (1974) (donde se sostiene que “parece obvio que la minoría de habla china recibe menos beneficios que la mayoría angloparlante del sistema escolar de los demandados que les niega una significativa oportunidad para participar en el programa educativo—todas ellas señales de discriminación prohibida por” el Título VI y su respectivo reglamento); Yniguez v. Arizonans for Official English, 69 F.3d 920, 947-48 (9th Cir. 1995) invalidada en base a otros fundamentos 520 U.S. 43 (1997) (tachando la enmienda a la Constitución de Arizona en lo concerniente al uso único del inglés, señalando que el impacto de la enmienda “es especialmente ilustre pues no se disemina uniformemente a la población, sino que cae casi enteramente sobre hispanos y minorías de otros orígenes nacionales”).
D. Prácticas de Represalia
Encontramos que MCSO ha violado la Sección 14141 al realizar un patrón o práctica de conducta a través de sus agentes del orden público, que han privado a un número de residentes del Condado de Maricopa de sus derechos amparados por la Primera Enmienda. La Primera Enmienda prohíbe a funcionarios del gobierno “restringir la libertad de palabra”, Constitución de los Estados Unidos, Primera Enmienda y prohíbe a funcionarios de gobierno someter a una persona a acciones de represalia por expresiones al amparo de la Primera Enmienda. Hartman v.

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Moore, 547 U.S. 250, 251 (2006). El Noveno Circuito sostiene que para demostrar una demanda, un demandante debe probar que “sus acciones [del demandado] impidieron o desalentaron su discurso político [del demandante] y que dicho impedimento fue un factor sustancial o motivador en su conducta [del demandado]”. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). Para tener éxito en interponer una demanda de represalias bajo la Primera Enmienda, las cortes han sostenido que los demandantes deben únicamente probar que “las acciones de un funcionario desalentarían o silenciarían a una persona de carácter común de realizar actividades futuras amparadas por la Primera Enmienda”. Id. El demandante debe probar también que “el efecto disuasorio fue una causa indispensable (sine qua non) en la acción del demandado”. Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006).
En este caso, hemos identificado eventos de acciones de represalia de parte de oficiales de MCSO. Los incidentes más graves involucran a agentes de MCSO, aparentemente actuando por momentos bajo la dirección de la jefatura de MCSO, levantando cargos delictivos en contra de críticos de MCSO. El hecho de que todos los cargos sean posteriormente desestimados sugiere fuertemente que “el efecto disuasorio fue [la] causa indispensable” de las acciones policiacas. Más aún, dichos cargos maliciosamente motivados tendrían el efecto de silenciar a una persona de carácter común, disuadiéndole de emitir opiniones, protegidas constitucionalmente. Basándonos en nuestro análisis de la evidencia, creemos que existe causa razonable para pensar que oficiales de MCSO han cometido una serie de acciones de represalia dirigidas hacia críticos identificados de MCSO, diseñadas para disuadir el ejercicio de actividades protegidas por la Primera Enmienda.
MEDIDAS CORRECTIVAS
Las conclusiones de hecho detalladas más arriba proporcionan causa razonable para entender que MCSO ha cometido violaciones a las Enmiendas Primera, Cuarta y Decimocuarta de la Constitución de los Estados Unidos, Sección 14141 y Título VI. En consecuencia, la División de Derechos Civiles le notifica que, ausente un acuerdo logrado por MCSO con la División para corregir estas violaciones en 60 días, los Estados Unidos concluirán que no es posible contar con su cumplimiento voluntario e iniciará, inmediatamente siguiente, acciones legales para obligar a dicho cumplimiento, de acuerdo con la Sección 14141 y Título VI. Si MCSO indica en estos 60 días que no pretende cooperar con la División, nosotros podemos iniciar una demanda en menos de 60 días. Se advierte asimismo a MCSO que no debe intimidar, amenazar, ejercer coerción o mostrar otras conductas discriminatorias contra cualquier otra persona por haber tomado acción o haber participado en alguna acción para garantizar derechos protegidos por las leyes de derecho civil que defendemos.
Las violaciones constitucionales y deficiencias institucionales señaladas anteriormente son producto de una cultura arraigada que alienta y tolera el trato discriminatorio a los latinos y la existencia de una agencia que no cuenta con políticas y prácticas requeridas para garantizar la aplicación efectiva y constitucional de la ley. Una reforma requerirá un compromiso sostenido con los cambios estructurales, culturales e institucionales a largo plazo.
• Capacitación para agentes: MCSO debe desarrollar una capacitación efectiva y significativa para agentes sobre vigilancia policiaca constitucional, incluyendo cómo

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realizar detenciones, búsquedas, allanamientos y arrestos, consistente con los requerimientos de las Enmiendas Cuarta y Decimocuarta.
• Operativos especiales y unidades especializadas: MCSO debe desarrollar e implementar políticas detalladas, procedimientos y capacitación acerca de (1) operaciones especiales, incluyendo, entre otros, redadas para la supresión de delitos o patrullas de saturación, redadas en lugares de trabajo, allanamientos en casas de contacto y patrullas anticontrabando y (2) unidades especializadas, incluyendo, entre otros, SWAT, HSU y CES.
• Recolección de Datos y Manejo de Riesgo: MCSO debe desarrollar e implementar un sistema de recolección de datos con respecto a toda actividad de orden público para que le sea posible supervisar, gestionar e intervenir cuando sea necesario. Dicho programa requiere de informes detallados auditables para detenciones de tránsito y peatonales; detenciones relacionadas con inmigración, redadas o investigaciones, registros y confiscaciones y allanamientos en lugares de trabajo.
• Sistema de Denuncias y Asuntos Internos: MCSO debe desarrollar un sistema integral de quejas, investigaciones y disciplinario que le permita responsabilizar a sus funcionarios cuando violan una política y/o la ley. El sistema de quejas debe ser accesible a todos los miembros de la comunidad y debe permitir al público presentar quejas en contra del personal y delegados de MCSO sin temor a represalias. El proceso de investigación interna debería incluir canales claros para procesos de adjudicación, disciplina y penales, si fuera necesario, así como acceso a personas LEP.
• Acceso linguístico: MCSO debe desarrollar e implementar un programa integral de acceso lingüístico para sus delegados y funcionarios que tengan contacto con personas LEP en las prisiones y para su actividad orden público en la comunidad. La capacitación en este programa debe ser de rutina y detallada, de modo que todo el personal esté consciente de sus obligaciones con respecto al acceso linguístico y que sean responsables en caso de incumplimiento en la implementación de las medidas adecuadas.
• Servicio de Asistencia a la Comunidad: MCSO debe cumplir con los requerimientos de orden público de todos sus residentes, independientemente de su raza o etnia. Con este fin, MCSO debe comprometerse y ofrecer asistencia a los residentes latinos del Condado de Maricopa, para garantizar la provisión de servicios de ley y orden.
Nosotros firmemente creemos que actividades policiacas efectivas van mano a mano con actividades policiacas constitucionales. En los años recientes, nosotros hemos trabajado efectivamente y en colaboración con agencias de ley por todo el país, frecuentemente a petición de estos, para combatir preocupaciones significantes que amenazan la confianza del público y que impiden esfuerzos para hacer cumplir la ley. Nuestra meta en cada caso es colaborar con estas agencias para crear e implementar sistemas sostenibles de reforma que reducen el crimen, aseguran el respeto a la Constitución y aumentan la confianza del público en las agencias del orden público. Estamos preparados para trabajar en conjunto con usted para enfrentar las preocupaciones que hemos identificado en este documento, y seguimos preparados para tomar acción legal rápida y apropiada si usted decide no colaborar con nosotros.

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Las violaciones identificadas son graves y el cumplimiento voluntario con la Constitución y la ley federal requerirá un acuerdo detallado que incluya las medidas correctivas anteriores. Dada la naturaleza sistemática de las violaciones constitucionales, el cumplimiento efectivo en este caso requerirá supervisión judicial federal; un acuerdo ejecutable judicialmente proporcionará la estructura, transparencia y responsabilidad necesarias para lograr un éxito sostenido.
Sírvase tomar nota que la presente es un documento público. Este será publicado en el sitio web de la División de Derechos Civiles. Esperamos poder trabajar con usted para resolver este asunto. Si tuviera alguna pregunta, sírvase llamar a Jonathan Smith, Jefe de la Sección de Litigios Especiales, al (202) 514-6255.
Atentamente,
Thomas E. Pérez Fiscal General Adjunto
cc: William R. Jones, Jr. Abogado para Maricopa County Sheriff’s Office Jones, Skelton & Hochuli, P.L.C. 2901 North Central Ave, Suite 800 Phoenix, Arizona 85012

 </s> Assistant Attorney General

Washinx/on, D,C. 20530

December 15,2011
Mr. Bill Montgomery County Attorney Maricopa County 301 West Jefferson Street Phoenix, AZ 85003
Re: United States' Investigation of the Maricopa County Sheriffs Office
Dear Mr. Montgomery:
We write to report the findings of the Civil Rights Division's investigation into civil rights violations by the Maricopa County Sheriffs Office ("MCSO"). Our initial inquiry began in June 2008, and the investigation has focused on MCSO's compliance with the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141"), and Title VI of the Civil Rights Act of 1964,42 U.S.C. §§ 2000d to 2000d-7 and its implementing regulations at 28 C.F.R. § 42.101 et seq. ("Title VI"). Section 14141 prohibits law enforcement agencies, such as MCSO, from engaging in activities that amount to a pattern or practice of violating the Constitution or laws of the United States. Title VI and its implementing regulations provide that recipients of federal financial assistance, such as MCSO, may not discriminate on the basis of race, color, or national origin. These laws give the United States the authority to file legal action and obtain the necessary relief to ensure compliance with the Constitution and laws of the United States.
We notified MCSO of our formal investigation in March 2009. I During our investigation, aided by four leading police practice experts, one jail expert, and an expert on statistical analysis, we reviewed tens of thousands of pages of documentary evidence; toured MCSO'sjails; and interviewed over 400 individuals, including approximately 150 former and current MCSO jail inmates, and more than 75 former and current MCSO personnel, including the Sheriff, the Chief of Enforcement, the Chief of Patrol, the Administrative Investigative Commander, the Sergeant heading MCSO's Criminal Employment Squad, and the Lieutenant heading MCSO's Human Smuggling Unit.

lOur investigation was delayed when MeSO repeatedly refused to provide the United States with access to pertinent material and personnel. After repeated attempts to resolve the dispute short of litigation, the United States filed a lawsuit in September 2010 to secure MeSO's compliance with its legal obligations to provide information pertinent to our investigation. The United States and Meso eventually resolved this lawsuit in June 2011 after MeSO agreed to provide us with the information and access we had been seeking.

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Based upon our extensive investigation, we find reasonable cause to believe that MCSO engages in a pattern or practice of unconstitutional policing. Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO's policies or practices, all in violation of Section 14141. MCSO's discriminatory police conduct additionally violates Title VI and its implementing regulations.
We also find reasonable cause to believe that MCSO operates its jails in a manner that discriminates against its limited English proficient ("LEP") Latino inmates. Specifically, we find that MCSO, through the actions of its deputies, detention officers, supervisory staff, and command staff, routinely punishes Latino LEP inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations.
The absence of clear policies and procedures to ensure effective and constitutional policing, along with the deviations from widely accepted policing and correctional practices, and the failure to implement meaningful oversight and accountability structures, have contributed to a chronic culture of disregard for basic legal and constitutional obligations.
In addition to the formal findings noted above, we have identified three additional areas of serious concern that, while not warranting a formal pattern or practice finding at this time, require further investigation. First, our investigation revealed a number of troubling incidents involving MCSO deputies using excessive force against Latinos. Second, we observed that MCSO has implemented its immigration enforcement program in a way that has created a "wall of distrust" between MCSO officers and Maricopa County's Latino residents-a wall of distrust that has significantly compromised MCSO's ability to provide police protection to Maricopa County's Latino residents? Third, we have expanded our investigation to encompass a review of serious allegations that MCSO failed to investigate a large number of sex crimes.
Given the systemic nature ofMCSO's constitutional violations, effective resolution of this matter will require the development of a comprehensive written agreement along with federal judicial oversight. We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary. We would like to immediately begin a constructive dialogue about comprehensive and sustainable ways to remedy the identified violations of the Constitution and federal law. Please let us know by close of business on January 4,2012, ifMCSO is interested in having this dialogue. IfMCSO is not interested or if we deem that MCSO is not engaged in good-faith efforts to achieve compliance by voluntary means, we are prepared to file a civil action to compel compliance.
In the remainder of this letter, we highlight our factual and legal findings, broadly describe our investigation ofMCSO's practices, provide an outline of our factual findings in sufficient detail to give you fair notice of the violations committed, briefly discuss how those
2 During one of our interviews, an MeSO deputy used the term "wall of distrust" to describe the adverse effect of MeSO's immigration law enforcement policies on the relationship between Meso and the Latino community.

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factual findings relate to MCSO's violations of federal law, and outline the remedial measures MCSO must undertake to comply with the law.
SUMMARY OF FINDINGS
Discriminatory Policing
Our factual findings relating to MCSO's discriminatory police practices include, but are not limited to, the following:
• Based upon a recent statistical study, commissioned by the Department of Justice ("Department"), of MCSO traffic stop activities on Maricopa County roadways, Latino drivers are four to nine times more likely to be stopped than similarly situated non-Latino drivers.
• Our review (which was conducted with the assistance of our expert law enforcement consultants) of all of the traffic-related incident reports generated by MCSO's Human Smuggling Unit ("HSU") over a three-year period showed that roughly one-fifth of the reports, almost all of which involved Latino drivers, contained information indicating that the stops were conducted in violation of the Fourth Amendment's prohibition against unreasonable seizures.
• Individual accounts regarding MCSO deputies stopping Latinos on the basis of their appearance corroborate the use of discriminatory policing practices.
• Our investigation uncovered a number of instances in which immigration-related crime suppression activities were initiated in the community after MCSO received complaints that described no criminal activity, put rather referred, for instance, to individuals with "dark skin" congregating in one area, or individuals speaking Spanish at a local business. The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification.
Discriminatory Jail Practices
With respect to MCSO's jail practices, MCSO sent us a 53-page letter acknowledging its obligations to treat inmates who are limited English proficient ("LEP inmates") in accordance with its obligations under federal law and provided examples of how it allegedly complies with those obligations. However, our investigation uncovered the following:
• MCSO detention officers discriminatorily punish Latino LEP inmates who fail to understand commands given in English by, for example, locking down their pods (which increases the risk of inmate-on-inmate violence), or imposing disciplinary segregation (solitary confinement).
• MCSO detention officers refuse to accept forms completed by Latino LEP inmates in Spanish. Such forms include tank orders, which enable inmates to request basic daily services, and grievance forms, which enable inmates to identify and address alleged

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mistreatment. Even in instances when Spanish language requests are accepted, Latino LEP inmates face delays in services for not submitting requests and grievance forms in English.
• MCSO pressures Latino LEP inmates to sign voluntary return forms that implicate constitutional and statutory rights without language assistance.
• Latino LEP inmates are limited in their ability to access important services, such as services enabling early release, and are denied access to basic information about programs and services, since most announcements are made in English only.
Findings Pertaining to Both Police and Jail Practices
• MCSO retaliates against individuals who criticize its police practices, including practices relating to its discriminatory treatment of Latinos, by subjecting its critics to retaliatory detentions and arrests without cause, unfounded civil lawsuits, and other baseless complaints.
• MCSO fosters and perpetuates discriminatory police and jail practices by failing to operate in accordance with basic policing and correctional practices and by failing to develop and implement policing and correctional safeguards against discrimination in such areas as training, supervision, and accountability systems.
• The pervasive nature ofMCSO's discriminatory treatment of Latinos reflects a general culture of bias within MCSO.
Legal Findings Under Section 14141 & Title VI and its Implementing Regulations
The evidence uncovered during our investigation supports the following legal conclusions/determinations:
• MCSO discriminates against Latinos by engaging in police practices that violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Section 14141, Title VI, and the Department's Title VI implementing regulations.
• MCSO discriminates against its Latino LEP inmates onthe basis of their national origin in violation of Title VI and the Department's Title VI implementing regulations.
• MCSO engages in a pattern or practice of unlawful seizures, including unjustified stops, detentions, and arrests, of Latinos in violation of the Fourth Amendment to the United States Constitution and Section 14141.
• MCSO engages in a pattern or practice of retaliatory actions against individuals who complain about MCSO's conduct or criticize MCSO's operations and policies,

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especially its immigration-related policies, in violation of the First Amendment to the United States Constitution and Section 14141.
INVESTIGATIVE BACKGROUND
In June 2008, after considering publicly available information, the Civil Rights Division opened a preliminary inquiry into allegations that MCSO was engaged in a pattern or practice of unlawful conduct. The inquiry was unrelated to a previous investigation of Maricopa County jails concerning the excessive use of force against inmates and MCSO's deliberate indifference towards their medical needs. 3 On March 10,2009, we notified MCSO and Sheriff Joseph Arpaio that we were investigating allegations of discriminatory police practices, unlawful search and seizures, and discriminatory treatment' of Latino LEP inmates. Shortly thereafter, MCSO refused to provide the Department with access to pertinent documents, facilities, and personnel. For over eighteen months, MCSO consistently refused to cooperate with our investigation. As a result, we had to assert our right to access pertinent sources of information. On September 2, 2010, the United States filed suit against MCSO under Title VI, its implementing regulations, and the contractual assurances MCSO had entered into with the United States, all of which require MCSO, as a recipient of federal financial assistance, to cooperate with investigations relating to Title VI compliance. During this period, we continued our investigation without the cooperation of MCSO, gathering and reviewing documents from various sources external to MCSO and interviewing numerous Maricopa County residents who provided accounts of being victims of MCSO's discriminatory police practices.
After we filed our Title VI lawsuit, MCSO reversed course, and provided us with the cooperation we had been seeking. MCSO permitted the Department's attorneys and experts to interview Sheriff Arpaio; conduct dozens of interviews, including interviews of command staff, deputies, detention officers, first-line supervisors, and jail inmates. MCSO also allowed tours of its six facilities and responded to our original document requests. Moreover, under the terms of a court-enforceable agreement entered into on June 2, 2011, MCSO committed itself to providing the Department with any remaining access the Department needed in order to complete its investigation.
Our findings are based on the information we received prior to and as a result of our Title VI suit and subsequent agreement, including reviewing official documents and interviewing numerous MCSO officials and Maricopa County residents. In addition, our findings incorporate the analysis of experts, including four current and former police executives with extensive knowledge of policing standards and practices, a correctional expert with substantial experience as a correctional administrator and a jail and prison auditor, and a statistician with extensive experience reviewing police practices.
3 In August 1995, the Civil Rights Division initiated an investigation to determine whether conditions at MCSO jails violated inmates' constitutional rights, pursuant to the Civil Rights ofInstitutionalized Persons Act, 42 U.S.c. § 1997 et seq. We concluded that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997.

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FACTUAL FINDINGS
We find that MCSO deputies, detention officers, supervisory staff, and command staff, including Sheriff Arpaio, have engaged in a widespread pattern or practice of law enforcement and jail activities that discriminate against Latinos. This discrimination flows directly from a culture of bias and institutional deficiencies that result in the discriminatory treatment of Latinos.
A. Discriminatory Police Practices
Both the Constitution and Title VI prohibit intentional discrimination on the basis of race, color, or national origin. In addition, Title VI's implementing regulations ban recipients of federal funds from engaging in activities that have a discriminatory effect on the basis of race, color, or national origin.
It is MCSO's prerogative to establish enforcement priorities. At the same time, in the course of implementing its enforcement priorities, MCSO must comply with the Constitution and laws of the United States. Since roughly 2007, in the course of establishing its immigration enforcement program, MCSO has implemented practices that treat Latinos as if they are all undocumented, regardless of whether a legitimate factual basis exists to suspect that a person is undocumented. By emphasizing its immigration enforcement efforts without following basic policing protocols and without implementing any meaningful safeguards against discriminatory police practices, MCSO has engaged in a series of practices that have adversely and disproportionately impacted Latinos. While MCSO has undergone some recent changes in its command staff, these problems have continued, and we have observed no substantive changes in MCSO's policies, protocols, or policing practices.
First, MCSO deputies target Latino drivers. A statistical analysis ofMCSO's traffic stops made since the initiation ofMCSO's immigration enforcement program-which is dominated by the use of pretextual stops-shows that MCSO's enforcement practices have a discriminatory impact on Latino drivers. We had a leading expert on measuring racial profiling through statistical analysis examine MCSO traffic stops. The expert found that Latino drivers were between four to nine times more likely to be stopped than similarly situated non-Latino drivers. Overall, the expert concluded that this case involves the most egregious racial profiling in the United States that he has ever personally seen in the course of his work, observed in litigation, or reviewed in professional literature.
Second, MCSO's HSU, which purportedly focuses on interdicting both human smugglers and their victims, engages in unlawful conduct in its attempts to enforce immigration-related laws. HSU deputies stop, detain, and/or arrest Latino drivers without adequate cause. When we reviewed all of the traffic-related incident reports generated by HSU from March 2006 to March 2009, we found that roughly 20% of the reports contained information indicating that the stops, almost all of which involved Latino drivers, were conducted without reasonable suspicion or probable cause. Further, HSU's enforcement actions rarely result in human smuggling arrests. During our interviews, an HSU deputy stressed that his unit conducts a "ton of stops" and he estimated the "hit rate" (success rate as measured by frequency of smuggling arrests) to be at 10% to 15%. Accordingly, 85% to 90% of the vehicles HSU stops purportedly based on suspicion of immigration violations have, at most, committed a traffic violation. Pretextual stops

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motivated by racial bias, or that are the result of a policy targeting a protected group, are impermissible. The typical characteristic ofHSU's enforcement efforts is, therefore, the targeting and harassment of Latino drivers rather than the effective enforcement of immigration law, an element ofMCSO's overall pattern of discrimination against Latinos in Maricopa County.
Third, witness accounts are consistent with the data: MCSO's immigration enforcement practices are unconstitutional and are harming innocent Latinos. Below are just two of the many examples we discovered during our investigation:
• AA, a legal resident of the United States who is Latino, was pulled over by an MCSO deputy in June 2008, during a crime suppression operation in Mesa, due to an alleged failure to use his turn-signal. The deputy requested that AA provide a driver license and other documents. AA did not produce a driver license, but did provide the deputy with an Arizona identification card, a valid work visa, a Social Security card, and a Mexican passport. Without any evidence that AA had engaged in criminal activity, the deputy instructed him to sit on the curb of the street for 15 minutes. The deputy then placed AA under arrest for failing to provide any type of proper identification, even though AA had provided him with multiple documents in satisfaction of the Arizona law regarding unlicensed drivers. AA was incarcerated for 13 days before his citation was dismissed.
• B.B., a legal resident of the United States, and his 12 year-old son, a U.S. citizen, are both Latino. In May 2009, a group ofMCSO deputies conducted a raid of a house neighboring B.B.'s home that the deputies suspected of being a "drop house" for human smuggling. At some point during the raid, two of the MCSO deputies involved entered AA's home after obtaining consent to enter. Without obtaining consent to search, the deputies searched the home without a warrant. Although they found no evidence of criminal activity in the house, the MCSO deputies proceeded to handcuff both B.B. and his son with plastic zip-ties and remove them from their ' home. The deputies directed both to sit on the sidewalk next to approximately ten other individuals who had been removed from the neighboring house. MCSO released B.B. and his son without any citation after detaining them with restraints for more than an hour.
Fourth, we find that MCSO's regular and highly publicized "crime suppression" operations adversely impact Latinos. During these operations, which often use vast numbers of personnel for many hours and which one MCSO lieutenant referred to as "round-ups of illegal aliens," deputies are encouraged to make high-volume pretextual traffic stops in targeted locations. We have identified and interviewed Latinos who, though legally present in the United States, were arrested or detained without cause as a consequence of these operations.
Fifth, MCSO's Criminal Employment Squad ("CES") deputies, tasked with interdicting undocumented persons by enforcing state forgery and identity theft statutes, routinely raid businesses in a manner that harms innocent Latino workers. Specifically, CES's deputies typically detain and investigate the immigration status of all employees at a raided worksite,

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whether or not the employees are listed in the warrant authorizing the raid. The CES targets worksites where most, if not all, of the employees are Latino.
Sixth, MCSO makes use of unverified tips and/or constituent complaints about the presence of Latinos that are infected with bias against Latino persons, but contain no credible information concerning criminal activity or immigration violations, in selecting sites for immigration enforcement operations. This practice too has had a disparate and adverse impact on Maricopa County's Latino residents. For example:
• Sheriff Arpaio received a letter in August 2008 expressing dismay that the employees of a Sun City McDonald's did not speak English and suggesting that Sheriff Arpaio should "check this out" and "check out Sun City." Because the letter only alleged that a business had Spanish-speaking employees, the only basis it provided for a police response was the biased assumption that speaking Spanish was indicative of undocumented status. Though the letter did not describe unlawful conduct of any kind, Sheriff Arpaio wrote a note on the letter directing a response thanking the writer "for the info" and stating that he would "look into it." Sheriff Arpaio also forwarded the letter to MCSO Enforcement Chief Brian Sands with the handwritten instruction "for our operation." Two weeks later, MCSO conducted an immigration operation in Sun City.
• Sheriff Arpaio also received a letter in May 2008 complaining that police had not stopped day laborers in Mesa "in order to determine whether these day laborers are here under legitimate circumstances" although the writer of the letter "believe[d] that they were in the country illegally." Sheriff Arpaio marked the quoted sections ofthe letter, believing them to be "intelligence," and forwarded the letter to Chief Sands. Sheriff Arpaio later testified that being a day laborer is not a crime. Sheriff Arpaio then received a similar letter later that month stating that Mesa needed "a sweep ... terribly" and accusing specifically Latino members of MCSO and the Mesa Police Department of negligence in pursuing "illegals." Sheriff Arpaio directed that a thank you letter be written, noted that "I will be going into Mesa," and forwarded the letter to Chief Sands. Chief Sands later testified that he assumed that the letter's author correlated undocumented persons with "dark-complected people." Despite the bias evident in both letters, MCSO conducted crime suppression operations in Mesa on June 26-27, 2008, and on July 14,2008.
Seventh, we note that MCSO's prioritization of immigration enforcement may have compromised its ability to secure the safety and security of Maricopa County residents. Since MCSO shifted its focus toward combating illegal immigration, violent crime rates in the county have increased significantly as compared to similarly situated jurisdictions.4 From 2004 to the
4 Clint Bolick, Mission Unaccomplished: The Misplaced Priorities o/the Maricopa County Sheriff's Office, 229 Goldwater Institute Policy Report, Dec. 2, 2008, at 1 (citing FBI Uniform Crime Reporting Statistics); See also Ryan Gabrielson & Paul Giblin, Reasonable Doubt, East Valley Tribune (July 9-13, 2008), http://www.eastvalleytribune.com/specia.-reports/reasonable_doubt/;JacquesBilleaud.Critics: 'Tough' Sheriff Botched Sex-Crime Cases, Associated Press (Dec. 4,2011), http://abcnews.go.com/US/wireStorylcritics-tough­ sheriffbotched-sex-crime-cases (reporting that MCSO failed to adequately investigate approximately 70 in EI

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end of2007, reported violent crimes grew by over 69 percent, including a 166 percent increase in homicides over the three-year period. 5 Since 2008, violent crime rates have remained at roughly the same level in Maricopa County, while dropping by over 10 percent in similarly situated jurisdictions.6
B. Discriminatory Language Access Jail Practices
The national origin discrimination prohibited by Title VI and its implementing regulations includes practices and procedures that deny meaningful access to linguistic minorities subject to the jurisdiction of a federally funded recipient. MCSO, through its correctional officers, supervisory staff, and command staff, implements language access practices that have a discriminatory impact on Latinos (who make up the vast majority of MCSO's LEP inmates). In its June 2010 Position Statement, MCSO acknowledged the importance of communicating with Spanish-speaking inmates in Spanish: "Because of the large number of Spanish speaking inmates, the use of Spanish is not only important to everyday communication, it is essential to the overall operation of the jails and the safety of the inmates and officers." Nonetheless, MCSO's language access practices fall far short of what is required and disproportionately harm Latinos in a number of ways.
First, our investigation revealed that officers have refused to accept forms completed by LEP inmates in Spanish, including tank orders, which contain requests for the most basic daily jail services, and grievance forms, which enable inmates to identify and address alleged mistreatment. In one incident, an inmate reported that a detention officer told him: "This is America. You have to fill [your tank order] out in English." Detention officers confirmed that comments like these were made by fellow officers. In addition, four detention officers admitted that they do not accept inmate requests written in Spanish. One detention officer recounted that she returns tank orders submitted to her in Spanish and instructs the inmate to obtain an English translation.
Second, Latino LEP inmates are told to sign important forms written in English without the aid of appropriate language assistance. For example, witnesses report that MCSO officials pressure Latino LEP inmates to sign English language voluntary return forms by yelling at them, routinely failing to advise them of their rights, and confining them in uncomfortably cold cells for extended periods of time. Although signing a voluntary return form may allow an individual to avoid a formal order of removal-a type of expulsion from the United States that carries more severe immigration consequences for the expelled individual-a person who signs a voluntary return form has agreed, in effect, to leave the United States without attempting to (or working with an attorney to attempt to) assert any rights he or she may have to stay.
Mirage and more than 400 countywide, respectively, sex-crimes-including dozens of child molestations-during a 
 three-year period ending in 2007). 

5 Bolick, supra note 4, at 4. 

6 FBI Uniform Crime RepOiting Statistics for MCSO, Mesa Police Department, and Phoenix Police Department, 
 http://www.ucrdatatool.gov/.

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Third, detention officers punish, directly and indirectly, Latino LEP inmates for their inability to fully understand or fluently speak English. For instance, the inability of one Latino LEP inmate to understand a command given in English can result in the confinement ("lockdown") of an entire house or pod. Lockdowns are sometimes in effect for as long as 72 hours. When a lockdown is ordered, inmates must return to their cells and are denied access to the visitor area, canteen recreation area, television, non-legal telephone calls, and inmate programs. Punishing other inmates for a Latino LEP inmate's inability to understand English commands endangers the LEP inmate. A Latino LEP inmate's inability to understand a detention officer's English language instructions also can result in the detention officer sending the inmate into disciplinary segregation, commonly referred to as being sent to the "hole." Inmates sent to the hole are confined 23 hours each day, and are denied non-legal telephone use, regular visits, television, program participation (including church services), and access to the canteen (except hygiene items). Such disciplinary actions are especially troubling when considering that many Latino LEP inmates reported that they never received a copy of the Inmate Rules and Regulations, or did not receive a copy in a language they could comprehend, denying them a basic understanding ofjail policies.
Fourth, MCSO discriminates against Latino LEP inmates by failing to provide them with equal access to a range of services, opportunities, and benefits available to other inmates. For example:
• Detention officers have denied requests for new clothes or sheets when items are soiled because the inmates made the request in Spanish. One Latino LEP inmate attempted to use a fellow inmate as an interpreter to explain that her sheets were soiled. The detention officer refused the request, insisting that the inmate had to make the request herself in English.
• Latino LEP inmates are frequently denied access to basic information about programs and services as most announcements are made in English only, including announcements about recreation and the collection of grievances.
• Latino LEP inmates have been denied the opportunity to serve in trustee-type positions whereby certain inmates assist with daily tasks in the jails, which adversely impacts the LEP inmates because inmates selected to perform these chores typically receive preferential treatment, such as additional food, a change of clothes, and greater freedom of movement.
• Latino LEP inmates are denied access to important activities, including access to a program that enables inmates to obtain early release by performing community serVIce.
C. Direct Evidence of Discriminatory Bias
We find a pervasive culture of discriminatory bias against Latinos at MCSO that reaches the highest levels of the agency. Supervisors ofMCSO's police operations, including at least one directly involved in supervising the HSU, have sent emails that demean and express derision for Latinos to fellow command staff members, deputies, and posse volunteers, often using county

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email accounts. One email mocks individuals of Mexican national origin by including as an attachment a faux driver license issued to an individual caricatured to be Mexican and designated as originating from "Mexifornia," with a driver class of "illegal alien." Yet another email contains two pictures purporting to illustrate the difference between "Indian Yoga" and "Mexican Yoga," contrasting a picture of a man in a yoga pose and an apparently inebriated man prone on the ground.
In MCSO's jails, detention officers direct racial slurs at Latino inmates. Detention officers also insult or ignore Latino inmates when they attempt to communicate in Spanish. A detention officer confirmed that officers on her shift frequently tell Latino LEP inmates to speak in English. Other detention officers observed similar hostility: detention officers learn curse words in Spanish, enabling them to swear at Latino inmates, and report hearing staff using slurs when referring to Latino persons. Our investigation also found that MCSO detention officers call Latinos "wetbacks," "Mexican bitches," "fucking Mexicans," and "stupid Mexicans" when either talking among themselves or addressing Latino inmates.
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos. For example, Sheriff Arpaio received a letter asking him to do a "round-up" at 29th Street and Greenway in Phoenix. The letter justified the requested police action by asserting that "[i]fyou have dark skin, then you have dark skin. Unfortunately, that is the look of the Mexican illegals who are here illegally." Instead of ignoring the request to focus on "dark-skin[ned]" people, Sheriff Arpaio, believing that the letter was relevant "intelligence," passed it on to a member of his command staff with a note instructing him to "[h]ave someone handle this." Labeling as "intelligence" a letter explicitly equating skin color with law-breaking and instructing a subordinate to address it are striking examples of how Sheriff Arpaio has promoted a culture of bias in his organization and clearly communicated to his officers that biased policing would not only be tolerated, but encouraged.
D. Departures from Policing and Correctional Standards and Procedures
MCSO has adopted and maintained deficient policies and procedures that depart from policing and correctional standards and lead to violations of constitutional and federal rights. We find that MCSO's oversight and accountability, training in non-biased policing, and policies for deputy conduct substantially depart from generally accepted policing standards. MCSO's practices are often most egregiously deficient where they directly relate to MCSO's immigration enforcement program.
Contrary to standard policing practices throughout the country, MCSO supervisors have made a variety of statements undervaluing the us'efulness of statistics and data collection for effective law enforcement. MCSO does not require deputies on patrol to keep a log of their activities, but instead requires them only to enter a highly limited amount of data into the Computer Aided Dispatch system and to produce records only for their citations and arrests. Consequently, whenever one of its deputies stops a motorist without issuing a citation, MCSO

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cannot review the basis for the stop, nor can it directly track the ethnicity of the stopped driver. MCSO's decision to allow its deputies to go about their traffic work without having to report many of their stops ensures that MCSO will be unable to properly monitor its deputies' traffic work or identify officers engaged in racial profiling. In the jails, MCSO has no reliable practice of documenting which inmates are LEP, leaving detention officers to guess at the language needs of the inmates.
MCSO has failed to put in place meaningful oversight and accountability structures. Such structures include systems for documenting deputy or detention officer activity and for handling complaints. MCSO departs significantly from generally accepted policing standards in its implementation of these systems. With respect to complaints, MCSO has a policy of routing all misconduct complaints to the immediate supervisor of the deputy involved. The first-line supervisor then has discretion to close the investigation without any further involvement from the command structure or Internal Affairs and without further documenting the complaint in any way. Consequently, MCSO does not track complaints directed at deputies or units within the organization. Further, because deputy misconduct often reflects poorly on the actions or inactions of the first-line supervisor, MCSO's system of relying on first-line supervisors places the critical determination of whether to go forward with an investigation in the hands of someone who has an inherent conflict of interest in having a matter thoroughly investigated.
The complaint process is also substandard in the jails. When inmates file grievances against detention officers, it is common practice for the detention officer named in the complaint to resolve the grievance by pressuring the inmate to sign a release, resulting in no further review of the complained-of activity.
Contrary to standard law enforcement practices, MCSO neither offered nor required training on how to avoid engaging in biased policing until as recently as 2010 (well over a year after we notified MCSO of the commencement of our investigation into biased police practices). While MCSO provided us with rosters showing that most of its deputies have now completed the training, most of the deputies and supervisors we interviewed in January 2011, including those routinely engaged in immigration enforcement policing, either stated that they had never received the training or that they had little to no recollection of what the training was about.
Just as MCSO failed to provide training on how to avoid biased policing, MCSO's training on how to work with LEP inmates has been inadequate. Although there is one reference to language barriers in the MCSO Jail Diversity curriculum, the material is so scant that a detention officer who completed the training just several months prior to his interview did not recall any instruction on the subject. 7
7 In a July 28, 2011, submission to the Civil Rights Division, MCSO counsel provided a draft copy of a June 20 II PowerPoint entitled "Limited English Proficiency" and an undated nine-page draft "Lesson Plan: Limited English Proficiency." This revised curriculum fails to address many of the deficiencies in MCSO's language service provisions identified in this letter, including, for example, the failure to instruct non-Spanish speaking detention officers on how to make announcements in Spanish, translate inmate forms filled out in Spanish, and communicate with inmates in housing units where the Language Line is unavailable.

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The most egregious deviations from policing norms relate to the way in which MCSO operates the two units most directly involved in its immigration enforcement activities, HSU and CES. Standard police procedures require MCSO to provide additional oversight over the activities of these two units because of the sensitive nature of their work. But MCSO has provided deputies in these units with little in the way of policy guidance, training, or oversight. For example, HSU relies heavily on pretextual stops, but has no meaningful policies discussing when pretextual stops are appropriate, their legality, or any other aspect of their conduct. As such, MCSO has failed to appreciate the need to develop critical protocols to ensure compliance with important constitutional and statutory requirements.
With regard to correctional standards, MCSO has failed to meet its LEP obligations under Title VI, the regulations implementing Title VI, or the standards that MCSO set for itself to satisfy these obligations. On June 14, 2010, over a year after we had informed MCSO of our investigation into its treatment of Latino LEP inmates, MCSO issued a Position Statement in which it represented to the United States that it had taken a number of measures to ensure language access for its LEP inmates. However, when we toured MCSO's jail facilities in January 2011, we discovered that the Statement was inconsistent with the actual state of affairs at the jails. For example, contrary to the Statement's representations, detention officers refused to accept written requests by inmates in Spanish, failed to use or rely upon a Foreign Language Skills Roster, and continued to rely on inmates to provide other inmates with language assistance. They also failed to use an available telephonic interpretation service or to request bilingual colleagues to assist them in communicating with LEP inmates. We find that MCSO's practice of relying on inmates to interpret or translate is dangerous for both inmates and detention officers and is a departure from generally accepted correctional practices.
E. Retaliatory Actions
We find that MCSO command staff and deputies have engaged in a pattern or practice of retaliating against individuals for exercising their First Amendment right to free speech. Under the direction of Sheriff Arpaio and other command staff, MCSO deputies have sought to silence individuals who have publicly spoken out and participated in protected demonstrations against the policies and practices of MCSO-often over its immigration policies. MCSO command staff and deputies have arrested individuals without cause, filed meritless complaints against the political adversaries of Sheriff Arpaio, and initiated unfounded civil lawsuits and investigations against individuals critical of MCSO policies and practices.
• One of the victims ofMCSO's retaliatory practices is C.C., an organizer with an immigration rights community organization who for several years has engaged in public speech critical of MCSO' s practices and its treatment of Latinos. On July 29, 2010, C.C. participated in a peaceful protest against MCSO. During the course of the protest, MCSO arrested him and charged him with failure to obey a police officer and blocking a public thoroughfare. C.C. was released that night. On July 30, 2010, C.C. stood across the street from the Lower Buckeye Jail watching another protest. A video recording of the incident shows six or more MCSO deputies approaching and then arresting C.c., who was simply standing with his hands by his side at the time. Chief Sands stated that C.C. was arrested for violating his order of release. As the

-14­
incident unfolded, Sheriff Arpaio posted a series of approving messages on a social networking site.
C.c. was detained at the Fourth Avenue Jail, pending his initial court appearance, and not allowed to speak to his attorney while there. MCSO deputies charged him with obstructing a judicial proceeding, but on August 3, 2010, then-Maricopa County Attorney Rick Romley dropped the charge, admitting that there was no probable cause for the arrest.
MCSO deputies also retaliated against members of Maricopa Citizens for Safety and Accountability ("MCSA"), an organization highly critical of what they called MCSO's discriminatory treatment of Latinos. In December 2008, during two separate public meetings of the County Board of Supervisors, MCSO deputies arrested members of MCSA when the MCSA members attempted to express their opposition to certain MCSO actions. The individuals arrested were all charged with criminal trespassing, and some were also charged with disorderly conduct. None of the charges re~ulted in convictions, and those charged subsequently filed a lawsuit against Maricopa County and MCSO for wrongful arrest, malicious prosecution, and civil rights violations. On July 6,2010, the parties reached a mediated settlement.
Finally, MCSO officials have resorted to using official harassment to silence MCSO's critics. Between October 2007 and November 2009, former Chief Deputy David Hendershott filed, in his official capacity, unfounded complaintswith the Arizona State Bar against five attorneys, alleging that they had engaged in ethical violations. Each of the complaints was filed against individuals who made public statements critical ofMCSO'sjail policies, investigatory tactics, and/or police practices.
Similarly, on November 30,2009, Hendershott, acting in his official capacity, filed four complaints with the Arizona Commission on Judicial Conduct against judges who had made critical public comments about MCSO and Sheriff Arpaio or had rendered decisions detrimental to MCSO's interests. All of these bar and judicial complaints were dismissed as insufficient to warrant even an investigation.
In a related action, Sheriff Arpaio participated as a named plaintiff in a civil federal racketeering suit filed against the same judges targeted by Hendershott, as well as a number of other County officials. The claims against the judges echoed those claims in the complaints filed by Hendershott. The suit was eventually abandoned.
The arrests and harassment undertaken by MCSO have been authorized at the highest levels of the agency and constitute a pattern of retaliatory actions intended to silence MCSO's critics.
F. Additional Areas of Serious Concern
In addition to the violations of the Constitution and federal law described above, there are three additional areas of serious concern where, at the moment, we do not make a formal pattern or practice finding, but our review continues. These areas of concern are:

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• Use of excessive force against Latinos; • Reduction of policing services to the Latino community; and • Gender and/or national origin bias by failing to adequately investigate sex crimes.
These three issues are of concern standing alone and may also relate to our ultimate findings concerning MCSO's discriminatory police practices. A deliberate failure to provide policing services, or a deliberate indifference to public safety needs of certain communities, implicates important constitutional protections and can compromise public safety and undermine public confidence in MCSO. It does not matter for the purposes of the Constitution and federal laws whether it is an act of commission or omission.
With regard to use of force, our investigation revealed multiple instances of MCSO deputies using excessive force, a troubling trend made more problematic by MCSO's failure to have in place meaningful systems of accountability and supervision. Such systems are also crucial components in deterring and addressing the use of excessive force, and their absence is a glaring flaw in MCSO's institutional practices relating to the use of force. MCSO's use of excessive force may constitute a pattern or practice of Fourth Amendment violations under Section 14141, and our investigation into this conduct is ongoing.
• In February 2009, D.D., a Latino U.S. citizen, was driving home when a trailing MCSO deputy turned on his emergency lights to signal a traffic stop, allegedly for a failed brake light on D.D.'s vehicle. The MCSO deputy did not activate his siren, and D.D. drove the remaining short distance to his house because he feared how the MCSO deputy would treat him because of his Latino ethnicity. When D.D. exited his car, the MCSO deputy purposefully struck D.D. with his patrol car, pinning D.D. under the vehicle and dragging him for more than ten feet. The MCSO deputy did not attempt to remove D.D., and instructed other arriving deputies to "leave him there." D.D. was eventually extracted by the local fire department. The deputy's actions caused serious injury, including broken bones, burns, and other injuries. D.D. sued MCSO for his injuries; the lawsuit was eventually settled for $600,000. The MCSO deputy claimed that the incident was an accident arising from D.D. attempting to flee his vehicle. MCSO arrested the deputy, and he was charged with aggravated assault.
• In May 2009, an MCSO deputy stopped E.E., a Latino U.S. citizen, after E.E. picked up a Latino day laborer. The deputy told E.E. that he had pulled him over for speeding, but E.B. suspected that he had been pulled over because of his and his passenger's Latino ethnicity. E.B. questioned the deputy's reason for pulling him over. The deputy, along with other MCSO deputies who had arrived on the scen~, responded by forcibly removing B.B. from his vehicle, twisting his arm, head, and neck and causing E.E. to fall and hit his face on the pavement. The MCSO deputies kept E.B. on the ground, handcuffed him, and searched him. E.E. was bleeding from multiple lacerations to his face, and experienced neck and back pain from the holds the MCSO deputies had used to remove him from his vehicle. E.B. was ultimately taken to a medical facility where he received treatment for injuries to his face, neck, shoulder, and back. E.B. was never charged with any offense that might explain the officers' use of force. Instead, E.B. was charged with criminal speeding and failure to produce identification. Both of these charges were eventually dropped.

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We continue to investigate whether MCSO has implemented its immigration enforcement program with deliberate indifference to the way in which the program compromises MCSO's ability to provide effective policing services to Maricopa County's Latino population. There are indicators that MCSO has undermined its own ability to engage in effective policing in the Latino community. Much of a modern-day police agency's effectiveness is predicated on building a relationship of trust with all segments of the community. MCSO has done almost nothing to build such a relationship with Maricopa County's Latino residents. The absence of trust has substantially compromised effective policing by limiting the willingness of witnesses and victims to report crimes and speak to the police about criminal activity.
MCSO deputies we interviewed admitted that the immigration enforcement program, which lacks basic accountability and quality control measures and is characterized by wide­ ranging and poorly planned "crime suppression" operations, has adversely affected their ability to obtain information and cooperation from the County's Latinos. One deputy informed us that MCSO's "aggressive" immigration interdiction efforts create a "wall of distrust" that divides the Latino community and MCSO. Another deputy was told by his supervisors to expect that he would encounter hostility from people who believed they were being stopped because of their ethnicity. A different MCSO deputy bemoaned the impact ofMCSO's immigration-related operations, stressing that they "affect our ability to work in a community that hates you." The Police Executive Research Forum, an independent, national organization made up of police executives, interviewed a number of law enforcement officers in Maricopa County who believe that MCSO has enforced immigration laws in a way that has poisoned the relationship between law enforcement and Latinos, hindering general law enforcement efforts within the Latino community.8 Our investigation further found no evidence that MCSO has acted to improve its relationship with the Latino community, preferring instead to simply continue the practices that have compromised its effectiveness in the Latino community.
Finally, we are continuing our review of allegations that MCSO has failed to investigate a large number of sex crimes.9 The Sheriffs office has acknowledged that 432 cases of sexual assault and child molestation were not properly investigated over a three-year period ending in 2007. 10 These cases only came to light after a review by the EI Mirage Police Department of a period in which MCSO was under contract to provide policing services to that community. It appears that many of the victims may have been Latino. If established, this may constitute a failure to provide police services in a manner that constitutes gender and/or national origin discrimination in violation of the Equal Protection guarantee of the United States Constitution. 11 Our review will not be limited to the pre-2007 cases, but include any allegations that the practice continued after that time.
8 Debra A. Hoffmaster, et al., Police and Immigration: How Chieft are leading their communities through the challenges, Police Executive Research Forum 39 (2010).
9 Gabrielson, supra note 4; Billeaud, supra note 4.
10 SheriffJoe Arpaio apologizes/or botched El Mirage sex-crime cases, Associated Press, Dec. 5,2011, http://www.azcentral.com/news/articles/2011/12/05/20111205arpaio-apologizes-botched-cases. html.
11 See Investigation of the New Orleans Police Depmtment, U.S. Department of Justice, Civil Rights Division., pp.43-49. March 16,2011, http://www.justice.gov/crt/about/spl/nopdphp.

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LEGAL DISCUSSION 

A. Discriminatory Policing
Section 14141, a provision of the Violent Crime Control and Law Enforcement Act of 1994, grants the United States a cause of action to sue a state or local government for equitable and declaratory relief when a "governmental authority ... engage[s] in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."
An agency such as MCSO violates the Equal Protection Clause when its decision-maker adopts a facially neutral policy or practice with a discriminatory intent, and that policy or practice has a discriminatory effect. Washington v. Davis, 426 U.S. 229, 239-40 (1976). While discriminatory intent need not be the only motive, an Equal Protection violation occurs when the circumstantial evidence shows that a policy at issue was adopted "because of, not merely in spite of, its adverse effects upon an identifiable group." Personnel Adm 'r ofMass. v. Feeney, 442 U.S. 256, 279 (1979). To assess whether intentional discrimination infected the decision-making process, courts look to the totality of the circumstances with particular attention to factors that the SupreIl1e Court has identified as most probative of discriminatory intent. Village ofArlington Heights v. Metro. Hous. Redev. Corp., 429 U.S. 252 (1977). Those factors include: evidence of discriminatory effect; evidence of departures from normal procedures; the specific sequence of events that led to the discriminatory practices at issue; and contemporaneous statements from a decision-maker that reveal a discriminatory intent. Id. at 266-68.
As described above, our investigation uncovered substantial evidence of the kind identified by the Supreme Court in Arlington Heights, showing that Sheriff Arpaio has intentionally decided to implement his immigration program in a manner that discriminates against Latinos. Our evidence further shows that discrimination against Latino persons exists in a wide range ofMCSO practices. We have obtained compelling statistical evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly situated non­ Latinos on Maricopa County roadways. This evidence speaks directly to both the discriminatory effects and discriminatory motives of MCSO deputies engaged in traffic enforcement. It is difficult to conceive of any valid, non-discriminatory explanation for stopping Latino drivers at a rate that is four to nine times higher than the rate for similarly situated non-Latino drivers. In addition to this statistical evidence, other data and witness statements show that MCSO deputies, particularly members of the HSU or the CES, frequently detain and/or arrest Latino drivers without cause. Additionally, the evidence of a culture of bias at MCSO discussed above directly relates to the impermissible motives behind the actions ofMCSO's deputies. For these and other reasons, the evidence establishes that MCSO is engaged in a pattern or practice of Equal Protection violations.
Discriminatory law enforcement activities are likewise prohibited by Title VI. Title VI provides that "[n]o person in the United States shall, on the ground ofrace, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [fJederal financial assistance." 42 U.S.C. § 2000d. In addition, Title VI's implementing regulations proscribe "criteria or methods of administration" that exert a discriminatory effect on the basis of race, color, or national origin.

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28 C.F.R. § 42.1 04(b)(2). For the reasons detailed in the findings section above, the evidence obtained to date establishes that MCSO has violated the aforementioned regulation.
B. Unreasonable Seizures
We conclude that MCSO has engaged in a pattern or practice of conduct by its law enforcement officers that has deprived many of Maricopa County's Latino residents of their right, under the Constitution's Fourth Amendment, to be "secure in their persons, houses, papers,
and effects, against unreasonable ... seizures." u.s. Const. amend. IV. "The 'general Fourth
Amendment approach' requires courts to examine the totality of the circumstances to determine whether a ... seizure is reasonable." United States v. Guzman-Padilla, 573 F.3d 865, 876 (9th Cir. 2009) (quoting United States v. Knights, 534 U.S. 112,118 (2001)). To qualify as "reasonable," arrests must be based on probable cause to believe that an arrestee has or is committing a crime, and even brief detentions, such as traffic stops, must be based on reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 20-21 (1968). Reasonable suspicion, at a minimum, means "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. King, 244 F.3d 736, 738 (9th Cir. 2001).
In this instance, we have both data and witness statements showing that MCSO deputies, in the course of engaging in immigration-related enforcement activities, frequently stop or arrest Latinos without either probable cause or reasonable suspicion. As discussed above, the HSU arrest reports we analyzed provide us with reasonable cause to believe that HSU officers routinely stop Latino motorists without appropriate cause. Moreover, there are a number of other practices related to MCSO's immigration enforcement program that frequently result in Fourth Amendment violations. For example, our investigation revealed that CES deputies typically detain all those present within the vicinity of the business they are raiding. In certain instances, these mass detentions of innocent individuals have lasted for extended periods of time, and, in at least one case, lasted for roughly two hours. These types of prolonged detentions of innocent individuals without specific evidence of criminal activity constitute Fourth Amendment violations. See Ganwich v. Knapp, 319 F.3d 1115, 1121 (9th Cir. 2003).
C. Discriminatory Jail Practices
Title VI authorizes the United States to initiate civil litigation in federal court for injunctive relief against a recipient of federal financial assistance whose program or activity violates Title VI or its implementing regulations. 42 U.S.C. § 2000d-1; 28 C.F.R. § 42.1 08. MCSO's language access procedures violate Title VI ifMCSO maintains those procedures to intentionally discriminate against Latinos on the basis of their national origin or if the procedures have a discriminatory effect on Latinos. 28 C.F.R. § 42.104(b)(2); NY Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995). In this instance, MCSO's language access procedures and practices are intentionally discriminatory and have a discriminatory effect.
Our investigation demonstrates that MCSO's language access procedures intentionally discriminate against Latinos. There is substantial evidence that biases against Latinos have played a role in MCSO's decision to maintain its current language access practices and procedures. MCSO has been on notice for many years of its legal obligation to treat LEP

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inmates in a non-discriminatory manner. In 2002, the Department of Justice issued non­ discriminationiLEP language access standards applicable to the correctional functions of law enforcement agencies receiving federal financial assistance, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18,2002). When accepting grants from the Department, MCSO officials signed assurances promising to abide by Title VI, including an assurance in which MCSO agreed that, "[p]ursuant to Department of Justice guidelines (June 18,2002 Federal Register (Volume 67, Number 117, pages 41455-72)), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency." In March 2009, we informed MCSO that we were investigating allegations that its language assistance program in its jails discriminated against Latino LEP inmates, thereby putting MCSO on notice that the United States had received complaints articulating serious concerns relating to its language access program. Finally, grievances filed by Latino LEP inmates, particularly regarding the lack of access to church services, also have placed MCSO on notice as to the absence of services for Latino LEP inmates. Although MCSO has ample reason to know that its policies are denying Latino LEP inmates access, MCSO persists in maintaining many of its discriminatory practices.
MCSO's language access procedures and practices have a discriminatory effect upon MCSO's LEP inmates. As detailed above, MCSO's LEP inmates, who are overwhelmingly Latino, do not receive the same services and benefits as non-LEP inmates, are pressured to sign important immigration-related documents without language assistance, and are singled out for punishments, such as being subjected to lockdowns and disciplinary segregation for failing to understand English commands. In all of these ways and more, MCSO's language access practices disproportionately and adversely impact the Latino inmates in MCSO's jails. See Lau v. Nichols, 414 U.S. 563, 568 (1974) (noting that "[i]t seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational program­ all earmarks of the discrimination banned by" Title VI and applicable regulations); Yniguez v. Arizonans/or Official English, 69 FJd 920,947-48 (9th Cir. 1995), vacated on other grounds, 520 U.S. 43 (1997) (striking down the English-only amendment to the Arizona Constitution, stating that the amendment's impact "is especially egregious because it is not uniformly spread over the population, but falls almost entirely upon Hispanics and other national origin minorities").
D. Retaliatory Practices
We find that MCSO has violated Section 14141 by engaging in a pattern or practice of conduct by its law enforcement officers that has deprived a number of Maricopa County residents of their First Amendment rights. The First Amendment prohibits government actors from "abridging the freedom of speech," U.S. Const. amend. I, and prohibits a government official from subjecting an individual to retaliatory actions for speech that falls under the protections of the First Amendment. Hartman v. Moore, 547 U.S. 250, 251 (2006). The Ninth Circuit has held that to prove a First Amendment retaliation claim, a plaintiff must show "that by his actions [the defendant] deterred or chilled [the plaintiffs] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct." Mendocino' Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). To succeed in bringing a

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First Amendment retaliation claim, courts have held that plaintiffs must show only that "an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities." Id. The plaintiff must also show that the "chilling effect was a but-for cause of the defendant's action." Skoog v. County o/Clackamas, 469 F.3d 1221,1232 (9th Cir. 2006).
In this case, we have identified instances of retaliatory actions by MCSO officials. Some of the most serious incidents involve MCSO deputies, at times apparently acting at the direction ofMCSO's leadership, bringing false criminal charges against MCSO's critics. The fact that all of the charges are subsequently dismissed strongly suggests that the "chilling effect was [the] but-for cause" of the police action. Moreover, such maliciously motivated charges would have the effect of silencing a person of ordinary firmness from engaging in future protected speech. Based on our review of the evidence, there is reasonable cause to believe that MCSO officials have committed a series of retaliatory actions directed at perceived critics of MCSO that are designed to chill the exercise of protected First Amendment activities.
REMEDIAL MEASURES
The factual findings detailed above provide reasonable cause to believe that MCSO has committed violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution, Section 14141, and Title VI. The Civil Rights Division accordingly notifies you that, absent MCSO taking clear steps toward reaching an agreement with the Division to correct these violations in the next 60 days, the United States will conclude that voluntary compliance is not possible and will initiate civil litigation to compel compliance with Section 14141 and Title VI. Should MCSO indicate within those 60 days that it does not intend to work with the Division, we may initiate suit in fewer than 60 days. MCSO is further cautioned not to intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the civil rights laws we enforce.
The constitutional violations and institutional deficiencies highlighted above are the product of an ingrained culture that encourages and tolerates the discriminatory treatment of Latino persons and an agency that lacks the requisite policies and practices to ensure effective and constitutional law enforcement. Reform will require sustained commitment to long-term structural, cultural, and institutional change, including, but not limited to, the following:
• Training for Deputies: MCSO must develop effective and meaningful training for deputies in constitutional policing, including how to perform stops, searches, seizures, and arrests consistent with the requirements of the Fourth and Fourteenth Amendments.
• Special Operations and Specialized Units: MCSO must develop and implement detailed policies, procedures, and training regarding (1) special operations, including, but not limited to, crime suppression sweeps or saturation patrols, worksite raids, drop house raids, and roving smuggling patrols, and (2) specialized units, including, but not limited to, SWAT, HSU, and CES.

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• Data Collection and Risk Management: MCSO must develop and implement a data collection system regarding all law enforcement activity in order to enable MCSO to supervise, manage, and intervene, when appropriate. Such a program requires detailed auditable reports for traffic and pedestrian stops; immigration-related stops, raids, or inquiries; searches and seizures; and worksite raids.
• Complaint System and Internal Affairs: MCSO must develop and implement a comprehensive complaint, investigation, and disciplinary system to enable it to hold officers accountable when they violate policy and/or the law. The complaint system must be accessible to all community members and allow the public to make complaints against MCSO staff and deputies without fear of retaliation. The internal investigative process should include clear avenues for adjudication, discipline, and criminal prosecution, if necessary, as well as access for LEP individuals.
• Language Access: MCSO must develop and implement a comprehensive language access program for its deputies and officers who encounter LEP individuals in the jails and for its enforcement activity in the community. Training on this program must be routine and detailed, such that all staff are aware of their language access obligations and are held accountable for failure to implement appropriate measures.
• Community Outreach: MCSO must meet the law enforcement needs of all its residents, regardless of their race or ethnicity. To that end, MCSO must engage with and reach out to Maricopa County's Latino residents to ensure that it is fairly and effectively providing them with law enforcement services.
We strongly believe that effective policing and constitutional policing go hand in hand. In recent years, we have worked productively and collaboratively with law enforcement agencies across the country, increasingly at their request, to address serious concerns that threaten to undermine public confidence and hinder operational effectiveness. Our goal in every case is to work collaboratively to obtain a detailed understanding of the precise challenges and their root causes, and to develop and implement sustainable reform measures that will reduce crime, ensure respect for the Constitution, and increase public confidence in law enforcement. We stand ready to work cooperatively with you to address the concerns outlined in this letter, and we remain prepared to take prompt, appropriate legal action if you choose to forego collaboration.
The violations we have identified are serious, and voluntary compliance with the Constitution and federal law will require a detailed agreement incorporating the foregoing remedial measures. Given the systemic nature of the constitutional violations, effective compliance in this case will require federal judicial oversight; a court-enforceable agreement will provide the structure, transparency, and accountability necessary to achieve sustained success.

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Please note that this letter is a public document. It will be posted on the Civil Rights Division's website. We look forward to hearing from you soon. If you have any questions, please contact Jonathan Smith, Chief of the Special Litigation Section, at (202) 514-6255.
Sincerely,
Thomas E. Perez Assistant Attorney General
cc: William R. Jones, Jr. Counsel for Maricopa County Sheriffs Office Jones, Skelton & Hochuli, P.L.C. 2901 North Central Ave, Suite 800 Phoenix, Arizona 85012

 </s> Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 1 of 31
CLOSED,PROTO,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:12−cv−00981−ROS

United States of America v. Maricopa, County of et al Assigned to: Chief Judge Roslyn O Silver Case in other court: Ninth Circuit, 15−17558 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/10/2012 Date Terminated: 09/02/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Edward G Caspar US Dept of Justice − Civil Rights (Pennsylvania Ave.) 950 Pennsylvania Ave. 5th Fl. Washington, DC 20530−0001 202−514−2000 Fax: 202−514−6273 Email: edward.g.caspar@usdoj.gov TERMINATED: 10/21/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Larissa Mondino US Dept of Justice − Civil Rights (Pennsylvania Ave.) 950 Pennsylvania Ave. 5th Fl. Washington, DC 20530−0001 202−305−3176 Email: Jennifer.Mondino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M Smith US Dept of Justice − Civil Rights (Pennsylvania Ave.) 950 Pennsylvania Ave. 5th Fl. Washington, DC 20530−0001 202−305−3107 Fax: 202−514−1116 TERMINATED: 07/21/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Puneet Cheema − Inactive US Dept of Justice − Civil Rights (Pennsylvania Ave.) 950 Pennsylvania Ave. 5th Fl. Washington, DC 20530−0001 202−353−7725 Fax: 202−616−4950 Email: Puneet.Cheema2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sergio Perez US Dept of Justice − Civil Rights (Pennsylvania Ave.) 950 Pennsylvania Ave. 5th Fl. Washington, DC 20530−0001 202−305−3655 Fax: 202−514−6273

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 2 of 31
Email: sergio.perez@usdoj.gov TERMINATED: 02/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas E Perez US Dept of Justice Civil Rights Division PO Box 66128 Washington, DC 20035 (202)272−6300 TERMINATED: 02/28/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winsome Gayle US Dept of Justice − Civil Rights (Pennsylvania Ave.) 950 Pennsylvania Ave. NW, Rm. 4037 Washington, DC 20530−0001 202−514−6255 Fax: 202−514−6903 Email: Winsome.Gayle@usdoj.gov TERMINATED: 09/20/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Buehler US Dept of Justice − Civil Rights Division 601 D St. NW, Ste. 5200 Washington, DC 20004 202−353−1100 Fax: 202−514−4883 Email: brian.buehler@usdoj.gov ATTORNEY TO BE NOTICED
Cynthia Coe US Dept of Justice − Civil Rights Division 601 D St. NW, Ste. 5011 Washington, DC 20004 202−353−1121 Email: cynthia.coe@usdoj.gov ATTORNEY TO BE NOTICED
Paul Killebrew US Dept of Justice − Civil Rights 950 Pennsylvania Ave., 5th Fl. Washington, DC 20530 202−305−3239 Email: paul.killebrew@usdoj.gov ATTORNEY TO BE NOTICED
Roy L Austin US Dept of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202−514−3845 Email: roy.austin@usdoj.gov TERMINATED: 04/21/2014
Thomas Jackson Morse , Jr US Dept of Justice 601 D St. NW, Rm. 5907D Washington, DC 20004

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 3 of 31
202−305−4039 Fax: 202−514−0212 Email: jack.morse@usdoj.gov ATTORNEY TO BE NOTICED

V.
Defendant
Maricopa, County of Arizona

represented by Charles W Jirauch Walker & Peskind PLLC 16100 N 71st St., Ste. 140 Scottsdale, AZ 85254 480−483−6336 Fax: 480−483−6337 Email: cwj@azlawpartner.com TERMINATED: 02/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan K Webb Winston & Strawn LLP − Chicago, IL 35 W Wacker Dr., 41st Fl. Chicago, IL 60601 312−558−5600 Fax: 312−558−5700 Email: dwebb@winston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joel Erik Connolly Winston & Strawn LLP − Chicago, IL 35 W Wacker Dr., 41st Fl. Chicago, IL 60601 312−558−6339 Fax: 312−558−5700 Email: econnolly@beneschlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard K Walker Walker & Peskind PLLC 8777 E Via De Ventura, Ste. 315 Scottsdale, AZ 85258 480−483−6336 Fax: 480−483−6337 Email: rkw@azlawpartner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Dysart Walker & Peskind PLLC 16100 N 71st St., Ste. 140 Scottsdale, AZ 85254−6337 480−483−6336 Fax: 480−483−6337 Email: rld@azlawpartner.com TERMINATED: 07/16/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger Stephen Owers Walker & Peskind PLLC 16100 N 71st St., Ste. 140 Scottsdale, AZ 85254−6337

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 4 of 31

480−483−6336 106 Fax: 480−483−6337 Email: rso@azlawpartner.com TERMINATED: 11/25/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Maricopa County Sheriff's Office TERMINATED: 12/12/2012

represented by John T Masterson Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7846 Email: jmasterson@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph John Popolizio Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602200−7876 Email: jpopolizio@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Lea Voepel Jones Skelton & Hochuli PLC 2901 N Central Ave., Ste. 800 Phoenix, AZ 85012 602−263−1700 Fax: 602−200−7807 Email: lvoepel@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William R Jones , Jr. Jones Skelton & Hochuli PLC 2901 N Central Ave., Ste. 800 Phoenix, AZ 85012 602−263−1700 Fax: 602−200−7801 Email: Wjones@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joseph M Arpaio in his official capacity as Sheriff of Maricopa County, Arizona TERMINATED: 02/09/2017

represented by John T Masterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph John Popolizio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Lea Voepel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 5 of 31

William R Jones , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Michael Ackerman Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1740 Email: jackerman@jshfirm.com ATTORNEY TO BE NOTICED

Defendant
Paul Penzone in his official capacity as Sheriff of Maricopa County

represented by John T Masterson (See above for address) TERMINATED: 02/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph John Popolizio (See above for address) TERMINATED: 02/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph I Vigil Maricopa County Attorneys Office − Civil Services Division 222 N Central Ave., Ste. 1100 Phoenix, AZ 85004 602−372−0034 Fax: 602−506−8567 Email: vigilj@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Lea Voepel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William R Jones , Jr. (See above for address) TERMINATED: 02/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Michael Ackerman (See above for address) TERMINATED: 02/13/2017 ATTORNEY TO BE NOTICED

Movant
Scott Huminski TERMINATED: 07/25/2012

represented by Scott Huminski 2624 S Bahama Dr. Gilbert, AZ 85295 PRO SE

Movant
Jonathan Lee Riches TERMINATED: 07/25/2012

represented by Jonathan Lee Riches 143 Roebling St., Ste. 5 Brooklyn, NY 11211

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 6 of 31

PRO SE

Movant
Kenneth Koym TERMINATED: 01/18/2013

represented by Kenneth Koym 9704 Monarch Ln. Austin, TX 78724 512−828−9779 PRO SE

Date Filed 05/10/2012 05/10/2012 05/10/2012 05/10/2012
05/10/2012 05/11/2012 05/15/2012 05/15/2012 05/15/2012 05/15/2012 05/18/2012
05/21/2012

# Docket Text
1 COMPLAINT, filed by United States of America (submitted by Winsome Gayle). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Civil Cover Sheet)(REK) (Entered: 05/10/2012)
2 SUMMONS Submitted by United States of America (submitted by Winsome Gayle). (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(REK) (Entered: 05/10/2012)
3 This case has been assigned to the Honorable Lawrence O. Anderson. All future pleadings or documents should bear the correct case number: CV 12−00981−PHX−LOA. Magistrate Election form attached. (Attachments: # 1 Magistrate Consent Form)(REK) (Entered: 05/10/2012)
4 Summons Issued as to Joseph M Arpaio, Maricopa County Sheriff's Office (c/o Clerk of the Board of Supervisors and c/o Joseph M. Arpaio), Maricopa, County of. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(REK). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 05/10/2012)
5 MOTION to Intervene as Plaintiff−Intervenor by Scott Huminski. (REW) (Entered: 05/10/2012)
6 ORDER that Plaintiff shall file its written election to either consent to magistrate−judge jurisdiction or elect to proceed before a United States district judge on or before Friday, May 25, 2012. See Order for Further Details. Signed by Magistrate Judge Lawrence O Anderson on 5/11/12. (MAP) (Entered: 05/11/2012)
7 SUMMONS Returned Executed by United States of America. Maricopa, County of served on 5/10/2012. (Gayle, Winsome) (Entered: 05/15/2012)
8 SUMMONS Returned Executed by United States of America. Maricopa County Sheriff's Office served on 5/11/2012. (Gayle, Winsome) (Entered: 05/15/2012)
9 * SUMMONS Returned Executed upon Maricopa County Sheriff's Office by service upon William Jones, Attorney, on 5/11/12 by United States of America. (Gayle, Winsome) * Modified to indicate who was served and date of service on 5/16/2012 (LAD). (Entered: 05/15/2012)
10 SUMMONS Returned Executed by United States of America. Joseph M Arpaio served on 5/11/2012. (Gayle, Winsome) (Entered: 05/15/2012)
11 ORDER as to 5 MOTION to Intervene: 1. That Plaintiff shall have until Tuesday, May 29, 2012, which includes three days for mailing, within which to file a Response to Movant's Motion to Intervene. 2. That Movant shall have ten days from the date Plaintiffs Response is filed, which includes three days for mailing, within which to file a Reply to Response to Movant's Motionto Intervene. 3. Further briefing will be issued after each Defendant's appearance has been made. However, Movant will only be allowed to file one reply to all Defendants' responses when filed. Signed by Magistrate Judge Lawrence O Anderson on 5/17/12. (LAD) (Entered: 05/18/2012)
12 Party Elects Assignment of Case to District Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 05/21/2012)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 7 of 31

05/21/2012
05/24/2012 05/29/2012 05/31/2012 05/31/2012 05/31/2012 06/01/2012
06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012
06/01/2012 06/04/2012 06/07/2012 06/08/2012

13 Minute Order: Pursuant to Local Rule 3.8(a), a request has been received for a random reassignment of this case to a District Judge FURTHER ORDERED Case reassigned by random draw to Chief Judge Roslyn O. Silver. All further pleadings/papers should now list the following COMPLETE case number: CV 12−981−PHX−ROS. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 05/21/2012)
14 MOTION for Clarification of 5/17/12 Order by Scott Huminski. (REW) (Entered: 05/24/2012)
15 RESPONSE in Opposition re 5 MOTION to Intervene filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Caspar, Edward) (Entered: 05/29/2012)
16 MOTION To Set Time for Filing Responsive Pleading (Expedited Ruling Requested) by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Text of Proposed Order)(Masterson, John) (Entered: 05/31/2012)
17 *NOTICE of Appearance by Richard K Walker and Robert L Dysart on behalf of Maricopa, County of. (Walker, Richard) *Modified to add additional attorney to docket text on 6/1/2012 (TLJ). (Entered: 05/31/2012)
18 *First MOTION for Extension of Time to file Answer its Answer or Otherwise by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) *Modified to correct motion type on 6/1/2012 (TLJ). (Entered: 05/31/2012)
19 ORDER granting in part and denying in part 14 Motion for Clarification. No later than June 7, 2012, Movant shall file a reply in support of his motion to intervene. Defendants shall not file a response to the motion to intervene unless ordered by the Court. IT IS FURTHER ORDERED granting the 16 Motion to Set Time. Defendants Joseph M. Arpaio and Maricopa County Sheriff's Office shall have until June 8, 2012 to file a responsive pleading to Plaintiff's Complaint. Signed by Chief Judge Roslyn O Silver on 6/1/12.(CLB) (Entered: 06/01/2012)
20 MOTION for Admission Pro Hac Vice as to attorney Joel E Connolly on behalf of Maricopa, County of. (BAS) (Entered: 06/01/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122656 as to Joel E Connolly. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/01/2012)
21 MOTION for Admission Pro Hac Vice as to attorney Dan K Webb on behalf of Maricopa, County of. (BAS) (Entered: 06/01/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122655 as to Dan K Webb. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/01/2012)
22 ORDER pursuant to General Order 09−08 granting 20 Motion for Admission Pro Hac Vice; granting 21 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/01/2012)
23 MOTION to Intervene as Defendant by Jonathan Lee Riches. (LFIG) (Entered: 06/01/2012)
24 ORDER granting Defendant's 18 Motion for Extension of Time to Answer. Defendant Maricopa County, Arizona shall have until June 21, 2012 to file a responsive pleading to Plaintiff's Complaint. Signed by Chief Judge Roslyn O Silver on 6/4/12.(CLB) (Entered: 06/04/2012)
25 REPLY to Response to Motion re 5 MOTION to Intervene filed by Scott Huminski. (REW) (Entered: 06/07/2012)
26 NOTICE of Appearance by Lori Lea Voepel on behalf of Joseph M Arpaio, Maricopa County Sheriff's Office. (Voepel, Lori) (Entered: 06/08/2012)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 8 of 31

06/08/2012
06/08/2012
06/11/2012 06/11/2012
06/11/2012
06/13/2012 06/13/2012 06/18/2012 06/18/2012 06/21/2012 06/21/2012 06/22/2012 06/26/2012 06/27/2012
06/28/2012 06/29/2012
07/13/2012

27 MOTION for Leave to File Excess Pages Motion to Exceed Page Limit for Defendants' Rule 12(b)(6) Motion to Dismiss by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Text of Proposed Order)(Voepel, Lori) (Entered: 06/08/2012)
28 LODGED Proposed Defendants' Rule 6(b)(6) Motion to Dismiss re: 27 MOTION for Leave to File Excess Pages Motion to Exceed Page Limit for Defendants' Rule 12(b)(6) Motion to Dismiss. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Joseph M Arpaio, Maricopa County Sheriff's Office. (Voepel, Lori) (Entered: 06/08/2012)
29 MOTION for Rule 11 Sanctions Against Intervenor Scott Huminski by Jonathan Lee Riches. (LAD) (Entered: 06/11/2012)
30 RESPONSE to 15 Response in Opposition to Motion by Movant Jonathan Lee Riches. (Entitled "Response in Opposition to the USA's Motion Opposing Scott Huminski's Intervention;" same PDF as 29 , redocketed to reflect response). (LAD) (Entered: 06/11/2012)
31 LODGED Proposed Response to Motion to Dismiss (Entitled "Reply to Motion to Dismiss") re: 27 Motion to Exceed Page Limit for Defendants' Rule 12(b)(6) Motion to Dismiss filed by Scott Huminski. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. (LAD) (Entered: 06/11/2012)
32 RESPONSE in Opposition re 23 MOTION to Intervene filed by United States of America. (Caspar, Edward) (Entered: 06/13/2012)
33 RESPONSE (entitled "Reply to Motion for Sanctions") to Motion re 29 MOTION for Sanctions filed by Scott Huminski. (KMG) (Entered: 06/13/2012)
34 ORDER granting 27 Motion for Leave to File Excess Pages and the Clerk shall file the motion lodged at Doc. 28. Signed by Chief Judge Roslyn O Silver on 6/18/12.(DMT) (Entered: 06/18/2012)
35 MOTION to Dismiss for Failure to State a Claim by Joseph M Arpaio, Maricopa County Sheriff's Office. (DMT) (Entered: 06/18/2012)
36 MOTION to Dismiss Party Defendant Maricopa County, Arizona by Maricopa, County of. (Walker, Richard) (Entered: 06/21/2012)
37 * AMENDED MOTION to Dismiss Party Defendant, Maricopa County, Arizona by Maricopa, County of. (Walker, Richard) * Modified to correct event on 6/22/2012 (LAD). (Entered: 06/21/2012)
38 RESPONSE in Opposition re 35 MOTION to Dismiss for Failure to State a Claim filed by United States of America. (Caspar, Edward) (Entered: 06/22/2012)
39 First MOTION for Extension of Time to File Response/Reply as to 37 MOTION to Dismiss Party Defendant, Maricopa County, Arizona by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 06/26/2012)
40 ORDER granting the United States' 39 Motion for Extension of Time to File Response to 37 MOTION to Dismiss Party Defendant, Maricopa County, Arizona . The United States shall have to and including July 13, 2012 to file its response. Signed by Chief Judge Roslyn O Silver on 6/27/12.(CLB) (Entered: 06/27/2012)
41 First MOTION for Extension of Time to File Response/Reply in Support of Motion to Dismiss by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Text of Proposed Order)(Masterson, John) (Entered: 06/28/2012)
42 ORDER granting 41 Motion for Extension of Time to File Reply re 35 MOTION to Dismiss for Failure to State a Claim − The deadline for Defendants Joseph M. Arpaio and Maricopa County Sheriff's Office to file their reply is extended to July 13, 2012. Signed by Chief Judge Roslyn O Silver on 6/28/12.(CLB) (Entered: 06/29/2012)
43 RESPONSE in Opposition re 37 MOTION to Dismiss Party Defendant, Maricopa County, Arizona filed by United States of America. (Caspar, Edward) (Entered: 07/13/2012)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 9 of 31

07/13/2012 07/13/2012
07/18/2012 07/18/2012 07/18/2012 07/20/2012 07/25/2012 07/25/2012 07/25/2012 07/26/2012 07/26/2012 09/20/2012 12/12/2012 12/12/2012

44 MOTION for Leave to File Excess Pages for Reply in Support of Defendants' Rule 12(b)(6) Motion to Dismiss by Joseph M Arpaio, Maricopa County Sheriff's Office. (Attachments: # 1 Text of Proposed Order)(Voepel, Lori) (Entered: 07/13/2012)
45 LODGED Proposed Reply in Support of Defendants' Rule 12(b)(6) Motion to Dismiss re: 44 MOTION for Leave to File Excess Pages for Reply in Support of Defendants' Rule 12(b)(6) Motion to Dismiss . Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Joseph M Arpaio, Maricopa County Sheriff's Office. (Voepel, Lori) (Entered: 07/13/2012)
46 ORDER granting Defendants Maricopa County Sheriff's Office and Joseph M Arpaio's 44 Motion for Leave to File Excess Pages; the Clerk shall file the Reply in Support of Defendants' Rule 12(b)(6) Motion to Dismiss. Signed by Chief Judge Roslyn O Silver on 7/18/12.(REW) (Entered: 07/18/2012)
47 REPLY to Response to Motion re 35 MOTION to Dismiss for Failure to State a Claim filed by Joseph M Arpaio, Maricopa County Sheriff's Office. (REW) (Entered: 07/18/2012)
48 First MOTION for Extension of Time to File Response/Reply as to 37 MOTION to Dismiss Party Defendant, Maricopa County, Arizona by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) (Entered: 07/18/2012)
49 ORDER granting 48 Motion for Extension of Time to File Reply re 37 MOTION to Dismiss − Defendant Maricopa County, Arizona shall have until July 25, 2012 to file a reply in support of its motion to dismiss 37 . Signed by Chief Judge Roslyn O Silver on 7/20/12.(CLB) (Entered: 07/20/2012)
50 ORDER denying 5 Scott Huminski's Motion to Intervene; denying 23 Jonathan Lee Riches' Motion to Intervene and denying 29 Jonathan Lee Riches' Motion for Sanctions. Signed by Chief Judge Roslyn O Silver on 7/24/12.(LSP) (Entered: 07/25/2012)
51 MOTION for Leave to File Excess Pages for when Filing its Reply to its Motion to Dismiss by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) (Entered: 07/25/2012)
52 LODGED Proposed Reply in Support of its Motion to Dismiss re: 51 MOTION for Leave to File Excess Pages for when Filing its Reply to its Motion to Dismiss . Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Maricopa, County of. (Walker, Richard) (Entered: 07/25/2012)
53 ORDER granting 51 Motion for Leave to File Excess Pages. TheClerk shall file the lodged proposed reply (Doc. 52). Signed by Chief Judge Roslyn O Silver on 7/26/12.(LSP) (Entered: 07/26/2012)
54 REPLY to Response to Motion re 37 MOTION to Dismiss filed by Maricopa, County of. (LSP) (Entered: 07/26/2012)
55 NOTICE OF ATTORNEY SUBSTITUTION: Edward Caspar appearing for United States of America. Attorney Winsome Gayle terminated. . (Caspar, Edward) (Entered: 09/20/2012)
56 ORDER, the motion to dismiss filed by Maricopa County Sheriff's Office and Sheriff Joseph M Arpaio 35 is granted in part and denied in part; the Maricopa County Sheriff's Office is dismissed; Maricopa County's motion to dismiss 37 is denied. Signed by Chief Judge Roslyn O Silver on 12/11/12.(REW) (Entered: 12/12/2012)
57 ORDER SETTING SCHEDULING CONFERENCE − IT IS HEREBY ORDERED that pursuant to Fed.R.Civ.P. (FRCP) 16 a Scheduling Conference is set for January 18, 2013 at 3:30 p.m. in Courtroom 604 at the Sandra DayO'Connor U.S. Courthouse, 401 West Washington, Phoenix, Arizona. IT IS FURTHER ORDERED that at the Case Management Meeting the counsel/parties shall prepare a Proposed Case Management Plan and a Proposed Scheduling Order and shall file them with the Court, not less than ten days before the Scheduling Conference. Signed by Chief Judge Roslyn O Silver on 12/12/12. (CLB) (Entered: 12/12/2012)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 10 of 31

12/18/2012 12/18/2012 12/18/2012
12/21/2012 12/24/2012 12/28/2012 01/03/2013 01/07/2013 01/08/2013 01/09/2013 01/09/2013 01/14/2013 01/14/2013 01/16/2013
01/17/2013 01/17/2013 01/18/2013 01/18/2013

58 MOTION to Allow Electronic Filing by a Party Appearing Without an Attorney by Kenneth Koym. (BAH) (Entered: 12/19/2012)
62 MOTION to File Amicus Curiae by Kenneth Koym. (Attachments: # 1 Attachment)(REW) (Entered: 01/03/2013)
63 LODGED Proposed Amicus Curiae Brief re: 62 MOTION to File Amicus Curiae. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Kenneth Koym. (REW) (Additional attachment(s) added on 3/20/2014: # 1 insert after 5th page) (CAD). (Entered: 01/03/2013)
59 MOTION for Reconsideration re 56 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Dismiss Party,, by Maricopa, County of. (Attachments: # 1 Proposed Order)(Webb, Dan) (Entered: 12/21/2012)
60 First MOTION for Extension of Time to File Answer by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) (Entered: 12/24/2012)
61 * MOTION for Extension of Time to File Answer (Enlargement of Time to File Answer) by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Masterson, John) *Modified to remove non−filer on 1/2/2013* (REW). (Entered: 12/28/2012)
NOTICE of request for e−notices by Larry Wulkan. (Wulkan, Lawrence) (Entered: 01/03/2013)
64 ORDER granting in part and denying in part Defendants' 60 Motion for Extension of Time to Answer. Defendants shall file an Answer no later than January 14, 2013. Signed by Chief Judge Roslyn O Silver on 1/7/13.(CLB) (Entered: 01/07/2013)
65 REPORT of Rule 26(f) Planning Meeting by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 01/08/2013)
66 NOTICE of Errata re 65 Report of Rule 26(f) Planning Meeting by Plaintiff United States of America. (Caspar, Edward) (Entered: 01/09/2013)
67 REPORT of Rule 26(f) Planning Meeting by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 01/09/2013)
68 ANSWER to 1 Complaint by Joseph M Arpaio.(Popolizio, Joseph) (Entered: 01/14/2013)
69 ANSWER to 1 Complaint by Maricopa, County of.(Walker, Richard) (Entered: 01/14/2013)
70 MEMORANDUM Defendant Arpaio's Separate Memorandum Regarding Limitations on Interrogatories and Depositions 67 Report of Rule 26(f) Planning Meeting by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Popolizio, Joseph) (Entered: 01/16/2013)
71 ORDER denying 58 Motion to Allow Electronic Filing ; denying 62 Motion to File Amicus Curiae Brief. Signed by Chief Judge Roslyn O Silver on 1/17/13.(CLB) (Entered: 01/17/2013)
72 RESPONSE re 70 Memorandum, concerning discovery limitations by Plaintiff United States of America. (Caspar, Edward) (Entered: 01/17/2013)
73 ORDER denying County's 59 Motion for Reconsideration. Signed by Chief Judge Roslyn O Silver on 1/18/13.(CLB) (Entered: 01/18/2013)
74 Minute Entry for proceedings held before Chief Judge Roslyn O Silver: Scheduling Conference held on 1/18/2013. The Court will allow 45 depositions per side. If more are required, the parties shall file a joint statement reflecting why each witness has material information for which depositions are necessary. The Court will allow 25 interrogatories per side. The Court will sign the parties' proposed scheduling order.

APPEARANCES: Edward Caspar and Sergio Perez for Plaintiff. Richard Walker, Dan Webb, John Masterson and Joseph Popolizio for Defendants. (Court Reporter Elaine Cropper.) Hearing held 3:41 PM to 4:09 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LMR) (Entered: 01/18/2013)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 11 of 31

01/23/2013
01/24/2013
01/30/2013
02/04/2013 02/07/2013
02/08/2013 02/08/2013 02/15/2013 02/25/2013 02/26/2013 02/28/2013 04/02/2013 04/17/2013 05/01/2013 06/03/2013 06/13/2013 06/20/2013

75 ORDER re 74 Scheduling Conference: IT IS ORDERED no later than January 25, 2013, the parties shall file and email to chambers mailbox a revised joint proposed scheduling order reflecting the discussion and the Court's orders at the January 18, 2013 Rule 16 Scheduling Conference. Signed by Chief Judge Roslyn O Silver on 1/23/13. (LAD) (Entered: 01/23/2013)
76 LODGED Proposed CORRECTED PROPOSED SCHEDULING ORDER. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Joseph M Arpaio, Maricopa County Sheriff's Office, Maricopa, County of. (Popolizio, Joseph) (Entered: 01/24/2013)
77 RULE 16 SCHEDULING ORDER: All Discovery due by 10/11/2013. Joint Status Report due by 10/18/2013. Interim Status Conference set for 10/25/2013 at 10:00 AM in Courtroom 604, 401 West Washington Street, Phoenix, AZ 85003 before Chief Judge Roslyn O Silver. (See Order for details). Signed by Chief Judge Roslyn O Silver on 1/29/13. (CLB) (Entered: 01/30/2013)
78 First MOTION for Extension of Time for Defendant Maricopa County to Serve their Initial Disclosure Statement by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) (Entered: 02/04/2013)
79 ORDER granting Defendant's Unopposed 78 Motion to Enlarge Time. Defendant Maricopa County, Arizona, shall have to and including February 15, 2013 to serve its initial disclosure statement. Signed by Chief Judge Roslyn O Silver on 2/7/13.(CLB) (Entered: 02/07/2013)
80 NOTICE re Service of Initial Disclosure by United States of America . (Caspar, Edward) (Entered: 02/08/2013)
81 NOTICE re of Service of Defendants Maricopa County Sheriffs Office and Joseph M. Arpaio by Joseph M Arpaio, Maricopa County Sheriff's Office . (Popolizio, Joseph) (Entered: 02/08/2013)
82 NOTICE re of Service of Defendant Maricopa County's Initial Disclosure Statement by Maricopa, County of . (Walker, Richard) (Entered: 02/15/2013)
165 Mail Returned as Undeliverable. Mail sent to Thomas E Perez. Reason for return: Box Closed, No Order. Document number 56, 57, 64, 71, 73, 79. (LAD) (Entered: 03/04/2014)
166 Mail Returned as Undeliverable. Mail sent to Thomas E Perez. Reason for return: Box Closed, No Order. Document number 75, 77. (LAD) (Entered: 03/04/2014)
198 Mail Returned as Undeliverable. Mail sent to Thomas E Perez. Reason for return: Box Closed. Document number 74. (REW) (Entered: 03/18/2014)
83 NOTICE re Service of Defendants' Maricopa County Sheriff's Office and Joseph Arpaio's First Supplemental Disclosure Statement by Joseph M Arpaio, Maricopa County Sheriff's Office . (Popolizio, Joseph) (Entered: 04/02/2013)
84 NOTICE re Service of United States' First Set of Interrogatories and Requests for Production to Defendant Arpaio by United States of America . (Caspar, Edward) (Entered: 04/17/2013)
85 NOTICE re Service of First Interrogatories and Requests for Production on Defendant Maricopa County by United States of America . (Caspar, Edward) (Entered: 05/01/2013)
86 NOTICE re Discovery and Settlement by United States of America . (Caspar, Edward) (Entered: 06/03/2013)
87 NOTICE re Filing a Statement of Interest in a Related Case by United States of America . (Attachments: # 1 Exhibit A, # 2 Exhibit B pt. 1, # 3 Exhibit B pt. 2)(Caspar, Edward) (Entered: 06/13/2013)
88 NOTICE re Service of Defendant Arpaio's partial response to Plaintiff's First Set of RFP by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 06/20/2013)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 12 of 31

06/26/2013 06/28/2013 07/02/2013 07/02/2013 07/03/2013 07/12/2013 07/15/2013 07/16/2013 07/19/2013 07/22/2013
07/24/2013 07/26/2013 08/02/2013 08/08/2013 08/09/2013 08/27/2013 08/27/2013 09/05/2013 09/06/2013 09/13/2013

89 NOTICE re of Service of Defendants First Supplemental Response to Plaintiff's First RFP by Joseph M Arpaio, Maricopa County Sheriff's Office . (Popolizio, Joseph) (Entered: 06/26/2013)
90 NOTICE re Service by Joseph M Arpaio, Maricopa County Sheriff's Office of Second Supplemental Response to Plaintiff's First Request for Production. (Popolizio, Joseph) (Entered: 06/28/2013)
91 NOTICE re Filing of First Supplemental Disclosures by United States of America . (Caspar, Edward) (Entered: 07/02/2013)
92 NOTICE re of Service of Defendant Maricopa County's Responses to Plaintiff's First Set of Discovery Requests by Maricopa, County of . (Walker, Richard) (Entered: 07/02/2013)
93 NOTICE re of Service of Defendant Sherriff Arpaio's Discovery Responses by Joseph M Arpaio, Maricopa County Sheriff's Office . (Masterson, John) (Entered: 07/03/2013)
94 STATEMENT of Discovery Dispute (Joint) by Plaintiff United States of America. (Perez, Sergio) (Entered: 07/12/2013)
95 NOTICE re 4th Supplemental Responses to Ptf's First RFP by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 07/15/2013)
96 NOTICE of Attorney Substitution by Richard K Walker. (Walker, Richard) (Entered: 07/16/2013)
97 NOTICE re Service of Dft. Arpaio's 5th Supplemental Response to Ptf's First RFP by Joseph M Arpaio . (Masterson, John) (Entered: 07/19/2013)
98 ORDER re 94 Statement filed by United States of America. IT IS ORDERED no later than July 24, 2013 Defendant Joseph M. Arpaio shall provide to the United States a firm deadline by which all responsive information will be produced. If that deadline is unacceptable to the United States, the parties shall immediately file a second joint statement containing each side's proposed deadline.Signed by Chief Judge Roslyn O Silver on 7/22/13. (CLB) (Entered: 07/22/2013)
99 NOTICE re Regarding Defendant Arpaio's Discovery Production Date by Joseph M Arpaio re 98 Order. (Masterson, John) (Entered: 07/24/2013)
100 NOTICE re of Service of Supplemental Responses to Request for Production by Maricopa, County of . (Walker, Richard) (Entered: 07/26/2013)
101 NOTICE re of Service of Discovery Requests to Plaintiff by Maricopa, County of . (Walker, Richard) (Entered: 08/02/2013)
102 NOTICE re Service of Defendant Arpaio's 6th Supplemental Responses to Plaintiff's First RFP of Documents by Joseph M Arpaio . (Masterson, John) (Entered: 08/08/2013)
103 NOTICE re of Service of First Supplemental Disclsoures by Maricopa, County of . (Walker, Richard) (Entered: 08/09/2013)
104 NOTICE re Service of Defendant Arpaio's 7th Supplemental Responses to Plaintiff's First RFP by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 08/27/2013)
105 NOTICE re Service of Defendant Arpaio's Answers to Plaintiff's First Set of Non−Uniform Interrogatories by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 08/27/2013)
106 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 09/05/2013)
107 NOTICE re Service of Defendant Arpaio's Discovery to Plaintiff by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 09/06/2013)
108 Joint MOTION for Extension of Time to Complete Discovery by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 09/13/2013)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 13 of 31

09/18/2013 09/20/2013 09/25/2013
09/27/2013 10/03/2013 10/10/2013 10/11/2013 10/28/2013 10/31/2013 10/31/2013 10/31/2013 11/01/2013 11/04/2013 11/05/2013 11/05/2013 11/06/2013 11/26/2013 11/29/2013 12/02/2013

109 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 09/18/2013)
110 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 09/20/2013)
111 FIRST AMENDED RULE 16 SCHEDULING ORDER − IT IS ORDERED granting the 108 Joint Motion for Extension of Time to Complete Discovery. Except as provided in paragraph A, above, all discovery, including answers to interrogatories, production of documents, depositions and requests to admit shall be completed by January 11, 2014.The October 25, 2013 Interim Rule 16 Status Hearing is VACATED and RESET for January 24, 2014, at 10:30 a.m. Prior to the Interim Hearing, counsel are to prepare and file a Joint Status Report by January 17, 2014. Signed by Senior Judge Roslyn O Silver on 9/24/13.(CLB) (Entered: 09/25/2013)
112 NOTICE re Service of 8th Supplemental Responses to Plaintiff's First Request for Production by Joseph M Arpaio, Maricopa County Sheriff's Office . (Popolizio, Joseph) (Entered: 09/27/2013)
113 NOTICE re Regarding the Second Notice of Discovery and Settlement by Joseph M Arpaio re 77 Scheduling Order, . (Masterson, John) (Entered: 10/03/2013)
114 NOTICE re Service of Defendant Arpaio's Second Supplemental Disclosure Statement by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 10/10/2013)
115 NOTICE re Service of Defendant Arpaio's Response to Plaintiff's First Request for Entry onto Land for Inspection by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 10/11/2013)
116 *Notice of Service of Discovery re Defendant Arpaio's Ninth Supplemental Responses to Plaintiff's First RFP by Joseph M Arpaio . (Popolizio, Joseph) *Modified to correct event type on 10/28/2013 (ALS). (Entered: 10/28/2013)
117 *NOTICE of Deposition filed by United States of America. (Caspar, Edward) *Modified to correct event type on 11/1/2013 (ALS). (Entered: 10/31/2013)
118 MOTION for Protective Order regarding production of PII by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 10/31/2013)
119 *NOTICE of Service of Discovery and settlement talks by United States of America . (Caspar, Edward) *Modified to correct event type on 11/1/2013 (ALS). (Entered: 10/31/2013)
120 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 11/01/2013)
121 NOTICE OF ATTORNEY APPEARANCE: Puneet Cheema appearing for United States of America. . (Cheema, Puneet) (Entered: 11/04/2013)
122 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 11/05/2013)
123 ORDER granting 118 Plaintiff's Motion for Protective Order re Confidential Information. See PDF document for details. Signed by Senior Judge Roslyn O Silver on 11/5/13.(LSP) (Entered: 11/05/2013)
124 NOTICE of Appearance by Thomas Jackson Morse, Jr on behalf of United States of America. (Morse, Thomas) (Entered: 11/06/2013)
125 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 11/26/2013)
126 *NOTICE of Service of Discovery (3rd RFP to Defendant Arpaio) by United States of America. (Perez, Sergio) *Modified from Notice on 12/2/2013* (REW). (Entered: 11/29/2013)
127 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 12/02/2013)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 14 of 31

12/02/2013 12/03/2013 12/20/2013 01/02/2014 01/08/2014
01/10/2014

128 *NOTICE of Service of Discovery re: Responses to Plaintiff's Second RFP of Documents or Things; First RFA and Second Set of NUIS by Joseph M Arpaio. (Popolizio, Joseph) *Modified from Notice on 12/3/2013* (REW). (Entered: 12/02/2013)
129 NOTICE re service of United States' Second Supplemental Disclosures by United States of America . (Cheema, Puneet) (Entered: 12/03/2013)
130 Second MOTION for Extension of Time to Complete Discovery (Joint Motion) by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 12/20/2013)
131 NOTICE of Service of Discovery filed by Joseph M Arpaio, Maricopa County Sheriff's Office, Maricopa, County of. (Popolizio, Joseph) (Entered: 01/02/2014)
132 ORDER setting a telephonic status hearing for January 10, 2014 at 10:30 a.m. (Arizona time) regarding the Second Joint Motion to Amend Scheduling Order 130 . Counsel for Plaintiff shall initiate the conference call with attorneys for all active parties then dial chambers at 602−322−7520. No cell or speaker phone appearances are permitted. IT IS FURTHER ORDERED the parties shall be prepared to outline what they can accomplish in the next 90 days. Signed by Senior Judge Roslyn O Silver on 1/8/14. (CLB) (Entered: 01/08/2014)
133 MINUTE ENTRY for proceedings held before Senior Judge Roslyn O Silver: Status Conference held on 1/10/2014. IT IS ORDERED granting in part the 130 Motion for Extension of Time to Complete Discovery. The discovery deadline is extended to 4/11/2014.

01/14/2014
01/17/2014 01/17/2014 01/28/2014 01/29/2014 01/30/2014 02/05/2014 02/06/2014 02/07/2014
02/07/2014 02/11/2014

APPEARANCES: Edward Caspar and Jennifer Mondino for Plaintiff. Richard Walker and John Masterson for Defendants. (Court Reporter Elaine Cropper.) Hearing held 11:17 AM to 11:45 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CLB) (Entered: 01/10/2014)
134 SECOND AMENDED RULE 16 SCHEDULING ORDER: All Discovery due by 4/11/2014. Joint Status Report due by 4/16/2014. Status Conference RESET for 4/23/2014 at 10:00 AM in Courtroom 604, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Roslyn O Silver. Signed by Senior Judge Roslyn O Silver on 1/14/14. (CLB) (Entered: 01/14/2014)
135 NOTICE of Deposition of Brian Jakowinicz, Cesar Brockman, and Joseph Sousa, filed by United States of America. (Caspar, Edward) (Entered: 01/17/2014)
136 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 01/17/2014)
137 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 01/28/2014)
138 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 01/29/2014)
139 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 01/30/2014)
140 NOTICE of Deposition of David Hendershott and, separately, Joseph Arpaio, filed by United States of America. (Caspar, Edward) (Entered: 02/05/2014)
141 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 02/06/2014)
142 *NOTICE of Service of Discovery: 10th Supplemental Responses to Plaintiff's First RFP by Joseph M Arpaio. (Popolizio, Joseph) *Modified from Notice on 2/10/2014* (REW). (Entered: 02/07/2014)
143 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 02/07/2014)
144 NOTICE re: Service of Defendant Arpaio's Third Supplemental Disclosure Statement by Joseph M Arpaio . (Popolizio, Joseph) (Entered: 02/11/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 15 of 31

02/11/2014 02/19/2014 02/19/2014 02/19/2014 02/19/2014 02/20/2014 02/23/2014
02/24/2014 02/24/2014 02/25/2014 02/26/2014 02/26/2014 02/27/2014 02/27/2014
02/27/2014 02/28/2014 02/28/2014
02/28/2014 02/28/2014

145 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 02/11/2014)
146 NOTICE of Deposition of Jesus Alonso Gonzalez and, separately, Karissa Ramirez, filed by United States of America. (Caspar, Edward) (Entered: 02/19/2014)
147 NOTICE of Appearance by Paul Killebrew on behalf of United States of America. (Killebrew, Paul) (Entered: 02/19/2014)
148 *NOTICE of Servce of Discovery: Response to Plaintiff's Fourth Request for Production of Documents by Joseph M Arpaio. (Popolizio, Joseph) *Modified from Notice on 2/20/2014* (REW). (Entered: 02/19/2014)
149 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 02/19/2014)
150 NOTICE OF ATTORNEY SUBSTITUTION: Paul Killebrew appearing for United States of America. Attorney Sergio Perez terminated. . (Killebrew, Paul) (Entered: 02/20/2014)
151 STATEMENT of Discovery Dispute (Joint) by Plaintiff United States of America. (Attachments: # 1 Exhibit U.S. A, # 2 Exhibit U.S. B, # 3 Exhibit Arpaio 1, # 4 Exhibit Arpaio 2, # 5 Exhibit Arpaio 3, # 6 Exhibit Arpaio 4, # 7 Exhibit Arpaio 5)(Caspar, Edward) Mod (Entered: 02/23/2014)
152 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 02/24/2014)
153 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 02/24/2014)
154 NOTICE of Service of Discovery filed by Joseph M Arpaio, Maricopa County Sheriff's Office, Maricopa, County of. (Popolizio, Joseph) (Entered: 02/25/2014)
155 NOTICE of Deposition of Jim Seibert, Brian Sands, Mary Ellen Shepard, and Gerard Sheridan, filed by United States of America. (Caspar, Edward) (Entered: 02/26/2014)
156 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 02/26/2014)
157 MOTION for Protective Order −Stipulated Motion for Entry of Rule 502(d) Order Governing Inadvertent Disclosure of Privileged Information by Maricopa, County of. (Walker, Richard) (Entered: 02/27/2014)
158 * MOTION for Protective Order −Motion for Entry of Rule 502(d) Order Governing Inadvertent Disclosure of Privileged Information by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) *Modified on 2/28/2014; duplicate entry of #157* (REW). (Entered: 02/27/2014)
159 NOTICE of Deposition of Andrew Kunasek, filed by United States of America. (Cheema, Puneet) (Entered: 02/27/2014)
160 NOTICE OF ATTORNEY APPEARANCE: Brian Buehler appearing for United States of America. . (Buehler, Brian) (Entered: 02/28/2014)
161 * NOTICE re: Service of Defendant Arpaio by Joseph M Arpaio Responses to Plaintiff's Third Set of Non−Uniform Interrogatories. (Popolizio, Joseph) * Attorney noticed regarding Notice of Service of Discovery event on 2/28/2014 (LAD). (Entered: 02/28/2014)
162 * NOTICE re: Service of Third Supplemental Disclosures by United States of America. (Cheema, Puneet) * Attorney noticed regarding Notice of Service of Discovery event on 2/28/2014 (LAD). (Entered: 02/28/2014)
163 * NOTICE re: Service of Defendant Arpaio's Fourth Supplemental Disclosure Statement, Eleventh Supplemental Response to Plaintiff's First Request for Production and Supplemental Response to Plaintiff's Second Request for Production by Joseph M Arpaio. (Masterson, John) * Attorney noticed regarding Notice of Service of Discovery event on 3/3/2014 (LAD). (Entered: 02/28/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 16 of 31

02/28/2014
03/05/2014
03/05/2014
03/05/2014 03/06/2014 03/06/2014 03/06/2014 03/06/2014
03/06/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014 03/07/2014

164 * NOTICE re: Service of Defendant Arpaio's Second Request for Production of Documents or Things to Plaintiff by Joseph M Arpaio. (Masterson, John) * Attorney noticed regarding Notice of Service of Discovery event on 3/3/2014 (LAD). (Entered: 02/28/2014)
167 *NOTICE of Service of Discovery re: 5th Supplemental Disclosure Statement and 12th Supplemental Response to Ptf's 1st RFP by Joseph M Arpaio. (Masterson, John) *Modified from Notice on 3/6/2014* (REW). (Entered: 03/05/2014)
168 ORDER no later than 12:00 PM on March 6, 2014, Defendants shall file a statement confirming they will complete production of all emails by March 14, 2014. Signed by Senior Judge Roslyn O Silver on 3/5/14. (CLB) (Entered: 03/05/2014)
169 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 03/05/2014)
170 NOTICE re: of Confirmation of Defendant Maricopa County's Email Production Schedule by Maricopa, County of . (Walker, Richard) (Entered: 03/06/2014)
171 STATEMENT of Defendant Arpaio regarding production of documents re: 168 Order, by Defendant Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/06/2014)
172 ORDER re: 170 Notice and 171 Statement (See Order for details). Signed by Senior Judge Roslyn O Silver on 5/6/14. (CLB) (Entered: 03/06/2014)
173 *NOTICE of Service of Discovery: Defendant Maricopa County's Third Supplemental Responses to Plaintiff's Second Request for Production of Documents and Things by Maricopa, County of. (Walker, Richard) *Modified from Notice on 3/7/2014* (REW). (Entered: 03/06/2014)
174 NOTICE of Deposition of James Miller, filed by United States of America. (Buehler, Brian) (Entered: 03/06/2014)
175 NOTICE of Deposition of Phil Gordon, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
176 NOTICE of Deposition of Mary Rose Wilcox, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
177 NOTICE of Deposition of Harold Beasley, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
178 NOTICE of Deposition of James Barrett, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
179 NOTICE of Deposition of Cathy David, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
180 NOTICE of Deposition of Jesus Goodman, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
181 NOTICE of Deposition of Rick Hinkley, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
182 NOTICE of Deposition of Brad Lazna, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
183 NOTICE of Deposition of Richard Martinez, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
184 NOTICE of Deposition of Ryan Miller, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
185 NOTICE of Deposition of Anthony "Tony" Muffo, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
186 NOTICE of Deposition of Amy Valenzuela, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/07/2014)
187 MOTION for Extension of Time to Complete Discovery by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) (Entered: 03/07/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 17 of 31

03/07/2014 03/10/2014 03/10/2014 03/11/2014
03/11/2014 03/12/2014
03/13/2014 03/13/2014 03/14/2014 03/14/2014
03/19/2014 03/19/2014 03/19/2014 03/20/2014 03/20/2014 03/21/2014 03/21/2014 03/24/2014
03/24/2014 03/24/2014 03/24/2014

188 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 03/07/2014)
189 NOTICE of Deposition of First Amended for Jesus Goodman, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/10/2014)
190 NOTICE of Deposition of Cesar Brockman and Dimitri Whelan, filed by United States of America. (Killebrew, Paul) (Entered: 03/10/2014)
191 SERVICE EXECUTED filed by Joseph M Arpaio: Proof of Service re: Notice of Deposition and Subpoena upon Phil Gordon on 3/10/2014. (Attachments: # 1 Exhibit Notice of Deposition, # 2 Exhibit Subpoena)(Popolizio, Joseph) (Entered: 03/11/2014)
192 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 03/11/2014)
193 NOTICE re: of Service of Defendant Maricopa County's Notice of Deposition of Thomas E. Perez (Videotaped) by Maricopa, County of . (Walker, Richard) (Entered: 03/12/2014)
194 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 03/13/2014)
195 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/13/2014)
196 NOTICE of Deposition of Allen, Garcia, Gonzalez, Morales, Moreno, Smith, filed by United States of America. (Buehler, Brian) (Entered: 03/14/2014)
197 *NOTICE of Service of Discovery re: Fourth Supplemental Responses to Plaintiff's Second Request for Production of Documents and Things by Maricopa, County of. (Walker, Richard) *Modified from Notice on 3/17/2014* (REW). (Entered: 03/14/2014)
199 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/19/2014)
200 NOTICE re: of Service of Defendant Maricopa County's Notice of Rule 30(b)(6) Depositions by Maricopa, County of . (Walker, Richard) (Entered: 03/19/2014)
201 NOTICE of Deposition of Brett Palmer, and 30(b)(6) Deposition of Defendant Arpaio, filed by United States of America. (Caspar, Edward) (Entered: 03/19/2014)
202 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 03/20/2014)
203 NOTICE of Deposition of Mary Rose Wilcox, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/20/2014)
204 NOTICE of Deposition of Mary Rose Wilcox, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/21/2014)
205 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 03/21/2014)
206 ORDER granting 187 Joint Motion to Extend Discovery for Purposes ofDeposition. IT IS FURTHER ORDERED the deadline for discovery is extended until April 29, 2014 for the sole purpose of taking the deposition of Sheriff Joe Arpaio. Signed by Senior Judge Roslyn O Silver on 3/24/14.(CLB) (Entered: 03/24/2014)
207 NOTICE of Service of Discovery filed by United States of America. (Morse, Thomas) (Entered: 03/24/2014)
208 NOTICE of Deposition of Mary Rose Wilcox, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/24/2014)
209 STATEMENT of Discovery Dispute (Joint) by Plaintiff United States of America. (Attachments: # 1 Exhibit U.S. 1, # 2 Exhibit U.S. 2, # 3 Exhibit U.S. 3, # 4 Exhibit Arpaio 1, # 5 Exhibit Arpaio 2, # 6 Exhibit Arpaio 3, # 7 Exhibit Arpaio 4)(Morse, Thomas) (Entered: 03/24/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 18 of 31

03/25/2014 03/25/2014
03/25/2014
03/25/2014 03/26/2014 03/26/2014
03/26/2014
03/27/2014
03/27/2014 03/28/2014 03/28/2014 03/28/2014 03/28/2014 03/28/2014 03/28/2014 04/01/2014 04/01/2014 04/01/2014 04/01/2014 04/01/2014 04/01/2014 04/01/2014

210 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/25/2014)
211 ORDER re: parties' 209 third joint statement of discovery dispute. The deadline to complete discovery shall remain in place. All discovery, with the exception of the deposition of Sheriff Joe Arpaio, shall be completed no later than 4/11/2014.Signed by Senior Judge Roslyn O Silver on 3/25/14. (CLB) (Entered: 03/25/2014)
212 MOTION for Discovery United States' Unopposed Motion for Leave to Depose Jail Inmates by United States of America. (Attachments: # 1 Text of Proposed Order)(Mondino, Jennifer) (Entered: 03/25/2014)
213 NOTICE of Deposition of MCSO Jail Inmates, filed by United States of America. (Mondino, Jennifer) (Entered: 03/25/2014)
214 NOTICE of Service of Discovery filed by United States of America. (Mondino, Jennifer) (Entered: 03/26/2014)
215 ORDER that Plaintiff's 212 Motion is GRANTED. ORDERED Plaintiff may depose the MCSO jail inmates identified in the 13 Notice of Deposition. Signed by Senior Judge Roslyn O Silver on 3/26/2014.(LFIG) (Entered: 03/26/2014)
216 STATEMENT of Joint Discovery Dispute (Fourth) by Defendant Maricopa, County of. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Walker, Richard) (Entered: 03/26/2014)
217 STATEMENT of Discovery Dispute re: 216 Statement Joint 4th Discovery Dispute Statement by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Popolizio, Joseph) (Entered: 03/27/2014)
218 NOTICE of Deposition of Defendant Joseph M. Arpaio pursuant to Rule 30(b)(6), filed by United States of America. (Buehler, Brian) (Entered: 03/27/2014)
219 NOTICE re: Fourth Joint Statement of Discovery Dispute by United States of America re: 217 Statement, 216 Statement . (Killebrew, Paul) (Entered: 03/28/2014)
220 NOTICE of Service of Discovery filed by United States of America. (Mondino, Jennifer) (Entered: 03/28/2014)
221 NOTICE of Service of Discovery filed by United States of America. (Killebrew, Paul) (Entered: 03/28/2014)
222 MOTION for Discovery for Leave to Depose Jail Inmates by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) (Entered: 03/28/2014)
223 *NOTICE of Service of Discovery by Maricopa, County of . (Walker, Richard) *Modified to correct event on 3/28/2014 (LFIG). (Entered: 03/28/2014)
224 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/28/2014)
225 NOTICE of Deposition of Fernando Garcia−Cancino, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/01/2014)
226 NOTICE of Deposition of Virginia Celedonio−Cruz, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/01/2014)
227 NOTICE of Deposition of Magdalena Iniguez, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/01/2014)
228 NOTICE of Deposition of Juan Marin Campos−Uriarte, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/01/2014)
229 NOTICE of Deposition of Eliazar Luque−Marquez, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/01/2014)
230 NOTICE of Service of Discovery filed by United States of America. (Mondino, Jennifer) (Entered: 04/01/2014)
231 NOTICE of Service of Discovery filed by United States of America. (Mondino, Jennifer) (Entered: 04/01/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 19 of 31

04/03/2014 04/03/2014
04/04/2014 04/04/2014 04/04/2014
04/04/2014 04/04/2014 04/04/2014
04/07/2014 04/07/2014 04/07/2014 04/09/2014 04/09/2014 04/09/2014 04/10/2014 04/11/2014 04/11/2014 04/11/2014 04/14/2014

232 STATEMENT of Fifth Statement of Discovery Dispute by Plaintiff United States of America. (Attachments: # 1 Exhibit Exhibits A − D)(Killebrew, Paul) (Entered: 04/03/2014)
233 ORDER the relief requested by Defendants in the fourth notice of discovery dispute 216 217 is DENIED. IT IS FURTHER ORDERED Defendants shall file a joint response to Plaintiff's fifth notice of discovery dispute 232 no later than 12 PM on April 4, 2014. Signed by Senior Judge Roslyn O Silver on 4/3/2014. (CLB) (Entered: 04/03/2014)
234 ORDER granting Defendant Arpaio's 222 motion for leave to depose jail inmates. Signed by Senior Judge Roslyn O Silver on 4/4/14.(CLB) (Entered: 04/04/2014)
235 RESPONSE re: 232 Statement of Fifth Discovery Dispute filed by Plaintiff United States by Defendant Maricopa, County of. (Attachments: # 1 Exhibit)(Walker, Richard) (Entered: 04/04/2014)
236 *RESPONSE re: 232 Statement United States Statement of Fifth Discovery Dispute by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Popolizio, Joseph) *Modified to add document number/link on 4/7/2014* (REW). (Entered: 04/04/2014)
237 NOTICE of Deposition of ICE Official(s) and CBP Official(s) (First Amended), filed by Maricopa, County of. (Walker, Richard) (Entered: 04/04/2014)
238 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 04/04/2014)
239 ORDER re: 232 Statement − IT IS ORDERED Plaintiff's request to quash the subpoena of Secretary Perez is denied. The deposition may proceed as scheduled on April 7, 2014. Signed by Senior Judge Roslyn O Silver on 4/4/14. (CLB) (Entered: 04/04/2014)
240 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 04/07/2014)
241 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 04/07/2014)
242 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 04/07/2014)
243 NOTICE of Deposition of Amy Valenzuela, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/09/2014)
244 NOTICE of Deposition of Harold Beasley, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/09/2014)
245 NOTICE of Deposition of Cathy David, filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/09/2014)
246 NOTICE of Service of Discovery filed by United States of America. (Morse, Thomas) (Entered: 04/10/2014)
247 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 04/11/2014)
248 STATEMENT of Sixth Joint Discovery Dispute by Defendant Maricopa, County of. (Attachments: # 1 Exhibit, # 2 Exhibit)(Walker, Richard) (Entered: 04/11/2014)
249 NOTICE re: Service of United States' Expert Reports by United States of America . (Cheema, Puneet) (Entered: 04/11/2014)
250 *MOTION for Leave to File Reply to Briefing of Plaintiff United States re Issues Raised in Sixth Joint Statement of Discovery Dispute by Maricopa, County of. (Attachments: # 1 PROPOSED Reply of Deft Maricopa Cty to Briefing of Plft re 6th Disc Dispute Stmt, # 2 Declaration of Richard K. Walker ISO Reply to Briefing)(Walker, Richard) *Modified on 4/15/2014; documents are not text searchable, Proposed document attached to this entry* (REW). (Entered: 04/14/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 20 of 31

04/14/2014
04/15/2014
04/15/2014 04/16/2014 04/18/2014 04/18/2014 04/23/2014 04/23/2014
04/23/2014 04/25/2014 04/28/2014 04/28/2014 04/30/2014 04/30/2014
05/01/2014 05/04/2014 05/05/2014 05/05/2014

251 *Additional Attachments to Main Document, Proposed Order re: 250 MOTION for Leave to File Reply to Briefing of Plaintiff United States re Issues Raised in Sixth Joint Statement of Discovery Dispute by Defendant Maricopa, County of. (Walker, Richard) *Modified to add omitted text on 4/15/2014; document is not text searchable* (REW). (Entered: 04/14/2014)
252 ORDER the Motion for Leave to File Reply 250 isDENIED AS MOOT. IT IS FURTHER ORDERED the status hearing set for April 23, 2014 is VACATED and RESET for May 8, 2014 at 10:00 a.m. (See Order for further information). Signed by Senior Judge Roslyn O Silver on 4/15/14.(CLB) (Entered: 04/15/2014)
253 NOTICE of Deposition of Joseph M. Arpaio, filed by United States of America. (Caspar, Edward) (Entered: 04/15/2014)
254 PROTECTIVE ORDER pursuant to the parties' 158 MOTION for Protective Order. Signed by Senior Judge Roslyn O Silver on 4/16/2014. (See Order for details.)(LFIG) (Entered: 04/16/2014)
255 NOTICE of Attorney Withdrawal Roy L. Austin filed by Puneet Cheema. (Cheema, Puneet) (Entered: 04/18/2014)
256 NOTICE re: of Deposition Questions as to Which Plaintiff the United States Improperly Interposed Privilege Objections by Maricopa, County of . (Walker, Richard) (Entered: 04/18/2014)
257 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/23/2014)
258 Due to a conflict in the Court's calendar, IT IS ORDERED the status conference presently set for 5/8/2014 at 10:00 AM is VACATED and RESET for 5/12/2014 at 10:00 AM before Senior Judge Roslyn O. Silver. All other deadlines established in the 4/15/2014 Order (Doc. 252) are affirmed. Ordered by Senior Judge Roslyn O. Silver. (ROS, kb)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 04/23/2014)
259 *BRIEF by United States of America concerning Austin deposition objections. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Caspar, Edward) *Modified to correct Brief event on 4/24/2014* (REW). (Entered: 04/23/2014)
260 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 04/25/2014)
261 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 04/28/2014)
262 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 04/28/2014)
263 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 04/30/2014)
264 RESPONSE re: 259 Brief Defendant Maricopa County's Response to the United States' Brief Regarding the Legal and Factual Bases for its Objections During the Deposition of Roy Austin by Defendant Maricopa, County of. (Attachments: # 1 Exhibit, # 2 Exhibit)(Walker, Richard) Modified on 5/1/2014 (REW). (Entered: 04/30/2014)
265 STATUS REPORT − JOINT by United States of America. (Caspar, Edward) (Entered: 05/01/2014)
266 NOTICE of Service of Discovery filed by United States of America. (Buehler, Brian) (Entered: 05/04/2014)
267 REPLY re: 264 Response Brief Regarding Austin Deposition by Plaintiff United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Caspar, Edward) (Entered: 05/05/2014)
268 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 05/05/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 21 of 31

05/12/2014 05/12/2014

269 ORDER re: the parties' sixth discovery dispute. If the County wishes to pursue Questions 1−5, and 7−10, it must do so no later than June 12, 2014. Signed by Senior Judge Roslyn O Silver on 5/12/14. (CLB) (Entered: 05/12/2014)
270 MINUTE ENTRY for proceedings held before Senior Judge Roslyn O Silver: Status Conference held on 5/12/2014. Discussion is held. The parties are to submit a revised Rule 16 Scheduling Order to the Court no later than May 14, 2014 at 5:00 PM.

05/13/2014 05/13/2014
05/13/2014 05/13/2014 05/14/2014 05/16/2014 05/21/2014
05/23/2014 05/27/2014
05/28/2014 05/28/2014 05/29/2014

APPEARANCES: Edward Caspar for Plaintiff. Richard Walker, Dan Webb, and Bill Montgomery for Defendant Maricopa County. John Masterson and Joseph Popolizio for Defendant Joseph Arpaio. (Court Reporter Elaine Cropper.) Hearing held 10:17 AM to 11:01 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CLB) (Entered: 05/12/2014)
271 TRANSCRIPT REQUEST by United States of America for proceedings held on 05/12/2014, Judge Roslyn O Silver hearing judge(s). (Killebrew, Paul) (Entered: 05/13/2014)
272 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 5/12/2014, before Judge Silver. Court Reporter Elaine Cropper. Transcript may be viewed at the court public terminal or 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 6/3/2014. Redacted Transcript Deadline set for 6/13/2014. Release of Transcript Restriction set for 8/11/2014. (VPB) (Entered: 05/13/2014)
273 TRANSCRIPT REQUEST by Maricopa, County of for proceedings held on May 12, 2014, Judge Roslyn O Silver hearing judge(s). (Walker, Richard) (Entered: 05/13/2014)
274 ORDER any subsequent depositions shall proceed with the foregoing ruling. Signed by Senior Judge Roslyn O Silver on 5/13/14. (CLB) (Entered: 05/13/2014)
275 *NOTICE (Joint) of Filing − Proposed Pretrial Order: Third Amended Rule 16 Scheduling Order by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) *Modified from Notice on 5/15/2014* (REW). (Entered: 05/14/2014)
276 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 05/16/2014)
277 THIRD AMENDED 16 RULE SCHEDULING ORDER:The parties shall supplement all discovery by 9/15/2014. Dispositive motions due by 9/30/2014. Joint Status Report due by 9/1/2014. Interim Status Conference set for 9/4/2014 at 10:00 AM in Courtroom 604, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Roslyn O Silver. Signed by Senior Judge Roslyn O Silver on 5/21/14. (CLB) Modified on 5/22/2014 (CLB). (Entered: 05/21/2014)
278 NOTICE of Service of Discovery filed by United States of America. (Buehler, Brian) (Entered: 05/23/2014)
279 FOURTH AMENDED RULE 16 SCHEDULING ORDER: All Discovery to be supplemented by 9/15/2014. Dispositive motions due by 9/30/2014. Joint Proposed Pretrial Order due by 10/15/2014. Jont Status Report due by 9/1/2014. Interim Status Conference set for 9/4/2014 at 10:00 AM in Courtroom 604, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Roslyn O Silver. Signed by Senior Judge Roslyn O Silver on 5/27/14. (CLB) (Entered: 05/27/2014)
280 NOTICE re: re Defendant Maricopa County's Notice of Service of Expert Reports by Maricopa, County of . (Walker, Richard) (Entered: 05/28/2014)
281 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 05/28/2014)
282 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 05/29/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 22 of 31

05/30/2014 05/30/2014 06/02/2014 06/03/2014 06/03/2014
06/04/2014 06/10/2014 06/20/2014
06/27/2014 07/01/2014 07/02/2014 07/03/2014 07/11/2014 07/17/2014 07/18/2014 07/25/2014 07/30/2014 07/30/2014 08/01/2014 08/01/2014

283 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 05/30/2014)
284 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 05/30/2014)
285 NOTICE re: of Service of Defendant Maricopa County's Notice of Deposition of Roy L. Austin, Jr. (Videotaped) by Maricopa, County of . (Walker, Richard) (Entered: 06/02/2014)
286 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 06/03/2014)
287 STATEMENT of (Joint) of Discovery Dispute (Seventh) by Defendant Maricopa, County of. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Walker, Richard) (Entered: 06/03/2014)
288 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 06/04/2014)
289 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 06/10/2014)
290 ORDER that County and Sheriff Araio's request for relief 287 is DENIED. FURTHER ORDERED no later than 6/27/2014, Plaintiff shall produce all remaining "facts and data" upon which their expert reports rely. Signed by Senior Judge Roslyn O Silver on 6/19/2014. (TLB) (Entered: 06/20/2014)
291 NOTICE re: of service of 4th and 5th supplemental responses to Defendants' subpoenas on US' experts, and service of experts' rebuttal reports by United States of America . (Cheema, Puneet) (Entered: 06/27/2014)
292 NOTICE re: Sixth Supplemental Response to Subpoenas by United States of America . (Killebrew, Paul) (Entered: 07/01/2014)
293 NOTICE re: of Service of Subpoena Duces Tecum to Plaintiff's Experts by Maricopa, County of . (Walker, Richard) (Entered: 07/02/2014)
294 NOTICE re: of Service of Subpoena Duces Tecum to Plaintiff's Expert − Lamberth by Maricopa, County of . (Walker, Richard) (Entered: 07/03/2014)
295 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 07/11/2014)
296 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Masterson, John) (Entered: 07/17/2014)
297 NOTICE of Deposition of Plaintiff's Experts − Frank Fernandez, Manuel Romero, John Lamberth, Richard Rivera and Paul Ong., filed by Maricopa, County of. (Walker, Richard) (Entered: 07/18/2014)
298 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 07/25/2014)
299 NOTICE re: of Service of Defendant Maricopa County's Subpoena Ad Testificandum and Notice of Deposition to Plaintiff's Experts by Maricopa, County of . (Walker, Richard) (Entered: 07/30/2014)
300 NOTICE re: of Service of Defendant Maricopa County's Subpoena Ad Testificandum and Notice of Depositions to Plaintiff's Experts (Third) by Maricopa, County of . (Walker, Richard) (Entered: 07/30/2014)
301 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 08/01/2014)
302 NOTICE of Deposition of Anthony Hayter, filed by United States of America. (Caspar, Edward) (Entered: 08/01/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 23 of 31

08/13/2014 08/15/2014 08/16/2014 08/16/2014 08/18/2014 08/20/2014 08/25/2014 08/27/2014 09/02/2014 09/04/2014
09/04/2014 09/04/2014 09/04/2014
09/12/2014 09/15/2014 09/15/2014 09/15/2014

303 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 08/13/2014)
304 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 08/15/2014)
305 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 08/16/2014)
306 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 08/16/2014)
307 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 08/18/2014)
308 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 08/20/2014)
309 NOTICE re: of Service of Defendant Maricopa County's Responses to the Subpoena Duces Tecum to Expert Dr. Anthony Hayter by Maricopa, County of . (Walker, Richard) (Entered: 08/25/2014)
310 NOTICE of Service of Discovery filed by United States of America. (Morse, Thomas) (Entered: 08/27/2014)
311 STATUS REPORT by United States of America. (Caspar, Edward) (Entered: 09/02/2014)
312 MINUTE ENTRY (TEXT−ONLY) − for proceedings held before Senior Judge Roslyn O Silver: Interim Status Conference held on 9/4/2014. Appearances: Edward G. Caspar for plaintiffs. Richard K. Walker, John T. Masterson, Joseph J. Popolizio and Bill Montgomery for defendants. Case status and possible dispositive motions to be filed are discussed. The Court sets the following deadlines: Deadline to supplement all discovery is 9/15/2014. Dispositive motion deadline is extended from 9/30/2014 to 10/10/2014. Counsel shall file a joint brief by 9/18/2014 which outlines what summary judgment motions should be filed and a brief response as to why the motions should not be filed. ORDERED setting Status Conference on Monday, 10/6/2014 at 10:00 AM in Courtroom 604, in Phoenix, Arizona, before Senior Judge Roslyn O. Silver. (Court Reporter Elva Cruz−Lauer.) Hearing held 10:08 AM to 11:00 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TLB) (Entered: 09/04/2014)
313 TRANSCRIPT REQUEST by Maricopa, County of for proceedings held on 9/4/2014, Judge Roslyn O Silver hearing judge(s). (Walker, Richard) (Entered: 09/04/2014)
314 TRANSCRIPT REQUEST by United States of America for proceedings held on 09/04/2014, Judge Roslyn O Silver hearing judge(s). (RAP) (Entered: 09/04/2014)
315 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference Proceedings held on 09/04/2014, before Judge Silver. Court Reporter Elva Cruz−Lauer. Transcript may be viewed at the court public terminal or 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 9/25/2014. Redacted Transcript Deadline set for 10/6/2014. Release of Transcript Restriction set for 12/3/2014. (RAP) (Entered: 09/05/2014)
316 Joinder in Expert Disclosure, Reports and Testimony of Dr. Anthony Hayter by Defendant Joseph M Arpaio. (Popolizio, Joseph) (Entered: 09/12/2014)
317 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 09/15/2014)
318 NOTICE re: of Joint Notice of Service of Rule 26(a)(2)(B) Supplemental Expert Report by Maricopa, County of . (Walker, Richard) (Entered: 09/15/2014)
319 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 09/15/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 24 of 31

09/15/2014 09/15/2014 09/18/2014 09/18/2014 09/29/2014 09/30/2014 10/03/2014
10/06/2014
10/06/2014 10/06/2014 10/06/2014 10/06/2014
10/27/2014 10/27/2014 10/27/2014 10/27/2014

320 NOTICE of Service of Discovery filed by United States of America. (Cheema, Puneet) (Entered: 09/15/2014)
321 NOTICE of Service of Discovery filed by Maricopa, County of. (Walker, Richard) (Entered: 09/15/2014)
322 NOTICE re: Joint Brief Addressing Anticipated Motions for Summary Judgment by United States of America . (Killebrew, Paul) (Entered: 09/18/2014)
323 NOTICE of Appearance by Justin Michael Ackerman on behalf of Joseph M Arpaio. (Ackerman, Justin) (Entered: 09/18/2014)
324 STATEMENT of Discovery Dispute, Joint by Plaintiff United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Caspar, Edward) Modified on 9/30/2014 (REW). (Entered: 09/29/2014)
325 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Puneet Cheema. (Cheema, Puneet) (Entered: 09/30/2014)
326 On the Court's own motion, IT IS ORDERED the 10/6/2014 status conference is RESET AS TO TIME ONLY from 10:00 AM to 10:30 AM before Senior Judge Roslyn O. Silver. Ordered by Senior Judge Roslyn O. Silver. (ROS, kb)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 10/03/2014)
327 MINUTE ENTRY (TEXT−ONLY) − for proceedings held before Senior Judge Roslyn O Silver: Status Conference held on 10/6/2014. Appearances: Edward G. Caspar for plaintiffs. Richard K. Walker, John T. Masterson, Joseph J. Popolizio and Justin Ackerman for defendants. Matters discussed. The Court will allow summary judgment motions on issues as set forth on the record. ORDERED that all motions and cross−motions are due 10/27/2014; Responses are due 11/14/2014; Replies are due 11/24/2014. The Court will determine if oral argument is needed. (Court Reporter Elva Cruz−Lauer.) Hearing held 11:10 AM to 12:20 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TLB) (Entered: 10/06/2014)
328 TRANSCRIPT REQUEST by United States of America for proceedings held on 10.06.14, Judge Roslyn O Silver hearing judge(s). (Mondino, Jennifer) (Entered: 10/06/2014)
329 TRANSCRIPT REQUEST by Maricopa, County of for proceedings held on 10/6/2014, Judge Roslyn O Silver hearing judge(s). (Walker, Richard) (Entered: 10/06/2014)
330 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on 10/06/14, Judge Roslyn O Silver hearing judge(s). (Popolizio, Joseph) (Entered: 10/06/2014)
331 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 10/06/2014, before Judge Silver. Court Reporter: Elva Cruz−Lauer. Transcript may be viewed at the court public terminal or 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 10/27/2014. Redacted Transcript Deadline set for 11/6/2014. Release of Transcript Restriction set for 1/5/2015. (RAP) (Entered: 10/07/2014)
332 MOTION for Partial Summary Judgment by United States of America. (Caspar, Edward) (Entered: 10/27/2014)
333 *STATEMENT of Facts in support of 332 Motion for Partial Summary Judgment by Plaintiff United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Caspar, Edward) *Modified to add document number/link on 10/28/2014* (REW). (Entered: 10/27/2014)
334 MOTION for Summary Judgment by Maricopa, County of. (Walker, Richard) (Entered: 10/27/2014)
335 STATEMENT of Facts (L.R. Civ. 56.1) re: 334 MOTION for Summary Judgment by Defendant Maricopa, County of. (Attachments: # 1 Exhibits 1−2)(Walker, Richard) Modified on 10/28/2014 (REW). (Entered: 10/27/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 25 of 31

10/27/2014 10/27/2014
10/27/2014 10/27/2014 10/27/2014
10/27/2014 10/27/2014 10/27/2014 10/28/2014 10/30/2014 11/14/2014 11/14/2014
11/14/2014 11/14/2014
11/14/2014

336 **STRICKEN by Doc. 379. MOTION for Partial Summary Judgment by Joseph M Arpaio. (Popolizio, Joseph) *Modified to correct Motion event on 10/28/2014* (REW). (Entered: 10/27/2014)
337 STATEMENT of Facts in Support of Defendant Arpaio's Motion for Partial Summary Judgment re: 336 MOTION for Partial Summary Judgment by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Popolizio, Joseph) Modified on 10/28/2014 (REW). (Entered: 10/27/2014)
338 Additional Attachments to Main Document re: 337 Statement by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 1B, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Popolizio, Joseph) (Entered: 10/27/2014)
339 Additional Attachments to Main Document re: 337 Statement by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6A, # 3 Exhibit 6B, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9, # 7 Exhibit 10)(Popolizio, Joseph) (Entered: 10/27/2014)
340 Additional Attachments to Main Document re: 337 Statement by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21, # 12 Exhibit 22, # 13 Exhibit 23)(Popolizio, Joseph) (Entered: 10/27/2014)
341 Additional Attachments to Main Document re: 337 Statement by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit 24, # 2 Exhibit 25, # 3 Exhibit 26)(Popolizio, Joseph) (Entered: 10/27/2014)
342 Additional Attachments to Main Document re: 337 Statement by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit 27, # 2 Exhibit 28A, # 3 Exhibit 28B)(Popolizio, Joseph) (Entered: 10/27/2014)
343 MOTION for Leave to File Excess Pages for Motion for Partial Summary Judgment by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Popolizio, Joseph) (Entered: 10/27/2014)
344 ORDER denying Defendant Arpaio's 343 Motion to Exceed Page Limit. Defendant shall submit a motion in compliance with the limit of 17 pages no later than October 30, 2014. Signed by Senior Judge Roslyn O Silver on 10/28/14.(CLB) (Entered: 10/28/2014)
345 MOTION for Partial Summary Judgment by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 10/30/2014)
346 RESPONSE to Motion re: 332 MOTION for Partial Summary Judgment filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 11/14/2014)
347 STATEMENT of Controverting and Supplemental Statement of Facts in Response to Plaintiff's Motion for Summary Judgment re: 346 Response to Motion for Partial Summary Judgment by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Popolizio, Joseph) (Entered: 11/14/2014)
348 RESPONSE to Motion re: 334 MOTION for Summary Judgment filed by United States of America. (Caspar, Edward) (Entered: 11/14/2014)
349 STATEMENT of Controverting and Additional Facts re: 348 Response to Motion for Summary Judgment (Defendant Maricopa County) by Plaintiff United States of America. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Caspar, Edward) (Entered: 11/14/2014)
350 *RESPONSE to Motion re: 336 , 345 MOTIONS for Partial Summary Judgment filed by United States of America. (Caspar, Edward) *Modified to add document number/link on 11/17/2014* (REW). (Entered: 11/14/2014)

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 26 of 31

11/14/2014 11/14/2014 11/14/2014
11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014
11/25/2014 11/25/2014

351 RESPONSE to Motion re: 332 MOTION for Partial Summary Judgment filed by Maricopa, County of. (Walker, Richard) (Entered: 11/14/2014)
352 STATEMENT of Facts in Support of Motion for Summary Judgment, and Statement of Supplemental Facts re: 351 Response to Motion for Partial Summary Judgment by Defendant Maricopa, County of. (Attachments: # 1 Exhibits 1−3)(Walker, Richard) Modified on 11/17/2014 (REW). (Entered: 11/14/2014)
353 *STATEMENT of Controverting and Additional Facts re: 350 RESPONSE to Motion re Response to Defendant Arpaio by Plaintiff United States of America. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit 51, # 53 Exhibit 52, # 54 Exhibit 53, # 55 Exhibit 54, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63, # 65 Exhibit 64, # 66 Exhibit 65, # 67 Exhibit 66, # 68 Exhibit 67, # 69 Exhibit 68, # 70 Exhibit 69, # 71 Exhibit 70, # 72 Exhibit 71, # 73 Exhibit 72)(Caspar, Edward) *Modified to add document number/link on 11/17/2014* (REW). (Entered: 11/14/2014)
354 REPLY to Response to Motion re: 332 MOTION for Partial Summary Judgment (Reply to Defendant Arpaio) filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Caspar, Edward) (Entered: 11/24/2014)
355 REPLY to Response to Motion re: 332 MOTION for Partial Summary Judgment (Reply to Defendant Maricopa County) filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Caspar, Edward) (Entered: 11/24/2014)
356 REPLY to Response to Motion re: 334 MOTION for Summary Judgment filed by Maricopa, County of. (Attachments: # 1 Exhibit Appendix A)(Walker, Richard) (Entered: 11/24/2014)
357 STATEMENT of Defendant Maricopa County's Supplemental Statement of Facts in Support of its Motion for Summary Judgment re: 356 Reply to Response to Motion by Defendant Maricopa, County of. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Walker, Richard) (Entered: 11/24/2014)
358 REPLY to Response to Motion re: 345 MOTION for Partial Summary Judgment filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 11/24/2014)
359 STATEMENT of Response, Controverting and Supplemental Statement of Facts in Support of Arpaio's Reply Motion for Partial Summary Judgment re: 358 Reply to Response to Motion by Defendant Joseph M Arpaio. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40)(Popolizio, Joseph) (Entered: 11/24/2014)
360 NOTICE of Attorney Withdrawal − Roger S. Owers (only) filed by Richard K Walker. (Walker, Richard) (Entered: 11/25/2014)
361 NOTICE of Errata re: 359 Statement Response, Controverting and Supplemental Statement of Facts in Support of Defendant Arpaio's Reply Motion for Partial Summary Judgment by Defendant Joseph M Arpaio.. (Popolizio, Joseph) (Entered: 11/25/2014)

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12/08/2014 12/10/2014
12/19/2014 12/22/2014
12/23/2014 12/24/2014 12/29/2014 01/23/2015 01/25/2015 01/27/2015 02/13/2015 03/13/2015 04/10/2015 04/10/2015 04/24/2015 06/10/2015
06/12/2015 06/15/2015

362 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 12/08/2014)
363 MOTION for Discovery on Recently Revealed Information by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Text of Proposed Order)(Caspar, Edward) (Entered: 12/10/2014)
364 NOTICE of Service of Discovery filed by United States of America. (Killebrew, Paul) (Entered: 12/19/2014)
365 RESPONSE in Opposition re: 363 MOTION for Discovery on Recently Revealed Information filed by Joseph M Arpaio. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Popolizio, Joseph) (Entered: 12/22/2014)
366 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 12/23/2014)
367 RESPONSE in Opposition re: 363 MOTION for Discovery on Recently Revealed Information filed by Maricopa, County of. (Attachments: # 1 Exhibit)(Walker, Richard) (Entered: 12/24/2014)
368 REPLY to Response to Motion re: 363 MOTION for Discovery on Recently Revealed Information filed by United States of America. (Caspar, Edward) (Entered: 12/29/2014)
369 ORDER denying 363 United States' Motion for Limited Discovery on recently revealed information. (See attached Order.) Signed by Senior Judge Roslyn O Silver on 1/23/2015.(TLB) (Entered: 01/23/2015)
370 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 01/25/2015)
371 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 01/27/2015)
372 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 02/13/2015)
373 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 03/13/2015)
374 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Masterson, John) (Entered: 04/10/2015)
375 STATUS REPORT Joint Status Report by Joseph M Arpaio. (Masterson, John) (Entered: 04/10/2015)
376 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Masterson, John) (Entered: 04/24/2015)
377 ORDER SETTING BENCH TRIAL: Bench Trial set for 8/10/2015 at 1:00 PM in Courtroom 604, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Roslyn O. Silver. Notices of conflict re trial date due by 6/12/2015. Joint Proposed Pretrial Order due by 7/10/2015. Motions in limine due by 7/10/2015; responses due 7/24/2015. Proposed findings of fact/conclusions of law, deposition testimony excerpts, and joint proposed trial schedule due 7/17/2015. See order for full details. Signed by Senior Judge Roslyn O. Silver on 6/10/2015. (ROS, kb) (Entered: 06/10/2015)
378 NOTICE re: Concerning Trial Date by United States of America . (Caspar, Edward) (Entered: 06/12/2015)
379 ORDER − ORDERED denying 334 Defendant Maricopa County's Motion for Summary Judgment; FURTHER ORDERED denying 345 Defendant Arpaio's Motion for Partial Summary Judgment. FURTHER ORDERED 336 Defendant Arpaio's Motion for Partial Summary Judgment, which exceeds page limits, is STRICKEN; FURTHER ORDERED granting 332 Plaintiff the United States' Motion for Partial

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06/25/2015 07/02/2015 07/10/2015 07/10/2015 07/10/2015 07/10/2015 07/13/2015 07/15/2015
07/15/2015 07/15/2015
07/16/2015 07/17/2015 07/17/2015 07/17/2015

Summary Judgment. Summary judgment is granted regarding the discriminatory traffic stop claims in Counts One, Three, and Five. See attached Order. Signed by Senior Judge Roslyn O Silver on 6/15/2015.(TLB) (Entered: 06/15/2015)
380 NOTICE of Service of Discovery filed by United States of America. (Caspar, Edward) (Entered: 06/25/2015)
381 NOTICE of Service of Discovery filed by Joseph M Arpaio. (Popolizio, Joseph) (Entered: 07/02/2015)
382 MOTION in Limine re: Untimely Witness Testimony and Disclosures by Joseph M Arpaio. (Attachments: # 1 Exhibit 1−10, # 2 Text of Proposed Order)(Masterson, John) (Entered: 07/10/2015)
383 MOTION in Limine re: untimely produced evidence by United States of America. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Cheema, Puneet) (Entered: 07/10/2015)
384 MOTION in Limine re: inadequate disclosures by United States of America. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Cheema, Puneet) (Entered: 07/10/2015)
385 MOTION in Limine re: to Exclude Plaintiff's Witnesses Not Properly Disclosed as Required by Fed. R. Civ. Pro. 26 by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) (Entered: 07/10/2015)
388 Mail Returned as Undeliverable. Mail sent to Jonathan M Smith. Reason for return: unspecified; Marked as mistakenly forwarded to FCI Marianna BOP. Document number 377. (NOTE: left message with Attorney Edward Caspar) (REW) (Entered: 07/15/2015)
386 *NOTICE of Filing − Joint Proposed Pretrial Order by United States of America. (Attachments: # 1 Appendix United States' Witness List, # 2 Appendix United States' Exhibit List, # 3 Appendix Def Arpaio Witness List, # 4 Appendix Def Arpaio Exhibit List, # 5 Appendix Cty Preliminary Witness List, # 6 Appendix Cty Preliminary Exhibit List)(Mondino, Jennifer) *Modified Trial Brief on 7/20/2015* (REW). (Entered: 07/15/2015)
387 *NOTICE of Filing − Proposed Pretrial Order filed by Joseph M Arpaio. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 Appendix E, # 6 Appendix F)(Masterson, John) *Modified on 7/20/2015; duplicate of 386 * (REW). (Entered: 07/15/2015)
389 In light of recent events, IT IS ORDERED the parties shall file a joint statement no later than 12:00 PM on July 20, 2015, setting forth what claims, if any, remain for trial. Signed by Senior Judge Roslyn O. Silver on 7/15/2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (ROS, kb) (Entered: 07/15/2015)
390 Joint MOTION for Extension of Time for Revision of Pretrial Schedule in Light of Parties' Settlement of Major Portions of Case by Maricopa, County of. (Attachments: # 1 Exhibit)(Walker, Richard) (Entered: 07/16/2015)
391 *Joint MOTION to Approve Settlement Agreement by United States of America. (Attachments: # 1 Text of Proposed Order, # 2 Appendix)(Mondino, Jennifer) *Modified to correct Motion event on 7/20/2015* (REW). (Entered: 07/17/2015)
392 NOTICE re: Stipulation to Amend Complaint by United States of America . (Mondino, Jennifer) (Entered: 07/17/2015)
393 ORDER granting the parties' 390 Joint Motion for Revision of Pretrial Schedule. Revised Joint Proposed Pretrial Order due 7/24/2015. Proposed Findings of Fact & Conclusions of Law due 7/31/2015. Excerpts of deposition testimony due 7/31/2015. Joint proposed trial schedule due 7/31/2015. Joint Status Report re motions in limine due 7/20/2015. Signed by Senior Judge Roslyn O. Silver on 7/17/2015.(ROS, kb) (Entered: 07/17/2015)

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07/20/2015 07/20/2015 07/20/2015
07/20/2015 07/21/2015 07/21/2015
07/22/2015
07/23/2015 07/23/2015 07/27/2015 07/30/2015
08/03/2015 08/24/2015 09/02/2015

394 STATEMENT of Joint Statement re Any Remaining Issues by Plaintiff United States of America. (Caspar, Edward) (Entered: 07/20/2015)
395 MOTION to Stay by United States of America. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Caspar, Edward) (Entered: 07/20/2015)
396 ORDER − As to 395 United States' Motion to Stay, ORDERED defendants file a response to the motion no later than 7/23/2015. United States shall reply no later tha 7/27/2015. FURTHER ORDERED the existing pretrial deadlines are stayed pending resolution of this motion. Signed by Senior Judge Roslyn O Silver on 7/20/2015. (TLB) (Entered: 07/20/2015)
397 NOTICE re: of Maricopa County's Position With Respect to Its Pending Motion in Limine by Maricopa, County of . (Walker, Richard) (Entered: 07/20/2015)
398 NOTICE of Attorney Withdrawal for Jonathan Smith filed by Edward G Caspar. (Caspar, Edward) (Entered: 07/21/2015)
399 ORDER re: 391 Joint MOTION to Approve Settlement Agreement filed by United States of America. IT IS ORDERED the parties shall respond to the Court, clarifying the nature of their settlement agreement and making any amendments, supplemental submissions, or withdrawals necessary in accordance with this order no later than 8/3/2015. Signed by Senior Judge Roslyn O. Silver on 7/21/2015. (ROS, kb) (Entered: 07/21/2015)
400 ORDER (TEXT−ONLY) − Pursuant to 398 Notice of Attorney Withdrawal (No Longer with Firm Only) filed by United States of America, attorney Jonathan M Smith is withdrawn and terminated. Entered by Senior Judge Roslyn O Silver on 7/22/2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TLB) (Entered: 07/22/2015)
401 RESPONSE to Motion re: 395 MOTION to Stay filed by Maricopa, County of. (Walker, Richard) (Entered: 07/23/2015)
402 RESPONSE to Motion re: 395 MOTION to Stay (Defendant Arpaio's Response to United States' Motion to Stay) filed by Joseph M Arpaio. (Masterson, John) (Entered: 07/23/2015)
403 REPLY to Response to Motion re: 395 MOTION to Stay filed by United States of America. (Caspar, Edward) (Entered: 07/27/2015)
404 ORDER, United States' motion to stay all proceedings in this action, except those relating to the Joint Motion to Approve Settlement Agreement 395 , is granted; all pretrial deadlines and the 8/10/15 trial are vacated; within 10 days of the court's ruling on the United States' Motion to Intervene in Melendres v. Arpaio, the parties are to file a joint notice in this Court, as well as a joint proposal for resolution of the case, if appropriate. Signed by Senior Judge Roslyn O Silver on 7/30/15. (REW) (Entered: 07/30/2015)
405 *Joint Supplemental Brief in Support of 391 Joint MOTION to Approve Settlement Agreement, 399 Order, Set Deadlines by United States of America. (Attachments: # 1 Proposed Order)(Killebrew, Paul) *Modified to correct event on 8/6/2015 (REK). (Entered: 08/03/2015)
406 NOTICE re: JOINT NOTICE OF INTERVENTION AND PROPOSAL FOR RESOLUTION OF THE CASE by United States of America re: 404 Order on Motion to Stay . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Killebrew, Paul) (Entered: 08/24/2015)
407 *ORDER granting 391 Joint Motion to Approve Settlement. The Settlement Agreement, attached to the parties' Joint Motion to Approve Settlement Agreement, concerning the United States' worksite operations and retaliation claims in the above captioned case hereby is approved and entered by the Court. the Clerk of Court shall dismiss the United States' remaining claims, enter final judgment in favor of the United States on Claims One, Three, and Five, and terminate the case. Pursuant to the United States representations, all injunctive relief on Claims One, Three, and Five will be pursued in Melendres v. Arpaio, No. 07−CV−2513−PHX−GMS.Signed by Senior Judge Roslyn O Silver on 9/2/15.(KGM) *Modified text on 9/3/2015 (KGM).

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09/02/2015 09/03/2015 09/30/2015 10/01/2015
10/05/2015 10/05/2015 10/07/2015 10/08/2015 10/21/2015 11/06/2015 11/06/2015
12/30/2015 12/30/2015

(Entered: 09/02/2015)
408 * Amended by (Doc. 409 )−−CLERK'S JUDGMENT − IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed September 2, 2015, the Clerk of Court shall dismiss the United States' remaining claims, enter final judgment in favor of the United States on Claims One, Three, and Five, and terminate the case. (KGM) Modified on 9/3/2015 (KGM). (Entered: 09/02/2015)
409 ** AMENDED BY 418 ** CLERK'S AMENDED JUDGMENT − IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed September 2, 2015, judgment is entered in favor of plaintiff United States on Claims One, Three, and Five. This action is hereby terminated. (KGM) Modified on 11/6/2015 (LAD). (Entered: 09/03/2015)
410 MOTION to Amend/Correct Alter or Amend, or to Correct, the Judgment by Maricopa, County of. (Attachments: # 1 Text of Proposed Order)(Walker, Richard) (Entered: 09/30/2015)
411 ORDER (TEXT−ONLY) − IT IS ORDERED no later than the 10/5/2015 the United States of America and Joseph M. Arpaio shall files responses to 410 Motion to Alter or Amend, or to Correct, the Judgment. A single reply shall be filed no later than 10/7/2015. Entered by Senior Judge Roslyn O Silver on 10/1/2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TLB) (Entered: 10/01/2015)
412 RESPONSE in Opposition re: 410 MOTION to Amend/Correct Alter or Amend, or to Correct, the Judgment filed by United States of America. (Caspar, Edward) (Entered: 10/05/2015)
413 RESPONSE to Motion re: 410 MOTION to Amend/Correct Alter or Amend, or to Correct, the Judgment filed by Joseph M Arpaio. (Masterson, John) (Entered: 10/05/2015)
414 REPLY to Response to Motion re: 410 MOTION to Amend/Correct Alter or Amend, or to Correct, the Judgment Defendant Maricopa County's Combined Reply to Plaintiff United States of America's and Defendant Sheriff Joseph M. Arpaio's Responses to the County's Motion to Alter or Amend, or to Correct, the Judgment filed by Maricopa, County of. (Walker, Richard) (Entered: 10/07/2015)
415 MOTION to Amend/Correct Order Approving Settlement Agreement by United States of America. (Attachments: # 1 Text of Proposed Order)(Caspar, Edward) (Entered: 10/08/2015)
416 NOTICE of Attorney Substitution by Cynthia Coe. (Coe, Cynthia) (Entered: 10/21/2015)
417 ORDER AMENDING JUDGMENT granting in part the 410 Motion to Amend; granting 415 Motion to Amend. (See document for further details). Signed by Senior Judge Roslyn O Silver on 11/6/15. (LAD) (Entered: 11/06/2015)
418 CLERK'S AMENDED JUDGMENT − IT IS ORDERED AND ADJUDGED that, pursuant to the Court's Order filed November 6, 2015, amended judgment is entered as follows: IT IS ORDERED AND ADJUDGED judgment is entered in favor of plaintiff United States on the portions of Counts One, Three, and Five based on the unconstitutional discrimination found in Melendres v. Arpaio, CV−07−2513−PHX−GMS (D. Ariz.). The portions of Counts One, Three, and Five not based on the unconstitutional discrimination found in Melendres v. Arpaio, CV−07−2513−PHX−GMS (D. Ariz.) are DISMISSED WITH PREJUDICE. Counts Two and Six are DISMISSED WITH PREJUDICE. (LAD) (Entered: 11/06/2015)
419 *NOTICE re: of Appeal by Maricopa, County of (Defendant). (Attachments: # 1 Exhibit)(Walker, Richard) *Modified to correct event, document re−filed on 12/30/2015 (LSP). (Entered: 12/30/2015)
420 * NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 418 Amended Clerk's Judgment, 379 Order on Motion for Summary Judgment, 407 Order, 417 Order, by Maricopa, County of. Filing fee DUE. NOTE: Additional corrective entry due to attorney selecting incorrect event for 419 Notice of Appeal. (LSP) * Modified to

Case: 2:12-cv-981 As of: 06/17/2020 12:45 PM MST 31 of 31

12/30/2015 01/04/2016 02/09/2017 02/09/2017
02/13/2017
02/20/2017 03/26/2019 05/02/2019 05/09/2019 05/14/2019

correct filer to reflect Maricopa County Only on 12/30/2015 (LAD). (Entered: 12/30/2015)
Appeal to 9th Circuit Court of Appeals Fee Received: $ 505.00 receipt number 0970−12481651. (Walker, Richard) (Entered: 12/30/2015)
421 USCA Case Number re: 420 Notice of Appeal. Case number 15−17558, Ninth Circuit. (LAD) (Distributed by the Ninth Circuit) (Entered: 01/04/2016)
422 NOTICE re: Substitution of Public Officer by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Granting Notice of Substitution of Public Officer)(Masterson, John) Modified on 2/10/2017 (REW). (Entered: 02/09/2017)
423 EX PARTE MOTION to Substitute Attorney for Sheriff Penzone by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Granting Ex Parte Application for Substitution of Consel of Sheriff Penzone)(Masterson, John) Modified on 2/10/2017 (REW). (Entered: 02/09/2017)
424 ORDER: Maricopa County Attorney William G. Montgomery, by and through Deputy County Attorney Joseph I. Vigil, is substituted in the place of Jones, Skelton & Hochuli P.L.C. attorneys William R. Jones, Jr., John T. Masterson, Joseph J. Popolizio and Justin M. Ackerman as counsel of record for Sheriff Paul Penzone only, in his official capacity as Sheriff of Maricopa County. Signed by Senior Judge Roslyn O Silver on 2/10/17.(EJA) (Entered: 02/13/2017)
425 NOTICE of Attorney Withdrawal Charles W. Jirauch filed by Richard K Walker. (Walker, Richard) (Entered: 02/20/2017)
430 MANDATE of USCA affirming, re: 15−17558 420 Notice of Appeal filed by Maricopa, County of. (Attachments: # 1 Opinion, # 2 Order)(EJA) (Entered: 02/21/2020)
427 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Richard K Walker. (Walker, Richard) (Entered: 05/02/2019)
428 MOTION Joint Motion to Terminate Settlement Agreement re: 417 Order on Motion to Amend/Correct by United States of America. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Killebrew, Paul) (Entered: 05/09/2019)
429 ORDER granting the parties' 428 Joint Motion for Termination of Settlement Agreement. Signed by Senior Judge Roslyn O Silver on 5/14/19. (CLB) (Entered: 05/14/2019)

 </s> JUSTICE NEWS

Department of Justice Office of Public Affairs

FOR IMMEDIATE RELEASE Friday, July 17, 2015
Justice Department Reaches Settlement in Civil Rights Lawsuit Against Maricopa County, Arizona, and Maricopa County Sheriff

The Department of Justice’s Civil Rights Division announced today that it has reached a partial settlement in its civil rights lawsuit against Maricopa County, Arizona, and Maricopa County Sheriff Joseph M. Arpaio. The settlement resolves the United States’ claims that the Maricopa County Sheriff’s Office (MCSO) conducted unlawful detentions of Hispanics during worksite raids of local businesses in violation of the Fourth and 14th Amendments, and retaliated against critics of Sheriff Arpaio and MCSO in violation of the First Amendment. The parties have filed a joint motion requesting that the federal district court in Arizona approve and agree to enforce the settlement agreement. The parties also reached a separate settlement resolving the United States’ claim that MCSO failed to provide adequate language access for limited English-proficient Hispanics in MCSO jails in violation of Title VI of the Civil Rights Act of 1964.

“The resolution of these claims, with the important safeguards against future constitutional violations included in these agreements, is in the best interests of the people of Maricopa County,” said Deputy Assistant Attorney General Mark Kappelhoff of the Justice Department’s Civil Rights Division. “The Maricopa County Sheriff’s Office changed many of their practices after the commencement of our litigation, and these agreements ensure that progress continues and the Constitutional rights of the people of Maricopa County will be protected for the long term.”

Under the agreements, MCSO will comply with the following measures, ensuring that its activities comport with federal law and the Constitution:

• Before MCSO may conduct any worksite raids, it must first establish a set of written policies and protocols and submit them to the Civil Rights Division for review, to ensure that the worksite raids comply with all applicable laws and constitutional protections. If MCSO conducts a worksite raid, the Civil Rights Division may request any information and documents to determine whether the operation was conducted consistently with federal law and the Constitution.

• MCSO will prohibit retaliation against individuals engaging in First Amendment protected activity, such as public criticism of Sheriff Arpaio or the MCSO.

• MCSO must ensure that limited English-proficient (LEP) Hispanic inmates in MCSO jails have adequate language access and are protected from unlawful, national origin-based discrimination. These measures include:

o Improving MCSO’s policies and practices for identifying LEP inmates;

o Ensuring that LEP inmates have adequate access to language assistance services, such as bilingual staff, telephonic interpretation services and Spanish-language translations of important written policies and postings in the jails; and

o Requiring that all vital announcements in MCSO facilities be made in both English and Spanish; and

Requiring MCSO to take reasonable steps to ensure that medical staff are informed if an inmate needing medical attention is LEP and requires language assistance.

As part of today’s agreements, if the Civil Rights Division determines that MCSO is not in substantial compliance with any provision of the agreements, it will attempt to first resolve the issue with MCSO; if the Civil Rights Division is unable to cooperatively resolve the compliance issues, however, it may bring appropriate enforcement actions before the federal district court in Arizona.

Today’s agreements resolve the majority of the claims involved in the division’s lawsuit, filed in May 2013, against Sheriff Arpaio and Maricopa County. That lawsuit alleged four patterns or practices of unconstitutional conduct: (1) discriminatory policing against Hispanic persons in MCSO’s saturation patrols, general traffic enforcement and worksite operations targeting Hispanic immigrants, (2) detentions in violation of the Fourth Amendment during MCSO’s worksite raids targeting Hispanic immigrants, (3) failures in the provision of language access to Hispanic LEP jail inmates and (4) retaliatory police action against critics of Sheriff Arpaio and MCSO. Last month, the federal district court of Arizona granted the United States’ motion for partial summary judgment on its discriminatory policing claim, finding that the United States was entitled to judgment on its claims that MCSO had engaged in discrimination against Hispanics in its enforcement of traffic laws. A remedy on that issue is still to be determined by the court. The parties are in ongoing discussions to resolve the remaining claims in the division’s lawsuit.

The agreements, as well as a description of the division’s previous investigation of and litigation against the Maricopa County Sheriff Arpaio and Maricopa County, will be available at: http://www.justice.gov/crt/about/spl/.

Maricopa Settlement Agreement and Attachment A.pdf (1.03 MB)

Maricopa Proposed Order.pdf (23.54 KB)

Maricopa Joint Motion to Approve.pdf (37.86 KB) 15-901 Civil Rights Division Civil Rights (including EEOC)
	
  

Updated July 17, 2015


[CONTENT] the Civil Rights Division | the U.S. Department of Justice | 2009 | Latinos | the Maricopa County Sheriff's Office ||| 2008 | the Sheriff's Office | March 2009 ||| The Sheriff's Office | September 2010 | Maricopa County | the Civil Rights Act | 1964 | the Sheriff's Office |||  ||| Maricopa County | June 2011 ||| 2007 | Melendres v. Arpaio | the County of Maricopa | the Maricopa County Sheriff's Office | Joe Arpaio |||  ||| 2013 | the Melendres Court | MCSO | Constitution ||| December 15, 2011 ||| the Maricopa County Sheriff's Office ||| DOJ | MSCO | Latinos | Latinos ||| DOJ | Maricopa County Jail | English ||| DOJ ||| May 10, 2012 | DOJ | 42 | 14141 | Title VI | the Civil Rights Act | 1964 | Maricopa County | the Maricopa County Sheriff's Office | the U.S. District Court | Arizona ||| DOJ | MSCO | Latino | Latinos ||| MSCO | Title VI;<li>(4 | County | English | Title VI | Title VI | Maricopa County ||| Maricopa County's | Latino | Latinos | Title VI ||| Roslyn O. Silver ||| December 12, 2012 | MCSO | MCSO ||| September 4, 2014 | Silver ||| October 27 | DOJ | Defendants | MSCO | the Equal Protection Clause of | the Fourteenth Amendment ||| DOJ | MCSO ||| 989 ||| 2d 822 | D. ||| the same day | Defendants | Title VI | 14141 | Maricopa County ||| June 15, 2015 | Silver | DOJ | Defendants ||| July 15, 2015 | Silver ||| July 17 | second | fourth | sixth | DOJ ||| MSCO ||| July 20 | DOJ | DOJ | Defendants | three years ||| Defendants | DOJ ||| September 2, 2015 | Silver ||| December 30, 2015 | Maricopa County | the U.S. Court of Appeals | the Ninth Circuit ||| the next two years ||| May 7, 2018 | Court ||| Paul J. Watford ||| U.S.C. § | 12601 |||  ||| Maricopa County ||| June 21, 2018 | Maricopa County ||| October 15, 2018 | Maricopa County | the United States Supreme Court ||| Certiorari | March 25, 2019 ||| 139 | 1373 ||| May 9, 2019 ||| May 14 [SUMMARY] This lawsuit was the result of an investigation launched by the Civil Rights Division of the U.S. Department of Justice (DOJ) in 2009 into the alleged targeting and unconstitutional treatment of Latinos by the Maricopa County Sheriff's Office. (The DOJ's initial inquiry apparently started in 2008, but the formal investigation opened with notice to the Sheriff's Office in March 2009.)

The Sheriff's Office declined to cooperate in the investigation, leading the DOJ to file a a related lawsuit in September 2010 against Maricopa County under Title VI of the Civil Rights Act of 1964, seeking to compel the Sheriff's Office to provide the requested information. See <a href="http://www.clearinghouse.net/detail.php?id=12019">PN-AZ-0002 in this Clearinghouse</a>). Maricopa County settled that lawsuit in June 2011, and agreed to cooperate.

(Also, prior to this case, in 2007, a group of plaintiffs had filed a lawsuit, Melendres v. Arpaio, against the County of Maricopa, the Maricopa County Sheriff's Office, and Sheriff Joe Arpaio. (<a href="https://www.clearinghouse.net/detail.php?id=12282">PN-AZ-0003 in this Clearinghouse</a>). In 2013, the Melendres Court found the MCSO in violation of the Constitution, and entered a permanent injunction forbidding racial profiling.) 

In this matter, DOJ released its findings letter reporting the results of the investigation on December 15, 2011. The letter reported that the Maricopa County Sheriff's Office (MCSO) was engaged in an unconstitutional pattern of policing. The DOJ found that the MSCO profiled Latinos, and unlawfully stoped, detained, and arrested Latinos. The DOJ also found that services in the Maricopa County Jail for people of limited English proficiency were insufficient or nonexistent. The DOJ found that a lack of policy to ensure constitutional policing underscored these problems. 

On May 10, 2012, the DOJ filed this lawsuit under 42 U.S.C. § 14141 and Title VI of the Civil Rights Act of 1964 against Maricopa County and the Maricopa County Sheriff's Office (MCSO) in the U.S. District Court for the District of Arizona. Specifically, the DOJ's complaint alleged that: <ul><li>(1) the MSCO's policies and practices discriminated against Latino persons;<li>(2) the MSCO targeted Latino workers while enforcing state identity theft laws, resulting in the seizure of Latinos at worksites without reasonable suspicion;<li>(3) the MSCO's discriminatory law enforcements practices violated Title VI;<li>(4) the County's jails discriminated against limited English proficiency Latino prisoners in violation of Title VI; <li>(5) the County and MSCO were violating their Title VI contractual assurances; and <li>(6) the County and MSCO retaliated against persons in Maricopa County on the basis of their protected speech.</li></ul>
The DOJ requested injunctive and declaratory relief to stop Maricopa County's alleged practice of depriving Latino persons of their constitutional rights and to stop discrimination against Latinos in violation of Title VI.

The case was assigned to Chief Judge Roslyn O. Silver. On December 12, 2012, she denied Defendants' motion to dismiss the case, but granted the motion to dismiss the MCSO from the case, ruling the MCSO was not an entity that could sue or be sued.

On September 4, 2014, after lengthy discovery, proceedings were held before Judge Silver in which both parties informed the court that they would file dispositive motions. On October 27, the DOJ filed its motion for summary judgment, arguing that the Defendants were precluded by collateral estoppel from re-litigating the issue of whether the MSCO's traffic stops constituted a violation of the Equal Protection Clause of the Fourteenth Amendment. The DOJ claimed that the issue had already been decided against the MSCO in <i>Melendres v. Arpaio</i>, where the MCSO was a defendant. 989 F. Supp. 2d 822 (D. Ariz. 2013) (<a href="http://www.clearinghouse.net/detail.php?id=12282">PN-AZ-0003 in this Clearinghouse</a>). On the same day, the Defendants made a cross-motion for summary judgment, arguing that neither Title VI nor § 14141 authorized this suit against Maricopa County. On June 15, 2015, Judge Silver granted the DOJ's motion with respect to the traffic stops and denied the Defendants' motion.

On July 15, 2015, Judge Silver ordered the parties to file a joint statement setting forth what issues remained for trial. In response, on July 17, the parties filed a joint motion to approve a settlement agreement regarding the second, fourth, and sixth claims for relief from the DOJ's complaint. The MSCO agreed to stop unconstitutionally enforcing state identity theft laws and to develop an anti-retaliation policy. On July 20, the DOJ moved to stay this action until the court in <i>Melendres</i> (<a href="http://www.clearinghouse.net/detail.php?id=12282">PN-AZ-0003 in this Clearinghouse</a>), in which the DOJ had recently intervened, found that the Defendants had maintained compliance with an injunction for three years. However, the Defendants argued this was inappropriate because when the DOJ moved to intervene in <i>Melendres</i>, it had represented that it would terminate the overlapping parts of this case if the intervention motion was granted. On September 2, 2015, Judge Silver granted the parties' joint motion to approve the settlement agreement with respect to the issues not covered by <i>Melendres</i>--worksite operations and retaliation--but otherwise dismissed the matter.  

On December 30, 2015, Maricopa County appealed this case to the U.S. Court of Appeals for the Ninth Circuit. 

Over the next two years, little happened in the case as the parties awaited a decision from the appellate court. 

On May 7, 2018, the Court issued an opinion affirming the judgment. Judge Paul J. Watford held that sheriffs act as final policymakers for their respective counties on law-enforcement matters. Moreover, U.S.C. §12601 imposed liability on a governmental authority whose own official policy caused it to engage in “a pattern or practice of conduct by law enforcement officers” that deprived persons of federally protected rights. Because sheriffs are final policymakers for their counties, the policies they adopt are, in fact, the counties' policies. For this reason, Maricopa County should be held liable for their sheriffs' acts. 

On June 21, 2018, Maricopa County filed a petition for panel rehearing and a petition for rehearing <i>en banc</i>, but the request was denied. On October 15, 2018, Maricopa County filed a petition for a <i>writ of certiorari</i> in the United States Supreme Court. Certiorari was denied on March 25, 2019. 139 S.Ct. 1373. 

The parties jointly moved to terminate the settlement on May 9, 2019. The court ordered this termination on May 14, and the case has since been closed. 