Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 1 of 14
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`WO
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`No. CV-07-2513-PHX-GMS
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`ORDER RE VICTIM
`COMPENSATION
`
`Plaintiffs,
`
`
`
`
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`Manuel de Jesus Ortega Melendres, on
`behalf of himself and all others similarly
`situated; et al.
`
`
`and
`
`United States of America,
`
`
`Plaintiff-Intervenor,
`
`
`v.
`
`Joseph M. Arpaio, in his official capacity as
`Sheriff of Maricopa County, Arizona; et al.
`
`Defendants.
`
`
`
`Pending before the Court is the Parties’ Joint Notice of Stipulated Judgment for
`the Victim Compensation Plan (Doc. 1747).
` Both parties acknowledge
`that
`compensation to the victims of a contempt falls within the legitimate scope of a civil
`contempt proceeding. Nevertheless, at the outset of the contempt hearings, the Court
`expressed concern that to the extent that damages were different than compensation,
`damages might be more appropriately pursued in a class action pursuant to 42 U.S.C.
`§ 1983.
`
`Perhaps as a result, the parties entered negotiations to determine an appropriate
`alternative procedure by which victims might achieve compensation. In other words,
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 2 of 14
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`victims would have the right to opt to participate in the compensation procedure or,
`alternatively assert their rights in a separate § 1983 action or otherwise.
`
`The Joint Notice indicates both the substantial matters on which the parties have
`reached agreement as to victims’ compensation as well as the few remaining areas on
`which they were unable to reach agreement. In light of their extensive negotiated
`agreement, the Joint Notice also set forth the separate issues pertaining to the
`compensation plan on which each desired to preserve appellate rights. The parties also
`set forth separate forms of the compensation plan, each incorporating their proposals
`where they could not otherwise agree.1 They then asked the Court to rule on the
`provisions of their plan upon which they could not agree in light of the Court’s earlier
`guidance on the questions.
`
`
`The principle topic on which the parties could not reach agreement was over the
`rate of compensation to be paid for wrongful incarceration under their compensation
`plan—with Plaintiffs and Defendants recommending different rates. At a hearing, the
`Court expressed that Plaintiffs had not set forth a sufficient evidentiary basis on which it
`could enter an order resolving this disagreement. In a supplemental response, Plaintiffs
`suggest that the notice be modified to inform potential participants of their right to apply
`to either the Court or the Plan Administrator for individualized or representative damage
`hearings to achieve their compensation. They also agreed to a cap of $10,000 for the
`duration aspect of the compensation resulting from the detention, without that cap
`affecting a claimant’s ability to receive other damages arising from his or her detention.
`In response, the County while otherwise objecting to the Plaintiff’s proposals, accepted
`the $10,000 cap.
`
`While the Court wishes to provide a reasonable compensation plan for victim
`claimants, it cannot conclude that it now has an evidentiary basis to resolve the dispute.
`Further, the rate offered by the County, (with the increased compensation cap for
`
`1 These provisions were supplemented by Defendants’ notice of errata. (Doc. 1749), and
`apparently by the parties’ other supplemental briefing. (Docs. 1772, 1784).
`
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 3 of 14
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`detention of $10,000 agreed to by the parties in the supplemental briefing) may not be an
`unreasonable rate for victims who wish to claim it rather than going through the
`necessary dislocations offered by a regular or class action lawsuit. The method suggested
`by Plaintiffs is akin to multiple separate claims for damages. The Court declines to take
`it up, but will enter a compensation order that will provide a method for victims who
`wish to pursue it to achieve substantial compensation for the Sheriff’s contempts
`consistent with the matters agreed to by all parties. The Plaintiffs also request that the
`Court enter judgment jointly and severally against the individual non-party contemnors.
`Nevertheless Plaintiffs provide insufficient legal authority for such a step. Sheriff Arpaio
`is a defendant in his official capacity only. None of the other non-party contemnors are
`even a party. Even assuming the Court had the authority to make its judgment against
`Sheriff Arpaio in his official capacity applicable to him and the others in their personal
`capacities; it would seem to provide only a symbolic benefit at best. As a practical matter
`most if not all of the individual contemnors would be unable to shoulder the expense
`involved even of notice, let alone payment, of the compensation amounts. Where the
`County is a willing participant to provide for compensation, payment is guaranteed here
`for those who opt in to the payment procedure. It is therefore ordered that:
`I.
`Third-Party, Neutral Claims Administrator
`
`A.
`
`B.
`
`BrownGreer is designated to serve as a neutral, third-party administrator to
`manage the Notice and Claims Processing Plan to compensate individuals
`who suffered injury as a result of any violations by the MCSO of the
`Court’s December 23, 2011 Preliminary Injunction Order.
`
`BrownGreer’s fees will be paid by Defendants at rates specified in the price
`list attached to both parties’ proposals in Doc. 1747.
`
`II.
`
`
`Eligibility
`
`A.
`
`Participation in this scheme for victim compensation is voluntary and is
`intended as an alternative for eligible individuals to any other means
`available for obtaining relief for injuries resulting from alleged violations of
`the Court’s Preliminary Injunction. Claimants who submit claims and are
`determined to be eligible to participate in the plan must waive and
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 4 of 14
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`B.
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`extinguish any right they might otherwise have to obtain relief for the same
`conduct through any other avenue. The rights of any individual who does
`not participate in the compensation plan will not be affected.
`
`Individuals who have submitted a claim regarding the same conduct in
`another forum and received a determination, or those who have a pending
`claim in another forum, are not eligible to participate in this program. If the
`individual has a pending claim in another forum, he or she must withdraw
`such a claim in order to participate in this alternative compensation scheme.
`As with all other individuals who choose to seek remedies through this
`compensation scheme, those who withdraw a claim pending in another
`forum in order to submit an application under this scheme will be required
`to waive and extinguish any right they might otherwise have to obtain relief
`for the same conduct through any other avenue.
`
`C.
`
`Compensation under this program will be available to those asserting that
`their constitutional rights were violated as a result of detention by MCSO in
`violation of the Court’s Preliminary Injunction from December 23, 2011 to
`May 24, 2013.
`
`
`
`D.
`
`Individuals detained in violation of the Court’s Preliminary Injunction will
`be eligible for compensation, including in any operation in which MCSO
`detained persons when they had no basis to do so under state law and
`transported them somewhere in a motor vehicle in Maricopa County.
`III. Compensation Fund
`
`
`
`The Board of Supervisors will create a fund of $500,000 for payment of claims
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`adjudicated in favor of claimants. In the event that amount is exhausted through the
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`payment of claims and is insufficient to provide compensation to all successful claimants,
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`additional claims adjudicated in favor of claimants will be honored and timely paid by the
`
`County through further allocations if necessary. If all claims adjudicated in favor of
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`claimants are fully paid out and there remains an unspent sum in the original or any
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`supplemental allocated funds, such amount will revert to the County.
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 5 of 14
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`IV. Notice Plan
`
`A.
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`B.
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`C.
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`D.
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`E.
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`BrownGreer will be provided with a budget of $200,000 to spend on notice
`and outreach to potentially eligible individuals about the availability of
`compensation. BrownGreer will utilize its expertise to determine how
`monies allocated for notice can most effectively be employed to maximize
`the likelihood that potential claimants will be reached.
`
`The notice plan may include use of radio, digital/online and print
`advertising, earned media placements, and partnership with non-
`governmental organizations and embassies. It should target individuals in
`at least Maricopa County, along the U.S./Mexico Border and in Mexico.
`Notice will be provided in English and Spanish, with a heavy focus on
`Spanish-language media and sites.
`
`BrownGreer will consult with the Parties in the development of the notice
`plan and the text of any notices, press releases or scripts developed. The
`cost for any such services will be paid out of the notice budget provided for
`in IV.A. above.
`
`BrownGreer will develop a claim website for the case, a toll-free phone
`number and an email account, to provide information about how to make a
`claim. The cost for any such services will be paid out of the notice budget
`provided for in IV.A. above.
`
`Individual notice will be provided to any individuals identified by the
`Parties as potentially eligible for compensation for whom a current address
`can be found, i.e., through commercially available database services, and
`other methods. All costs for such services will be paid out of the notice
`budget provided for in IV.A above.
`
`V.
`
`Claims Adjudication Plan
`
`A.
`
`B.
`
`C.
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`Claims must be initiated within 365 days from the first issuance of program
`notice by BrownGreer through any public media outlet (which will also be
`the date when BrownGreer will be ready to begin receiving applications).
`
`BrownGreer will be provided a sum of $75,000 in start-up fees to
`implement the claims processing program.
`
`All materials must be available in English and Spanish, and any other
`languages as needed. Language should be calculated to be understandable
`to individuals who will be making claims.
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 6 of 14
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`D.
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`E.
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`F.
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`In all cases, it is claimant’s burden to establish their entitlement to
`compensation by a preponderance of the evidence. BrownGreer will be
`responsible for evaluating the credibility and competency of evidence and
`witnesses, and determining the appropriate weight to be assigned to
`evidence adduced.
`
`The Parties recognize that available documentation and testimony may
`already establish a case that some individuals were subject to violations of
`the Preliminary Injunction. Thus, a multi-step and multi-track system
`ensures that the burden on claimants for whom such uncontested evidence
`exists is reduced and the resources committed to this program are used
`efficiently.
`
`Claim Initiation Form. Claimants will first be required to complete a
`claim initiation form. This form would ask for the following basic
`information:
`
`1.
`
`2.
`
`3.
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`4.
`
`Contact information: current address and phone number where
`individual can be reached
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`Identity information: name, name provided to MCSO (if different),
`DOB and reliable proof of identity
`
`Details of encounter: date in the applicable time period or 30-day
`date range if precise date is unknown, type of encounter (traffic stop,
`other), and names, address and telephone number of others in
`vehicle (if known)
`
`Approximate length of detention by MCSO. (In cases involving
`transfer to ICE/CBP, claimant to provide length of detention up until
`release to ICE/CBP custody)
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`5. Whether claimant will request compensation for additional harms
`listed in Section V.J.6.a below (using check boxes)
`
`6.
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`7.
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`The form will be signed under oath. Claimants will also sign an
`acknowledgement and agreement that participation in this program,
`extinguishes all other rights they may have to pursue claims against
`Defendants based upon the same conduct by MCSO
`
`their
`to
`The form will provide claimants with notice as
`confidentiality rights under the program, including any exceptions to
`confidentiality, e.g., what and with whom information may be shared
`and for what purpose
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 7 of 14
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`8.
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`The form will also state that claimants are responsible for any tax
`reporting responsibilities that arise out of receiving compensation
`through this mechanism
`
`G.
`
`Track Determination. Within 21 days after a Claim Initiation Form is
`filed, BrownGreer will make a determination as to whether the claimant
`meets the eligibility requirements for participation in the program and, if
`so, what Track (A or B) his or her claim will fall under. BrownGreer will
`send any claimants determined not to be eligible for the program a Notice
`of Ineligibility, and a follow-up form to eligible claimants and information
`as appropriate.
`
`1.
`
`2.
`
`Counsel for the Parties will agree in advance on the list of
`prequalified candidates and provide these names and related
`information to BrownGreer.
`
`If BrownGreer determines, based on the information in the claim
`initiation form, that the person is not eligible to participate in the
`program, e.g., because s/he was detained outside the eligible period
`or the conduct complained of is outside the scope of this case, then
`BrownGreer will inform the individual in writing of his/her
`ineligibility for participation in this program and that no rights that
`the individual may have to pursue relief through other avenues have
`been extinguished.
`
`H.
`
`Track A. These individuals are “prequalified” to receive compensation and
`will be awarded the minimum amount as set forth in Section VI.A, unless
`they are requesting compensation for additional harms. The information
`provided in the Claim Initiation Form will be deemed to have met these
`claimants’ burden, except as to any claim for any harm(s) other than for the
`detention itself. Individuals whose claims would otherwise be assigned to
`Track A, but who are seeking compensation for any such additional harm(s)
`shall be assigned to Track B.
`
`1.
`
`Prequalified claimants include any person identified in HSU
`spreadsheets as not arrested or detained on suspicion of conduct in
`violation of state criminal law, and transferred to ICE/CBP, in the
`applicable time period, as well as any other individuals that counsel
`for Parties can agree appear to have been subject to violations of the
`Preliminary Injunction based on available documentation, including
`MCSO incident reports, CAD data and records from the U.S.
`Department of Homeland Security (DHS).
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 8 of 14
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`2.
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`those prequalified
`BrownGreer will process claims for only
`claimants who complete and submit a Claim Initiation Form.
`
`I.
`
`Track B. All individuals who do not fit into Track A will be placed in
`Track B. These individuals must submit additional claim forms and any
`supporting documentation necessary to gather the information in Section
`V.J below.
`
`1.
`
`Claimants will be provided with contact information for Plaintiffs’
`counsel, and informed they may retain other counsel if they desire.
`
`J.
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`Burden of Proof for Individuals in Track B.
`
`1.
`
`2.
`
`BrownGreer must be persuaded that a claimant has shown an
`entitlement to some portion or all of the compensation claimed with
`credible and competent evidence, including that s/he was detained in
`violation of the Preliminary Injunction, the length of the detention,
`and the fact, nature, and extent of any additional compensable injury.
`A claimant’s statement, made under oath, shall be considered
`admissible evidence.
`
`Establishing a prima facie case of a preliminary injunction
`violation. In order to establish eligibility for compensation because
`the claimant was detained in violation of the Preliminary Injunction
`in the relevant date range and shift the burden to the MCSO to rebut
`the claimant’s prima facie case, the claimant must provide the
`following information under oath:
`
`a. Identity information: name, name provided to MCSO (if
`different), DOB and reliable proof of identity
`
`b. Details of encounter: date (or 30-day date range if precise date is
`unknown), type of encounter (traffic stop, other)
`
`c. Approximate location of encounter with officer(s) (e.g., Highway
`89, approximately 3 miles north of Fountain Hills)
`
`d. Reason given by MCSO officer(s) for detention (if any)
`
`e. Evidence
`that MCSO suspected unlawful presence, e.g.,
`questioning about immigration status, ICE/CBP inquiry or turned
`over to ICE/CBP, including details about what happened, e.g., if
`ICE/CBP came to site of detention or MCSO transferred claimant
`to ICE/CBP
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 9 of 14
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`f. Approximate length of detention by MCSO (in cases involving
`transfer to ICE/CBP, claimant to provide length of detention up
`until release to ICE/CBP custody)
`
`g. Whether claimant was arrested
`
`h. Testimony or other evidence that the detaining agency s/he
`encountered was MCSO (e.g., presence of an MCSO marked
`patrol vehicle, description of the uniform officer was wearing,
`etc.)
`
`3.
`
`Additional buttressing information for Track B claimants (helpful,
`not required, but may be considered in weighing PFC elements to
`determine whether the required elements have been established)
`
`a. Name/badge number of MCSO officer(s) initiating encounter
`
`b. Physical description of MCSO officer(s) present at the encounter
`
`c. If encounter was initiated as a traffic stop, the name of the driver
`and/or owner of the vehicle stopped, license plate number of
`vehicle stopped, and/or description of vehicle (e.g., blue 1999
`Chevrolet van)
`
`d. Any documentation pertaining to encounter with MCSO officers
`and/or the claimant’s detention
`
`e. Identification documentation that was provided to MCSO at the
`time of the encounter, if it still exists
`
`f. Sworn statements of witnesses to the events described by
`claimant
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`4.
`
`If a claim form is returned to BrownGreer and appears incomplete,
`BrownGreer will return the form to the claimant with instructions to
`correct the deficiency and return the form within 30 days of receipt.
`If the form remains incomplete at that point, BrownGreer will
`evaluate it “as is.”
`
`5. MCSO’s Burden to Rebut PFC for Track B Claimants
`
`a. If claimant meets the PFC threshold, MCSO may come forward
`with credible, competent evidence that casts doubt on one or
`more elements of the claim within 60 days of receiving access to
`a complete file from BrownGreer. Should MCSO require
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 10 of 14
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`additional time, it may make an application to BrownGreer to
`have an additional 60 days (up to 120 days total), which
`BrownGreer will grant provided it is for a reasonable cause (i.e.,
`high volume of claims).
`
`b. Examples of evidence that can satisfy MCSO’s burden to come
`forward with rebuttal evidence include:
`
`i. Attestation that MCSO has no record of the encounter alleged
`by claimant in cases where the MCSO would otherwise have
`such records
`
`ii. Testimonial, sworn statements or other evidence
`encounter alleged by claimant did not occur
`
`that
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`iii. Documentation showing that claimant’s encounter with
`MCSO officers was, in some significant way, other than as
`represented by claimant
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` iv. Testimonial or other evidence that the length of detention was
`not as represented by claimant
`
`c. In any cases where MCSO opts to rebut a case, notice and a copy
`of what MCSO submits will be provided to the claimant if he or
`she is not represented by counsel, or any counsel who has entered
`an appearance and is representing the claimant with respect to his
`or her claim. Claimants and, where applicable, his or her counsel
`will have 60 days to respond, but may request an extension of 60
`additional days (up to 120 days total), which BrownGreer will
`grant provided it is for a reasonable reason.
`
`6.
`
`Establishing eligibility for compensation for additional injury
`
`a. BrownGreer will consider evidence of the following additional
`injuries in determining the final award amount:
`
`i. Damages arising out of physical harm and/or severe
`emotional distress that was proximately caused by the
`detention, including, but not limited to –
`
`1. Ongoing physical harm that occurred as a result of
`detention and pain and suffering, if any, arising
`directly out of the physical injury sustained by the
`claimant
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 11 of 14
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`2. Medical bills paid or other out of pocket costs that
`arose as a result of physical/emotional harm caused by
`detention
`
`3. Severe emotional distress that occurred as a result of
`detention and associated costs, if the claimant can
`establish by credible and competent evidence physical
`manifestation and the need for treatment (i.e., claimant
`suffered shock or mental anguish manifested by a
`physical injury)
`
`ii. Lost Property - value of property confiscated and expenses
`incurred as a result of the confiscation and in trying to get
`it back
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`1. Car impounded - loss of time / money in getting car
`back
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`2. Money taken
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`3. Credit/debit cards taken
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`4. Identification taken - loss of time/money in getting
`legitimate and
`lawful
`identification
`returned or
`replaced
`(not
`including driver’s
`licenses seized
`because suspended)
`
`5. Other items
`
`iii. Detention by ICE/CBP is $35 for each segment of 20
`minutes. Without affecting a claimant’s ability to receive
`other damages arising from his or her detention, a claimant
`may not receive more than $10,000 as compensation for
`the duration of the detention.
`
`iv. Lost wages, foregone employment opportunities or loss of
`job
`
`1. Dollar amount of wages lost as a result of being
`detained
`(must
`be
`supported
`by
`pertinent
`documentation, e.g., pay stubs from pre-detention
`employment)
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 12 of 14
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`2. Other costs associated with lost job, e.g., days spent
`trying to find new job for which claimant can show he
`or she was legally eligible
`
`v. Other provable harms
`
`1. E.g., if claimant personally incurred and paid legal
`fees, or lost housing/had to find other housing as a
`result of detention and associated expenses
`
`b. The absence of documentation of out of pocket costs will not
`automatically disqualify an individual from receiving compensation
`for that injury if there is a reasonable explanation for the absence
`and alternative corroborating evidence, such as affidavits from
`individuals with direct personal knowledge about the relevant issue
`(such as treating medical providers) other than the claimant.
`
`c. A Social Security number (or other government identification
`number) will be requested of all claimants to process a claim for
`compensation to permit BrownGreer to ensure claim integrity.
`Claim forms shall state prominently that a Social Security number is
`not required in order to receive compensation; however, if a person
`who has a Social Security Number or Resident Alien Number is
`requesting compensation for out of pocket medical expenses, that
`number must be reported to receive that part of the compensation
`claim. Government identification numbers will be excised from all
`documents provided to the parties, except in cases where the
`individual is claiming compensation for out of pocket medical
`expenses. In such a case, a government identification number will
`be provided.
`
`d. BrownGreer will be responsible for determining whether any tax
`documentation is required to be issued in conjunction with paying
`out claims, and be responsible for issuing such document that may
`be necessary for Maricopa County as the payor (i.e., 1099s, W2s).
`
`7.
`
`Interviewing Track B claimants and other witnesses
`
`a. Either claimant or MCSO may demand the right to have
`BrownGreer question witnesses in any case in which the
`credibility and/or bias of one or more witnesses may be in issue.
`Either party may, but is not required to, submit questions to be
`asked of the witness(es) in such interviews. Both parties and
`Plaintiffs’ class counsel may be present at such interviews.
`
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 13 of 14
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`
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`Claimant will be given notice if he or she or their witness are to
`be interviewed, and may be represented by Plaintiffs’ counsel or
`their own representative. For witnesses not in Maricopa County,
`efforts will be made to accommodate their interview, such as
`interviews by Skype or other video conference technology.
`
`b. Interviews will be limited to 30 minutes, and both parties may
`submit questions to BrownGreer to ask, although BrownGreer
`has the authority to ask additional questions to enable them to
`determine the veracity of the claims.
`
`VI. Minimum Compensation for Detention
`
`A.
`
`Claimants will be awarded a base amount of $500 for detention lasting up
`to one hour, if the individual is detained past 20 minutes. Claimants will be
`awarded an additional base amount of $35 for each additional 20 minute
`segment of detention thereafter (or any portion thereof). Without affecting
`a claimant’s ability to receive other damages arising from his or her
`detention, a claimant may not receive more than $10,000 as compensation
`for the duration of the detention.
`
`B.
`
`These base amounts are in addition to any compensation that BrownGreer
`may award for additional injury under Section V.J.6.a.
`
`VII. No Appeal. Any party has the ability to request reconsideration of BrownGreer’s
`
`decision by BrownGreer, but otherwise has no right of appeal.
`
`VIII. Award Disbursement. Defendants will set up an account to which BrownGreer
`
`will have access for the purpose of paying out claims adjudicated in favor of
`
`claimants, with at least monthly accounting to the County showing all
`
`disbursements made.
`
`IX. Confidentiality. A protective order shall be sought to maintain the confidentiality
`
`of personally identifying information of claimants and other individuals mentioned
`
`in or who submit evidence in support of claimants’ applications, as well as
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`confidential documents from the U.S. Department of Homeland Security (DHS)
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`Case 2:07-cv-02513-GMS Document 1791 Filed 08/19/16 Page 14 of 14
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`and its components. Other information, such as the claim amounts will not be
`
`subject to a protective order.
`
`X.
`
`Program Reporting. BrownGreer will create an online reporting portal where the
`
`parties can access claim tracking and processing information, including processing
`
`times, and create downloadable reports. BrownGreer will also be available to
`
`directly provide any reports to the Court, if necessary, at no additional cost, other
`
`than reasonable travel expenditures.
`
`XI. Attorneys’ Fees. If claimant successfully pursues compensation through the use
`
`of an attorney on a Track B claim, that attorney will be entitled to fees, not to
`
`exceed $750, and not more than the amount the claim award, so long as an MCSO
`
`attorney participated in the claims process. MCSO will be considered to have
`
`used an attorney in the claims process if it files an objection or otherwise
`
`participates in the claims process and: (1) an attorney representing MCSO makes
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`an appearance before BrownGreer; or (2) indicates on the objection/response form
`
`to BrownGreer that it used an attorney.
`
`IT IS SO ORDERED.
`
`Dated this 19th day of August, 2016.
`
`
`
`Honorable G. Murray Snow
`United States District Judge
`
`
`
`
`
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