United States District Court, D. Arizona
H. RUSSEL HOLLAND, District Judge.
Motions for Partial Summary Judgment
Plaintiff moves for partial summary judgment. This motion is opposed. Defendants move for partial summary judgment. These motions are opposed. Oral argument was requested and has been heard.
Plaintiff is the United States of America. Defendants are the Town of Colorado City, Arizona; the City of Hildale, Utah; Twin City Power (TCP); and Twin City Water Authority, Inc. (TCWA).
Plaintiff alleges that "[d]efendants have engaged in a pattern or practice of illegal discrimination against individuals who are not members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS')." Plaintiff alleges that defendants "have acted in concert with FLDS leadership to deny non-FLDS individuals housing, police protection, and access to public space and services." Plaintiff further alleges that the Cities' joint police department, the Colorado City Marshal's Office (CCMO), "has inappropriately used its state-granted law enforcement authority to enforce the edits of the FLDS, to the detriment of non-FLDS members."
In Count I of its complaint, plaintiff asserts a claim under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, against the Cities. Plaintiff alleges that the Cities
engaged in and continue to engage in a pattern and practice of conduct that deprives persons of rights, privileges, or immunities secured or protected by the First, Fourth, and Fourteenth Amendments to the United States Constitution and the laws of the United States.
In Count II of its complaint, plaintiff asserts a single claim brought pursuant to § 3614(a) of Fair Housing Act (FHA), which "prohibits various forms of discrimination in the sale or rental of housing[.]" United States v. Balistrieri, 981 F.2d 916, 927 (7th Cir. 1992). Plaintiff alleges that all four defendants have engaged in a pattern and practice of violating Sections 3604(a), 3604(b), and 3617 of the FHA and that their conduct constituted "[a] denial to a group of persons rights granted by the Fair Housing Act, which raises an issue of general public importance, in violation of the Fair Housing Act, 42 U.S.C. § 3614(a)." More specifically, plaintiff alleges that defendants "have, since approximately 2008, denied or unreasonably delayed water and electric service to non-FLDS individuals, refused to issue them building permits, and otherwise prevented non-FLDS individuals and the Trust from constructing new housing or occupying existing housing[.]" Plaintiff alleges that the Cities and TCWA denied non-FLDS individuals' requests for new water service and that the Cities denied building permits to non-FLDS members due to a water shortage, even though "there is no water shortage in the Cities that would justify these denials." Plaintiff alleges that "[t]here are persons who have been injured by [d]efendants' discriminatory actions and practices who are aggrieved persons as defined in 42 U.S.C. § 3602(i). These persons have suffered damages as a result of [d]efendants' discriminatory actions and practices" For Count II, plaintiff seeks injunctive relief, civil penalties, and damages on behalf of the sixteen aggrieved persons it has disclosed.
Plaintiff commenced this action on June 21, 2012. Prior to the commencement of this case, a case entitled Cooke v. Town of Colorado City, Case No. 3:10-cv-8105-PCT-JAT, was filed. In Cooke, the State of Arizona and Ron and Jinjer Cooke alleged that defendants violated the FHA and engaged in a pattern and pattern of discrimination on the basis of religion in violation of the Arizona Fair Housing Act (AFHA). The Cooke complaint was based in large part on allegations that the Cookes were denied a water connection because defendants claimed that "due to a water shortage, no new water connections would be provided for property that had never had water service...." The Cooke complaint also alleged that the CCMO interfered with the Cookes' housing rights. The Cookes asserted FHA claims based on 42 U.S.C. §§ 3604(a), 3604(b), 3604(f), and 3617. The Cookes and the State also asserted various claims under the AFHA and the State asserted a pattern and practice claim under the AFHA based on allegations that defendants had a pattern and practice of denying utilities to non-FLDS individuals.
The Cooke case went to trial and on March 20, 2014, the jury returned a verdict in favor of the Cookes and the State. The jury found that defendants had "violated the federal Fair Housing Act and the Arizona Fair Housing Act by discriminating against the Cookes in the provision of services or facilities because of religion." The jury found that defendants had "violated the federal Fair Housing Act and the Arizona Fair Housing Act by coercing, intimidating, threatening, interfering with, or retaliating against the Cookes in the enjoyment of their dwelling because (1) of religion or (2) the Cookes asserted rights, or encouraged others to assert their rights, protected by the federal Fair Housing Act or the Arizona Fair Housing Act." And, the jury found that defendants "violated the Arizona Fair Housing Act by engaging in a pattern and practice of resistance to the full enjoyment of any right granted by the" AFHA.
Plaintiff now moves for partial summary judgment, arguing that collateral estoppel applies to the issue of defendants' liability on Count II. Colorado City, joined by the Hildale defendants, moves for summary judgment on Count I of plaintiff's complaint and on Count II damages. And, the Hildale defendants move for summary judgment on plaintiff's request for injunctive relief under the FHA and for summary judgment dismissing plaintiff's Count II against TCP and TCWA.
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255. "[T]he court's ultimate inquiry is to determine whether the specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence." T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).
In Count I, plaintiff asserts a claim under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. Section 14141 provides in relevant part:
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
Plaintiff alleges that the CCMO has engaged in a pattern or practice of conduct that deprived persons of their rights under the First, Fourth, and Fourteenth Amendments.
As an initial matter, defendants argue that Count I should be limited to allegations that the CCMO engaged in a pattern or practice of conduct that violated the Fourteenth Amendment. Defendants argue that the First and Fourth Amendment do not apply to claims under 42 U.S.C. § 14141. See Whren v. United States, 517 U.S. 806, 813 (1996) ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment."); United States v. Johnson, 28 F.Supp. 3d 499, 514 (M.D. N.C. 2014) ("to the extent the Government is challenging a pattern of allegedly discriminatory individual traffic stops on the basis of ethnicity, Johnson is correct that the Equal Protection Clause, not the Fourth Amendment, applies"); United States v. City of Columbus, Ohio, Case No. CIV.A.2:99CV1097, 2000 WL 1133166, at *9 (S.D. Ohio Aug. 3, 2000) ("the Court concludes that § 14141 is a valid and proper exercise of congressional authority under § 5 of the Fourteenth Amendment"). Defendants argue that because any claim related to a pattern and practice of misconduct under § 14141 falls solely within the Fourteenth Amendment, they are entitled to summary judgment on the First and Fourth Amendment components of plaintiff's § 14141 claim.
Defendants' reliance on Whren is misplaced because that case did not involve a § 14141 claim. Defendants' reliance on Johnson is also misplaced. There, the government alleged that "Johnson, in his official capacity as Sheriff of Alamance County, North Carolina, engaged in a pattern or practice of discriminatory law enforcement activities directed against Latinos, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution." Johnson, 28 F.Supp. 3d at 502. On cross-motions for summary judgment, the court concluded that there were material questions of fact as to the government's claim based on the Fourteenth Amendment. Id. at 512-13. As to the government's claim based on the Fourth Amendment, the government contended that this claim "encompasse[d] the ACSO's alleged discrimination on the basis of ethnicity in initiating traffic stops and use of vehicular checkpoints for general law enforcement purposes." Id. at 513. "Johnson contends that the first does not state a claim under the Fourth Amendment, but rather under the Equal Protection Clause of the Fourteenth Amendment." Id. at 514. The court concluded that "to the extent the Government is challenging a pattern of allegedly discriminatory individual traffic stops on the basis of ethnicity, Johnson is correct that the Equal Protection Clause, not the Fourth Amendment, applies." Id . But, the court did not hold that a § 14141 claim can never be based on the Fourth Amendment. Rather, "the court conclude[d]... that the complaint raises a proper Fourth Amendment challenge to the extent it contends that the ACSO, as part of its alleged targeting of Latinos, has conducted checkpoints with a programmatic purpose that violates the Fourth Amendment." Id. at 516 (emphasis omitted); see also, United States v. Maricopa County, Ariz., 915 F.Supp.2d 1073, 1081 (D. Ariz. 2012) ("[t]he plain language of the statute allows for a Section 14141 claim based on a First Amendment deprivation").
Defendants' reliance on City of Columbus is also misplaced. There, the court considered an argument that "Congress exceeded its constitutional authority in promulgating... 42 U.S.C. § 14141." City of Columbus, 2000 WL 1133166, at *1. The court rejected this argument because it concluded "that § 14141 is a valid and proper exercise of congressional authority under § 5 of the Fourteenth Amendment." Id. at *9. The court did not hold that § 14141 claims could only be based on violations of the Fourteenth Amendment.
Thus, defendants' argument that plaintiff cannot base its § 14141 claim on violations of the First and Fourth Amendments fails. Although the protections of the First and Fourth Amendments are effective against the states through the Fourteenth Amendment, see Vlasak v. Superior Court of Calif. ex rel. County of Los Angeles, 329 F.3d 683, 687 n.2 (9th Cir. 2003) ("The First Amendment applies to the States and their political subdivisions through the Fourteenth Amendment"); Molina v. Richardson, 578 F.2d 846, 848 n.4 (9th Cir. 1978) ("The protections of the Fourth Amendment are effective against the states through the Fourteenth" Amendment), that does not mean that plaintiff cannot attempt to prove its § 14141 claim by establishing that the CCMO had a pattern and practice of violating the First and Fourth Amendments.
Defendants next argue that they are entitled to summary judgment on Count I because plaintiff has no evidence to support its allegation that the CCMO engaged in a pattern and practice of religious discrimination. Plaintiff alleges that the CCMO engaged in a pattern and practice of religious discrimination because it "fails to protect non-FLDS individuals from victimization by FLDS members, fails to investigate crimes against non-FLDS individuals and their property, and refuses to arrest FLDS individuals who have committed crimes against non-FLDS individuals." These are allegations that the CCMO violated the equal protection clause of the Fourteenth Amendment. See Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)) ("The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike.'"). Plaintiff has alleged several examples of the CCMO's discriminatory conduct in paragraphs 18, 22, 23, 28, 30, and 32 of its complaint, but defendants argue that none of these examples involve religious discrimination.
But even if none of these examples suggest that the CCMO was treating non-FLDS individuals differently, plaintiff has come forward with other evidence which is sufficient to create issues of material fact as to whether the CCMO had a pattern and practice of violating the Equal Protection Clause of the Fourteenth Amendment. This evidence includes the arrest of Harvey Dockstader, a non-FLDS individual,  the February 2013 ECO Alliance incident,  and the arrest of William E. Timpson Jessop in 2011.
There are also questions of material fact as to whether the CCMO violated the First Amendment. "The First Amendment provides that, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....'" Williams v. Calif., 764 F.3d 1002, 1011 (9th Cir. 2014). "The First Amendment's protection of the freedom of religion is considered to be embodied in two clauses: the Establishment Clause' and the Free Exercise Clause.'" Id . This case involves the Establishment Clause, which "prohibits the Government from compelling an individual to participate in religion or its exercise, or otherwise from taking action that has the purpose or effect of promoting religion or a particular religious faith." Id.
"There are three possible tests for determining whether [conduct] violates the Establishment Clause-the Lemon test, the Endorsement test and the Coercion Test." Newdow v. Rio Linda Union School Dist., 597 F.3d 1007, 1017 (9th Cir. 2010). "Under the Lemon test, to be constitutional (1) the challenged governmental action must have a secular purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion'; and (3) it must not foster an excessive government entanglement with religion.'" Id . (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). "Under the Endorsement Test, [the court] look[s] to see whether the challenged governmental action has the purpose or effect of endorsing, favoring, or promoting religion, particularly if it has the effect of endorsing one religion over another." Id. at 1037. "[T]he coercion test' emanat[es] from Lee v. Weisman, 505 U.S. 577, 587 (1992), in which the Court observed, "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion, or its exercise." Turner v. Hickman, 342 F.Supp.2d 887, 893-94 (E.D. Cal. 2004).
Plaintiff has come forward with evidence that FLDS leaders direct who becomes an officer and the Marshal. For example, Helaman Barlow testified that he was the interim Marshal for a period of time but then John Wayman, who was a FLDS church leader, "told me to let the city manager and council know that he okayed me becoming the permanent chief." This evidence suggests control by the FLD. government law enforcement, which may constitute unconstitutional fusion and entanglement. See Larkin v. Grendel's Den, Inc., 459 U.S. 116, 127 (1982 ("important, discretionary governmental powers [cannot] be delegated to or shared with religious institutions"). Plaintiff has also come forward with evidence that suggests that CCMO officers endorsed and protected the FLDS church, often in violation of the oaths they took to uphold the law. For example, Dowayne Barlow testified that several CCMO officers, including Fred Barlow, Jonathan Roundy, Sam Johnson, and Helaman Barlow, dropped off parcels, letters, and contributions to couriers to give to Warren Jeffs, while he was a fugitive. And, plaintiff has come forward with evidence that CCMO officers were aware of marriages involving underage girls but did not open any criminal investigations regarding these illegal acts.
Plaintiff has also come forward with evidence that creates issues of fact as to whether the CCMO had a pattern and practice of violating non-FLDS individuals' Fourth Amendment rights. "The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.'" Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). A reasonable factfinder could conclude that some of the incidents mentioned above objectively violate the Fourth Amendment. In addition, plaintiff has come forward with evidence of investigatory stops which a reasonable factfinder could find violated the Fourth Amendment. For example, Sam Brower testified that he believed he was stopped "without any probable cause ...