Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 1 of 142
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
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`WO
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`Manuel de Jesus Ortega Melendres, on
`behalf of himself and all others similarly
`situated; et al.
`
`
`v.
`
`Joseph M. Arpaio, in his individual and
`official capacity as Sheriff of Maricopa
`County, AZ; et al.
`
`
`Defendants.
`At issue in this lawsuit are: 1) the current policies and practices of the Maricopa
`County Sheriff’s Office (“MCSO”) by which it investigates and/or detains persons whom
`it cannot charge with a state crime but whom it believes to be in the country without
`authorization, and 2) the operations the MCSO claims a right to use in enforcing
`immigration-related state criminal and civil laws, such as the Arizona Human Smuggling
`Statute, Ariz. Rev. Stat. (“A.R.S.”) § 13-2319 (Supp. 2010), and the Arizona Employer
`Sanctions Law, A.R.S. § 23-211 et seq. (Supp. 2010). According to the position of the
`MCSO at trial, it claims the right to use the same type of saturation patrols to enforce
`state laws that it used during the time that it had authority delegated from the federal
`government to enforce civil violations of federal immigration law.
`
`During the time relevant to this lawsuit, the Immigration and Customs
`Enforcement Office of the Department of Homeland Security (“ICE”) delegated authority
`to enforce federal immigration law to a maximum of 160 MCSO deputies pursuant to
`Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g) (“the 287(g)
`program”). In the 287(g) training that ICE provided, and in other policies and procedures
`
`
`
`Plaintiffs,
`
`No. PHX-CV-07-02513-GMS
`
`FINDINGS OF FACT AND
`CONCLUSIONS OF LAW
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`Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 2 of 142
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`promulgated by the MCSO, MCSO deputies were instructed that they could consider race
`or “Mexican ancestry”1 as one factor among others in making law enforcement decisions
`during immigration enforcement operations without violating the legal requirements
`pertaining to racial bias in policing. Pursuant to its 287(g) authority, the MCSO used
`various types of saturation patrols described below in conducting immigration
`enforcement. During those patrols, especially the large-scale saturation patrols, the
`MCSO attempted to leverage its 287(g) authority by staffing such operations with
`deputies that both were and were not 287(g) certified.
`
`ICE has since revoked the MCSO’s 287(g) authority. In response, the MCSO
`trained all of its officers on immigration law, instructed them that they had the authority
`to enforce it, and promulgated a new “LEAR” policy. The MCSO continues to follow its
`LEAR policy, which requires MCSO deputies to detain persons believed to be in the
`country without authorization but whom they cannot arrest on state charges. Such persons
`are either delivered directly to ICE by the MCSO or detained until the MCSO receives a
`response from ICE as to how to deal with them. Until December 2011, the MCSO
`operated under the erroneous assumption that being an unauthorized alien in this country
`established a criminal violation of federal immigration law which the MCSO was entitled
`to enforce without 287(g) authorization. However, in the absence of additional facts,
`being within the country without authorization is not, in and of itself, a federal criminal
`offense. The LEAR policy, however, remains in force.
`
`Pursuant to this policy and the MCSO’s enforcement of state law that incorporates
`immigration elements, the MCSO continues to investigate the identity and immigration
`
`1 Historically, there is no separate racial designation for persons of Hispanic or
`Latino ancestry. Nevertheless, to the extent that such persons are separately classified for
`purposes of distinctions in their treatment by the government, courts have applied the
`strict scrutiny analysis that is reserved for racial distinctions. Johnson v. California, 543
`U.S. 499, 502 (2005); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205, 227
`(1995); U.S. v. Ochoa–Ochoa, 114 Fed. App’x 295, 296 (9th Cir. 2004).
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`Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 3 of 142
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`status of persons it encounters in certain situations. In undertaking such investigations,
`MCSO deputies continue to apply the indicators of unlawful presence (including use of
`race as one amongst other factors) they received in the 287(g) training from ICE. Further,
`in enforcing immigration-related state laws, the MCSO either continues to use, or asserts
`the right to continue to use, the same type of saturation patrols that it used when it had
`full 287(g) authority. Those saturation patrols all involved using traffic stops as a pretext
`to detect those occupants of automobiles who may be in this country without
`authorization. The MCSO asserts that ICE’s termination of its 287(g) authority does not
`affect its ability to conduct such operations because a person’s immigration status is
`relevant to determining whether the Arizona state crime of human smuggling—or
`possibly the violation of other state laws related to immigration—are occurring.
`
`Plaintiffs challenge these policies and practices. The Court certified a Plaintiff
`class of “[a]ll Latino persons who, since January 2007, have been or will be in the future
`stopped, detained, questioned or searched by MCSO agents while driving or sitting in a
`vehicle on a public roadway or parking area in Maricopa County Arizona.” Ortega-
`Melendres v. Arpaio, 836 F. Supp. 2d 959, 992 (D. Ariz. 2011) (internal quotation marks
`omitted). The issues in this lawsuit are: (1) whether, and to what extent, the Fourth
`Amendment permits the MCSO to question, investigate, and/or detain Latino occupants
`of motor vehicles it suspects of being in the country without authorization when it has no
`basis to bring state charges against such persons; (2) whether the MCSO uses race as a
`factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race
`as a factor in forming either reasonable suspicion or probable cause to detain a person for
`being present without authorization; (3) whether the MCSO uses race as a factor, and if
`so, to what extent it is permissible under the equal protection clause of the Fourteenth
`Amendment to use race as a factor in making law enforcement decisions that affect
`Latino occupants of motor vehicles in Maricopa County; (4) whether the MCSO prolongs
`traffic stops to investigate the status of vehicle occupants beyond the time permitted by
`the Fourth Amendment; and (5) whether being in this country without authorization
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`Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 4 of 142
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`provides sufficient reasonable suspicion or probable cause under the Fourth Amendment
`that a person is violating or conspiring to violate Arizona law related to immigration
`status.
`
`As is set forth below, in light of ICE’s cancellation of the MCSO’s 287(g)
`authority, the MCSO has no authority to detain people based only on reasonable
`suspicion, or probable cause, without more, that such persons are in this country without
`authorization. The MCSO lost authority to enforce the civil administrative aspects of
`federal immigration law upon revocation of its 287(g) authority. And, in the absence of
`additional facts that would provide reasonable suspicion that a person committed a
`federal criminal offense either in entering or staying in this country, it is not a violation of
`federal criminal law to be in this country without authorization in and of itself. Thus, the
`MCSO’s LEAR policy that requires a deputy (1) to detain persons she or he believes only
`to be in the country without authorization, (2) to contact MCSO supervisors, and then (3)
`to await contact with ICE pending a determination how to proceed, results in an
`unreasonable seizure under the Fourth Amendment to the Constitution.
`
`Further, in determining whom it will detain and/or investigate, both with respect to
`its LEAR policy, and in its enforcement of immigration-related state law, the MCSO
`continues to take into account a suspect’s Latino identity as one factor in evaluating those
`persons whom it encounters. In Maricopa County, as the MCSO acknowledged and
`stipulated prior to trial, Latino ancestry is not a factor on which it can rely in arriving at
`reasonable suspicion or forming probable cause that a person is in the United States
`without authorization. Thus, to the extent it uses race as a factor in arriving at reasonable
`suspicion or forming probable cause to stop or investigate persons of Latino ancestry for
`being in the country without authorization, it violates the Fourth Amendment. In addition,
`it violates the Plaintiff class’s right to equal protection under the Fourteenth Amendment
`to the Constitution and Title VI of the Civil Rights Act of 1964.
`
` Moreover, at least some MCSO officers, as a matter of practice, investigate the
`identities of all occupants of a vehicle when a stop is made, even without individualized
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`reasonable suspicion. Further, MCSO policy and practice allow its officers to consider
`the race of a vehicle’s occupants in determining whether they have reasonable suspicion
`to investigate the occupants for violations of state laws related to immigration, or to
`enforce the LEAR policy. In some instances these policies result in prolonging the traffic
`stop beyond the time necessary to resolve the issue that initially justified the stop. When
`the deputies have no adequate reasonable suspicion that the individual occupants of a
`vehicle are engaging in criminal conduct to justify prolonging the stop to investigate the
`existence of such a crime, the extension of the stop violates the Fourth Amendment’s
`prohibition against unreasonable seizures.
`
`Finally, the knowledge that a person is in the country without authorization does
`not, without more, provide sufficient reasonable suspicion that a person has violated
`Arizona criminal laws relating to immigration, such as the Arizona Human Smuggling
`Act, to justify a Terry stop for purposes of investigative detention. To the extent the
`MCSO is authorized to investigate violations of the Arizona Employer Sanctions law,
`that law does not provide criminal sanctions against either employers or employees. A
`statute that provides only civil sanctions is not a sufficient basis on which the MCSO can
`arrest or conduct Terry stops of either employers or employees.
`
`For the reasons set forth above, Plaintiffs are entitled to injunctive relief to protect
`them from usurpation of rights guaranteed under the United States Constitution.
`Therefore, in the absence of further facts that would give rise to reasonable suspicion or
`probable cause that a violation of either federal criminal law or applicable state law is
`occurring, the MCSO is enjoined from (1) enforcing its LEAR policy, (2) using Hispanic
`ancestry or race as any factor in making law enforcement decisions pertaining to whether
`a person is authorized to be in the country, and (3) unconstitutionally lengthening stops.
`The evidence introduced at trial establishes that, in the past, the MCSO has aggressively
`protected its right to engage in immigration and immigration–related enforcement
`operations even when it had no accurate legal basis for doing so. Such policies have
`apparently resulted in the violation of this court’s own preliminary injunction entered in
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`Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 6 of 142
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`this action in December 2011. The Court will therefore, upon further consideration and
`after consultation with the parties, order additional steps that may be necessary to
`effectuate the merited relief.
`
`FINDINGS OF FACT
`
`I.
`
`
`General Background
`A. Maricopa County
`According to the trial evidence, approximately 31.8% of the residents of Maricopa
`County are Hispanic or Latino.2 (Tr. at 157:21–158:4.)3 As even the testimony of
`Defendant’s expert demonstrated, the considerable majority of those residents are legal
`residents of Maricopa County and of the United States.4 (Id. at 1301:14.) Due to the large
`
`2 Cf. United States Census, State & County QuickFacts, Maricopa County,
`Arizona, http://quickfacts.census.gov/qfd/states/04/04013.html (last visited May 21,
`2013) (reporting 30.0% of the population as of Hispanic or Latino origin). The
`Defendant’s expert placed the Hispanic population at 30.2% for the relevant period. Ex.
`402 at 3. Throughout this litigation, both parties have used the term “Hispanic” and
`“Latino” interchangeably. A recent study by the Pew Hispanic Center found that “a new
`nationwide survey of Hispanic adults finds that these terms [“Hispanic” and “Latino”]
`still haven’t been fully embraced by Hispanics themselves.” Paul Taylor et al., Pew
`Hispanic Center, When Labels Don’t Fit: Hispanics and their Views of Identity 2 (2012).
`The Court will principally use the term Hispanic because most of the testimony and
`evidence presented at the trial on this matter used the term Hispanic rather than Latino.
`Still, where the evidence principally uses the term “Latino,” the Court will likewise use
`“Latino.” Both words are used interchangeably in this Order.
`
`3 “Tr.” refers to the continually paginated trial transcript.
`
`4 At trial, Defendants’ expert Dr. Steven Camarota noted that his estimate as to the
`percentage of the Arizona population not legally present within the United States had
`been cited by the United States Supreme Court in Arizona v. United States, ___ U.S. ___,
`___, 132 S. Ct. 2492, 2500 (2012). In that study Dr. Camarota concluded that 8.9% of the
`population of the state of Arizona was made up of unauthorized immigrants. See
`Camarota & Vaughan, Center for immigration Studies, Immigration and Crime:
`Assessing a Conflicted Situation 16 (2009). During his trial testimony, Dr. Camarota
`testified that he assumed that his state-wide estimate would also apply to Maricopa
`County. His trial testimony was consistent with the figure cited in Arizona as he noted
`that he assumed that approximately one in three Hispanic residents of Maricopa County
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`number of authorized residents of Maricopa County who are Latino, the fact that
`someone is Latino in Maricopa County does not present a likelihood that such a person is
`here without authorization.
`Nevertheless, it is also true that the overwhelming majority of the unauthorized
`aliens in Maricopa County are Hispanic. As Defendant’s expert report notes, the Pew
`Hispanic Center estimates that 94% of illegal immigrants in Arizona are from Mexico
`alone.5 (Ex. 402 at 14.)
`
`As trial testimony further demonstrated, MCSO officers believe that unauthorized
`aliens are Mexicans, Hispanics, or Latinos. (Tr. at 359:11–14, 991:23–992:4.) As
`Defendants acknowledged at the summary judgment stage and in their post-trial briefing,
`many MCSO officers—as well as Sheriff Arpaio—testified at their depositions that most
`of the unauthorized immigrants they have observed in Maricopa County are originally
`from Mexico or Central or South America.6 (Doc. 453 at 150, 151 ¶¶ 28–30, 36.)
`B.
`The MCSO
`The MCSO is a law enforcement agency operating within the confines of
`Maricopa County. (Doc. 530 at 4 ¶ 1.) It employs over 800 deputies. (Id. ¶ 17.) Sheriff
`Joseph Arpaio serves as the head of the MCSO and has final authority over all of the
`
`was here without authorization. (Tr. at 1301:9–11.) In Arizona, however, the Supreme
`Court also cited a study of the Pew Hispanic Center that determined that 6% of the state’s
`population was unauthorized. 132 S. Ct. at 2500. Nevertheless, if Dr. Camarota’s
`testimony is applied, and one assumes that virtually all of the unauthorized residents in
`the state are of Latino ancestry, about 73% of the Latino residents of Maricopa County
`are legal residents of the United States. If the Pew Hispanic Center’s estimates are
`applied, and the same assumptions are made, about 81% of the Latino residents of
`Maricopa County are legal residents. In either case, a great majority of the Latino
`residents of Maricopa County are authorized to be in the United States.
`
`5 “Ex.” denotes the number of the exhibit admitted at trial.
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`6 “Doc.” denotes the number at which the document can be found on the Court’s
`docket.
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`agency’s decisions. (Id. ¶ 18.) He sets the overall direction and policy for the MCSO. The
`MCSO is composed of multiple bureaus, including the detention bureau, the patrol
`bureau, and the patrol resources bureau. (Id. ¶ 19.)
`
`The Sheriff of Maricopa County is elected, thus the Sheriff has to be responsive to
`his constituents if he desires to remain in office. In the words of the MCSO’s Chief of
`Enforcement Brian Sands, Sheriff Arpaio is a political person, who receives significant
`popular support for his policies. (Tr. at 808:14–809:12.) A chief element of Sheriff
`Arpaio’s popular support is his prioritization of immigration enforcement. (Id.) The
`MCSO receives federal funding and federal financial assistance. (Doc. 530 at 4 ¶¶ 173–
`74.)
`
`Prioritization of Immigration Enforcement and the ICE Memorandum
`C.
`In 2006, the MCSO created a specialized unit—the Human Smuggling Unit
`(“HSU”)—to enforce a 2005 human smuggling law, A.R.S. § 13-2319 (2007). (Doc. 530
`at 4 ¶¶ 27–28.) The HSU is a division within the patrol resources bureau and makes up a
`part of the larger Illegal Immigration Interdiction Unit (the “Triple I” or “III”). (Id. ¶¶
`27–29.) The HSU unit consisted of just two deputies when it was created in April of
`2006. (Id. ¶ 44.)
`In 2006, the Sheriff decided to make immigration enforcement a priority for the
`MCSO. In early 2007, the MCSO and ICE entered into a Memorandum of Agreement
`(“MOA”) pursuant to which MCSO could enforce federal immigration law under certain
`circumstances. (Id. ¶ 40.) After the MOA was signed, the HSU grew. By September of
`2007 it consisted of two sergeants, 12 deputies, and four detention officers, all under the
`leadership of a lieutenant. (Id. ¶ 44.) In September 2007, Lieutenant Sousa assumed
`command of the HSU. (Tr. at 988:13–14.) He remained in charge of the unit and later the
`Division including the unit, until April 1, 2012. (Tr. at 988:12–23.) He reported to Chief
`David Trombi, who is the commander of the Patrol Resources Bureau. (Doc. 530 at 1, ¶
`33.) Chief Trombi reported to Chief of Enforcement Brian Sands. (Id. ¶ 31.) For most of
`the period relevant to this lawsuit, Chief Sands reported to Deputy Chief David
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`Hendershott, who reported directly to Sheriff Arpaio. (Id. ¶¶ 21, 23.)
`Sergeant Madrid was one of the two supervising sergeants from the founding of
`HSU until he was transferred in February 2011. (Id. at 1131:19–25.) Sergeant Palmer was
`the other HSU supervising sergeant. He joined the HSU in April of 2008, apparently
`succeeding Sergeant Ryan Baranyos. He remained as a supervising sergeant until May of
`2012. (Id. at 661:20–21.) According to the testimony of Sgts. Madrid and Palmer, each of
`them supervised their own squad of deputies and also cross-supervised the other’s squad.
`(Id. at 663:23–25.)
`The MOA permitted up to 160 qualified MCSO officers to enforce administrative
`aspects of federal immigration law under the 287(g) program.7 (Ex. 290.) It required
`MCSO deputies that were to be certified for field operations to complete a five-week
`training program. (Id.) Witnesses who took the training program testified that the topic of
`race in making decisions related to immigration enforcement covered an hour or two of
`the five-week course. (Tr. at 948:8–20, 1387:23–1388:7.)
` All or virtually all of the deputies assigned to the HSU became 287(g)-trained and
`certified. A number of other MCSO deputies did as well. The MCSO generically
`designated all non-HSU officers who were certified under 287(g) as members of the
`Community Action Team or “CAT.” According to an MCSO policy memo “CAT refers
`to all 287g trained deputies who are not assigned to HSU.” (Ex. 90 at MCSO 001887–
`88.) Members of the HSU, CAT and MCSO detention officers who were 287(g) certified
`constituted the Triple I Strike Team. (Id.)
`Nevertheless, according to ICE Special Agent Alonzo Pena, under the MOA,
`287(g) certified officers could not use their federal enforcement authority to stop persons
`or vehicles based only on a suspicion that the driver or a passenger was not legally
`
`7 The 160 maximum persons included both deputies trained for field enforcement
`and the MCSO personnel who worked “solely in a correctional facility or ICE detention
`facility.” (Ex. 290.)
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`present in the United States. (Tr. at 1811:15–16, 1854:8–11, 1856:15–23.) Rather, the
`287(g) power was appropriately used as adjunct authority when Sheriff’s deputies made
`an otherwise legitimate stop to enforce provisions of state law. (Id.) Special Agent Pena
`further testified that he “would definitely be concerned if traffic stops were being used as
`pretext” to investigate immigration violations. (Id. at 1859:17–22.)
`Still, nothing in the text of the MOA prohibits the MCSO from making pre-textual
`traffic stops in order to investigate the immigration status of the driver of a vehicle. The
`MCSO Triple I Strike Team Protocols, however, did specify that before investigating a
`person’s immigration status, a 287(g)-trained deputy “must have probable cause or
`reasonable suspicion” to stop a person for violation of “state criminal law and civil
`statutes.” (Ex. 92 at MCSO 001888.) As the testimony at trial also established, MCSO
`deputies are generally able, in a short amount of time, to establish a basis to stop any
`vehicle that they wish for some form of Arizona traffic violation. (Tr. at 1541:8–11
`(Armendariz: “You could not go down the street without seeing a moving violation.”),
`1579:20–23 (“Armendariz: [I]t’s not very difficult to find a traffic violation when you’re
`looking for one.”); see also Doc. 530 at ¶ 86 (“Deputy Rangel testified that it is possible
`to develop probable cause to stop just about any vehicle after following it for two
`minutes.”).)
`The necessity of having a state law basis for the stop prior to engaging in
`immigration enforcement did not appear in MCSO news releases. At the February 2007
`press conference announcing the partnership between MCSO and ICE, Sheriff Arpaio
`described the MCSO’s enforcement authority in the presence of ICE officials as
`unconstrained by the requirement that MCSO first have a basis to pursue state law
`violations. He stated: “Actually, . . . , ours is an operation, whether it’s the state law or
`the federal, to go after illegals, not the crime first, that they happen to be illegals. My
`program, my philosophy is a pure program. You go after illegals. I’m not afraid to say
`that. And you go after them and you lock them up.” (Tr. at 332:19–25; Ex. 410d.)
`/ / /
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`Upon completion of the first 287(g) training course for deputies in March 2007,
`Sheriff Arpaio described the duties of CAT certified patrol deputies in a news release as
`“arresting suspects even solely for the crime of being an illegal alien, if they are
`discovered during the normal course of the deputies’ duties.” (Ex. 184.) In July 2007, in
`describing the MCSO as “quickly becoming a full-fledged anti-illegal immigration
`agency” he also announced that MCSO had created a dedicated hotline for citizens to
`“use to report illegal aliens” to the MCSO. (Ex. 328.) In this same news release, the
`Sheriff further announced a policy that when his deputies stopped any vehicle for
`suspicion of human smuggling, the immigration status of all of the occupants of the
`vehicle would be investigated. (Id.)
`D. MCSO’s Immigration Enforcement Operations
`In approximately July of 2007, at the same time it implemented its illegal
`immigrant hotline, the MCSO also announced that the HSU would begin conducting
`“saturation patrols,” in which MCSO officers would conduct traffic enforcement
`operations with the purpose of detecting unauthorized aliens during the course of normal
`traffic stops. (Tr. at 1136:7–9.) There were several different types of traffic saturation
`patrols, including day labor operations, small-scale saturation patrols, and large-scale
`saturation patrols. HSU deputies sometimes recruited other deputies and MCSO posse
`members to assist in day labor and small-scale saturation patrols. Other deputies were
`always a part of large-scale saturation patrols. There is no evidence that all deputies
`participating in such patrols from other units were 287(g) certified. All of these saturation
`patrols were supervised by the HSU command structure, and HSU deputies conducted, or
`at least participated in, all of the saturation patrols at issue in this lawsuit.
`1.
`Day Labor Operations
`In a typical day labor operation, undercover HSU officers would station
`themselves at locations where Latino day laborers assembled and identify vehicles that
`would pick up such day laborers. Once a vehicle was identified, the undercover officers
`notified patrol units that were waiting in the area. (Id. at 242:7–23; Exs. 123, 126, 129,
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`Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 12 of 142
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`131.) The patrol units located the vehicle, followed it, and “establish[ed] probable cause
`for a traffic stop.” (Id.) Once the MCSO deputy had stopped the vehicle, HSU deputies
`would proceed to the scene to investigate the immigration status of any passengers. (Tr.
`at 242:24–244:6.) The patrol officer would either issue a traffic citation or give the driver
`a warning, while the HSU deputies would investigate the immigration status of the
`passengers and detain them if there was a basis to do so.
`Day labor operations took place on: (1) September 27, 2007, at the Church of the
`Good Shepherd of the Hills in Cave Creek, (2) October 4, 2007, in Queen Creek, (3)
`October 15, 2007, in the area of 32nd Street and Thomas (“Pruitt’s Furniture Store”) in
`Phoenix, and (4) October 22, 2007, in Fountain Hills. (Exs. 123, 126, 129, 131.)
`According to the arrest reports of the four day labor operations, all of the 35
`arrests were for federal civil immigration violations, and the arrestees were turned over to
`ICE for processing. (Id.) None of the 35 persons were arrested for violating state laws or
`municipal ordinances. (Id.) Further, they were all passengers in the vehicle, not drivers.
`(Id.) Thus, their identity and immigration status were investigated during the course of a
`stop based on the driver’s violation of traffic laws, even when that stop resulted in the
`driver only receiving a warning. The MCSO made 14 total traffic stops, 11 of which
`resulted in the 35 arrests. (Id.) Thus, only three of the 14 stops did not result in
`immigration arrests, all of those coming from the Fountain Hills operation. (Id.)
`None of the arrest reports of these operations contains any description of anything
`done by the passengers once the vehicle was stopped that would create reasonable
`suspicion that the passengers were in the country without authorization. The stops were
`made purely on the observation of the undercover officers that the vehicles had picked up
`Hispanic day laborers from sites where Latino day laborers were known to gather. It was
`the nature of the operation that once the stop had been made, the HSU officers proceeded
`to the scene to conduct an investigation of the Latino day laborer passengers.
`The two news releases that covered the day labor operations communicated that
`the operations were designed to enforce immigration laws, (“Starting at 4:00 am this
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`Case 2:07-cv-02513-GMS Document 579 Filed 05/24/13 Page 13 of 142
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`morning, September 27, 2007, Sheriff’s deputies began cracking down on illegal
`immigration in Cave Creek”), and were directed at day laborers whom the MCSO
`perceived as coming from Mexico (quoting Sheriff Arpaio to the effect that “[a]s far as I
`am concerned the only sanctuary for illegal aliens is in Mexico”). (Exs. 307–08.) They
`further encouraged citizens to report day labor locations to the MCSO as part of its illegal
`immigration enforcement operations. (Id.)
`2.
`Small-Scale Saturation Patrols
`There was testimony and evidence introduced at trial concerning 25 patrols that
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`were described as saturation patrols but were neither explicitly identified as day labor
`operations nor as one of the 13 large-scale saturation patrols whose arrest reports were
`admitted at trial. During 15 of the 25 small-scale saturation patrols, all of the persons
`arrested were unauthorized aliens.8 During six of the patrols, the great majority of all
`persons arrested were unauthorized aliens.9 During four of these patrols, the MCSO made
`very few total arrests and of that number only a few of the arrests or no arrests were of
`unauthorized aliens.10
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`8 The 2007 patrols in which all persons arrested were unauthorized aliens occurred
`on October 30 (ten of ten arrests), November 7 (eight of eight arrests), November 15
`(nine of nine arrests), November 21 (12 of 12 arrests), November 29 (nine of nine
`arrests), December 1 (eight of eight arrests), December 5 (13 of 13 arrests), December 14
`(26 of 26 arrests), and December 22 (two of two arrests). (Exs. 80, 81, 114, 120.) The
`2008 patrols in which all persons arrested were unauthorized aliens occurred on January
`4 (six of six arrests), January 5 (four of four arrests), January 31 (two separate patrols)
`(six of six arrests), February 4 (three of three arrests), and September 4 (11 of 11 arrests).
`(Exs. 112, 114.)
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`9 The 2007 patrols in which the great majority of all persons arrested were
`unauthorized aliens occurred on December 8 (16 of 17 arrests), and December 10 (five of
`eight arrests). (Ex. 114.) The 2008 patrols in which the great majority of all persons
`arrested were unauthorized aliens occurred on February 29, (eight of 11 arrests), May 6–7
`(14 of 18 arrests), July 8 (18 of 19 arrests), and August 19 (12 of 16 arrests). (Exs. 108,
`117, 119.)
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`10 The 2008 patrols in which no arrests were made of unauthorized aliens occurred
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`The small-scale saturation patrols seem to be divis