Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 1 of 17
`
`
`
`WO
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`
`
`IT IS HEREBY ORDERED setting a Status Conference for March 24, 2014 at
`9:00 a.m. in Courtroom 602, Sandra Day O’Connor U.S. Federal Courthouse, 401 W.
`Washington St., Phoenix, Arizona 85003-2151. Counsel for all parties are required to
`attend, as are Sheriff Arpaio and Chief Deputy Sheriff Sheridan. All counsel, Sheriff
`Arpaio, and Chief Deputy Sheridan were previously notified last Monday of the date and
`time of this hearing and their required attendance. At the hearing the parties will address
`the matters set forth in some detail below.
`The hearing arises from the Monitor’s early evaluation of some materials provided
`by the parties. These materials concern the actions of the parties taken between the entry
`of the Court’s Order on October 2, 2013 (“Injunction”) (Doc. 606) and the Monitor’s
`appointment on January 17, 2014. The Monitor has considered various concerns
`expressed by the parties and made a recommendation to the Court that it take early
`
`
`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.
`
`
`No. CV-07-2513-PHX-GMS
`
`ORDER
`
`
`Plaintiffs,
`
`Defendants.
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 2 of 17
`
`
`
`corrective action to avoid the perpetuation of patterns of conduct that may not be in good
`faith compliance with the Court’s Injunction. These matters include: (1) some matters
`that were the subject of training conducted prior to MCSO’s Significant Operation in
`October 2013; and, (2) MCSO’s appointment of the Community Liaison Officer required
`by the Injunction. The Court also has concerns about and wishes to discuss: (3) the
`adequacy of the notice, times, locations, and facilities of the community meetings
`required by the Injunction and conducted by the MCSO; (4) matters concerning Monitor
`staff access to MCSO personnel, facilities, and information; (5) revisions of some of the
`dates in the Order; and, (6) the parties’ requests concerning the Court’s publication of the
`two orders at issue here.
`In making the determination of the matters on which this hearing would be
`noticed, the Court was made aware of other concerns raised by the Plaintiffs, such as the
`timing of the MCSO’s October Special Operation. The Court, however, notes that the
`MCSO remains entitled to great deference in its reasons for, and timing of, Significant
`Operations, so long as they do not violate the terms of this Court’s Injunction in holding
`such operations. Although the MCSO did schedule the operation between the time that
`the Injunction was issued and a Monitor was appointed, it nevertheless took reasonable
`steps to comply with the Injunction in contemporaneously documenting that operation. It
`is, in fact, from that documentation that a number of the significant issues scheduled for
`this hearing arise.
`
`BACKGROUND
`Some background will assist in clarifying the matters to be discussed at the
`
`hearing. In May 2013, this Court issued its detailed Findings of Fact and Conclusions of
`Law (“Findings and Conclusions”) (Doc. 579) determining and setting forth in detail how
`and why the Defendants engaged in a number of separate violations of the constitutional
`rights of the Plaintiff class.
`
`At a status conference in June, both parties indicated that, rather than having the
`Court enter an injunction without their input, they wanted to attempt to negotiate the
`
`- 2 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 3 of 17
`
`
`
`terms of a mutually satisfactory consent decree. (Doc. 586 at 6–8, 18–21.) They were
`granted considerable time in which to negotiate such an agreement. Although the parties
`were unable to reach agreement on all issues, they were, by their own account, “able to
`reach agreement on a substantial number of terms.” (Doc. 592 at 4:8–10.) They submitted
`a Proposed Consent Order to the Court, illustrating their areas of agreement and
`disagreement. (Doc. 592-1.) The areas of substantial agreement included, among other
`things: establishing a MCSO Implementation Unit and performing an internal agency-
`wide assessment (Id. at 11–12), the implementation of specific policies, procedures and
`training to ensure constitutional policing and to comply with the Order (Id. at 13–32), the
`documentation of traffic stops and the nature of other specifically identified data to be
`collected to ensure that the MCSO was complying with the terms of the Court’s
`Injunction (Id. at 33–40), the video-monitoring of all MCSO stops, and procedures for the
`adequate supervision and evaluation of officer performance, including the creation,
`implementation and supervisory use of an early identification system (Id. at 40–51) to
`alert supervisors of possibly unacceptable deputy conduct together with periodic
`evaluation sessions.
`
`The principal areas of disagreement included whether a monitor should be
`appointed to implement the terms of the Order to which the parties had otherwise agreed,
`whether or not the Court would require the MCSO to establish and implement more
`effective internal complaint intake processing, and whether a community advisory board
`should be appointed, and, if so, the extent of that Board’s authority. (Doc. 592 at 4–10.)
`There was also some disagreement as to the operational details and requirements the
`Court would impose even as to those topics on which the parties had reached conceptual
`agreement. For the most part, this Court adopted the “substantial number of terms” to
`which the parties had both agreed. The Court found that the parties had engaged in a
`good faith effort to come up with the proposed order, and thus the parties’ Proposed
`Consent Order (Doc. 592-1) formed the basis and provided the exact language for the
`
`- 3 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 4 of 17
`
`
`
`great majority of this Court’s Order, though at times the proposed order’s provisions were
`re-arranged for organizational clarity.
`
`As to the areas of disagreement, the Court accepted briefs from the parties and
`held a Status Conference on those topics. (Docs. 593, 603.) One of those areas arose from
`the Court’s determination that the MCSO used pre-textual stops of vehicles whose
`occupants were persons of Hispanic ancestry and then prolonged those stops to
`investigate the identity of such persons, including vehicle passengers, based merely on
`the deputy’s belief, without more, that such persons were in the country without
`authorization. In light of those findings, Plaintiffs urged the Court to prohibit MCSO
`personnel during the effective term of the Injunction from making any inquiries of
`passengers of the vehicles it stopped. The Plaintiffs further requested the Court to require
`MCSO personnel to record their perception of the ethnicity of a vehicle’s occupants for
`each stop.
`While the Court recognized the need to effectively monitor the MCSO to prevent
`its selection of a vehicle for pre-textual stop based on the ethnicity of its occupants, it
`declined to prohibit the MCSO from questioning the occupants of a vehicle once stopped.
`Rather, the Court required the MCSO in the initial radio call that preceded a traffic stop
`to briefly state the original purpose of the stop, or to otherwise record the original
`purpose of the stop, before the stop was executed. It further required that the officers
`participating in the stop record their perception of the ethnicity of the occupants in a
`vehicle. Together this information would provide sufficient information to monitor
`MCSO’s compliance with
`the Order, and determine whether
`it continued
`to
`disproportionately stop vehicles with Hispanic occupants, without preventing MCSO
`officers from questioning the occupants of any vehicle.
`
`The Court decided the other remaining issues on which there was disagreement
`based on the Court’s previous rulings, the parties’ briefings, and the information
`presented at the status conference on August 30, 2013. Specifically, the Court did decide
`
`- 4 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 5 of 17
`
`
`
`to appoint a Monitor but it did not require everything the Plaintiffs proposed in terms of
`changes in discipline and the responsibilities and scope of the Community Advisory
`Board.
`
`Two weeks after the Injunction, Defendants chose to conduct a Significant
`Operation. Defendants filed a protocol with the Court after part of the operation had
`already begun and only one day before the major portion started. (Docs. 609, 615 at 5.)
`As part of this operation, the Defendants held a training session and the Court has
`received a video recording of that training. This, and a number of the other events and
`actions by Defendant, occurred after the entry of the Injunction but before the
`appointment of the Monitor.
`A.
`The Training Held Before the Significant Operation in October 2013
`
`In the training given by Chief Deputy Sheridan and Sheriff Arpaio to the deputies
`that were participating in the Significant Operation on October 18, 2013: (1) Chief
`Deputy Sheridan summarized the Court’s Findings of Fact and Conclusions of Law in
`Melendres and indicated that the Injunction is “absurd” and “ludicrous.” (2) He provided
`specific instruction to those participating in the Significant Operation as to how to
`approach the obligation to record their impression of the race of the person stopped
`during traffic stops. To the extent that the content of Chief Deputy Sheridan’s training is
`at issue, it will be available for reference at the hearing (in total the training that concerns
`the Court takes about fifteen minutes).
`
`In his training Chief Deputy Sheridan summarizes this Court’s Findings of Fact
`and Conclusions of Law which lead to the Injunction as follows.
`
`
`With the Melendres case, Judge Snow did not say that we
`were racist. He did not find that the Maricopa County
`Sheriff’s Office was racist. What Judge Snow found was that
`three deputy sheriffs used the ICE training that they received
`by the federal government in determining the alienage of
`some individuals; to determine whether they were here
`legally or not. He found that that was unconstitutional. He
`found that we detained Hispanic drivers fourteen seconds
`
`- 5 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 6 of 17
`
`
`
`longer than non-Hispanic drivers. So, therefore, he found that
`we violated the Fourth and Fourteenth Amendment with those
`two things. That’s why we’re here today. And we have the
`same--this judge put the same constraints on us that a federal
`judge did with the City of New Orleans Police Department.
`And their police officers were murdering people. That tells
`you how ludicrous this crap is.
`Chief Deputy Sheridan then briefly observed that the Injunction was nevertheless
`
`the law, which the MCSO was obliged to implement, but that the MCSO was appealing
`the ruling. He offered his prediction, based on his apparently unfavorable view of the
`Ninth Circuit, that the Ninth Circuit would not only uphold the ruling but commend the
`District Court. He then stated that Defendants would be appealing to the Supreme Court
`
`
`because it is not just my opinion, and the Sherriff’s opinion,
`but every lawyer that I’ve talked to that it is Judge Snow that
`violated the United States Constitution. It’s Judge Snow that
`violated the Tenth Amendment. The Federal Government
`does not have the authority to do what he did.
`Also, at the same training, Chief Deputy Sheridan presented a new form that had
`
`been created to comply with the data collection requirements of the Injunction.
`According to the form, deputies are required to record their perception of the race and
`ethnicity of all of the vehicles occupants both before and after every stop they make.1
`During the training on how to complete this form Chief Deputy Sheridan indicated that
`determining ethnicity would be hard to do without asking and he said that he felt it was
`“absurd” for the deputies to be asked to guess. He then asked for the door to be closed
`
`1 Plaintiffs have correctly objected that this double recording is not required by the
`Injunction. Defendants’ explanation to the Monitor that the Injunction obliges them to
`record their subjective impressions of the vehicle occupants ethnicity both before and
`after any stop is simply incorrect. The Injunction does require that Deputies record their
`subjective perception of the “race, ethnicity and gender of the driver and any passengers”
`but does not require them to do so both before and after a stop. The Court recognizes that
`the Sheriff may, on his own authority, require his deputies to collect such additional
`information as he may deem useful, even if it is not required by the Injunction. He has
`apparently done so. Any attempt to characterize this additional and supplemental
`information as required by the Injunction, however, is simply incorrect.
`
`- 6 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 7 of 17
`
`
`
`because did not want the media to hear what he had to say. After the door closed he said
`they were “safe,” but he then noted the camera in the room. He then emphasized that
`perceiving the ethnicity before the stop would be particularly hard to do. He emphasized
`that there might be reasons that someone might not be able to ascertain the racial identity
`of occupants of a stopped vehicle and he offered several reasons why they might find it
`impractical. In doing so, it appears to the Court that he was suggesting to the deputies that
`they were not obliged to use their best reasonable efforts to comply with the Court’s
`order.
`
`Immediately after Chief Deputy Sheridan’s remarks, Sheriff Arpaio spoke. He
`apparently ratified Chief Deputy Sheridan’s comments by saying, “What the Chief
`Deputy said is what I’ve been saying.” Sheriff Arpaio went on to say, “We don’t racially
`profile. I don’t care what everybody says. We’re just doing our job. We had the authority
`to arrest illegal aliens under the federal programs.” As noted, these comments were given
`as part of a formal training meeting.
`1.
`Chief Deputy Sheridan’s Incorrect and Misleading Description of The
`Court’s Findings, Conclusions and Injunction.
`It is imperative that the personnel of the MCSO obtain an accurate understanding
`
`as to why their past policies, practices, and procedures are unconstitutional. As the Court
`observed in its findings, at least some of the MCSO’s unconstitutional conduct either
`occurred as a result of, or was exacerbated by, faulty training or communication failures
`within the MCSO. To be corrected, the unlawful policies, patterns and practices of the
`MCSO must be clearly, accurately and completely communicated to, and understood by,
`MCSO personnel.
`Both parties, in submitting the terms of the proposed injunction to the Court,
`agreed that the MCSO should provide complete and accurate training to its personnel
`concerning “background information on the Melendres v. Arpaio litigation, as well as a
`summary and explanation of the Court’s May 24, 2013 Findings of Fact and Conclusions
`of Law in Melendres v. Arpaio, the parameters of the Court’s permanent Injunction, and
`
`- 7 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 8 of 17
`
`
`
`the requirements of this Order.” (Doc. 606 at ¶ 49(q).) The parties also agreed, and the
`Injunction specified, that the Training shall correct “any misconceptions about the law or
`MCSO policies” “to the extent past instructions to personnel on [the topics covered in
`Melendres] were incorrect.” (Id. at ¶ 49(f).)2
`
`It appears that Chief Deputy Sheridan’s summary of the Court’s Findings and
`Conclusions and the resulting Injunction at the October 18 training meeting is in violation
`of these provisions of the Court’s Injunction. In his statement, Chief Deputy Sheridan
`said that the Court’s factual basis for its conclusion that the MCSO violated the
`Fourteenth Amendment arose solely from conduct of three officers who were mistrained
`by ICE. He further stated that this Court’s finding that MCSO deputies illegally detained
`Plaintiff class members arose from its finding that the MCSO detained Hispanic drivers
`fourteen seconds longer than it detained non-Hispanics. Instead of summarizing this
`Court’s actual conclusions, the summarization made by Chief Deputy Sheridan
`mischaracterizes and trivializes the significant period and the significant extent to which
`the Court found that the MCSO’s operations violated the Constitution.
`While it is true that the Court never found that the MCSO was racist, it did find,
`among other things not enumerated at length here, that MCSO deputies received incorrect
`training that they could consider Hispanic ethnicity as one factor among others in
`forming reasonable suspicion in the context of immigration enforcement. MCSO
`apparently does not dispute this fact, at least as far as it extends to ICE materials. The
`extent to which MCSO was, or may have been independently involved in such training is
`not clear except as is set forth below.
`The Court further found that MCSO inappropriately used race as a factor in
`selecting at least some of the locations for its day labor operations and small and large-
`
`
`2 With the exception of some added punctuation, this language specifying the
`content and format of the required training exactly tracks the language that Defendants
`submitted to the Court in the jointly filed Proposed Consent Order. (Doc. 592-1 at 25–
`28.)
`
`- 8 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 9 of 17
`
`
`
`scale saturation patrols. The Court made this determination after examining complaints
`received by the MCSO about Hispanics and/or day laborers which lead to MCSO’s
`location of day labor operation locations in those locales, which then subsequently lead to
`small and large scale saturation patrols centered on those same locations.
`The Court further found that, in conducting its immigration enforcement
`operations, the MCSO systematically and as a matter of routine practice, used race in
`deciding which vehicles to pre-textually stop for traffic violations in order to investigate
`whether the occupants of the vehicle were authorized to be in the country. The Court
`made such findings of fact after considering all of the extensive testimony of both
`deputies and command staff and the extensive exhibits admitted at trial. The arrest reports
`for all such operations demonstrated that vehicles were frequently, if not always, selected
`for pre-textual enforcement of traffic laws based on the presence of Hispanic occupants
`in those vehicles. Those reports demonstrated a very high number of immigration-related
`arrests of Hispanics per stops made during such operations, and otherwise made clear that
`a principal purpose of such operations was immigration enforcement. Further, the
`purpose for those operations was frequently stated in contemporaneous MCSO press
`releases—one of which included quotes from the Sheriff indicating that race was a
`criterion, but not the only criterion, for stopping vehicles during such patrols. The Court
`further found that the “zero tolerance policy” that MCSO claimed was in place to
`mitigate any inappropriate racial profiling in such MCSO operations either never existed
`or was never communicated to MCSO personnel. The Court further credited some of the
`testimony of Plaintiff’s expert over Defendant’s expert in part because Defendants told
`their expert that their stops were governed by the zero tolerance policy which the Court
`found either did not exist or was not communicated to those participating on patrols.
`The Court further found that in determining whom to interview within a vehicle
`once pre-textual traffic stops were made, MCSO deputies considered race as one such
`factor. It was not seriously disputed, even by MCSO command staff personnel, that
`deputies determined who to question once a stop was made using race as one factor. In
`
`- 9 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 10 of 17
`
`
`
`making this finding, the Court also relied on the explicit text of the operations plans that
`specified the criteria which should be used to determine whether someone should be
`investigated for immigration compliance during such stops. The plans incorporated race
`as one factor among others in making that determination.
`The use of race as one factor among others not only violated the Plaintiff Class’s
`Fourteenth Amendment rights, but to the extent it was used as a factor supporting
`reasonable suspicion that a crime was being committed, it also violated the Class’s Fourth
`Amendment rights. As it pertained to the MCSO’s violation of the Plaintiff Class’s
`Fourth Amendment rights, the Court never made any determination, despite Deputy
`Chief Sheridan’s assertions to the contrary, that the MCSO detains vehicles with
`Hispanic stops fourteen seconds longer than vehicles without Hispanic occupants. The
`Court did find, however, based on ample MCSO press releases that all MCSO deputies
`were improperly trained that they had the inherent authority to enforce civil and/or
`administrative aspects of federal immigration law with or without valid 287(g)
`certification. This fundamental misunderstanding, together with MCSO’s LEAR policy
`and routine MCSO practices, and the way it staffed its patrols with non-287(g) officers
`even when such certification was in force, resulted in routine and systematic detentions of
`persons absent sufficient reasonable suspicion that a crime had been or was being
`committed. These practices violated the Fourth Amendment. These findings were
`confirmed not only by the testimony of a number of officers concerning their practice in
`interrogating and detaining persons they suspected of being in the country without
`authorization during pre-textual traffic stops, but by the MCSO’s operations plans that set
`forth its LEAR policy, and by the testimony of command staff personnel concerning
`those policies, as well by the Court’s finding that the MCSO had failed to comply by the
`terms of its preliminary injunction set forth in December 2011 by routinely continuing to
`enforce its LEAR policy or something like it by detaining persons on the belief, without
`more, that such persons were in the country without authorization.
`
`- 10 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 11 of 17
`
`
`
`Although these are not the only factors on which the Court concluded that the
`MCSO had department policies that violated the Plaintiff Class’s Fourth and Fourteenth
`Amendment rights, the above recitation is sufficient to demonstrate the misleading nature
`of Deputy Chief Sheridan’s description of the Court’s Findings and Conclusions. In short,
`the Courts findings that the MCSO committed multiple violations of the Plaintiff Class’s
`constitutional rights were in no way based on the trivialized and invented findings that
`Chief Deputy Sheridan presented.
`The summary appears to be in direct violation of the Injunction’s requirement that
`training include accurate summaries of the Court’s findings. (Injunction ¶ 49(q)). In
`addition, having the Chief Deputy of the MCSO use training sessions and other
`opportunities at the outset of the monitoring period prior to the appointment of a Monitor
`to mischaracterize the specific findings of the Court will prevent such problems from
`being understood and cured. It also poses the danger of greatly impairing the value of any
`subsequent training concerning the Court’s findings, no matter how accurate that
`subsequent training may be.
`
`Further, Deputy Chief Sheridan and Sheriff Arpaio’s use of the training to assert
`that “we had the authority to arrest illegal aliens under the federal programs,” and to
`apparently assert that the MCSO never used race as a factor in its immigration
`enforcement operations, also defies other requirements in the Injunction. Those include
`MCSO’s obligation that “[t]he Training shall . . . address or include, at a minimum . . . a
`correction of any misconceptions about the law or MCSO policies,” to the extent that past
`erroneous instructions were given to its personnel. (Id. ¶ 49(f).) As Chief Deputy
`Sheridan himself indicates at one point in his training, the Court’s order is the existing
`law. It will so remain unless and until all or any part of it is vacated by a higher court. To
`the extent therefore that in training the Sheriff or others make legal assertions that have
`been directly rejected by this Court, they may not, consistent with the terms of the
`Injunction, teach that the law dictates to the contrary.
`
`- 11 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 12 of 17
`
`
`
`The Court would not interpret its Injunction so strictly as to prevent the Chief
`
`Deputy, the Sheriff, or any other MCSO command staffer from professionally and
`accurately stating in training that the MCSO disagrees with this Court’s Findings of Fact
`and Conclusions of Law and the resulting Injunction and has thus taken appropriate
`action to appeal those orders. Nevertheless, when they present such arguments as legal
`realities, as opposed to their legal assertions on appeal, they are misrepresenting the law
`as it has already been determined to apply to the actual facts of their own past operations.
`Rather than correcting past instructions or practices, such statements continue to mis-train
`deputies that they had the authority to engage in their unconstitutional actions of the past,
`or that any mistakes made were only trivial infractions by less than a handful of deputies.
`Further, when such training misstates and trivializes the Court’s findings and then
`states after such misstatement and trivialization that the Court’s orders are “crap”
`“ludicrous,” and unconstitutional, it causes the Court concern that MCSO leadership may
`be choosing to present a paper appearance of compliance while at the same time fostering
`an attitude of contempt and subversion of the Court’s orders among MCSO personnel.3 It
`is not unreasonable to suppose that MCSO personnel might be inclined to follow the
`directions of their Sheriff and Chief Deputy. The direction that the MCSO leaders have
`demonstrated in this training only reconfirms to the Court the very great need for an
`independent Monitor who engages in close observation of those areas required by the
`Injunction. It further raises the possibility that the MCSO may choose not to be compliant
`with some or all aspects of this order, or only facially compliant, resulting in an extended
`
`3 Further, the Injunction requires that “[t]hose presenting Training on legal matters
`shall also hold a law degree from an accredited law school and be admitted to a Bar of
`any state and/or the District of Columbia.” (Id. ¶ 42.) Although again, the Court would
`not interpret its Injunction to prevent Deputy Sheridan or Sheriff Arpaio from responsibly
`expressing their own views about the Constitution, to the extent that Chief Deputy
`Sheridan used the training to make legal arguments that this Court’s order is
`unconstitutional, the Court is not aware that either Chief Deputy Sheridan or Sheriff
`Arpaio meet the Injunction’s requirements for the presenters of such training, which at
`any rate seems more appropriately made to the Court of Appeals.
`
`- 12 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 13 of 17
`
`
`
`period in which the MCSO is subject to this Court’s direct supervision caused by non-
`compliance. The Court, by this hearing, seeks to minimize any such periods.
`2.
`Chief Deputy Sheridan’s Instructions About Approximating Ethnicity
`Unfortunately Chief Deputy Sheridan’s instructions to officers on how they might
`find it inconvenient to provide an estimate of the probable ethnicity of the occupants of a
`vehicle without asking them to identify their own ethnicity only further illustrates this
`point. The Injunction requires the Defendants to document “the Deputy’s subjective
`perceived race, ethnicity and gender of the driver and any passengers.” As is explained
`above, this does not require a deputy to make such an estimation both before and after the
`stop, but only after the stop. Further, it would be inappropriate, and foster the wrong
`impression, for the reasons already reviewed by the parties in hearings before the Court,
`for the MCSO to directly ask all of the occupants of a vehicle that they stop to identify
`their ethnicity. Nevertheless, as is further stated above, the Court needs the deputies to
`make such good faith estimates as a tool by which this Court, its Monitor, and the
`community may measure whether the MCSO is continuing to use ethnicity as one factor
`among others in making traffic stops. Admittedly, it is imperfect, and further relies, to
`some extent, on the good faith of each deputy making the estimate. But, it is a measure
`which prevents this Court from having to resort to more extreme measures such as were
`suggested by Plaintiffs to ensure MCSO’s compliance, including barring deputies from
`asking any questions whatsoever to vehicle occupants during the term of the Injunction.
`Despite that reality, in this same training discussed above, Deputy Chief Sheridan
`characterized this aspect of the Court’s Injunction as “absurd” and suggested several
`reasons why deputies would find that they would be unable to make a good faith
`estimation of the ethnicities of occupants of vehicles that they stop. In light of this
`training the Court makes two observations. First, there is a difference between the MCSO
`being in non-compliance with an order, and its leadership providing training that
`encourages MCSO officers to circumvent this Court’s order. To the extent that willful
`circumvention of the Court’s order is separate from non-compliance with it, it would give
`
`- 13 -
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`
`Case 2:07-cv-02513-GMS Document 656 Filed 03/17/14 Page 14 of 17
`
`
`
`rise to additional concerns and would require separate remedies. Second, to the extent
`that Chief Deputy Sheridan or any other member of MCSO training staff or leadership
`gives training that frustrates the Court’s ability to monitor MCSO’s compliance with the
`terms of its Injunction, and to the extent such training succeeds, the Court will have no
`choice but to consider more restrictive measures to ensure that the MCSO is not
`continuing its past discriminatory practices.
`If the MCSO believes, upon review, that Chief Deputy Sheridan’s summary of the
`Court’s findings, as apparently ratified by Sheriff Arpaio, was in compliance with the
`MCSO’s obligations under the Injunction, it shall at the hearing, explain to the Court all
`of the