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United States v. County of Maricopa

United States District Court, D. Arizona

June 15, 2015

United States of America, Plaintiff,
v.
Maricopa, County of, et al., Defendants

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          For United States of America, Plaintiff: Edward G Caspar, Jennifer Larissa Mondino, Jonathan M Smith, Puneet Cheema, LEAD ATTORNEYS, U.S. Dept of Justice - Civil Rights (Pennsylvania Ave.), Washington, DC USA; Brian Buehler, Cynthia Coe, U.S. Dept of Justice - Civil Rights Division, Washington, DC USA; Paul Killebrew, U.S. Dept of Justice - Civil Rights, Washington, DC USA; Thomas Jackson Morse, Jr, U.S. Dept of Justice, Washington, DC USA.

         For County of Maricopa, Arizona, Defendant: Charles W Jirauch, Richard K Walker, LEAD ATTORNEYS, Walker & Peskind PLLC, Scottsdale, AZ USA; Dan K Webb, Joel E Connolly, LEAD ATTORNEYS, Winston & Strawn LLP - Chicago, IL, Chicago, IL USA.

         For Joseph M Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona, Defendant: John T Masterson, Joseph John Popolizio, Lori Lea Voepel, William R Jones, Jr., LEAD ATTORNEYS, Justin Michael Ackerman, Jones Skelton & Hochuli PLC, Phoenix, AZ USA.

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         ORDER

         Honorable Roslyn O. Silver, Senior United States District Judge.

         Before the Court are the parties' cross-motions for summary judgment (Doc. 332, 334, 345).

         BACKGROUND

         I. The Parties

         Plaintiff the United States brought the present action alleging a pattern or practice of discrimination against Latinos in Maricopa County, Arizona by Defendants Joseph M. Arpaio (" Arpaio" ) and Maricopa County in violation of the Constitution and federal statutes. Defendant Arpaio is the Sheriff of Maricopa County and heads the Maricopa County Sheriff's Office (" MCSO" ). As MCSO's chief officer, Arpaio directs law enforcement throughout Maricopa County.[1] He is responsible for MCSO's policies and operations, which include all facets of policing and prison administration. MCSO is a subdivision of Maricopa County. Maricopa County's primary governing body is the Board of Supervisors (the " Board" ). The Board consists of five Supervisors, each of whom is elected from one of Maricopa County's five districts. Maricopa County determines the budgets and provides the funding for its subdivisions, including municipal courts, public schools, and law enforcement (i.e. MCSO). Maricopa County receives federal financial assistance from the United States, which it distributes to various county subdivisions, including MCSO.

         II. The Prior Litigation: Melendres v. Arpaio

         In 2007, private individual plaintiffs initiated a class action lawsuit against Arpaio, MCSO, and Maricopa County, alleging MCSO officers engaged in racial discrimination against Latinos " under the guise of enforcing immigration law." Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 969 (D. Ariz. 2011), aff'd sub nom. Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) (hereinafter " Melendres " ). The case focused on " saturation patrols," which were described as " crime suppression sweeps" in which officers saturate a given area and target persons who appeared to be Latino for investigation of their immigration status. (2:07-CV-02513-GMS, Doc. 26 at 10). Jose de Jesus Ortega-Melendres, the named plaintiff, was stopped in his vehicle by members of the MCSO's Human Smuggling Unit and detained without probable cause while officers investigated his immigration status, along with those of his passengers. Melendres v. Arpaio, 989 F.Supp.2d 822, 880 (D. Ariz. 2013); (2:07-CV-02513-GMS, Doc. 26 at 17). The certified class of plaintiffs encompassed " [a]ll Latino persons who, since January 2007,

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have been or will be in the future stopped, detained, questioned or searched by [the defendants'] agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona." Melendres v. Arpaio, 695 F.3d 990, 995 (9th Cir. 2012). See also Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 994 (D. Ariz. 2011).

         In May 2009, Maricopa County requested a stay pending the outcome of the United States' investigation of Arpaio's practices, which had begun one month earlier. The United States opposed the motion, as did Arpaio, and the court denied the stay due to the timing and uncertainty regarding the outcome of the United States' investigation. Melendres v. Maricopa Cnty., No. 07-cv-02513, 2009 WL 2515618, at *4 (D. Ariz. Aug. 13, 2009). Over the course of the Melendres litigation, the United States requested deposition transcripts and filed motions for protective orders regarding discovery. It also sought to transfer a 2010 Title VI enforcement action to the Melendres court.

         In October 2009, the Melendres court granted a joint motion and stipulation to dismiss Maricopa County without prejudice. (2:07-CV-02513-GMS, Doc. 194). The stipulation stated, " Defendant Maricopa County is not a necessary party at this juncture for obtaining the complete relief sought." (2:07-CV-02513-GMS, Doc. 178).

         On May 24, 2013, the Melendres court issued Findings of Fact and Conclusions of Law. Melendres v. Arpaio, 989 F.Supp.2d 822 (D. Ariz. 2013) (" Melendres Order" ). The court held MCSO's " saturation patrols all involved using traffic stops as a pretext to detect those occupants of automobiles who may be in this country without authorization," id. at 826, and " MCSO's use of Hispanic ancestry or race as a factor in forming reasonable suspicion that persons have violated state laws relating to immigration status violates the Equal Protection Clause of the Fourteenth Amendment." Id. at 899. The court also found MCSO conducted discriminatory traffic stops outside of saturation patrols. Id. at 844-845, 889-890. The Melendres Order enjoined MCSO from " using Hispanic ancestry or race as [a] factor in making law enforcement decisions pertaining to whether a person is authorized to be in the country, and [] unconstitutionally lengthening [vehicle] stops." Id. at 827.

         After the ruling, the United States filed a statement of interest concerning potential forms of relief.[2] On October 2, 2013, the court issued its Supplemental Permanent Injunction/Judgment Order. Melendres v. Arpaio, No. CV-07-02513-PHX-GMS, 2013 WL 5498218, at *1 (D. Ariz. Oct. 2, 2013) (" Supplemental Order" ). The order permanently enjoined Defendants from: 1) " [d]etaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization" ; 2) " [u]sing race or Latino ancestry as a factor in deciding whether to stop any vehicle" or in deciding whether a vehicle occupant was in the United States without authorization; (3) " [d]etaining 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

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vehicle's occupants have committed or are committing a violation of federal or state criminal law" ; (4) " [d]etaining, holding or arresting Latino occupants of a vehicle . . . for violations of the Arizona Human Smuggling Act without a reasonable basis for believing the necessary elements of the crime are present" ; and (5) " [d]etaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act." Id. The Supplemental Order also contained numerous provisions regarding the implementation of bias-free policing, including standards for bias-free detention and arrest policies and training, as well as detailed policies and procedures for ensuring and reviewing MCSO's compliance with the Melendres Order. The procedures included the appointment of an independent monitor to report on Arpaio and MCSO's compliance and collection of traffic stop data. Id.

         Arpaio and MCSO appealed the Melendres Order and the Supplemental Order (collectively, the " Melendres injunction" ), challenging provisions which addressed non-saturation patrol activities and arguing the evidence was insufficient to sustain the district court's conclusion that Arpaio and MCSO's unconstitutional policies extended beyond the context of saturation patrols. Melendres v. Apraio, No. 13-16285, Opening Brief of Defendant/Appellant Arpaio, Doc. 32-1, at 2, 13-15, 17-18 (March 17, 2014). MCSO also argued it was not a proper party in the case. Id.

         On April 15, 2015, the Ninth Circuit issued an opinion holding MCSO was not a proper party because it is a non-jural entity lacking separate legal status from Maricopa County. Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). The Ninth Circuit ordered Maricopa County substituted as a party in lieu of MCSO. Id. at 1260. But the court also stated, " [o]n remand, the district court may consider dismissal of Sheriff Arpaio in his official capacity because 'an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.'" Id. [3] In addition, the court held the Melendres injunction was not overbroad because it applied to activities beyond saturation patrols: " Although the evidence largely addressed [the] use of race during saturation patrols, the district court did not clearly err in finding [Arpaio's] policy applied across-the-board to all law enforcement decisions--not just those made during saturation patrols." [4] Id. However, the court found the requirements for the independent monitor " to consider the 'disciplinary outcomes for any violations of departmental policy' and to assess whether Deputies are subject to 'civil suits or criminal charges . . . for off-duty conduct" were not narrowly tailored and ordered the district court " to tailor [these provisions] to address only the constitutional violations at issue." Id. at 1267.

         III. The Litigation Before This Court: U.S. v. Maricopa County

         On March 10, 2009, the United States Department of Justice (" DOJ" ) sent Arpaio a letter notifying him it was commencing an investigation of his office. (Doc. 333-3 at 6). Over a year later, on August 3, 2010, DOJ issued a " Notice of noncompliance with the obligation to cooperate with the Department of Justice investigation

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pursuant to Title VI of the Civil Rights Act of 1964." (Doc. 333-3 at 9) (" Notice Letter" ). Although the Notice Letter appears to have been mailed only to counsel for MCSO, counsel for Maricopa County responded to it. (Doc. 333-3 at 9). On August 12, 2010, Maricopa County's private counsel wrote to the United States to express Maricopa County's " desire[] to cooperate in any way possible with the [United States'] investigation referenced in the Notice Letter," emphasizing, " [a]s a recipient of Title VI funds, Maricopa County believes it has an obligation to cooperate." Id. Maricopa County offered to use its subpoena power to procure documents in aid of DOJ's investigation. Id. at 10. The letter also stated Maricopa County would " [notify] MCSO that it [could] not expend any public funds, including on outside counsel, to resist any DOJ Title VI inquiry," and that " Maricopa County [would] not pay those bills as resisting a Title VI inquiry is outside the scope of the employment of any elected or appointed official." Id.

         On December 15, 2011, DOJ sent Maricopa County Attorney Bill Montgomery (" Montgomery" ) a 22-page letter notifying him of the investigation into MCSO and announcing " the findings of the Civil Rights Division's investigation into civil rights violations by the [MCSO]." (Doc. 333-2 at 2) (" Findings Letter" ). The Findings Letter did not reference Maricopa County, specifically. Montgomery immediately responded that DOJ had " noticed the wrong party." (Doc. 333-3 at 12). On January 17, 2012, DOJ responded it would continue to include Maricopa County in all correspondence because its " investigation potentially affect[ed] Maricopa County as the conduit of federal financial assistance to MCSO." (Doc. 333-3 at 14).

         On May 9, 2012, DOJ advised Maricopa County:

[I]n accordance with the notice requirements set forth in DOJ's Title VI regulations, 28 C.F.R. § 42.108(d)(3), it is the intention of the Department of Justice to file a civil action against Maricopa County, the Maricopa County Sheriff's Office, and Sheriff Joseph M. Arpaio in order to remedy the serious Constitutional and federal law violations, including noncompliance with Title VI, as noted in our December 15, 201[1] Findings Letter.

(Doc. 333-3 at 25). The following day, the United States filed a complaint in this Court, outlining six claims for relief against Arpaio, MCSO, and Maricopa County:

(1) Intentional discrimination on the basis of race, color or national origin in violation of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (" Section 14141" ) and the Due Process and Equal Protection clauses of the Fourteenth Amendment.

(2) Unreasonable searches, arrests and detentions lacking probable cause or reasonable suspicion in violation of Section 14141 and the Fourth Amendment.

(3) Disparate impact and intentional discrimination on the basis of race, color or national origin in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § § 2000d-2000d-7 (" Title VI" ).

(4) Disparate impact and intentional discrimination against limited English proficient (" LEP" ) Latino prisoners in violation of Title VI.

(5) Disparate impact and intentional discrimination in violation of Defendants' contractual assurances under Title VI.

(6) Retaliation against Defendants' critics in violation of Section 14141 and the First Amendment.

(Doc. 1).

         Arpaio, MCSO, and Maricopa County moved to dismiss. On December 12, 2012,

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the Court denied Maricopa County's motion and granted Arpaio and MCSO's motion in part. (Doc. 56). MCSO was dismissed from the case based on the Arizona Court of Appeals decision, Braillard v. Maricopa County, which held MCSO is a non-jural entity, lacking the capacity to sue and be sued. 224 Ariz. 481, 487, 232 P.3d 1263 (Ct.App. 2010).

         The remaining parties proceeded with discovery. The United States and Arpaio now each move for partial summary judgment. (Doc. 332, 345). Maricopa County moves for summary judgment on all claims. (Doc. 334).

         ANALYSIS

         I. Legal Standard

         Under Rule 56, summary judgment is appropriate when the moving party demonstrates the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

         A party seeking summary judgment bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: either (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proof at trial. Id. at 322-23. " Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         Once the moving party establishes the absence of genuine disputes of material fact, the burden shifts to the nonmoving party to set forth facts showing a genuine dispute remains. Celotex, 477 U.S. at 322. The nonmoving party cannot oppose a properly supported summary judgment motion by " rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256. The party opposing summary judgment must also establish the admissibility of the evidence on which it relies. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (a court deciding summary judgment motion " can only consider admissible evidence" ); see also Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (" It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." ); Fed.R.Civ.P. 56, 2010 Advisory Committee Notes (" The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." ).

         When ruling on a summary judgment motion, the court must view every inference drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 601, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court does not make credibility determinations with respect to evidence offered. See T.W. Elec., 809 F.2d at 630-631 (citing Matsushita, 475 U.S. at 587). Summary judgment is therefore

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not appropriate " where contradictory inferences may reasonably be drawn from undisputed evidentiary facts." Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir. 1980).

         II. Justiciability

         A. Justiciability of Claims Against Arpaio

         Arpaio argues the United States' claims involving discriminatory traffic stops in Counts One, Two, Three, and Five are moot.[5] He argues the Melendres injunction eliminated all threat of immediate and future discriminatory traffic stops, as well as the ability of this Court to provide redress for those claims.[6] The United States argues its traffic stop claims are not moot for four reasons: (1) the Melendres injunction does not reach all of the conduct challenged in the present suit because it is necessarily tied to and based upon the immigration-related operations at issue in Melendres ; (2) the federal government has unique interests which warrant providing it with its own enforcement mechanism for the types of reforms and controls in the Melendres injunction; (3) Arpaio appealed the scope of the Melendres injunction; and (4) the Melendres injunction is years away from full implementation.

         Mootness doctrine prevents courts from ruling " when the issues presented are no longer live and therefor the parties lack a cognizable interest for which the courts can grant a remedy." Alaska Ctr. For Env't v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir. 1999). " The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide." Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006). And " [t]hat burden is 'heavy'; a case is not moot where any effective relief may be granted." Id. " Partial relief in another proceeding cannot moot an action that legitimately seeks additional relief." Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 885 (9th Cir. 1992).

         As a general principle, " the government is not bound by private litigation

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when the government's action seeks to enforce a federal statute that implicates both public and private interests." California v. IntelliGender, LLC, 771 F.3d 1169, 1177 (9th Cir. 2014) (internal quotation marks and citation omitted). See also Hathorn v. Lovorn, 457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n. 6, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975). For example, in E.E.O.C. v. Goodyear Aerospace Corp., the Ninth Circuit held the Equal Employment Opportunity Commission's (" EEOC" ) " interests in determining the legality of specific conduct and in deterring future violations are distinct from the employee's interest in a personal remedy." 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the Court held the EEOC's enforcement action was not mooted by a private plaintiff's lawsuit and settlement based on the same facts. Id. at 1543 (" [The private plaintiff's] settlement does not moot the EEOC's right of action seeking injunctive relief to protect employees as a class and to deter the employer from discrimination." ).

          Goodyear Aerospace Corp. involved a previous suit by an individual private plaintiff. But the court's analysis relied in part on Secretary of Labor v. Fitzsimmons, where the prior suit was a private class action. 805 F.2d 682 (7th Cir. 1986). In Fitzsimmons, the Seventh Circuit held the Secretary of Labor was not barred by res judicata from bringing an ERISA enforcement action based on the same facts as a previously settled class action in which the Secretary had intervened. Fitzsimmons, 805 F.2d at 699. The decision was based in part on the history and structure of ERISA. The court noted ERISA arose out of concern over the " increasingly interstate" " operational scope and economic impact" of employee benefit plans and the direct effect such plans had on the " well-being and security of millions of employees and their dependents." Id. at 689 (citing 29 U.S.C. § 1001(a)). Employee benefit plans were also thought to " substantially affect the revenues of the United States" and therefore to be " affected with a national public interest." Id. The statute provided the Secretary of Labor the right to intervene in any action brought by a participant, beneficiary, or fiduciary. Id.

         The defendants in Fitzsimmons argued the right to intervene in private lawsuits created privity between the Secretary of Labor and the private plaintiffs so as to bar the Secretary from bringing a separate enforcement action. In determining no privity existed between the government and the private class of plaintiffs, the court articulated compelling and unique government interests, which justified the Secretary's separate, second lawsuit:

[I]t is clear that the Secretary does have a unique, distinct, and separate public interest, duty and responsibility in bringing this ERISA action to enforce the trustees' fiduciary obligations and duties, to ensure public confidence in the private pension system that provides billions of dollars of capital for investments affecting federal tax revenues and interstate commerce, and most importantly, to protect the income of the retired workers and beneficiaries. Further, the Secretary of Labor has a separate interest when he intervenes so as to prevent the establishment of harmful legal precedent as well as to ensure uniformity in the enforcement and application of ERISA laws.

Id. at 696.[7] See also Herman v. S. Carolina Nat. Bank, 140 F.3d 1413, 1424 (11th Cir. 1998)

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(same) (citing Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991)); Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983)).

         The Supreme Court has addressed the situation where the government seeks injunctive relief which is potentially duplicative of relief already afforded to a private party. In United States v. Borden Co., the Supreme Court held a private plaintiff's injunctive relief did not bar the federal government from bringing suit for injunctive relief under the Clayton Act, 15 U.S.C. § 25. 347 U.S. 514, 520, 74 S.Ct. 703, 98 L.Ed. 903 (1954). The district court had held the violations described in the government's complaint and shown at the trial were, " for the most part, old violations . . . [and] the [private injunction] assure[d], as completely as any decree can assure, that there will be no new violations." Id. at 517-518 (internal quotation marks and citation omitted). The Supreme Court reversed, holding that the district court's reasoning ignored " the prime object of civil decrees secured by the Government--the continuing protection of the public, by means of contempt proceedings, against a recurrence of [] violations." Id. at 519. The Court continued:

Should a private decree be violated, the Government would have no right to bring contempt proceedings to enforce compliance; it might succeed in intervening in the private action but only at the court's discretion. The private plaintiff might find it to his advantage to refrain from seeking enforcement of a violated decree; for example, where the defendant's violation operated primarily against plaintiff's competitors. Or. the plaintiff might agree to modification of the decree, again looking only to his own interest. In any of these events it is likely that the public interest would not be adequately protected by the mere existence of the private decree. It is also clear that Congress did not intend that the efforts of a private litigant should supersede the duties of the Department of Justice in policing an industry. Yet the effect of the decision below is to place on a private litigant the burden of policing a major part of the milk industry in Chicago, a task beyond its ability, even assuming it to be consistently so inclined." Id. at 519.

         Thus, the Supreme Court recognized the government's interest in enforcing the provisions of a privately-held injunction, as well as its duty to enforce its laws may justify a second injunction. The private decree was to be considered in determining whether the government could show a likelihood of recurring illegal activity, but it was not dispositive of that question. Id. at 520.

         The Supreme Court also determined that, in stating the United States district attorneys and the Attorney General had a duty to institute equity proceedings to enforce antitrust laws while also allowing private plaintiffs to obtain injunctive relief, the Clayton Act created a scheme in which " private and public actions were designed to be cumulative, not mutually exclusive." Id. at 518.

         A similar conclusion applies to Title VI, one of the statutes under which the United States' brings its claims. Title VI is part of the Civil Rights Act of 1964, a sweeping piece of legislation which

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banned racial discrimination in voting, schools, workplaces, and public accommodations and created mechanisms through which the federal government could enforce each provision. The Act was passed in the context of widespread conflict and unrest regarding racial desegregation, including resistance to desegregation by state and local governments and private individuals. Its purpose was to harness the power of the federal government to eradicate racial discrimination throughout the United States, regardless of local bias. The Supreme Court has held private plaintiffs may bring suit under Title VI for violations caused by intentional discrimination but not disparate impact discrimination. Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The federal government, by contrast, may sue for either intentional or disparate impact discrimination. See infra, Part III(A). And federal agencies which extend federal financial assistance are both " authorized and directed to effectuate [its] provisions." 42 U.S.C. § 2000d (emphasis added). Just as in Borden Co., the statutory scheme of Title VI and the Civil Rights Act of 1964 lends itself to and is enhanced by viewing private enforcement action as supplemental and cumulative to government enforcement action.

         The other statute under which the United States brings these claims, the Violent Crime Control and Law Enforcement Act of 1994, may be best known for its crime prevention measures, including a federal ban on assault weapons and increased federal funding of local law enforcement. See Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L.Rev. 870, 883 n. 35-36 (2015). But the Act also contains provisions directed at reforming law enforcement. For instance, under § 14141, the relevant section here, the Attorney General has discretion to bring civil actions to obtain appropriate equitable and declaratory relief to eliminate the pattern or practice of law enforcement that violates constitutional rights and privileges.

         Portions of the United States' claims of discriminatory policing involve conduct addressed in Melendres --discriminatory vehicle stops related to immigration enforcement. But the United States' claims also include allegations regarding discriminatory home raids, worksite raids, and non-motor vehicle related arrests and detentions, which are different in important respects from those presented in Melendres. For one, the United States' claims are not confined to immigration enforcement, but extend to discrimination in general law enforcement.

         Despite this overlap, the United States possesses a unique interest, which supports the finding of a live controversy as to allegations regarding discriminatory traffic stops. Furthermore, the purposes of Title VI and § 14141 would be served by permitting the United States to bring its own enforcement actions, regardless of previous action taken by private plaintiffs. The United States' interest in this case is distinct from those of private plaintiffs' in Melendres. As with the Secretary of Labor in Fitzsimmons, the federal government has an interest in the uniform and robust enforcement of federal civil rights legislation nationwide. Its interest in preventing the type of discrimination charged in this case extends beyond the well-being of a defined class of plaintiffs to the safety, security, and just and harmonious coexistence of all citizens. The United States likewise has an interest in ensuring confidence in law enforcement activities which utilize federal funding and may affect interstate commerce. In addition, the findings in Part III(A), infra, show congressional intent to permit the federal government to bring an enforcement action.

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To paraphrase Fitzsimmons, to hold mootness doctrine bars the Attorney General from independently pursuing enforcement of Title VI would effectively limit the authority of the Attorney General under the statute--something a court will not do in the absence of an explicit legislative directive. See Fitzsimmons, 805 F.2d at 691.

         In addition, the Melendres injunction does not moot the portions of the United States' claims which overlap with Melendres because continued violations by Arpaio and MCSO following the issuance of the injunction demonstrate a real and immediate threat of future harm, as well as the importance of granting the United States authority to enforce injunctive relief addressing MCSO's discriminatory traffic stops. See Borden Co., 347 U.S. at 519; (2:07-CV-2513-GMS, Doc. 948) (Arpaio's stipulation to violations of the Melendres injunction by Arpaio and MCSO); (2:07-CV-2513-GMS, Doc. 0127 at 118-125). In addition, in the context of the United States' broader claims, its claims regarding traffic stops may lead to different injunctive measures than those put forth in Melendres, where the allegations of discriminatory traffic stops were brought in isolation. In other words, the Melendres injunction may afford some, but only partial relief for the United States' claims. See Flagstaff Med. Ctr., Inc., 962 F.2d at 885.

         In sum, it is premature for the Court to conclude the United States' allegations would lead to a replica of the Melendres injunction. And, even if portions of the order were replicated, the United States' unique interest in enforcing those provisions and the continuing threat of future harm it faces render the claims justiciable.

         B. Justiciability of Claims Against Maricopa County

         Maricopa County argues the United States does not have standing because it has failed to show " the harms it alleges are 'likely to be redressed' by a judgment against the County." (Doc. 334 at 8). The United States contends it has shown a likelihood of redress and that the " law of the case" precludes the County's argument. (Doc. 348 at 8).

         To have Article III standing, a plaintiff must demonstrate: (1) it has suffered " injury in fact--an invasion of a legally protected interest which is . . . concrete and particularized" ; (2) " a causal connection between the injury and the conduct complained of" ; and (3) the likelihood " the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted).

         In a previous order, the Court held, " Under Arizona law, the Sheriff has final policymaking authority with respect to County law enforcement and jails, and the County can be held responsible for constitutional violations resulting from these policies," (Doc. 56 at 13), and denied Maricopa County's motion to dismiss, including the allegation of lack of standing.[8]

         " Law of the case" doctrine " preclude[s a court] from reexamining an issue previously decided by the same court, or a higher court, in the same case." United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) (citation omitted). The doctrine applies where an issue was " decided explicitly or by necessary implication in [the]

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previous disposition." Id. (internal quotation marks and citation omitted).

         In finding Maricopa County could be held responsible for Arpaio's constitutional violations, the Court ruled, by necessary implication, the County was capable of redressing those violations. Nonetheless, Maricopa County now claims the Court's previous analysis was flawed because it relied on precedents from § 1983 cases involving claims for monetary, rather than injunctive relief. Maricopa County acknowledges A.R.S. § 11-201 gives it the power to determine MCSO's budget, but maintains that authority is insufficient to influence or control how MCSO is run. Maricopa County also claims: 1) the County cannot " cure the alleged violations here" (Doc. 356 at 10); 2) the United States has failed to show Arpaio and MCSO engage in " assessing, collecting, safekeeping, managing or disbursing the public revenues" such that they would fall under Maricopa County's supervisory authority pursuant to A.R.S. § 11-251(1); and 3) A.R.S. § 11-444 severely limits its authority to withhold funding.

         Although the cases on which the Court's previous order relied involved claims under § 1983, which allows for monetary as well as injunctive relief, the reasoning applied to find Maricopa County potentially liable for MCSO's constitutional violations was not premised on the form of relief sought, but rather on the bases for " policymaker" ...


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