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Melendres v. Arpaio

United States District Court, Ninth Circuit

May 24, 2013

Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
v.
Joseph M. Arpaio, in his individual and official capacity as Sheriff of Maricopa County, AZ; et al. Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

G. MURRAY SNOW, District Judge.

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 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 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 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 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 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 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 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.)

C. Prioritization of Immigration Enforcement and the ICE Memorandum

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 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 XXXXXX-XX.) 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 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.)

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, 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 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 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]

The small-scale saturation patrols seem to be divisible into two different types of operations. As with day labor operations, many of these small-scale saturation patrols, particularly those conducted before May 2008, [11] show an extremely high correlation between the total number of traffic stops executed in an operation and the number of those stops that resulted in one or more immigration arrests. These small-scale patrols with high arrest ratios seem to have been either day labor operations or had targeting elements very similar to day labor operations in that the patrols targeted vehicles that picked up Latino day laborers.

The second type of small-scale patrol (post-May 2008) appears to principally rely on traffic patrols which, while using traffic stops as a pretext for enforcing immigration laws, did not uniquely target vehicles who picked up day laborers. These patrols thus had a higher number of stops during the operation. Both types of small-scale patrols were conducted at locations either where the MCSO had previously conducted day labor operations or day laborers were known to congregate. (Exs. 76, 80, 81, 108, 112, 114, 117, 119, 120, 125, 175, 286.)

Participating deputies kept track of certain figures during their patrols. Although there was some variation in the categories of information kept by the deputies, the deputies were always required to keep track at least of the number of persons arrested for federal immigration violations and the number of unauthorized aliens who were arrested on state charges. ( See, e.g., Exs. 97, 102, 111.) After the patrol, supervising officers would collect the individual stat sheets and summarize the activity during the patrol by statistical category.[12] (Tr. at 1009:11-23.) After the patrol statistics were tallied, Lt. Sousa, Sgts. Madrid or Palmer, or another MCSO officer would send out an e-mail briefing describing the total officer activity during the patrol. ( Id. at 1010:7-12, 1133:13-14, 690:23-691:3.) Sgt. Madrid would brief Sheriff Arpaio personally on how many unauthorized aliens had been arrested during the patrol. ( Id. at 1133:13-15.) He would relay the number of people arrested for not being legally present in the country up his chain of command, because he was asked for this information by his supervisors. ( Id. at 1153:16-25.) Sgt. Palmer would do likewise. ( Id. at 690:23-691:3.)

During both types of small-scale patrols, the MCSO issued news releases that emphasized that their purpose was immigration enforcement.

a. Small-Scale Patrols with High Arrest Ratios

After the day labor operation at Pruitt's Furniture Store, the Pruitt's area remained a focal point for activists. In response to the protests and the continuing presence of day laborers, the MCSO conducted 11 small-scale traffic saturation patrols in that area in the months between November 2007 and February 2008.[13] Its first two large-scale saturation patrols were also centered on the same area.[14]

As a whole, the individual reports of the small-scale operations around Pruitt's show an extremely high correlation between total stops and stops that resulted in immigration arrests. Only about half of the Pruitt's arrest reports kept track of the exact number of stops made during an operation. Others made general estimates of the total number of stops, stated the number of immigration arrests resulting from the total stops, or stated the number of citations issued to other vehicles from which no arrest was made. This information is probative of the correlation that existed between total stops and stops that resulted in immigration arrests during these operations.

Reports of the October 30 and November 7 operations were written by Sgt. Baranyos, who preceded Sgt. Palmer at HSU. These reports, while not specifying the total number of stops, [15] nevertheless show that all recorded stops resulted in one or more immigration arrests.[16] (Ex. 114.)

The next four of the small-scale operations at Pruitt's (taking place between November 21 and December 10) specified both the total number of traffic stops made during each operation and the number of traffic stops that resulted in the arrest of unauthorized aliens. 24 stops were made, and 21 resulted in immigration arrests.[17] ( Id. )

After the first six operations, the number of stops and immigration arrests at Pruitt's declined.[18] ( Id. )

These reports suggest that as the Pruitt's location became known for constant immigration patrols, both small and large scale, the success rate of such operations declined. But prior to that time, the MCSO made an extraordinary number of immigration arrests per vehicle pulled over. The MCSO kept the public apprised of its efforts to combat illegal immigration at Pruitt's. (Ex. 309 ("Illegal immigration activists have protested at Pruitt's every Saturday in the last six weeks since Sheriff Arpaio's deputies began patrolling the vicinity of the furniture store near 36th Street and Thomas Road. Already, 44 illegal aliens have been arrested by Sheriff's deputies, including eight illegals arrested this past Saturday during the weekly protest.").)

Several of the remaining small-scale saturation patrols that occurred in the same time frame, but did not occur at Pruitt's, such as the small-scale patrols at Mesa, [19] Cave Creek and Bell Roads, [20] 35th Avenue and Lower Buckeye Road, [21] and in Avondale, [22] similarly involved operations that demonstrated a remarkably high correlation between the number of stops made by deputies in an operation and the number of stops that result in an immigration arrest.

Based on the high arrest to stop ratios in the 17 small-scale saturation patrols discussed above, if the MCSO was not conducting day labor operations, it was conducting operations very similar to them with comparable targeting elements.[23] As with the day labor operations, these high-ratio small-scale saturation patrols all involve only "several" stops at most. Yet the MCSO deputies participating in these operations made immigration arrests on a considerable majority of their recorded traffic stops. Many of the stops resulted in the arrest of multiple illegal aliens for each stop. All or a considerable number of these small-scale patrols may in fact have been day labor operations. But even if not, the high stop to arrest ratio leads the Court to conclude that the targeting factors used by the MCSO in these operations to determine whether to stop the vehicles included the race and work status of the vehicle's occupants.

b. Small-Scale Operations Without High Arrest Ratios

The remaining eight operations[24] continued, for the most part, to be located in areas where, based at least on their past operations, the MCSO knew Latino day laborers assembled. While many arrests were made, they arose out of a smaller percentage of total stops.

For example, the December 14, 2007 Aguila operation produced 29 arrests, 26 of which were for immigration violations with all the immigration arrests processed administratively through ICE. (Ex. 76.)[25] Those arrests, however, came from only five of the 35-40 stops. ( Id. ) Still, the nature of the arrests demonstrates that the operation, no matter how it was carried out, was designed to engage in immigration enforcement. Therefore, the persons who were stopped, contacted or cited, were all contacted with the premier goal of enforcing immigration laws.

On May 6-7, 2008, the MCSO returned to Fountain Hills, where it had previously conducted a day labor operation, and conducted a two-day saturation patrol there. During the first day of this operation, MCSO made seven traffic stops with four of those seven stops resulting in immigration arrests, thus reflecting a high ratio of stops to immigration-related arrests. (Ex. 108.) Seven of the eight unauthorized persons arrested were processed through ICE while one was arrested on state charges for an outstanding felony warrant and an ICE detainer was attached. ( Id. ) During the operation's second day, Sgt. Palmer estimated that MCSO made approximately 20 stops. ( Id. ) Only seven of those stops resulted in arrests. ( Id. ) Four of those seven stops resulted in the immigration arrest of seven unlawful residents who were processed through ICE. ( Id. ) While eight of the total of approximately 27 stops that occurred during the two-day operation may still be an impressive ratio of stops to immigration arrests, it is not as high as the ratios for the other small-scale saturation patrols previously discussed.

That trend continued during the subsequent Cave Creek, [26] 7th Street and Thunderbird, [27] and Avondale[28] operations. The MCSO had previously conducted day labor operations in Cave Creek, and Avondale was the site of a prior small-scale patrol and two large-scale patrols. Of note is that during the September 4, 2008 operation in Cave Creek, ten of the 11 persons arrested provided their names, all of which were Hispanic.[29] (Ex. 112.) The single person arrested who did not provide his name was nevertheless arrested on immigration charges, as were the ten others. ( Id. ) All were administratively processed through ICE. ( Id. )

Despite the lower stop to immigration arrest ratios, the MCSO specifically identified some of these operations in news releases as an integral part of Sheriff Arpaio's "illegal immigration stance." (Ex. 316; see also Exs. 315 (May 8, 2008 news release describing arrests of "illegal aliens" in Fountain Hills), 186 (July 8, 2008 news release describing Sheriff's Illegal Immigration Interdiction Unit responding to complaints from Cave Creek citizens and announcing that "in a matter of five hours, deputies conducted 81 interviews, in the process of making 59 traffic violation stops. During those traffic stops, 19 people were arrested and taken into custody, including the 18 illegal aliens"), 332 (news release dated September 4, 2008 stating, "Early this morning Sheriff Arpaio's Illegal Immigration Interdiction unit (Triple I) saturated the towns of Cave Creek and Carefree. In four short hours, eleven illegal aliens were arrested;... In the last two weeks deputies have arrested twenty three illegal aliens in Cave Creek.").)

3. Large-Scale Saturation Patrols

The first 13 large-scale saturation patrols that the MCSO conducted were the principal focus of trial testimony. The large scale saturation patrols were preceded by, and to some extent conducted simultaneously with, the smaller-scale saturation patrols. The large-scale saturation patrols began in January 2008. They continued until well after the period that arrest reports for such operations were provided in evidence. Like the last eight small-scale saturation patrols discussed above, large-scale saturation patrols mostly consisted of enforcing traffic and other laws. Participating deputies made stops for minor infractions of the traffic code that departed from MCSO's normal traffic enforcement priorities. Again, once a vehicle was stopped, the deputies would determine whether to investigate the identities of the occupants of the vehicle.

Unlike the small-scale saturation patrols, the large-scale operations involved many more patrol deputies and covered larger areas. Lt. Sousa, who supervised the HSU as of September 2007, oversaw most of the large-scale saturation patrols either as Operations Commander or Deputy Operations Commander. The two HSU supervising sergeants- for most such patrols, Sgts. Madrid and Palmer, and before Sgt. Palmer, Sgt. Baranyos- were typically "Operations Supervisors" for such patrols. Deputies participating in the large scale patrols were frequently assigned from multiple divisions of the MCSO, whether or not the deputies were 287(g) certified. (Tr. at 697:19-23, 1135:20-24.) Both HSU and non HSU deputies who participated in such patrols investigated the identity of a vehicle's passengers.[30] If non-287(g) certified officers encountered persons they believed to be in the United States without authorization, they were supposed to detain the person and place a radio call for a 287(g) certified deputy to respond and handle the matter.

Deputies assigned to participate in large-scale saturation patrols were expected to sign-in at a briefing that would take place at the command post prior to the patrol and read all or parts of the operation plans at that time. ( Id. at 995:6-11.) Lt. Sousa did not distribute many copies of such operation plans because he did not want them to become available to the general public. ( Id. at 1059:2-12.) Deputies were also frequently given an oral briefing at the command post by Lt. Sousa, or other members of the MCSO command structure at the time of sign-in. Not all participating deputies attended the briefings, signed in to the operation, or read all of the operations plans.[31]

After conducting each large-scale saturation patrol, MCSO created records documenting arrests made on those patrols. (Exs. 77, 79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176, 179-82.) There are not complete arrest records for all such patrols, but the arrest reports generally contain the names of the persons arrested, the charges on which they were arrested, the initial reason for stopping the vehicle in which the arrested person(s) were occupants, and whether the person was an unauthorized alien.

The first two large-scale patrols are exceptions. The report for the January 18-19, 2008 large-scale saturation patrol at Pruitt's contains no names of arrestees, arresting officers, or the probable cause that justified the initial stop. (Ex. 77.) Consequently, that report is not included in many of the calculations that appear later in this Order. The report for the second large-scale saturation patrol at Pruitt's (March 21-22, 2008) contains a list of arrestees that includes their names, but it does not identify arresting officers or the probable cause supporting the initial stop.[32] (Ex. 79.)

The reports from the 11 large-scale patrols that took place between March 27, 2008, and November 18, 2009, generally include the name of an arresting officer, the alleged probable cause supporting the stop, the name of the person arrested, the charge for which the person was arrested, and whether the person was processed under 287(g) for not being legally present in the country.[33] (Exs. 82, 87, 90, 97, 102, 111, 168, 170, 174-178.)

Most of the MCSO administrators and deputies who testified acknowledged that immigration enforcement was at least a primary purpose-if not the primary purpose-of such operations. Insofar as any MCSO officers testified that there was no particular purpose associated with the large scale saturation patrols at issue other than general law enforcement, their testimony is outweighed by substantial, if not overwhelming, evidence to the contrary.[34]

As with the day labor operations and small-scale saturation patrols, participating deputies were required to keep track of the number of unauthorized aliens they arrested during the large-scale patrols and report these figures to their supervising sergeants. The supervising sergeants compiled and summarized these figures to emphasize the number of unauthorized aliens arrested and sent the reports to the MCSO command structure, including the public relations department.

The MCSO public relations department issued news releases discussing the large-scale saturation patrols that either emphasized that their purpose was immigration enforcement, or prominently featured the number of unauthorized aliens arrested during such operations. (Exs. 310 (dated January 18, 2008, announces Central Phoenix operation in which "Illegal Immigration Arrests [are] Anticipated"), 311 ("The Thomas Road crime suppression operation around Pruitt's Furniture Store occurred over a two month time period and resulted in 134 people arrested, 94 of whom were determined to be in the United States illegally."), 312 (dated March 28, 2008, announces ongoing Bell Road Operation and announces 21 arrests, 12 of whom are illegal immigrants five of whom were arrested on state charges), 313 (dated April 3, 2008, announcing crime suppression operation in Guadalupe because "tensions are escalating between illegal aliens and town residents, " and further referring to Bell Road/Cave Creek and 32nd Street and Thomas operations at which 79 of 165 arrests were determined to be illegal aliens), 314 (dated April 4, 2008, announcing 26 arrests of which five were of suspected illegal aliens), 316 (dated June 26, 2008, describing Mesa "illegal immigration" operation, and recent similar operations in Phoenix, Guadalupe and Fountain Hills), 330 (dated July 15, 2008, describing Mesa crime suppression/illegal immigration operation), 331 (dated August 13, 2008, describing West Valley operation designed to capture human smugglers and their co-conspirators), 333 (dated January 9, 2009, announcing Buckeye operation to capture human smugglers and their co-conspirators, and "in the course of their law enforcement duties, where illegal immigrants are found, they will be arrested and booked into jail"), 334 (dated April 23, 2009, announcing Avondale operations targeting "criminal violations including drugs, illegal immigration and human smuggling"), 349 (dated October 16, 2009, announcing operation in Northwest Valley targeting "all aspects of illegal immigration laws such as employer sanctions, human smuggling, and crime suppression), 350 (dated October 19, 2009, announcing 66 arrests, 30 of whom were suspected of being in the country illegally).)

a. Operations Plans

The operations plans for the first three large-scale saturation patrols (two at Pruitt's, and the third at Cave Creek and Bell Roads) were very rudimentary. Those plans did not include any language regarding officers' use of race, or their discretion (or lack thereof) in making stops and arrests. (Exs. 75, 79, 82.) They included the following instructions: 1) "All criminal violations encountered will be dealt with appropriately, " and 2) "Contacts will only be made with valid PC". ( Id .; see also Tr. at 996:14-17.)

The operations plan for the MCSO's fourth large-scale saturation patrol on April 3-4, 2008, at Guadalupe contained more detail. It gave brief instruction on the primary (criminal and traffic enforcement) and secondary (public relations contacts with citizens in the community) objectives of the patrol. (Ex. 86.) It provided separate paragraphs on "Conducting traffic stops on saturation patrol, " and "Conducting interviews reference a contact or violator's citizenship." ( Id. (emphasis in original).) The revised instructions also included a sentence that required MCSO officers to book anyone that they observed committing a criminal offense. ( Id. )

1) Instructions on Conducting Stops

A paragraph in the instructions specified that "[a]ll sworn personnel will conduct all traffic stops in accordance with MCSO Policy and Procedures, as well as training received at the basic academy level. Note: At no time will MCSO personnel stop a vehicle based on the race of the subjects in the vehicle (racial profiling is prohibited)." (Ex. 86.) That general instruction remained in operation plans for many of the operations thereafter, (Exs. 90, 97, 102, 111, 169, 174), and was further incorporated into the Triple I team protocols, (Ex. 90 at MCSO 001888).

2) Instructions on Investigating Citizenship

The next paragraph in the operations plans contained specific instructions both to officers who were 287(g) certified, and those who were not, about "[c]onducting interviews reference a contact or violator's citizenship" during a large scale saturation patrol. (Ex 86 (emphasis in original).) Certified 287(g) officers were instructed that they could conduct interviews regarding a person's citizenship status only "when indicators existed per the U.S. Immigration and Nationality Act, Title 8 U.S.C. § 1324, 287g and training received during the 287g training course." (Exs. 86, 90, 97, 102, 111, 169.) The plans did not include the indicators set forth in § 1324, but provided as an example that "[t]he violator does not have a valid identification and does not speak English."[35] (Ex. 86.)

"287g" refers to the section of the act, codified at 8 U.S.C. § 1357(g), that authorizes ICE to certify local law enforcement authorities to enforce federal immigration law. That section itself, however, provides no indicators as to unauthorized presence. Nonetheless, as will be further discussed below, the plan's reference to "training received [by MCSO officers] during the 287g training course" explicitly authorized MCSO deputies to consider race as one factor among others in forming reasonable suspicion in an immigration enforcement context that a person is in the country without authorization.

The instructions also noted that a non-287(g) certified officer could detain persons she or he believed were violating immigration law pending the arrival of a 287(g) officer, but "at no time" could such a "deputy call for a 287(g) certified deputy based on race." (Exs. 86, 97.) However, this instruction was modified for subsequent saturation patrols to indicate that "at no time will a deputy call for a 287g certified deputy based just [or only ] on race." (Exs. 90 at MCSO 001898, (Mesa saturation patrol in June 26-27, 2008) (emphasis added), 102 (Sun City saturation patrol in August 2008) ("at no time will a deputy call for a 287g certified deputy based just on race"), 111 (January 2009 in Southwest Valley), 169 (September 2009 in Southwest Valley) ("at no time will a deputy call for a 287g certified deputy based only on race").) These instructions were also incorporated into the III strike team protocols. (Ex. 90 at MCSO 001888.) This modification made the MCSO's policy on how race could be considered consistent with the instructions given to 287(g) certified officers about conducting interviews.

When presented with an operation plan which stated that officers could not call for a 287(g) certified deputy "based just on race, " Sgt. Palmer confirmed that this meant that officers could call a 287(g) certified officer based on race in combination with other factors. (Tr. at 783:3.)

3) Instruction to Book All Criminal Offenders

The operation plan also contained limited instruction concerning those individuals deputies were required to arrest during saturation patrols. This instruction specified in bold print that "All criminal offenders will get booked." (Ex. 87.) These instructions, then, while not indicating how deputies should handle civil violations, presumably removed the discretion to issue criminal citations or give only warnings for minor criminal conduct. According to the instruction, if the deputy witnessed or became aware of criminal conduct during the operation, she or he must arrest and book the criminal offender. A similar instruction appeared in the operation plans for many of the large-scale saturation patrols thereafter. (Exs. 86, 90, 97, 102, 111, 169, 174.)

b. Large-Scale Saturation Patrol Results

By the Court's count, of the 727 arrests recorded during large scale saturation patrols, 347-nearly half-were of persons who were not in the country legally. (Exs. 77, 79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176, 179-82.) The MCSO itself arrived at an even higher figure. (Ex. 359 (March 18, 2010 news release stating that, "[a]ccording to the Sheriff, the 13 previous two-day crime-suppression operations netted a total of 728 arrests. Some legal U.S. residents were arrested but of the 728 total arrests, 530 or 72% were later determined to be illegal aliens.").)

During the large scale saturation patrols for which arrest records were placed in evidence and last names were available, 496 out of 700 total arrests or 71% of all persons arrested, had Hispanic surnames. (Exs. 79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176, 179-82.) 341 of those arrests involved immigration-related offenses. ( Id. ) Of the 583 people who were arrested during saturation patrols that took place while the MCSO had 287(g) authority, and where records of the last names were kept, 414, or 71%, appeared to have Hispanic surnames. (Exs. 79, 82, 87, 90, 97, 102, 111, 168, 170.) That percentage remained consistent after ICE revoked the MCSO's 287(g) authority-even then, 82 of the 117 arrests (70%) involved a person with a Hispanic surname. (Exs. 174, 176, 179-82.)

c. ICE's Revocation of the MCSO's 287(g) Authority

Prior to the actual revocation of 287(g) authority (announced in early October and effective on October 16, 2009) MCSO began noting in its news releases that "a move is underway to suspend [Sheriff Arpaio's] 287 G agreement." (Ex. 353.) ICE began refusing to accept some of the persons that were arrested during MCSO saturation patrols. (Exs. 128, 342.) And in saturation patrols the MCSO began for what appears to be the first time to arrest some unauthorized aliens on the charge of conspiring to violate the Arizona human smuggling law instead of making an arrest on federal immigration charges. (Ex. 168.)

Moreover, sometime before July 15, 2009, Chief Sands asked Sgt. Palmer to conduct legal research into whether the MCSO had authority to enforce immigration law absent the authorization of the Department of Homeland Security. (Tr. at 702:19-24.) Sgt. Palmer conducted an internet search, and copied his findings into an e-mail to Chief Sands on July 15, 2009. ( Id. at 703:11.) The e-mail stated that "State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without INS knowledge or approval, as long as they are authorized to do so by state law." (Ex. 269.) It continued, "[t]he 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws." ( Id. ) The e-mail provided as a citation for this proposition "8 U.S.C. § 1324(a)(1)(A)(iv)(b)(iii)."[36]

That section of the United States Code did not then and does not now exist. Nevertheless, it apparently provided the impetus for Sheriff Arpaio's public statements that the MCSO maintained the authority to make immigration arrests despite ICE's suspension of 287(g) authority. In his interview with Glenn Beck a few days after the effective date of the ICE revocation, Sheriff Arpaio stated that MCSO officers retained the authority to enforce federal immigration law because it had been granted by "that law in 1996, part of the comprehensive law that was passed, it's in there." (Tr. at 364:24-363:5.)

In such interviews the Sheriff stated that the revocation of 287(g) authority did not end the MCSO's attempts to enforce federal immigration law. At the time of the revocation the MCSO had approximately 100 field deputies who were 287(g) certified. (Exs. 356, 359, 360.) Shortly after the revocation of his 287(g) authority, Sheriff Arpaio decided to have all of his deputies trained on illegal immigration law. According to the MCSO, that training enabled all MCSO deputies to make immigration arrests. An MCSO news release dated March 18, 2010 notes:

Arpaio recently ordered that all 900 sworn deputies be properly trained to enforce illegal immigration laws, a move made necessary after the recent decision by Department of Homeland Security to take away the federal authority of 100 deputies, all of whom had been formally trained by ICE (Immigration and Customs Enforcement) to enforce federal immigration laws.
They took away the ability of 100 federally trained deputies to enforce immigration laws, and so I replaced them with 900 sworn deputies, all of whom are now in a position to enforce illegal immigration laws in Maricopa County, " Arpaio said.

(Ex. 359; see also Exs. 356, 358 (MCSO news release dated March 1, 2010 stating that "[t]hese arrests are a result of Sheriff Joe Arpaio's recent promise to ensure that all 900 of his sworn deputies receive training on the enforcement of illegal immigration laws."), 360, 362.)

This training erroneously instructed MCSO deputies that a person within the country without authorization was necessarily committing a federal crime, and they thus maintained the authority to detain them for criminal violations. (Tr. 699:3-700:17.) Sgt. Palmer continued to provide such instruction and training until December 2011, when this Court entered its injunctive order preventing the MCSO from detaining persons on the belief, without more, that those persons were in this country without legal authorization. Ortega-Melendres, 836 F.Supp.2d at 994.

At the same time, Sheriff Arpaio gave interviews to the national and local press in which he asserted that if a person is in the country without authorization that person has necessarily committed a criminal offense. "They did commit a crime. They are here illegally." (Tr. at 362:17-21.)

After the revocation of his 287(g) authority the Sheriff continued to run numerous saturation patrols that focused on arresting unauthorized immigrants. (Exs. 350 ("[D]eputies turned over a total of 19 of the 30 suspected illegal aliens who were not charged for any state violations to Immigration and Custom Enforcement officials without incident."), 358, 359 (in the 13 previous operations 530 of 728 arrests were of illegal aliens), 361, 362 (in the 14 previous operations, 436 of 839 arrests were of illegal aliens, 78 of 111 arrests in most recent operation were of illegal aliens), 363 (63 of 93 arrests of illegal aliens), 367.) In such operations he continued to arrest and turn over to ICE the unauthorized aliens that his deputies arrested during these patrols. (Ex. 360 (MCSO news release noting that 47 of 64 people arrested in a post-revocation saturation patrol were illegal aliens. 27 of those 47 were arrested on state charges with the remainder being turned over to ICE").) At trial, Sheriff Arpaio testified that he has continued to enforce "the immigration laws, human smuggling, employer sanction" as he did previously. (Tr. at 473:23-474:2.)

In sum, according to the Sheriff, the loss of 287(g) authority did not affect how the MCSO conducted its immigration related operations, including the saturation patrols. ( Id. at 469:23-470:5). The Sheriff still maintains the right and intention to conduct such operations today. (Tr. at 330:9-14, 469:20-470:2; 473:5-474:7; 474:20-24.) Sheriff Arpaio testified that the last saturation patrol the MCSO conducted prior to trial occurred during October 2011 and was conducted in southwest Phoenix. ( Id. at 474:8-13.) Nevertheless, the Sheriff testified that the MCSO continues to engage in immigration enforcement even though not using saturation patrols to do so. ( Id. at 474:14-24.) He noted during his testimony that in the two weeks prior to trial, the MCSO arrested approximately 40 unauthorized aliens, and those that it couldn't charge with a state violation it successfully turned over to ICE. ( Id. at 502:25-503:6.)

Once the MCSO lost its 287(g) authority, it revised its operation plans for saturation patrols. See Section I.D.3.a, supra. While the MCSO continued to assert the authority to arrest and detain persons it believed to be in the country without authorization but could not arrest on state charges, it had no practical authority to process them absent the participation of ICE.[37] Neither the MCSO, nor any state authority, had any prerogative to initiate removal proceedings, authorize voluntary departure or, in appropriate cases, bring criminal immigration charges against such persons. See, e.g., Arizona v. United States, ___ U.S. ___, ___, 132 S.Ct. 2492, 2506-07 (2012); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999) (federal government retains exclusive discretion on these matters); Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011).

Accordingly, the MCSO revised its operation plans for the large scale saturation patrols. Lt. Sousa directed either Sgt. Palmer or Sgt. Madrid to draft what became known as the LEAR Protocol. (Tr. at 1056:14-23.) The LEAR protocol states that "IF a Deputy Sheriff believes with reasonable suspicion he has one or more illegal aliens detained AND there are no state charges on which to book the subject(s) into jail THEN the Deputy will follow the LEAR Procedures outlined below." (Ex. 174.) An officer is to call a field supervisor to location when he "has indicators as outlined above leading him to believe (Reasonable Suspicion) a violator or other subject he is in lawful contact with is in fact an illegal alien in the United States." ( Id. ) Thus the LEAR protocol authorized the deputy to detain the individual prior to further processing from ICE.

Thereafter, the protocol requires the MCSO field supervisor to obtain and "provide a brief summary of the contact, including how the contact was made and what indicators exist that lead to the belief the person is an illegal alien."[38] ( Id. ) The operational plans continue to specify that "ICE LEAR will want to talk with the suspected illegal alien via cell phone in order to confirm illegal alien status in the United States. ICE LEAR will determine if their unit will respond to take custody of the illegal alien." ( Id. ) The policy further specifies that "[a]ny person detained solely for illegal alien status in the U.S. whom LEAR refuses to respond for AND for which there is no other probable cause to detail WILL be immediately released from custody." ( Id. )

MCSO drafted, placed in effect, and trained all of its deputies on this policy. (Tr. at 1055:14-1056:13, 1069:17-1070:18, 1076:11-18.) This policy remains in force at the MCSO. In determining who may be present without authorization for purposes of application of the LEAR Policy, Lt. Sousa noted that MCSO officers "still had the [287(g)] training, " so they could "definitely" still use the indicators from that training in carrying out the LEAR policy. ( Id. at 1007:6-11.)

II. SPECIFIC FINDINGS

Based on the facts presented at trial, the Court draws the following factual conclusions:

1. The purpose of the saturation patrols discussed above was to enforce immigration laws.

Many MCSO administrators and deputies who testified acknowledged that immigration enforcement was at least a primary purpose, if not the primary purpose, of saturation patrols. During all types of saturation patrols discussed above, all participating deputies were required to keep track of the number of unauthorized aliens they arrested and report these figures to their supervising sergeants. The supervising sergeants compiled and summarized these figures to emphasize the number of unauthorized aliens arrested and the reports were sent to the MCSO command structure, including the public relations department.

The MCSO public relations department issued news releases discussing the saturation patrols. These news releases either emphasized that the patrols' purpose was immigration enforcement, or prominently featured the number of unauthorized aliens arrested during such operations. Most of the time, the reports ignored any other arrests that took place.

The large-scale operation plans contained instructions on initiating investigations into the citizenship status of persons contacted during the operation.

The arrest records also support this conclusion. Every person arrested during the day labor operations was arrested on immigration charges. The vast majority of persons arrested during small-scale saturation patrols were unauthorized aliens. Finally, a significant number of persons arrested during the large-scale saturation patrols were unauthorized aliens.

2. ICE trained HSU officers that it was acceptable to consider race as one factor among others in making law enforcement decisions in an immigration context.

The testimony of MCSO officers and deputies makes clear that ICE training allowed for the consideration of race as a factor in making immigration law enforcement decisions. At trial, Sgt. Palmer testified that ICE training permitted the use of race as one factor among many in stopping a vehicle, (Tr. at 715:3-19), and that ICE trained him that "Mexican Ancestry" could be one among other factors that would provide him reasonable suspicion that a person is not lawfully present in the United States ( id. at 715:9-12). Sgt. Madrid testified that he was trained by ICE that a subject's race was one relevant factor among others that officers could use to develop reasonable suspicion that a subject was unlawfully present in the United States. ( Id. at 1164:4-12.)

Lt. Sousa testified at his deposition that since he was not 287(g) certified and his sergeants were, when it came to what ICE taught in 287(g) training regarding the use of race, "I would have to rely on my sergeants, " and that "when we start getting into all the specifics, that's when I lean on my sergeants." (Doc. 431-1, Ex. 90 at 56:15-19.) Nevertheless, Lt. Sousa testified at trial that it was his understanding that ICE officers taught MCSO deputies in their 287(g) training that while race could not be used even as one factor when making an initial stop, it could be used as one of a number of indicators to extend a stop and investigate a person's alienage. (Tr. at 1016:3-7.)

Similarly, the ICE 287(g) training manual expressly allows for consideration of race. The 287(g) training manual for January 2008 that was admitted in the record cites to United States v. Brignoni-Ponce, 422 U.S. 873 (1975), for the proposition that "apparent Mexican ancestry was a relevant factor" that could be used in forming a reasonable suspicion that a person is in the country without authorization "but standing alone was insufficient to stop the individuals." (Ex. 68 at 7.) In referring to Brignoni-Ponce, the ICE materials go on to observe that "[t]his is an administrative case but it also applies in criminal proceedings" and further notes that "[a]n example of this in action in the criminal context is that a LEA Officer cannot stop a vehicle for an investigation into smuggling just because the occupants appear Mexican." ( Id. )

Alonzo Pena, ICE's Special Agent in Charge of Arizona at the time that ICE began its 287(g) certification training of MCSO officers, testified that it was his understanding that officers with 287(g) authority can form a reasonable suspicion that a person is unlawfully present when "several factors in combination" are present, with race being one of those factors. (Tr. at 1831:17-832:19.) Agent Pena does not believe that race is sufficient in and of itself to give rise to such suspicion, but he does believe that race can be a factor in forming such a suspicion. ( Id. )

3. In an immigration enforcement context, the MCSO did not believe that it constituted racial profiling to consider race as one factor among others in making law enforcement decisions. Its written operational plans and policy descriptions confirmed that in the context of immigration enforcement, the MCSO could consider race as one factor among others.

The MCSO has no general written policy concerning racial profiling. ( Id. at 465:18-24.) In his trial testimony the Sheriff acknowledged that he had earlier testified that the MCSO does not need a training program to prevent racial profiling because he did not believe the MCSO engages in racial profiling. ( Id. at 466:16-19.) He further testified that he believes that the MCSO is "the most trained law enforcement agency in the country with the five weeks of training from the government, [presumably the 287(g) training for those deputies who received it], academy training, in-house training." ( Id. at 465:21-24.)

The large-scale saturation patrol operation plans written after April 2008 refer deputies to the MCSO Academy training they received about racial profiling. MCSO witnesses who testified concerning the Academy training stated that they received brief and generalized instruction regarding racial profiling, but could remember nothing else about it.[39] There was no testimony that such training defined racial profiling or provided any instruction to officers on how to proceed in the circumstances present in Maricopa County when the MCSO decided to enforce immigration laws.

In addition to the Academy training, Sgt. Madrid testified that Lt. Sousa would also "yell" at the briefings prior to the large-scale saturation patrols that "we don't racially profile... several times to make sure everybody was clear." ( Id. at 1191:5-7.) Again, no definition of "racial profiling" was provided during those instructions, and no examples of what would constitute "racial profiling" were offered. ( Id. at 1215:5-12.) Further, as Lt. Sousa himself testified, when he issued such oral instruction he also told those assembled that he knew that they were not racially profiling, but that he was giving the briefing "to remind you of what people are saying out there and being proactive." ( Id. at 1024:18-21, 1025:6-8.) According to his testimony a primary reason he issued the instruction was not because he deemed it necessary, but so he could demonstrate to the public that his officers were receiving such instruction and testify during this lawsuit that he had in fact issued such instructions. ( Id. at 1025:12-17.)

The MCSO introduced in evidence an electronic bulletin board posting on the MCSO's electronic "Briefing Board" for October 21, 2008, where the MCSO published its Illegal Immigration Enforcement Protocols. That posting repeated the instruction that also appeared in the large-scale saturation patrol operations plans after April 2008. "At no time will sworn personnel stop a vehicle based on the race of any subject in a vehicle. Racial profiling is prohibited and will not be tolerated. " (Ex. 92 at 3 (emphasis in original).) All those who testified in this lawsuit agreed that it constituted impermissible "racial profiling" for a law enforcement officer to stop a person for a law enforcement purpose based uniquely or primarily on a person's race.[40] Nevertheless, a number of MCSO witnesses also testified it was appropriate to consider race as one factor among others in making law enforcement decisions in an immigration enforcement context.

As the operations plans themselves and other public pronouncements of the MCSO make plain, while officers were prohibited from using race as the only basis to undertake a law enforcement investigation, they were allowed as a matter of policy and instruction to consider race as one factor among others in making law enforcement decisions in the context of immigration enforcement. For example, while prohibiting racial profiling generally, the operations plans simultaneously instruct MCSO officers that they may consider the race of persons they encountered as one factor among others in making law enforcement decisions. First, according to the operations plans, a 287(g) certified officer should initiate investigations into a person's citizenship status "when indicators existed per... the training received during the 287g training course." (Exs. 86, 90, 92, 97, 102, 111, 169.) The testimony at trial was uniform that during their 287(g) training course MCSO officers were taught that they could use race as one indicator among others in forming reasonable suspicion that a person was in the country without authorization.

Second, the operations plans instructed MCSO officers who were not 287(g) certified that they should not summon a 287(g) certified officer to the scene to investigate a person's immigration status based only on that person's race. (Ex. 90 at MCSO 001898; Exs. 102, 111, 169.) In discussing this instruction at trial, both Sgts. Palmer and Madrid testified that, under such instruction, MCSO officers could consider the race of the subject as one factor among others in making such a determination; they just could not consider the subject's race as the only factor. (Tr. at 782:8-11, 783:3, 1162:14-23, 1170:5-15.) This testimony reasonably acknowledged the obvious: that while MCSO policy prohibits using race as the only or sole factor, it still permits an officer to use race as a factor in making a law enforcement decision.

The MCSO's frequently-issued news releases reflect this understanding. In one, the MCSO described its policy pertaining to decisions about whom to pull over during these operations. (Ex. 342.) Like the operation plans, the policy described in the news release prohibits racial profiling without defining the term, while at the same time permitting the use of race as a factor in an officer's decision to pull over a vehicle. ( Id. ) In the news release the Sheriff is quoted as saying, "All stops will be made in full accordance with Sheriff's Office policy and procedures and at no time will any vehicle be stopped solely because of the race of the occupants inside that vehicle. Racial profiling is strictly prohibited, Arpaio says." ( Id. (emphasis added).) In interpreting similar language in the operations plans that governed when a non-certified deputy should summon a certified deputy to initiate an immigration investigation, Sgts. Palmer and Madrid noted that in prohibiting such a deputy from acting solely based on the race of the subject, the policy permitted the deputy to consider race as one factor among others in deciding to act. (Tr. at 782:8-11, 783:3, 1162:14-23, 1170:5-15.) This same understanding would apply to the MCSO policy that prohibits using race as the sole factor in deciding to pull over a vehicle during a saturation patrol. (Ex. 342.)

Further, as is discussed below, both Sgts. Palmer and Madrid testified that so long as there was a legitimate basis for an officer to pull over a vehicle for a traffic infraction, there was by definition no racial profiling involved in the stop. For example, Sgt. Palmer testified that if, in reviewing arrest reports, he saw that a deputy had reported that he had reasonable suspicion to justify a stop that meant the deputy did not engage in "racial profiling." (Tr. at 724:22-725:1.) Sgt. Madrid testified that if he determined that an officer had probable cause to make a stop, he "wouldn't even suspect" that the officer had engaged in racial profiling. ( Id. at 1172:20-23.)

Thus, as illustrated by these operation plans and news releases, while the MCSO did prohibit racial profiling, it understood racial profiling to mean making law enforcement decisions based exclusively on racial factors. The MCSO did not understand this term, in an immigration context, to prohibit the use of race as a factor among others in making a law enforcement decision. Thus, MCSO deputies could consider race as one factor in stopping a vehicle or initiating an investigation so long as race was not the sole basis on which deputies made that decision. Accordingly, the Court finds that the MCSO operated pursuant to policies that, while prohibiting "racial profiling, " did not require ...


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