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Melendres v. Arpaio

United States District Court, Ninth Circuit

October 2, 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.

SUPPLEMENTAL PERMANENT INJUNCTION/JUDGMENT ORDER

G. MURRAY SNOW, District Judge.

BACKGROUND

On May 24, 2013, the Court issued Findings of Fact and Conclusions of Law after conducting a bench trial in this matter. (Doc. 579.) The Court held that Defendants' operations at issue violated the Plaintiff class's rights under the Fourth and Fourteenth Amendments to the United States Constitution.

The Court permanently enjoined Defendants from the following:

(1) Detaining, holding or arresting Latino occupants of vehicles based on a reasonable belief, without more, that such persons are in the country without authorization;
(2) Following or enforcing its "LEAR" policy, as currently written, against any Latino occupant of a vehicle in Maricopa County;
(3) Using race or Latino ancestry as a factor in determining whether to stop any vehicle;
(4) Using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle may be in the country without authorization;
(5) Detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of the vehicle's occupants have committed or are committing a violation of federal or state criminal law;
(6) Detaining, holding, or arresting Latino occupants of a vehicle for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that the necessary elements of the crime are present; and
(7) Detaining, arresting, or holding persons who are occupants of motor vehicles based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

After issuing the injunctions, the Court held a status conference with the Parties on June 14, 2013. (Doc. 582.) The Parties desired to negotiate the terms of a consent decree to ensure Defendants' compliance with the injunctions. On August 16, the Parties filed a Proposed Consent Decree that contained both terms to which the parties were able to reach agreement, and terms on which they could not agree. (Doc. 592.) The Court held a hearing on August 30 at which it discussed both the terms agreed upon and the disputed terms with the Parties. (Doc. 599.) As a result of the trial and the subsequent proceedings, the Court orders the following supplemental injunctive relief.

REMEDIES

I. DEFINITIONS

1. The following terms and definitions shall apply to this Order:

a. "Boilerplate" means language that is stock, formulaic, appears repeatedly in different reports, and fails to attest to the unique facts of an incident;
b. "CAB" means the Community Advisory Board;
c. "CAD" means "Computer Aided Dispatch, " the electronic system that tracks communications between MCSO deputies and dispatch while on patrol;
d. "CBP" means U.S. Customers and Border Protection;
e. "Complainant" means any person, including a member of the public, MCSO deputy, detention officer, civilian employee, or posse member, who makes a complaint against MCSO;
f. "Complaint" means any allegation of improper conduct made by a member of the public or MCSO personnel regarding MCSO services, policy or procedure, that alleges dissatisfaction with or misconduct by MCSO personnel;
g. "Order" means this Order;
h. "County" means Maricopa County, including its agents and employees;
i. "Court" means the United States District Judge for the District of Arizona presiding over this case;
j. "Defendants" means defendants in the above-captioned action, i.e., Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, and the MCSO;
k. "Deputy" or "deputy" means any sworn law enforcement officer employed by or working for MCSO, including Supervisors, patrol and reserve officers;
l. "Discipline" means a personnel action for violation of any law, regulation, rule, or MCSO policy, including, but not limited to, an admonishment, written reprimand, suspension, demotion or termination;
m. "Discriminatory Policing" means selective enforcement or non-enforcement of the law, including the selecting or rejecting of particular policing tactics or strategies, based on a person's actual or perceived race or ethnicity. Discriminatory Policing does not include using a person's race or ethnicity in any reliable suspect-specific description or for purposes of data collection;
n. "District" refers to one of the seven police service areas of MCSO;
o. "Effective Date" means the day this Order is entered by the Court;
p. "Exigent Circumstances" means emergencies in which a reasonable person would believe that imminent death or bodily harm to a person or persons or the destruction of evidence is likely or as otherwise defined by law;
q. "EIS" means Early Identification System;
r. "Full and Effective Compliance" means compliance with all relevant provisions of this Order. The Defendants shall begin to be in Full and Effective Compliance with this Order when all of the following have been both completed and consistently maintained:
i. A Monitor has been appointed pursuant to Paragraphs 119-121 of this Order.
ii. The MCSO has formed an Implementation Unit pursuant to Paragraph 9 of this Order.
iii. The MCSO has developed, and, pursuant to Paragraph 30, either the Monitor or the Court has approved, and the MCSO has fully implemented the Policies and Procedures and amendments to Policies and Procedures set out in Section V of this Order.
iv. The MCSO has developed curriculum and training materials that have, pursuant to Paragraph 46 of this Order, been approved by the Monitor or the Court.
v. The MCSO has developed and implemented a training schedule pursuant to Paragraph 44 of this Order.
vi. The MCSO has trained all existing MCSO Supervisors, Deputies, and posse members pursuant to Paragraphs 41-53 of this Order.
vii. The MCSO has developed proposed protocols, including draft templates and instructions for Significant Operations and Patrols as set out in Section VI of this Order that have, pursuant to Paragraph 37, been approved by the Monitor or the Court, and have been implemented.
viii. The MCSO has provided an adequate number of Supervisors as well as proper Deputy assignments pursuant to Paragraphs 82 and 84 of this Order.
ix. The MCSO has developed and implemented a system for performance evaluations pursuant to Paragraph 98 of this Order.
x. The MCSO has developed and implemented eligibility criteria for assignment to specialized units pursuant to Paragraph 101 of this Order.
xi. The MCSO has developed and implemented an audit check plan to detect Deputy misconduct pursuant to Paragraph 103 of this Order.
xii. The MCSO has developed and implemented a system to collect traffic stop data and a protocol for audit checks of that system pursuant to Paragraphs 54-59 of this Order.
xiii. The MCSO has developed and implemented a protocol for the periodic analysis of the traffic stop data pursuant to Paragraph 64 of this Order.
xiv. The MCSO has developed and implemented a system for electronic data entry by Deputies pursuant to Paragraph 60 of this Order.
xv. The MCSO has developed and implemented a system for the audio and video recording of traffic stops and a protocol for reviewing the recordings pursuant to Paragraphs 61-63 of this Order with the understanding that Full and Effective Compliance may be achieved once all traffic patrol vehicles that make traffic stops used by Specialized Units have been mounted with the audio and video equipment, so long as the remaining vehicles are timely equipped with the audio and video equipment according to the requirements of those Paragraphs.
xvi. The MCSO has formed a Unit to aid in the development and implementation of the EIS, developed and implemented the EIS, and trained all MCSO personnel on the use of the EIS pursuant to Paragraphs 72-81 of this Order.
xvii. The MCSO has developed and implemented a community outreach program pursuant to Paragraphs 107-112 of this Order.
xviii. The MCSO has selected or hired a Community Liaison Officer pursuant to Paragraphs 113-114 of this Order.
xix. The MCSO has worked with Plaintiffs' representatives and community representatives and created a Community Advisory Board pursuant to Paragraphs 115-116 of this Order.
xx. The MCSO has conducted at least one comprehensive internal assessment pursuant to Paragraphs 12-13 of this Order.
xxi. The Monitor has conducted a comprehensive assessment pursuant to Paragraphs 13 or 138 and has certified that the MCSO is in compliance with all of the scheduled obligations described above in Paragraph 1 and in compliance with all other periodic and/or continuing obligations in this Order since the Effective Date.
s. "IA" means Internal Affairs, the MCSO unit charged with conducting internal and administrative investigations of MCSO deputies, agents, and employees;
t. "ICE" means U.S. Immigration and Customs Enforcement;
u. "Immigration-Related Law" means any civil or criminal offense related to immigration status;
v. "Immigration-Related Crime" means any statute imposing criminal punishment in which immigration status is an element of the offense;
w. "include" or "including" means "include or including, but not limited to";
x. "Investigatory Stop, " "Investigatory Contact, " or "Investigatory Detention" means a detention short of an arrest in accordance with Terry v. Ohio, 392 U.S. 1 (1968);
y. "LEAR Policy, " means the MCSO policy described on page 2 and 113 of the Court's May 24, 2013 Findings of Fact and Conclusions of Law of detaining persons believed to be in the country without authorization but whom they cannot arrest on state charges, in order to summon a supervisor and communicate with federal authorities;
z. "MCSO" means the Sheriff of the Maricopa County Sheriff's Office acting in his or her official capacity, including the MCSO's agents, deputies, detention officers, Supervisors, employees (both sworn and unsworn), and posse volunteers;
aa. "MCSO Implementation Unit" means the unit created by the MCSO and consisting of MCSO Employees to facilitate implementation of this Order;
bb. "MCSO Personnel" or "MCSO Employee" means all MCSO Employees, contractors and volunteers, including command staff, deputies, detention officers, civilian employees and posse volunteers;
cc. "MDT" means Mobile Data Terminal, the computerized system used in MCSO vehicles to conduct inquiries on individuals encountered on patrol;
dd. "Monitor" means a person or team of people who shall be selected to assess and report on the Defendants' implementation of this Order;
ee. "On-site Observation" means first-hand observation by the Monitor of MCSO activities, e.g., ride-alongs with Deputies on patrol or attendance at MCSO meetings or trainings;
ff. "Parties" means Plaintiffs and Defendants collectively in the above-captioned action;
gg. "Patrol Operations" means all MCSO law enforcement operations conducted by Deputies in a law enforcement support or patrol capacity which involves motor vehicle traffic stops, including Significant Operations as defined below. Jail or detention facility operations are not a part of Patrol Operations;
hh. "Plaintiffs" means plaintiffs in the above-captioned action;
ii. "Policies and Procedures" means written regulations or directives, regardless of the name of the regulation or directive, describing the duties, functions, and obligations of MCSO personnel, and providing specific direction in how to fulfill those duties, functions, or obligations. All Policies and Procedures should be available in hardcopy and electronically;
jj. "Sheriff" means the current and future sheriffs of MCSO;
kk. "Significant Operation" or "Significant Patrol" means any pre-planned Patrol Operation that will involve traffic stops of vehicles within Maricopa County involving 10 or more MCSO Personnel excluding posse members;
ll. "Specialized Unit" means a temporary or permanent organization of deputies within MCSO whose operational objectives are focused on a specific law enforcement purpose beyond general patrol or criminal investigations;
mm. "Supervisor" or "supervisor" means a sworn MCSO employee at the rank of sergeant or above (or anyone acting in those capacities) with oversight responsibility for MCSO personnel;
nn. "Training" or "training" means MCSO instruction that aspires towards industry best practices and includes adult-learning methods that incorporate realistic role-playing scenarios, interactive exercises, traditional lecture formats, and testing and/or writings that indicate that MCSO personnel taking the Training comprehend the material taught;
oo. "Vehicle stop" means any instance where a MCSO Deputy directs a civilian operating a motor vehicle of any type to stop and in which the driver and any passengers are detained for any length of time.

II. EFFECTIVE DATE, JURISDICTION AND PARTY REPRESENTATIVES

2. This Order shall become effective upon entry by the Court.

3. To ensure that the requirements of this Order are properly and timely implemented, the Court will retain jurisdiction over this action for all purposes until such time as the Defendants have achieved Full and Effective Compliance and maintained such compliance for no less than three years.

4. The Parties may agree to jointly ask the Court to terminate this Order if the Parties agree that Defendants have achieved Full and Effective Compliance and maintained such compliance for no less than three continuous years. If the Parties disagree on whether Defendants have achieved Full and Effective Compliance for no less than three continuous years, either Party may seek to terminate this Order. If Defendants move to terminate, Defendants must provide the Monitor and Plaintiffs with notice that they intend to do so at least 60 days prior to filing a motion to terminate. The Parties shall confer with each other and the Monitor to see if any disagreements can be resolved before Defendants file their motion with the Court. If, after a reasonable period of consultation and the completion of any audit or evaluation that Plaintiffs and/or the Monitor may wish to undertake, including On-Site Observations, document review, or interviews with the Defendants' personnel, the Parties cannot resolve any compliance issues, the Defendants may file a motion to terminate this Order. If the Defendants move for termination of this Order, Plaintiffs will have 60 days after the receipt of the Defendants' motion to object to the motion. If Plaintiffs do not object, the Court may grant the Defendants' motion. If Plaintiffs do make an objection, the Court may hold a hearing on the motion, but at any rate shall resolve the dispute.

5. After Defendants have reached Full and Effective Compliance, Defendants shall also have the right to move to terminate any part, portion, or term of this Order if they believe that they have maintained compliance with such portion, part, or term of this Order for no less than three continuous years. At least 60 days prior to filing a motion to terminate, Defendants must provide the Monitor and Plaintiffs with notice that they intend to do so. The Parties shall confer with each other and the Monitor to see if any disagreements can be resolved before Defendants file their motion with the Court. If, after a reasonable period of consultation and the completion of any audit or evaluation that Plaintiffs and/or the Monitor may wish to undertake, including On-Site Observations, document review, or interviews with the Defendants' personnel, the Parties cannot resolve any compliance issues, the Defendants may file a motion to terminate this Order. Plaintiffs shall have the right to oppose such motion within 60 days after receipt of the Defendants' motion. If Plaintiffs do not object, the Court may grant the Defendants' motion. If Plaintiffs do make an objection, the Court may hold a hearing on the motion, but at any rate shall resolve the dispute.

6. At all times, the Defendants shall bear the burden of demonstrating Full and Effective Compliance with this Order.

7. This Order shall run against the Sheriff in his official capacity, as well as the MCSO. For purposes of implementation and enforcement of the Order, the representatives for the Parties shall be:

a. Plaintiffs: The American Civil Liberties Union of Arizona ("ACLU-AZ") and any other representative(s) designated by the ACLU-AZ;
b. Defendants: Chief David Trombi and Captain Larry Farnsworth (or other designee selected by the Sheriff).

8. The Court, upon 60 days' notice to the Parties, retains the right to modify or terminate this Order in whole or in part if it is satisfied that the Defendants have substantially complied with any or all of the terms of the Order for a period of three years, or if it is otherwise satisfied that a modification is justified.

III. MCSO IMPLEMENTATION UNIT AND INTERNAL AGENCY-WIDE ASSESSMENT

9. Defendants shall hire and retain, or reassign current MCSO employees to form an inter-disciplinary unit with the skills and abilities necessary to facilitate implementation of this Order. This unit shall be called the MCSO Implementation Unit and serve as a liaison between the Parties and the Monitor and shall assist with the Defendants' implementation of and compliance with this Order. At a minimum, this unit shall: coordinate the Defendants' compliance and implementation activities; facilitate the provision of data, documents, materials, and access to the Defendants' personnel to the Monitor and Plaintiffs representatives; ensure that all data, documents and records are maintained as provided in this Order; and assist in assigning implementation and compliance-related tasks to MCSO Personnel, as directed by the Sheriff or his designee. The unit will include a single person to serve as a point of contact in communications with Plaintiffs, the Monitor and the Court.

10. MCSO shall collect and maintain all data and records necessary to: (1) implement this order, and document implementation of and compliance with this Order, including data and records necessary for the Monitor to conduct reliable outcome assessments, compliance reviews, and audits; and (2) perform ongoing quality assurance in each of the areas addressed by this Order. At a minimum, the foregoing data collection practices shall comport with current professional standards, with input on those standards from the Monitor.

11. Beginning with the Monitor's first quarterly report, the Defendants, working with the unit assigned for implementation of the Order, shall file with the Court, with a copy to the Monitor and Plaintiffs, a status report no later than 30 days before the Monitor's quarterly report is due. The Defendants' report shall (i) delineate the steps taken by the Defendants during the reporting period to implement this Order; (ii) delineate the Defendants' plans to correct any problems; and (iii) include responses to any concerns raised in the Monitor's previous quarterly report.

12. The Defendants, working with the unit assigned for implementation of the Order, shall conduct a comprehensive internal assessment of their Policies and Procedures affecting Patrol Operations regarding Discriminatory Policing and unlawful detentions in the field as well as overall compliance with the Court's orders and this Order on an annual basis. The comprehensive Patrol Operations assessment shall include, but not be limited to, an analysis of collected traffic-stop and high-profile or immigration-related operations data; written Policies and Procedures; Training, as set forth in the Order; compliance with Policies and Procedures; Supervisor review; intake and investigation of civilian Complaints; conduct of internal investigations; Discipline of officers; and community relations. The first assessment shall be conducted within 180 days of the Effective Date. Results of each assessment shall be provided to the Court, the Monitor, and Plaintiffs' representatives.

13. The internal assessments prepared by the Defendants will state for the Monitor and Plaintiffs' representatives the date upon which the Defendants believe they are first in compliance with any subpart of this Order and the date on which the Defendants first assert they are in Full and Effective Compliance with the Order and the reasons for that assertion. When the Defendants first assert compliance with any subpart or Full and Effective Compliance with the Order, the Monitor shall within 30 days determine whether the Defendants are in compliance with the designated subpart(s) or in Full and Effective Compliance with the Order. If either party contests the Monitor's determination it may file an objection with the Court, from which the Court will make the determination. Thereafter, in each assessment, the Defendants will indicate with which subpart(s) of this Order it remains or has come into full compliance and the reasons therefore. The Monitor shall within 30 days thereafter make a determination as to whether the Defendants remain in Full and Effective Compliance with the Order and the reasons therefore. The Court may, at its option, order hearings on any such assessments to establish whether the Defendants are in Full and Effective Compliance with the Order or in compliance with any subpart(s).

IV. MONITOR REVIEW PROCESS

14. In any place where this Order provides for Defendants to submit policies, procedures, protocols or other materials to the Monitor for his or her review, Defendants shall submit such materials to the Monitor and provide a copy to Plaintiffs' representatives within the specified time.

15. Plaintiffs shall have an opportunity to provide any comments or recommendations on the materials within 14 days of receipt. The Monitor shall thereafter communicate to the Parties the results of its review. If the Monitor has any concerns or recommendations regarding the materials, it will include those concerns or recommendations. The MCSO may then amend the materials and resubmit them to the Monitor within 14 days for further review. Either Party may apply to the Monitor for an extension of the deadlines in this Paragraph. In conducting its review, the Monitor may take into account industry best practices and the record in this litigation.

16. If the Monitor approves the matter submitted, the Monitor will make a record of his or her approval and inform both parties. In cases where neither party objects to the Monitor's action, the Monitor's determination will be final. When the Monitor approves such matter, no further action is needed before the MCSO implements the relevant policies, procedures, protocols or materials. The MCSO shall do so promptly and without delay.

17. If either Party does not agree with the Monitor's determination, then the Party may make a motion directly to the Court for resolution of the dispute. The non-moving Party may respond to such motion within 14 days of filing. The moving Party may file a reply within 7 days after that. Any policies, procedures, protocols or other materials subject to the dispute need not be implemented until the Court makes a determination.

V. POLICIES AND PROCEDURES

18. MCSO shall deliver police services consistent with the Constitution and laws of the United States and State of Arizona, MCSO policy, and this Order, and with current professional standards. In conducting its activities, MCSO shall ensure that members of the public receive equal protection of the law, without discriminating based on actual or perceived race or ethnicity, and in a manner that promotes public confidence.

19. To further the goals in this Order, the MCSO shall conduct a comprehensive review of all Patrol Operations Policies and Procedures and make appropriate amendments to ensure that they reflect the Court's permanent injunction and this Order.

20. The MCSO shall comply with and operate in accordance with the Policies and Procedures discussed in this Order and shall take all reasonable measures to ensure that all Patrol Operations personnel comply with all such Policies and Procedures.

a. Policies and Procedures to Ensure Bias-Free Policing

21. The MCSO shall promulgate a new, department-wide policy or policies clearly prohibiting Discriminatory Policing and racial profiling. The policy or policies shall, at a minimum:

a. define racial profiling as the reliance on race or ethnicity to any degree in making law enforcement decisions, except in connection with a reliable and specific suspect description;
b. prohibit the selective enforcement or non-enforcement of the law based on race or ethnicity;
c. prohibit the selection or rejection of particular policing tactics or strategies or locations based to any degree on race or ethnicity;
d. specify that the presence of reasonable suspicion or probable cause to believe an individual has violated a law does not necessarily mean that an officer's action is race-neutral; and
e. include a description of the agency's Training requirements on the topic of racial profiling in Paragraphs 48-51, data collection requirements (including video and audio recording of stops as set forth elsewhere in this Order) in Paragraphs 54-63 and oversight mechanisms to detect and prevent racial profiling, including disciplinary consequences for officers who engage in racial profiling.

22. MCSO leadership and supervising Deputies and detention officers shall unequivocally and consistently reinforce to subordinates that Discriminatory Policing is unacceptable.

23. Within 30 days of the Effective Date, MCSO shall modify its Code of Conduct to prohibit MCSO Employees from utilizing County property, such as County e-mail, in a manner that discriminates against, or denigrates, anyone on the basis of race, color, or national origin.

24. The MCSO shall ensure that its operations are not motivated by or initiated in response to requests for law enforcement action based on race or ethnicity. In deciding to take any law enforcement action, the MCSO shall not rely on any information received from the public, including through any hotline, by mail, email, phone or in person, unless the information contains evidence of a crime that is independently corroborated by the MCSO, such independent corroboration is documented in writing, and reliance on the information is consistent with all MCSO policies.

b. Policies and Procedures to Ensure Bias-Free Traffic Enforcement

25. The MCSO will revise its policy or policies relating to traffic enforcement to ensure that those policies, at a minimum:

a. prohibit racial profiling in the enforcement of traffic laws, including the selection of which vehicles to stop based to any degree on race or ethnicity, even where an officer has reasonable suspicion or probable cause to believe a violation is being or has been committed;
b. provide Deputies with guidance on effective traffic enforcement, including the prioritization of traffic enforcement resources to promote public safety;
c. prohibit the selection of particular communities, locations or geographic areas for targeted traffic enforcement based to any degree on the racial or ethnic composition of the community;
d. prohibit the selection of which motor vehicle occupants to question or investigate based to any degree on race or ethnicity;
e. prohibit the use of particular tactics or procedures on a traffic stop based on race or ethnicity;
f. require deputies at the beginning of each stop, before making contact with the vehicle, to contact dispatch and state the reason for the stop, unless Exigent Circumstances make it unsafe or impracticable for the deputy to contact dispatch;
g. prohibit Deputies from extending the duration of any traffic stop longer than the time that is necessary to address the original purpose for the stop and/or to resolve any apparent criminal violation for which the Deputy has or acquires reasonable suspicion or probable cause to believe has been committed or is being committed;
h. require the duration of each traffic stop to be recorded;
i. provide Deputies with a list and/or description of forms of identification deemed acceptable for drivers and passengers (in circumstances where identification is required of them) who are unable to present a driver's license or other state-issued identification; and
j. instruct Deputies that they are not to ask for the Social Security number or card of any motorist who has provided a valid form of identification, unless it is needed to complete a citation or report.

c. Policies and Procedures to Ensure Bias-Free Detentions and Arrests

26. The MCSO shall revise its policy or policies relating to Investigatory Detentions and arrests to ensure that those policies, at a minimum:

a. require that Deputies have reasonable suspicion that a person is engaged in, has committed, or is about to commit, a crime before initiating an investigatory seizure;
b. require that Deputies have probable cause to believe that a person is engaged in, has committed, or is about to commit, a crime before initiating an arrest;
c. provide Deputies with guidance on factors to be considered in deciding whether to cite and release an individual for a criminal violation or whether to make an arrest;
d. require Deputies to notify Supervisors before effectuating an arrest following any immigration-related investigation or for an Immigration-Related Crime, or for any crime by a vehicle passenger related to lack of an identity document;
e. prohibit the use of a person's race or ethnicity as a factor in establishing reasonable suspicion or probable cause to believe a person has, is, or will commit a crime, except as part of a reliable and specific suspect description; and
f. prohibit the use of quotas, whether formal or informal, for stops, citations, detentions, or arrests (though this requirement shall not be construed to prohibit the MCSO from reviewing Deputy activity for the purpose of assessing a Deputy's overall effectiveness or whether the Deputy may be engaging in unconstitutional policing).

d. Policies and Procedures Governing the Enforcement of Immigration-Related Laws

27. The MCSO shall remove discussion of its LEAR Policy from all agency written Policies and Procedures, except that the agency may mention the LEAR Policy ...


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