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De Jesus Ortega Melendres v. Arpaio

United States District Court, D. Arizona

March 17, 2014

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.

ORDER

G. MURRAY SNOW, District Judge.

IT IS HEREBY ORDERED setting a Status Conference for March 24, 2014 at 9:00 a.m. in Courtroom 602, Sandra Day O'Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona XXXXX-XXXX. Counsel for all parties are required to attend, as are Sheriff Arpaio and Chief Deputy Sheriff Sheridan. All counsel, Sheriff Arpaio, and Chief Deputy Sheridan were previously notified last Monday of the date and time of this hearing and their required attendance. At the hearing the parties will address the matters set forth in some detail below.

The hearing arises from the Monitor's early evaluation of some materials provided by the parties. These materials concern the actions of the parties taken between the entry of the Court's Order on October 2, 2013 ("Injunction") (Doc. 606) and the Monitor's appointment on January 17, 2014. The Monitor has considered various concerns expressed by the parties and made a recommendation to the Court that it take early corrective action to avoid the perpetuation of patterns of conduct that may not be in good faith compliance with the Court's Injunction. These matters include: (1) some matters that were the subject of training conducted prior to MCSO's Significant Operation in October 2013; and, (2) MCSO's appointment of the Community Liaison Officer required by the Injunction. The Court also has concerns about and wishes to discuss: (3) the adequacy of the notice, times, locations, and facilities of the community meetings required by the Injunction and conducted by the MCSO; (4) matters concerning Monitor staff access to MCSO personnel, facilities, and information; (5) revisions of some of the dates in the Order; and, (6) the parties' requests concerning the Court's publication of the two orders at issue here.

In making the determination of the matters on which this hearing would be noticed, the Court was made aware of other concerns raised by the Plaintiffs, such as the timing of the MCSO's October Special Operation. The Court, however, notes that the MCSO remains entitled to great deference in its reasons for, and timing of, Significant Operations, so long as they do not violate the terms of this Court's Injunction in holding such operations. Although the MCSO did schedule the operation between the time that the Injunction was issued and a Monitor was appointed, it nevertheless took reasonable steps to comply with the Injunction in contemporaneously documenting that operation. It is, in fact, from that documentation that a number of the significant issues scheduled for this hearing arise.

BACKGROUND

Some background will assist in clarifying the matters to be discussed at the hearing. In May 2013, this Court issued its detailed Findings of Fact and Conclusions of Law ("Findings and Conclusions") (Doc. 579) determining and setting forth in detail how and why the Defendants engaged in a number of separate violations of the constitutional rights of the Plaintiff class.

At a status conference in June, both parties indicated that, rather than having the Court enter an injunction without their input, they wanted to attempt to negotiate the terms of a mutually satisfactory consent decree. (Doc. 586 at 6-8, 18-21.) They were granted considerable time in which to negotiate such an agreement. Although the parties were unable to reach agreement on all issues, they were, by their own account, "able to reach agreement on a substantial number of terms." (Doc. 592 at 4:8-10.) They submitted a Proposed Consent Order to the Court, illustrating their areas of agreement and disagreement. (Doc. 592-1.) The areas of substantial agreement included, among other things: establishing a MCSO Implementation Unit and performing an internal agency-wide assessment ( Id. at 11-12), the implementation of specific policies, procedures and training to ensure constitutional policing and to comply with the Order ( Id. at 13-32), the documentation of traffic stops and the nature of other specifically identified data to be collected to ensure that the MCSO was complying with the terms of the Court's Injunction ( Id. at 33-40), the video-monitoring of all MCSO stops, and procedures for the adequate supervision and evaluation of officer performance, including the creation, implementation and supervisory use of an early identification system ( Id. at 40-51) to alert supervisors of possibly unacceptable deputy conduct together with periodic evaluation sessions.

The principal areas of disagreement included whether a monitor should be appointed to implement the terms of the Order to which the parties had otherwise agreed, whether or not the Court would require the MCSO to establish and implement more effective internal complaint intake processing, and whether a community advisory board should be appointed, and, if so, the extent of that Board's authority. (Doc. 592 at 4-10.) There was also some disagreement as to the operational details and requirements the Court would impose even as to those topics on which the parties had reached conceptual agreement. For the most part, this Court adopted the "substantial number of terms" to which the parties had both agreed. The Court found that the parties had engaged in a good faith effort to come up with the proposed order, and thus the parties' Proposed Consent Order (Doc. 592-1) formed the basis and provided the exact language for the great majority of this Court's Order, though at times the proposed order's provisions were re-arranged for organizational clarity.

As to the areas of disagreement, the Court accepted briefs from the parties and held a Status Conference on those topics. (Docs. 593, 603.) One of those areas arose from the Court's determination that the MCSO used pre-textual stops of vehicles whose occupants were persons of Hispanic ancestry and then prolonged those stops to investigate the identity of such persons, including vehicle passengers, based merely on the deputy's belief, without more, that such persons were in the country without authorization. In light of those findings, Plaintiffs urged the Court to prohibit MCSO personnel during the effective term of the Injunction from making any inquiries of passengers of the vehicles it stopped. The Plaintiffs further requested the Court to require MCSO personnel to record their perception of the ethnicity of a vehicle's occupants for each stop.

While the Court recognized the need to effectively monitor the MCSO to prevent its selection of a vehicle for pre-textual stop based on the ethnicity of its occupants, it declined to prohibit the MCSO from questioning the occupants of a vehicle once stopped. Rather, the Court required the MCSO in the initial radio call that preceded a traffic stop to briefly state the original purpose of the stop, or to otherwise record the original purpose of the stop, before the stop was executed. It further required that the officers participating in the stop record their perception of the ethnicity of the occupants in a vehicle. Together this information would provide sufficient information to monitor MCSO's compliance with the Order, and determine whether it continued to disproportionately stop vehicles with Hispanic occupants, without preventing MCSO officers from questioning the occupants of any vehicle.

The Court decided the other remaining issues on which there was disagreement based on the Court's previous rulings, the parties' briefings, and the information presented at the status conference on August 30, 2013. Specifically, the Court did decide to appoint a Monitor but it did not require everything the Plaintiffs proposed in terms of changes in discipline and the responsibilities and scope of the Community Advisory Board.

Two weeks after the Injunction, Defendants chose to conduct a Significant Operation. Defendants filed a protocol with the Court after part of the operation had already begun and only one day before the major portion started. (Docs. 609, 615 at 5.) As part of this operation, the Defendants held a training session and the Court has received a video recording of that training. This, and a number of the other events and actions by Defendant, occurred after the entry of the Injunction but before the appointment of the Monitor.

A. The Training Held Before the Significant Operation in October 2013

In the training given by Chief Deputy Sheridan and Sheriff Arpaio to the deputies that were participating in the Significant Operation on October 18, 2013: (1) Chief Deputy Sheridan summarized the Court's Findings of Fact and Conclusions of Law in Melendres and indicated that the Injunction is "absurd" and "ludicrous." (2) He provided specific instruction to those participating in the Significant Operation as to how to approach the obligation to record their impression of the race of the person stopped during traffic stops. To the extent that the content of Chief Deputy Sheridan's training is at issue, it will be available for reference at the hearing (in total the training that concerns the Court takes about fifteen minutes).

In his training Chief Deputy Sheridan summarizes this Court's Findings of Fact and Conclusions of Law which ...


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