Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`
`
`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.
`Pending before the Court is Defendants’ Request to Clarify/Modify Order of April
`17, 2014. Within the limitations set forth below, that request is granted.
`
`In its motion, Defendant requests that this Court clarify or modify its April 17,
`2014 Enforcement Order, Doc. 680, (“Enforcement Order”) to make it inapplicable to
`“the MCSO personnel on the jail side” as well as to some MCSO personnel on what it
`denominates as being on “the sworn side.” It asserts that, “on the jail side,” the order
`applies to 1,815 detention officers and 782 jail volunteers such as religious volunteers
`and part-time teachers. As to the “sworn side” the MCSO has 1,750 posse members
`some of whom, it avows, are not involved in street enforcement operations. It cites to
`“Aviation and Helicopter posse members who are not involved in making traffic stops, as
`well as Advisory and Technology Posse members whose duties entail only fund-raising
`and administrative support.” It thus requests that the Court limit its order to “those
`volunteers who are or might become engaged in making traffic stops.”
`
`
`
`No. CV-07-2513-PHX-GMS
`
`ORDER
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`
`Plaintiffs,
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 2 of 9
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`The Court assumes the good faith effort by the MCSO to exempt from the terms of
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`the Enforcement Order, those who, as a practical matter, have nothing to do with it. The
`Court further concurs that persons who have no connection with MCSO other than that
`they volunteer within MCSO jails as part-time teachers or religious volunteers have little
`actual connection with MCSO or the implementation of this Court’s previous orders.
`Therefore, upon Sheriff Arpaio’s certification of a list individually identifying persons
`whose only connection with MCSO is that they volunteer services within MCSO jail
`facilities, the MCSO is exempted from obtaining such volunteer’s compliance with the
`Court’s enforcement order.
`
`Nevertheless, it appears that large numbers of the Sheriff’s posse are involved in
`law enforcement or support of such activities. As to them, and the Sheriff’s “jail” side
`personnel the grounds of distinction suggested by the MCSO for the remaining
`exemptions it proposes are not sufficiently workable as stated to give rise to a meaningful
`ability by this Court to ensure MCSO’s compliance with its enforcement orders. Nor are
`they sufficient to ensure that MCSO personnel subject to this Court’s orders, have
`received a clear understanding of the Court’s order. Nor are they sufficient to prevent the
`MCSO’s misleading public statements, made by MCSO personnel who have assignments
`over the jail or otherwise, from being misunderstood by MCSO personnel who are
`involved in the operations that are subject to the Court’s injunction. To obtain an
`exemption for any such persons, therefore, the Sheriff must personally provide the
`specific and individualized certification as further detailed below.
`
`First, the Defendants request that the Court’s Enforcement Order be limited to
`those volunteer personnel who “are or might become engaged in making traffic stops” is
`insufficient to cover the scope of the Injunctions in this case The certified Plaintiff class
`in this case is “All 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.”
`(Doc. 494 at 37.) Aviation and helicopters posse members are involved in law
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 3 of 9
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`enforcement operations and as such could conceivably be involved in operations that
`would directly involve members of the Plaintiff class. Further, to the extent that the
`Court’s injunctions pertain not only to traffic stops, but to Latino persons who are
`detained by MCSO agents in vehicles,” it seems to the Court that depending on the facts,
`the injunctions could conceivably apply to MCSO personnel on the “jail side.” (For
`purposes of illustration, for example, it is not clear to the Court that personnel on the “jail
`side” were not involved in transporting detainees to ICE during the saturation patrols).
`Even if the injunctions would not apply to jail personnel in the broad run of cases, they
`do apply more broadly than merely to those MCSO personnel “who are or might become
`engaged in making traffic stops.” The Court thus declines to limit the dissemination of
`the description of the Court’s Order to such persons whether volunteer or employed staff.
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`Further, it is the Court’s understanding that it is a practice for MCSO personnel to
`supplement their income by obtaining off-duty employment as security, traffic control, or
`other enforcement personnel during off-duty hours, during which service they still have
`access, and utilize MCSO facilities, uniforms, vehicles, weapons, and other resources,
`and in which capacity they may also have involvement with members of the Plaintiff
`class. The Court has no assurance that MCSO personnel that engage in such activities are
`only the sworn personnel as opposed to the “jail” personnel or that “jail” personnel are
`not otherwise engaged in off-duty activities in which they benefit from their MCSO
`status, use MCSO facilities, and yet may have contact with members of the Plaintiff
`class.
`Further, there seems to be, at least at the supervisory level, responsibilities that
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`combine jail operations and sworn personnel. It is the Court’s recollection, for example,
`that Deputy Chief Sheridan, Chief Trombi, and Chief McIntyre either in the past or
`presently have all been or are currently involved with the operations of the MCSO jails.
`To the extent that their current assignment may include the operation of the jails, they are
`not excluded from the operation of the enforcement order. It is further not apparent to the
`Court that service within the jail side of the MCSO precludes service within the sworn
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 4 of 9
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`operations side of the MCSO. Nor is it clear that there is such a precise dichotomy within
`the MCSO administration which cleanly separates such operations among MCSO
`supervisory, staff or support personnel. It is not clear to the Court to what extent MCSO
`supervisory administrative or support personnel may have responsibilities that include
`both jail operations and law enforcement operations. Further, it is not clear, for reasons
`stated above, that MCSO jail staff never temporarily assume law enforcement functions,
`or are ineligible to assume such functions as a matter of promotion or otherwise.
`
`Even if some “jail personnel are never involved with operations that pertain to
`members of the Plaintiff class, certainly the statements of MCSO command staff who
`may primarily have responsibility for the jails, may create confusion among the MCSO
`sworn deputies concerning their operations. For example, the Plaintiffs note that Chief
`McIntyre, who apparently during the course of this lawsuit had the title of Deputy Chief
`Custody Bureau One and whose responsibilities apparently include or included the
`management of two MCSO jails and its central intake, has recently given a press
`interview in which he has stated that “[t]here is no equivocation here. Despite the fact of
`reports in the media, there is no court finding that the sheriff’s office racially profiled.”
`See
`http://kjzz.org/content/2641/term-racial-profiling-sparks-language-debate-mcso-
`lawsuit.1
`
`This statement sows confusion rather than clarity. In its Findings of Fact and
`Conclusions of Law, this Court set forth a number of instances, instructions and policies
`in which the MCSO unconstitutionally and inappropriately considered race as one factor
`among others in making law enforcement decisions. Nevertheless, since the Court made
`these findings, MCSO and its command staff, including Sheriff Arpaio, have stated, both
`in public statements and in training/briefing to deputies, that the MCSO never engaged in
`
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`1 Defendants in their Reply, indicate that Chief McIntyre has other responsibilities.
`The Court is not sure whether the responsibilities set forth in the Reply constitute Chief
`McIntyre’s sole responsibilities. But, even if so, that does not change the nature of the
`Court’s concern with the categories suggested by the Defendant upon which the Court
`should mandate compliance with its Enforcement Order as they may apply to MCSO
`command staff that operate the jails.
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 5 of 9
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`racial profiling and/or that the Court never so found. Such statements are misleading at
`best.
`As this Court has previously stated, it has no present intention of attempting to
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`restrict the MCSO’s public statements, even if, in its assessment, those statements are
`inaccurate and misleading. Nevertheless, to the extent that such misstatements stand
`without correction to MCSO personnel, or are made directly to them, they create
`confusion in the very personnel who must understand the Court’s Order to appropriately
`implement it. The MCSO is a single agency. Misunderstandings that affect parts of the
`agency that are the result of misstatements made by the Sheriff and others in command,
`affect the understanding of the entire agency. Based on the testimony of Chief Trombi,
`misimpressions within the MCSO are widespread and rampant. They result from
`communications among unspecified MCSO staff and others. In his attempt to identify
`the source of his misstatements, Chief Trombi specifically identified “deputies” and
`“office staff members” and just “general conversations” around the office and “in other
`areas” in which he participated involving other MCSO personnel:
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`A. I thought about that, and I cannot, in all honesty, tell you who
`specifically. I can tell you, sir, that I heard those incorrect statements that I
`made in conversation in -- in meetings or in settings with others within the
`Sheriff's Office that -- that those statements over the last, I suppose, six
`months kind of permeated my brain, unfortunately, and stuck with me, and
`unfortunately, and regrettably, I used those.
`
`Doc. 672 at p. 11
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`
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`A. I don't know if “meetings” are accurate. At times when I might
`have been together with other deputies or office staff members that we were
`just talking and those incorrect statements were used, I retained them and
`then used them.
`
`Id. at p. 12
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`A. I wish I could honestly tell you the group, the command staff, or
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`any -- any group that those statements were made. It's just general
`conversation that I've had around the office and in different areas.
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 6 of 9
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`Id. at p. 13
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`Q. I appreciate the specification. Whether or not you heard Chief
`Deputy Sheridan say it, you had heard it a number of times and you can't be
`specific because you've heard it so many times at other places throughout
`the MCSO.
`
`A. That is correct, sir.
`
`Q. All right. And you can't give me a specific idea where you got
`that -- from any specific conversation about that 14 seconds, other than that
`just seemed to be -- and again, I don't want to put words in your mouth, so
`correct me -- but that was sort of the general received knowledge that's over
`at the MCSO.
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`A. It was my general perceived knowledge, yes.
`
`Q. All right. And you obtained that from others at the MCSO,
`because you didn't come up with it on your -- on your own, correct?
`
`A. I did not, correct.
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`Q. And was that the view that seems to -- seemed to generally
`prevail, as far as you're aware, over at the MCSO?
`
`A. Yes.
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` Id. at p. 15
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`Q. All right. Do you have any recollection where you got the
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`characterization that that decision was based only upon the action of two
`officers?
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`A. Your Honor, both of those statements that I made were usually
`hand in hand, if you will, so not knowing where I specifically heard my
`first incorrect statement regarding 14 seconds longer, I can no more tell you
`where the other usually hand-in-hand statement of and two deputies were
`found to have used race when making the determination whether or not to
`arrest somebody, they were -- they were joined together usually in that
`conversation or where I had heard those things.
`
`Q. All right. And is it fair to say that if they are joined together,
`you'd heard it from a number of different sources throughout the MCSO
`over the six-month period that preceded your participation in the
`community meeting a few weeks ago?
`
`A. Yes, sir.
`
`Q. All right. And you -- you couldn't identify any particular source
`but that it was many sources, is that fair?
`A. Several, many, yes, sir. I can't argue -- I can't say one way or the other.
`
`Id. at p. 21
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 7 of 9
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`The Court certainly does not wish to create a category of persons within the
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`MCSO who can mischaracterize the Court’s statements to others within the MCSO with
`impunity. The Court’s best remedy to such situations, without restricting the ability of
`the Sheriff or members of his command staff to publicly speak, is to make sure that all
`MCSO personnel have direct familiarity with its order.
`
`It is not clear to the Court that those who principally participate in the jail
`operations or have support, administrative or supervisory responsibilities within the
`MCSO have not been a part and will not continue to be a part of public or MCSO
`communications or in-office discussions in which the Court’s Orders may be
`mischaracterized, and which may, thus, influence the understanding of those who have
`responsibility to implement those orders.
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`To the extent that the MCSO continues to make public statements that
`mischaracterize the Court’s orders, as Chief McIntyre’s statements indicate it continues
`to do, the Court does not wish to artificially limit the extent to which the misimpressions
`sown by such statements within MCSO personnel may be corrected by an appropriate
`understanding.
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`Nevertheless, with the reservations expressed above, the Court does not wish to
`require that MCSO obtain the compliance certification set forth in its Enforcement Order
`from persons that could, in no way, affect the implementation of this Court’s Order.
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`Therefore, to the extent that the Sheriff sets forth a list of persons in which he
`individually identifies by name, position, identification number if any, and employment
`status, and if he personally certifies, by his signature, that such persons:
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`(1) are never engaged in official or off-duty law-enforcement related functions that
`impact members of the Plaintiff class, and
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`(2) he does not anticipate placing such persons in a position that could possibly
`impact members of the Plaintiff class and they are not authorized to participate in an off-
`duty capacity in such functions; and
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`(3) such persons have not received instruction or training from MCSO personnel
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 8 of 9
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`about the Court’s Order; and
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`(4) such persons have not received or participated in, nor will they receive or
`participate in any MCSO or workplace communications that misrepresent the court’s
`order; and
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`(5) such persons will not make public statements that can be attributed to the
`MCSO regarding the Court’s Order which misstate its terms.
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`Then the MCSO is excused, with respect to such persons, from individually
`certifying compliance with the terms of this Court’s Enforcement Order. Within his
`discretion, the Monitor or his staff is authorized to investigate whether the persons so
`designated by the Sheriff fit the requirements set forth in this clarifying order.
`IT IS THEREFORE ORDERED:
`
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`1.
`Excusing the MCSO from certifying compliance with this Court’s
`Enforcement Order of those persons who Sheriff Arpaio individually lists and certified
`have no connection with MCSO other than that they volunteer within MCSO jails as part-
`time teachers or religious volunteers.
`
`2.
`Excusing the MCSO from certifying compliance with this Court’s
`Enforcement Order of such additional persons who Sheriff Arpaio individually identifies
`by name, position, identification number if any, and employment status, and if he
`personally certifies, by his signature, that such persons:
`
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`(a) are not engaged in official or off-duty law-enforcement related
`functions that impact members of the Plaintiff class, and
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`(b) he does not anticipate placing such persons in a position that could
`possibly impact members of the Plaintiff class and they are not authorized to participate
`in an off-duty capacity in such functions; and
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`(c) such persons have not received instruction or training from MCSO
`personnel about the Court’s Order; and
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`(d) such persons have not received or participated in, nor will they receive
`or participate in any MCSO or workplace communications that misrepresent the Court’s
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`Case 2:07-cv-02513-GMS Document 684 Filed 04/29/14 Page 9 of 9
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`Order; and
`(e) such persons will not make public statements that can be attributed to
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`the MCSO regarding the Court’s Order which misstate its terms.
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`Dated this 29th day of April, 2014.
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