Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Manuel de Jesus Ortega Melendres, on
`behalf of himself and all others similarly
`situated; et al.
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`Plaintiffs,
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`No. CV-07-2513-PHX-GMS
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`ORDER
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`and
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`United States of America,
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`v.
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`Paul Penzone, in his official capacity as
`Sheriff of Maricopa County, Arizona; et al.
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`Plaintiff-Intervenor,
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`Defendants.
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`Pending before the Court is Sheriff Paul Penzone’s (“Defendant”) Motion to Modify
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`Paragraph 244 of Second Order, (Doc. 2674.) For the following reasons, the Court denies
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`the Motion.
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`BACKGROUND
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`After twenty-one days of evidentiary hearings in 2015, this Court entered a
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`comprehensive injunction (“Second Order”) to remedy the Maricopa County Sheriff’s
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`Office’s (“MCSO”) continued manipulation of “all aspects of the internal affairs process.”
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`(Doc. 1765 at 2.) In the injunction, the MCSO was ordered to “ensure that the MCSO’s
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`complaint form does not contain any language that could reasonably be construed as
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`discouraging the filing of a complaint, such as warnings about the potential criminal
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`Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 2 of 7
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`consequences for filing false complaints.” (Doc. 1765 at 40.)
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`On July 9, 2021, Arizona Governor Doug Ducey signed House Bill 2550 into law.
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`The new law states,
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`38-1117. Peace officer complaint; mandatory notice
`Before a law enforcement agency accepts a complaint made against a peace
`officer, the law enforcement agency must provide the person making the
`complaint with the following notice:
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`Pursuant to section 13-2907.01, Arizona Revised Statutes, it is a class 1
`misdemeanor to knowingly make to a law enforcement agency a false,
`fraudulent or unfounded report or statement or to knowingly misrepresent a
`fact for the purpose of interfering with the orderly operation of a law
`enforcement agency or misleading a peace officer.
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`Ariz. Rev. Stat. § 38-1117. Defendant has thus asked the Court to modify the injunction
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`to allow compliance with state law.
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`DISCUSSION
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`“[O]therwise valid state laws or court orders cannot stand in the way of a federal
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`court’s remedial scheme if the action is essential to enforce the scheme.” Stone v. City &
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`Cnty. of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992). Therefore, if “the [i]njunction
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`is found necessary to remedy a constitutional violation,” it may supersede conflicting state
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`law. Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010). However, that the
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`injunction “was put in place to remedy claimed constitutional violations” is not enough to
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`establish necessity. Id. Instead, the procedures used must have been “required to remedy
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`the violation.” Id.
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`In this case, the Court developed a comprehensive remedial scheme to address the
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`“egregious and extraordinary” constitutional violations occurring at the MCSO. (Doc.
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`1765 at 2.) In its Order, the Court noted that the scope of MCSO’s “constitutional violation
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`[was] broad” and “permeate[d] the internal affairs investigatory process.” (Doc. 1765 at
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`11.) One of the many purposes of the injunction, therefore, was to ensure a constitutionally
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`adequate internal investigation process for officer misconduct. With that in mind, the
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`ultimate issue in the instant Motion is whether Paragraph 244 is necessary to facilitate a
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`Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 3 of 7
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`constitutionally adequate internal investigation process. It does.
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`Creating a non-intimidating complaint intake process is essential to having a
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`constitutionally adequate internal investigation process. If potential complainants are
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`intimidated or threatened during the complaint process, they may be deterred from filing a
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`complaint or be less likely to report misconduct in the future. Intimidation undermines the
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`integrity of any internal investigation process because it may prevent a complaint from ever
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`being made. Although Defendant contends that informing potential complainants of the
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`consequences of making a false report does not amount to intimidation, the Court is not
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`persuaded, and, precisely to avoid such potential intimidation, placed the requirement in
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`its Order in the first place. The notice required by HB 2550 informs complainants of
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`criminal liability for complaints that are “false, fraudulent[,] or unfounded.” As Plaintiff
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`points out, “unfounded” is one of the four possible outcomes of an MCSO complaint
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`investigation, (Doc. 1765 at 30–31), the integrity of which was the basis of the Second
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`Order. Complainants who may doubt the integrity of the process—not an unreasonable
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`view, considering the MCSO’s history—may further be deterred from filing a complaint
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`out of fear that it will wrongly be deemed “unfounded.” Therefore, Paragraph 244 is
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`essential to having a constitutionally adequate investigative process.
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`This Court’s holding is consistent with the Ninth Circuit cases that have addressed
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`the precise problem at issue here: whether an injunction should be modified to
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`accommodate a change in state law. In each case, the court considered a number of factors
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`to determine whether an injunctive requirement was necessary to remedy a constitutional
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`violation. These factors were (1) whether there was a history of noncompliance;
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`(2) whether a less intrusive alternative was available; (3) whether the court made specific
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`findings of the inadequacy of alternatives; (4) whether the court made an express
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`determination that the procedure was necessary to remedy constitutional violations; and
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`(5) whether the state law violated constitutional rights.1 See Stone, 968 F.2d at 863–64;
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`1 No party contends that the state law violates federal law. However, the law is clear that
`even if the state law does not violate federal law, the injunction may still be upheld if it is
`necessary to remedy a constitutional violation. Hook v. Ariz. Dep’t of Corr., 107 F.3d
`1397, 1402 (9th Cir. 1997).
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`Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 4 of 7
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`Valdivia, 599 F.3d at 995; Stone (968 F.2d 850); Hook v. Ariz. Dep’t of Corr., 107 F.3d
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`1397, 1402–03 (9th Cir. 1997).
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`First, there is a clear history of noncompliance in this case: it was the basis for the
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`Second Order. The Court found that Defendant “conceal[ed] additional past mistreatment
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`of the Plaintiff class . . . in order to avoid responsibility for it.” (Doc. 1765 at 6.) In fact,
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`Defendant violated discovery orders and failed to disclose evidence, which inhibited the
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`Court’s ability to “fashion[ ] the appropriate injunctive relief” in the first place. (Doc. 1765
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`at 7.) Therefore, there is a history of noncompliance. This factor weighs for necessity.
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`Second, the Court explicitly found that “previously fashioned less intrusive
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`remedies . . . were not effective due to Defendants’ deliberate failures and manipulations.”
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`(Doc. 1765 at 10.) Thus, no less intrusive alternative was available, and the Court made
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`specific findings as to their inadequacy. This factor weighs for necessity.
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`Finally, although the Court did not make an express determination as to Paragraph
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`244, it did explain the necessity for its far-reaching changes to the MCSO’s internal
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`investigative process:
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`[T]he Court orders remedies which are necessary to cure the MCSO’s
`constitutional violations, in light of the MCSO’s history of noncompliance.
`To the extent that the Court orders reforms of the MCSO’s policies and
`practices, these reforms are necessary “to insure against the risk of
`inadequate compliance” because absent such reforms, there is no way to
`determine whether policies or practices that insulated those who violated the
`constitutional rights of the Plaintiff class from investigation and discipline
`would continue to do so. Further, the reforms are aimed at eliminating a
`condition that flows from the MCSO’s violation of the constitutional rights
`at issue—namely, the tacit authorization and condonation that the MCSO
`conveys to its deputies when police misconduct related to members of the
`Plaintiff class is exempted from the normal internal affairs system and is
`treated with special leniency or is entirely swept under the rug.
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`(Doc. 1765 at 5) (emphasis added) (citations omitted) (quoting Sharp v. Weston, 233 F.3d
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`1166, 1173 (9th Cir. 2000)). Paragraph 244 ensures that potential complainants can call
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`attention to police misconduct without fear of intimidation, which is necessary to facilitate
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`a constitutionally adequate internal investigations process. If complainants are too afraid
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`Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 5 of 7
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`to come forward, constitutional violations against the Plaintiff class can and likely will
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`continue. This factor, along with the others, demonstrates the need for Paragraph 244 in
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`this case.
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`Valdivia and Stone are not contrary to the Court’s decision.2 In Valdivia, the Ninth
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`Circuit noted that “[t]here [was] no indication anywhere in the record that these particular
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`procedures [were] necessary for the assurance of due process rights.” 599 F.3d at 995.
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`Instead, the district court had merely accepted an agreement between the parties as to the
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`appropriate remedy.3 Id. That did not happen here. To the contrary, the Court made
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`explicit findings that the remedies were “necessary to cure the MCSO’s constitutional
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`violations, in light of the MCSO’s history of noncompliance” and noted that “[s]o long as
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`individuals within the MCSO can disobey the Court’s orders with impunity, the rights of
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`the Plaintiff class are not secure.” (Doc. 1765 at 5.) Without a proper check on MCSO’s
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`internal investigations process, there is no guarantee that Plaintiffs’ rights will be protected.
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`Paragraph 244 is a necessary check on MCSO’s internal investigations because it ensures
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`that complaints will not be deterred from filing legitimate complaints out of fear of criminal
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`prosecution. Therefore, Valdivia does not govern this case.
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`Stone also does not compel a different conclusion. There, the Ninth Circuit found
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`that because “the district court did not make any findings that other alternatives were
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`inadequate,” it “should have waited until the threat of sanctions failed to induce compliance
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`before authorizing the state-law-override provisions.” Stone, 968 F.2d at 864. In fact, the
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`Ninth Circuit noted that “[i]f the threat of contempt sanctions proves ineffective and if the
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`2 The Court does not find the parties’ references to Clark v. Coye, 60 F.3d 600 (9th Cir.
`1995), persuasive. Clark dealt exclusively with an independent ground for upholding a
`federal injunction over a conflicting state law: whether the state law conflicts with federal
`law. Id. at 604–05 (“The district court’s issuance of its injunctive order prohibiting the
`implementation of [state law], without first making a judicial determination that [state law]
`violates federal constitutional or statutory law, clearly constituted an abuse of discretion.”
`(emphasis added)). Clark does not speak to whether an injunctive requirement is
`“necessary to remedy a constitutional violation,” which the Court considers here. Valdivia,
`599 F.3d at 995. No party has argued that § 1117 violates federal law, and Clarke,
`therefore, is inapplicable.
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` “[I]n this case I never found any of the things that now everybody is concerned about . . .
`What I found was that the parties had agreed to get rid of this lawsuit.” Valdivia, 559 F.3d
`at 995 (emphasis added) (quoting the district court).
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`Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 6 of 7
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`district court finds that other alternatives are inadequate, the court could consider . . .
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`overrid[ing] certain provisions of state law to assure compliance.” Id. The Court has done
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`just that. In the Second Order, the Court explicitly found that “less intrusive remedies . . .
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`were not effective,” (Doc. 1765 at 10), and considered the MCSO’s history of
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`noncompliance with even the less intrusive remedies in the First Order. Specifically, the
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`Court emphasized that even after the Court allowed the MCSO “to investigate and
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`discipline . . . misconduct and to disclose newfound evidence,” Defendant and MCSO
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`“continued to intentionally withhold relevant evidence” and manipulated “the internal
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`affairs process to minimize or entirely avoid imposing discipline” on the officers at issue.
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`(Doc. 1675 at 2.) Unlike Stone, then, the MCSO was given a prior opportunity to comply
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`with lesser intrusive alternatives and failed to do so. Therefore, because the Court made a
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`specific finding of the inadequacy of alternatives, Stone does not govern this case.
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`CONCLUSON
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`Although the Court recognizes that denying Defendant’s Motion will create a
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`conflict with state law, comity interests must fade when “federal constitutional rights have
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`been traduced.” Stone, 968 F.2d at 860 (quoting Duran v. Carruthers, 678 F. Supp. 839,
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`847 (D.N.M. 1988)). The MCSO has repeatedly violated this Court’s orders and the
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`constitutional rights of the Plaintiff class. The Second Order has been in place for six years
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`and is integral to ensuring that Maricopa County can operate a Sheriff’s Office in which
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`constitutional rights are protected for all. Paragraph 244 facilitates a transparent and open
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`internal investigations process that will rebuild faith in the MCSO’s handling of police
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`misconduct. Without it, “the rights of the Plaintiff class are not secure.” (Doc. 1765 at 5.)
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`Therefore, the Court finds that Paragraph 244 is necessary to remedy a constitutional
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`violation and denies Defendant’s Motion to Modify.
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`Case 2:07-cv-02513-GMS Document 2708 Filed 09/29/21 Page 7 of 7
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`IT IS THEREFORE ORDERED that Defendant’s Motion to Modify Paragraph
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`244 of Second Order (Doc. 2674) is DENIED.
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`Dated this 29th day of September, 2021.
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