United States District Court, D. Arizona
Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona; et al. Defendants. and United States of America, Plaintiff-Intervenor,
FINDINGS OF FACTS - AND-ORDER SETTING A HEARING FOR MAY 31, 2016
Honorable G. Murray Snow United States District Judge.
This Court held 21 days of evidentiary hearings in April, September, October, and November of 2015. At issue were three different charges of civil contempt raised against Sheriff Joseph Arpaio and various other alleged non-party contemnors. Also at issue was the relief necessary to compensate the Plaintiff class for the Defendants’ acts of misconduct.
The Court ordered the Parties to introduce all fact evidence that would bear on the remedies to which the Plaintiffs might be entitled.
From the substantial evidence presented during the hearing and the facts set forth in detail below, the Court finds that the Defendants intentionally failed to implement the Court’s preliminary injunction in this case, failed to disclose thousands of relevant items of requested discovery they were legally obligated to disclose, and, after the post-trial disclosure of additional evidence, deliberately violated court orders and thereby prevented a full recovery of relevant evidence in this case.
Defendants also initiated internal investigations designed only to placate Plaintiffs’ counsel. Defendants did not make a good faith effort to fairly and impartially investigate and discipline misconduct or to discover other materials responsive to Plaintiffs’ pretrial requests. To escape accountability for their own misconduct, and the misconduct of those who had implemented their decisions, Defendants, or their proxies, named disciplinary officers who were biased in their favor and had conflicts, Defendants remained in control of investigations in which they themselves had conflicts, Defendants promulgated special inequitable disciplinary policies pertaining only to Melendres-related internal investigations, Defendants delayed investigations so as to justify the imposition of lesser or no discipline, Defendants misapplied their own disciplinary policies, and Defendants asserted intentional misstatements of fact to their own investigators and to the court-appointed Monitor. The Defendants’ unfair, partial, and inequitable application of discipline disproportionally damaged members of the Plaintiff class.
Ultimately, few persons were investigated; even fewer were disciplined. The discipline imposed was inadequate. The only person who received a suspension-for one week-was also granted a raise and a promotion.
When the Court issued an Order to Show Cause and scheduled the evidentiary hearing, Defendants again failed to timely produce the evidence they were legally obligated to produce. Further, despite at least three applicable disclosure orders and despite assurances to the Court that they were disclosing and would continue to completely comply with court-ordered disclosure requirements, Defendants intentionally withheld documents involving the Plaintiff class. In doing so, they again violated court orders, made intentional misstatements of fact to the Monitor about the existence of such documents, and made additional intentional misstatements to the Monitor in an attempt to justify their concealment.
In their testimony during the evidentiary hearing, Sheriff Arpaio and Chief Deputy Sheridan made multiple intentional misstatements of fact while under oath.
In short, the Court finds that the Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith with respect to the Plaintiff class and the protection of its rights. They have demonstrated a persistent disregard for the orders of this Court, as well as an intention to violate and manipulate the laws and policies regulating their conduct as they pertain to their obligations to be fair, “equitable[, ] and impartial” with respect to the interests of the Plaintiff class.
Sheriff Arpaio is in civil contempt on Counts One, Two, and Three of the Order to Show Cause. Chief Deputy Sheridan is in civil contempt on Counts One and Three. Retired Chief Sands and Lieutenant Sousa are in civil contempt on Count One.
The Court has set a hearing for May 31, 2016, in which the Parties will be able to discuss with the Court the appropriate relief in light of the factual findings below.
I. THE MCSO FAILED TO IMPLEMENT THE COURT’S PRELIMINARY INJUNCTION (COUNT ONE OF THE ORDER TO SHOW CAUSE).
1. On December 1, 2011, with motions for class certification, summary judgment, and partial preliminary injunction pending, this Court ordered the Parties to provide supplemental briefing on several issues prior to oral argument. (Doc. 477.)
2. Those issues principally involved whether the Maricopa County Sheriff’s Office (MCSO) had the authority to enforce federal civil immigration law. (Doc. 477.)
3. In its supplemental brief, the MCSO acknowledged that it had no authority to enforce federal civil immigration law. The MCSO also stated that it had been training its officers, especially its Human Smuggling Unit (HSU) officers, to comply with Ninth Circuit precedent to that effect. (Doc. 488 at 1-2.)
4. Sheriff Arpaio nevertheless claimed that the MCSO held authority under Arizona law to detain persons based only on the reasonable suspicion that the detainees were in the United States without authorization.
5. However, after the loss of the MCSO’s 287(g) authority, (see Doc. 579), it remained the MCSO’s office-wide policy and practice to detain and arrest persons believed to be within the United States without authorization, even when no state charges could be brought against such persons. (See, e.g., Doc. 1017 at Tr. 160:15- 162:7; Doc. 1027 at Tr. 711:10-21.)
6. The preliminary injunction, entered shortly thereafter, made it clear that the MCSO had no authority under state law to detain persons based solely on their illegal presence within the United States. “[T]he fact that a person is unlawfully present, without more, does not provide officers with reasonable suspicion that the person is currently being smuggled for profit, nor does it provide probable cause that the person was at some point in the past smuggled for profit. . . . To the extent that Defendants claim that the [Arizona] human smuggling statute, or any Arizona or federal criminal law, authorized them to detain people solely on the knowledge, let alone the reasonable suspicion, that those people are not authorized to be in the country, they are incorrect as a matter of law.” (Ex. 67 at 17.)
7. The preliminary injunction further reaffirmed what the MCSO had already admitted: that under the United States Constitution, the MCSO could not “detain individuals in order to investigate civil violations of federal immigration law.” (Ex. 67 at 39.) The preliminary injunction further enjoined the MCSO from “detaining any person based on actual knowledge, without more, that the person is not a legal resident of the United States.” (Id.)
8. The prohibitions of the preliminary injunction were not restricted to the HSU’s operations, but rather applied to the entire MCSO. (Ex. 67 at 40 (“MCSO and all of its officers are hereby enjoined . . . .”) (emphasis added).)
9. After the preliminary injunction was entered, no changes were made to the MCSO’s active enforcement of immigration laws, nor to its policies, practices, or operations related to immigration enforcement. The MCSO continued its past practice of detaining persons for whom it had no state charges and turning them over to ICE or Border Patrol. (Doc. 1021 at Tr. 369:21-371:7, 383:7-10; Doc. 1027 at Tr. 611:7-14, 761:2-4; see also Ex. 2219 at MELC209788 (“[Sergeant Trowbridge] said nothing at all changed about the way they conducted business after the Court order.”), MELC209805 (“Lt. Sousa said nothing changed about the way his unit approached its work as a result of that court order.”).) The MCSO also continued to detain all persons suspected of violating human smuggling laws and continued to take them to HSU offices for further interrogation to determine whether they could be charged with any state crime. If the MCSO could not substantiate state charges, then attempts were made to transfer custody of such persons to federal agencies involved with immigration enforcement.
10. The MCSO continued these unconstitutional practices until this Court entered its Findings of Fact and Conclusions of Law in May 2013.
A. Individual Liability for Failure to Implement the Court’s Preliminary Injunction.
1. Sheriff Arpaio Knowingly and Intentionally Failed to Implement the Preliminary Injunction.
11. Sheriff Arpaio has conceded that he is liable for civil contempt for violating the terms of the preliminary injunction. Nevertheless, whether his contempt of the injunction was knowing and intentional is relevant to the appropriate remedy. The Court thus finds that Arpaio is in civil contempt and additionally finds that Arpaio’s contempt was both knowing and intentional.
a. Sheriff Arpaio Knew That the Preliminary Injunction Existed and Was in Force.
12. On December 23, 2011, the date that the preliminary injunction issued, Mr. Casey, the MCSO’s outside legal counsel, informed Sheriff Arpaio of its issuance and terms. (Doc. 1417 at Tr. 1639-43.)
13. Sheriff Arpaio further acknowledged that he may have read about the preliminary injunction in The Arizona Republic. (Doc. 1051 at Tr. 478.)
14. In fact, immediately upon its issuance, the preliminary injunction was featured in a front-page story in The Arizona Republic. The article specifically noted that “[t]he judge’s ruling also bars all sheriff’s officers from arresting any person ‘only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.’” JJ Hensley, “Judge Curbs MCSO Tactics, ” The Arizona Republic, Dec. 24, 2011, at A1. Moreover, the article quotes Mr. Casey as stating that he had been instructed by Sheriff Arpaio to appeal the preliminary injunction but nevertheless to have MCSO officers obey it in the meantime. Id.
15. At the hearing on this matter, Sheriff Arpaio reaffirmed his previous testimony that he was aware of the preliminary injunction when it came out. (Doc. 1051 at Tr. 477-78.) Arpaio further testified that at all times from the date of its entry until his testimony in the evidentiary hearing, he knew that the preliminary injunction was in force and never forgot about it. (Id. at Tr. 480-81.)
16. Sheriff Arpaio was the only person who had the authority to decide whether to appeal the preliminary injunction, (Doc. 1051 at Tr. 479-80), and he publicly indicated that he would do so. (Doc. 1027 at Tr. 740-41.) On January 4, 2012, Mr. Casey emailed attorney Mr. Liddy, Chief Sands, and Chief MacIntyre, noting Arpaio’s assertion that the preliminary injunction had no effect on ongoing MCSO operations and also noting that he was nevertheless instructed to appeal it. (Doc. 1417 at Tr. 1656:12- 1658:7; Ex. 2535 (“The Sheriff called last night . . . . During the call, [the Sheriff] indicated that he wanted the Notice of Appeal on file even though the injunctive relief is, in actual practice, relatively harmless to MCSO field operations.”); see also Ex. 2533 at MELC210542.)
b. Sheriff Arpaio Understood the Meaning of the Preliminary Injunction.
1) Counsel Explained the Preliminary Injunction to Sheriff Arpaio.
17. On December 23, 2011, the date the preliminary injunction issued, Mr. Casey immediately told MSCO command staff that they could not turn anyone over to the federal authorities. (Doc. 1417 at Tr. 1639-43.) Sheriff Arpaio responded to Casey that the MCSO was not detaining anyone. (Id. at Tr. 1642-43.)
18. Sheriff Arpaio does not deny telling Mr. Casey that he would release people if they had no state charges to bring against them. He also testified that he told Casey that he saw no reason to detain these individuals since President Obama was going to let them go anyway. (Doc. 1458 at Tr. 2542-43.) Arpaio also does not deny telling Casey that he would follow Casey’s advice regarding the preliminary injunction. (Id. at Tr. 2555-56.)
19. Although at the hearing Sheriff Arpaio testified that he does not remember whether he communicated with Mr. Casey about the preliminary injunction on December 23, 2011, he acknowledged that he may have had such a conversation. (Doc. 1027 at Tr. 628.)
20. That communication is verified by contemporaneous correspondence. Late on the night of December 23, 2011, Mr. Casey emailed his associate James Williams and reported that he had communicated the Court’s ruling to Chief Sands, Chief MacIntyre, and Sheriff Arpaio. (Doc. 1417 at Tr. 1642-43; Ex. 2534 (“Frankly I am relatively pleased. So are Chiefs Sands and MacIntyre. Arpaio is conflicted on how he feels.”).)
21. Mr. Casey’s time sheet indicates several personal meetings or communications with Sheriff Arpaio in late December 2011 and in January 2012. (Doc. 1417 at Tr. 1654-55; Ex. 2533 at MELC210539-40.)
22. Sheriff Arpaio acknowledges that he may have met with attorneys regarding the preliminary injunction during this time period, but he testified that he was not “constantly” meeting with them. (Doc. 1027 at Tr. 595.)
23. Sometime shortly after the issuance of the injunction, Mr. Casey testified that he developed the “arrest or release” terminology to simplify the meaning of the injunction and to assist in explaining it to MCSO personnel. The gist of his instruction was that if the deputies detained someone they suspected of being in the United States without authorization, they either had to arrest them on a state charge, or they had to release them. (Doc. 1417 at Tr. 1647-48.)
24. Sheriff Arpaio acknowledges that Mr. Casey may have told him that the MCSO either needed to arrest those they suspected of being unauthorized immigrants on applicable state charges or release them. (Doc. 1458 at Tr. 2539-40.) Arpaio admits that Casey never told him that it was acceptable to deliver persons to Border Patrol for whom he had no state charges. (Id. at Tr. 2528, 2498:17-2499:11, 2500:14-2501:7.)
2) Chief MacIntyre Presented the Preliminary Injunction to Sheriff Arpaio.
25. Chief MacIntyre testified that he read the preliminary injunction and fully understood it. (Doc. 1422 at Tr. 1877-78; see Ex. 2219 at MELC209815.) He understood, for example, that if the MCSO had no probable cause to believe that a state crime existed, it could not hold an unauthorized alien for transfer to a federal agency. (Doc. 1422 at Tr. 1877-78; Ex. 2219 at MELC209814-16.)
26. Chief MacIntyre felt that he had an ethical responsibility to help Sheriff Arpaio understand the necessary changes he needed to make in the department to be in compliance with the preliminary injunction. As a result, he attended a scheduled meeting on the first or second Monday of January 2012 at which the MCSO chiefs regularly meet with Arpaio and Chief Deputy Sheridan. (Doc. 1422 at Tr. 1878:23-25; Ex. 2219 at MELC209814.) He attended that meeting to make sure that Arpaio and others heard the words of the preliminary injunction and understood what it said. (Doc. 1422 at Tr. 1879.) MacIntyre “told [Sheriff Arpaio] point blank exactly what the [preliminary injunction] order says and what the requirements are.” (Ex. 2219 at MELC20981; see also Doc. 1422 at Tr. 1880-81.) He explained it twice. (Doc. 1422 at Tr. 1880; Ex. 2219 at MELC209815.) He spoke slowly and enunciated. (Doc. 1422 at Tr. 1879-81.) Arpaio acknowledged that he heard MacIntyre. (Id. at Tr. 1880:11-12.)
3) Nevertheless, Sheriff Arpaio Continued to Publicly Assert That the MCSO Had the Authority to Do What the Preliminary Injunction Proscribed.
27. In June of 2012, Sheriff Arpaio gave a series of interviews in which he acknowledged that the MCSO had been arresting people for whom it had no state charge and turning them over to ICE. (Ex. 198A (“When we stop people on violations of the law, and then we have suspicion that that person could be here illegally, then we call ICE.”).)
28. Sheriff Arpaio also indicated an unwillingness to release such persons if ICE refused to accept them and stated that he would “work around” any such refusal. (Ex. 200A (June 25, 2012 interview with Fox News, in which Arpaio indicated that he would implement a plan to keep arresting unauthorized aliens locally even if ICE refused to accept such persons from the MCSO); Doc. 1027 at Tr. 535-38; see also Ex. 197A; Ex. 198A; Ex. 198B.)
29. On July 24, 2012, Sheriff Arpaio testified at the underlying trial in this matter. During his testimony, Arpaio stated that the MCSO still had the authority to and did unauthorized persons for whom the MCSO had no state charges. He testified that the MCSO turned such persons over to ICE. (Doc. 572 at Tr. 502-04.)
30. Other MCSO officers, including Chief Sands, corroborated such activity. (Doc. 579 at 105.)
31. Sheriff Arpaio’s insistence that the MCSO retained the authority to detain unauthorized persons without any state grounds for detention, does not indicate a failure to understand the preliminary injunction, but rather a refusal to abide by it.
c. Sheriff Arpaio Intentionally Chose Not to Implement the Preliminary Injunction.
32. Sheriff Arpaio testified that he did not intentionally violate this Court’s orders because he delegated the responsibility of the MCSO’s compliance with the preliminary injunction to his subordinates and to his legal counsel. (Doc. 1051 at Tr. 479, 482, 484-85; see also Ex. 2219 at MELC209836 (“I don’t give the guidance. I have my lawyers and subordinates that give guidance.”).)
33. In light of the evidence and testimony at the evidentiary hearing, that explanation is neither credible nor acceptable as a matter of fact or law.
1) Sheriff Arpaio Did Not Change the MCSO’s Operations Against the Advice of Chief Sands, Chief MacIntyre, and Mr. Casey.
34. Chief Sands testified that he met with Sheriff Arpaio shortly after this Court issued the preliminary injunction. During that meeting, Sands told Arpaio that the MCSO would have to curtail immigration enforcement operations including saturation patrols. (Doc. 1017 at Tr. 259.) Sands also told Arpaio that all MCSO deputies should learn about the preliminary injunction, but Arpaio instructed Sands to only disseminate information regarding the preliminary injunction to the HSU. (Id. at Tr. 261, 328.)
35. Sheriff Arpaio acknowledges the meeting and acknowledges that he instructed Chief Sands to only instruct the members of the HSU about the preliminary injunction, but he asserts that Mr. Casey was responsible for that instruction. (Doc. 1051 at Tr. 487:13-18.) Arpaio admits, however, that he had advised Casey, incorrectly, that the MCSO did not violate the preliminary injunction. Thus, even if Casey did give such advice to Arpaio, it must be understood in that context.
36. At yet another meeting, Chief Sands told Sheriff Arpaio that the preliminary injunction required that the MCSO release unauthorized immigrants for whom the MCSO had no state charge instead of taking them to ICE or the Border Patrol. (Doc. 1017 at Tr. 269-72; Doc. 1021 at Tr. 350-52.) This included unauthorized immigrants encountered in drop house raids. (Doc. 1017 at Tr. 269-72; Doc. 1021, Tr. at 350-52; see also Ex. 2219 at MELC209797.)
37. Sheriff Arpaio acknowledges that he had this second conversation with Chief Sands, although he testified that during the conversation he disagreed with Sands as to whether unauthorized immigrants encountered in drop houses might be detained as material witnesses to human smuggling. (Doc. 1051 at Tr. 487:23-489:18.)
38. After Sheriff Arpaio’s 2012 trial testimony, Mr. Casey addressed Arpaio and Chief Sands and directly explained that the MCSO had no authority to detain unauthorized persons and to turn them over to federal authorities. Arpaio stated that he understood. (Doc. 1422 at Tr. 1851-54.)
39. Nevertheless, the MCSO continued to do so.
2) Instead of Instructing the MCSO to Stop Violating the Preliminary Injunction, Sheriff Arpaio Promoted Continued Detentions and Even Developed and Publicized a “Back-Up Plan” to Work Around ICE’s Refusal to Accept Detained Person.
40. On September 21, 2012, Sheriff Arpaio issued a press release announcing a “back-up plan” that would allow the MCSO to continue to detain persons for whom it had no state charges in light of ICE’s refusal to accept them.
41. Generally, Sheriff Arpaio reviews all of the MCSO’s press releases before they go out, especially if they quote him. (Doc. 1051 at Tr. at 493-94.) The September 21, 2012 press release quotes Arpaio as saying: “I expected that [ICE’s refusal to accept persons from the MCSO for whom it did not have state charges] would happen eventually, so I had a back-up plan in place which was to take these illegal immigrants not accepted by ICE to the Border Patrol.” (Ex. 51; see also Ex. 199B.) The press release continues: “So as directed by the Sheriff, last night deputies took the two suspects to Border Patrol.” (Ex. 51; see also Ex. 199B.)
42. Four days after the MCSO issued the press release, the Ninth Circuit rejected Sheriff Arpaio’s appeal of the preliminary injunction. See Melendres, 695 F.3d at 1000-02.
43. On the day the Ninth Circuit affirmed the preliminary injunction, Mr. Casey sent notification of the decision to MCSO personnel and to Sheriff Arpaio’s personal secretary. (Ex. 2533 at MELC210588 (TJC entry on 09/25/2012).)
44. Two days later on October 9, 2012, apparently in light of the Ninth Circuit’s affirmance of this Court’s preliminary injunction, Sheriff Arpaio issued a press release stating: “My back-up plan is still in place and we will continue to take these illegal aliens not accepted by ICE to the Border Patrol.” (Ex. 82; Doc. 1027 at Tr. 563:21-564:2.)
45. Sheriff Arpaio’s publication of his back-up plan, and the incidents that led to it, came to the attention of Plaintiffs’ counsel. Plaintiffs’ counsel wrote a letter to Mr. Casey accusing the MCSO of violating the preliminary injunction.
46. When Mr. Casey discussed the Plaintiffs’ allegations with Chief Sands, Sands told Casey that the press releases describing the back-up plan were issued to assist Sheriff Arpaio in his upcoming re-election campaign. (Doc. 1417 at Tr. 1690:12-1691:5, 1695:2-7; Doc. 1422 at Tr. 1959:24-1961:2.)
47. Mr. Casey met with Sheriff Arpaio. During the meeting, Casey told Arpaio that he had never been informed of a back-up plan or a press release discussing one, and that he believed the back-up plan as described in the MCSO press releases violated the preliminary injunction. (Doc. 1417 at Tr. 1691-93.) Casey explained that in his judgment the preliminary injunction did not allow the MCSO to detain persons against whom it could not bring state charges to turn them over to ICE, the Border Patrol, or any other federal authority. (Id. at Tr. 1691-92; Doc. 1422 at Tr. 1801-02.)
48. Mr. Casey also raised with Sheriff Arpaio his concern about the fact that the press release said that this had been the MCSO’s consistent practice for over six years, because this was contrary to Arpaio’s previous assurances to him that the MCSO was not detaining persons to turn them over to ICE. (Doc. 1417 at Tr. 1692-94.)
49. Sheriff Arpaio’s response to Mr. Casey was that “he was the Sheriff, and he made the decisions.” (Doc. 1417 at 1692:13-15.)
50. In the conversation, Sheriff Arpaio indicated to Mr. Casey that ICE and the Border Patrol had directed the MCSO to detain and turn over to them persons whom the MSCO believed to be unauthorized and for whom it had no state charges. (Doc. 1422 at Tr. 1802:7-14.)
51. In fact, the Court finds that neither ICE nor the Border Patrol ever instructed the MCSO to turn over to them any persons whom the MCSO believed to be in the United States without authorization. Casey never saw any documentation suggesting that ICE or the Border Patrol had actually issued such instructions. (Doc. 1422 at Tr. 1802:7-14; see also Ex. 2514.) Defendants introduced no credible testimony or evidence at the hearing that federal agencies ever gave the MCSO any such instructions.
52. Moreover, to accept Sheriff Arpaio’s statement that ICE and/or the Border Patrol directed him to turn over unauthorized persons for whom he had no state charges contradicts Arpaio’s own press releases which indicate that it was his “back-up plan” to turn unauthorized persons over to the Border Patrol once ICE began refusing to accept them. (Ex. 51; see also Ex. 199B.) Additionally, even if ICE or the Border Patrol had issued such a direction to the MCSO, any such direction would not have changed the explicit orders of this Court to the MCSO prohibiting it from doing so.
53. Mr. Casey, taking his client at his word that federal authorities had given Sheriff Arpaio such direction, determined that it was possible to construct a good faith argument that the MCSO was not violating the preliminary injunction. But Casey told Arpaio that even though he could make such an argument, he did not believe that it would prevail. (Doc. 1417 at Tr. 1691-95; Doc. 1422 at Tr. 1802, 1847-49.)
54. Mr. Casey advised Sheriff Arpaio that the MCSO should cease activities pursuant to Arpaio’s back-up plan because it was in violation of the preliminary injunction. (Doc. 1417 at Tr. 1693 (“It was not a pleasant conversation . . . but [I] relayed to him that this is a problem. This cannot go on.”).)
55. Sheriff Arpaio assured Mr. Casey that operations pursuant to his back-up plan would cease. (Doc. 1417 at Tr. 1693, 1700:23-25.)
56. Despite his communications with Mr. Casey, Sheriff Arpaio continued to directly instruct the head of the HSU to continue to detain such persons and turn them over to ICE.
57. Lieutenant Jakowinicz, who was then in charge of the HSU, recalls a meeting with Sheriff Arpaio during the latter part of 2012, (Doc. 1051 at Tr. 404:13-16), in which Arpaio directed Jakowinicz to call the Border Patrol if ICE refused to take custody of an individual for whom the MCSO did not have state charges justifying detention. (Id. at Tr. 371:9-372:9.) Arpaio acknowledges that he had this conversation with Jakowinicz. (Doc. 1027 at Tr. 553-54.)
3) Sheriff Arpaio’s Persistent and Publicized Violations of the Preliminary Injunction Were Motivated by His Belief that Such Activities Would Benefit His Upcoming Reelection Campaign.
58. Sheriff Arpaio knowingly ignored the Court’s order because he believed that his popularity resulted, at least in part, from his enforcement of immigration laws. (Doc. 1017 at Tr. 277:5-13; Ex. 196C (August 31, 2012 interview with Fox News in which Arpaio states: “[T]hey like me because I’m enforcing the illegal immigration laws. So I think that should send a message that I am doing what the people elected me to do.”).) He also believed that it resulted in generous donations to his campaign. (Ex. 196D (August 31, 2012 Fox News interview in which Arpaio states: “I’ve raised 7.5 million [dollars] just to run for Sheriff . . . .”); Ex. 201B (April 13, 2012 interview in which Arpaio refers to the “big bucks” he is raising).)
59. Sheriff Arpaio spoke frequently with the media and the public about the MCSO’s immigration work. (Doc. 1017 at Tr.186:8-11.) The operations of the HSU remained very important to Arpaio. (Doc. 1027 at Tr. 640:22-24, 737:2-4.) They resulted in media attention, (Doc. 1051 at Tr. 390:7-21), and were designed to do so. (Id. at Tr. 440:10-441:3.) As Lieutenant Sousa put it, “Sheriff [Arpaio] and Chief Sands used the Human Smuggling Division as a political tool to gain attention. They always knew the details of our activity and put out press release after press release about them.” (Ex. 2219 at MELC209893; Ex. 2898 MELC-IA013691; see also Ex. 2559B MELC-IA013646.)
60. Because the HSU was important to his popularity, “[Sheriff Arpaio] kept very aware of its operations and the number of arrests of illegal aliens that HSU operations produced.” (Doc. 1017 at Tr. 187; see Ex. 2898 at MELCIA013691; see also Ex. 2559B at MELC-IA013646-47; Ex. 2561 at MELC1337434 (Lieutenant Sousa stated: “I was frustrated with all the demands from Chief Sands and the Sheriff for constant operations and arrests so they could put out press releases to the media. For Sheriff Arpaio, the Human Smuggling Unit was a gold mine of media coverage.”).)
61. HSU officers felt that it was the HSU’s duty to make Sheriff Arpaio look good to the media and to the public. (Doc. 1017 at Tr. 185.)
62. Throughout the effective term of the preliminary injunction, even from its entry, Sheriff Arpaio’s press releases indicate an awareness that the injunction was entered and that Arpaio nevertheless continued to enforce all federal immigration laws. (Doc. 1027 at Tr. 527-534.)
63. On December 30, 2011, immediately after the preliminary injunction was entered, Sheriff Arpaio issued a press release that quoted him as stating: “I will continue to enforce illegal immigration laws.” (Ex. 75.) On February 9, 2012, Arpaio issued a press release stating: “Sheriff Arpaio continues to crackdown on immigration and will not be deterred by activist groups and politicians for [sic] enforcing all immigration laws.” (Ex. 76.) On March 28, 2012, the MCSO issued a press release noting that “Arpaio remains adamant about the fact that his office will continue to enforce both state and federal illegal immigration laws as long as the laws are on the books.” (Ex. 77; see also Ex. 200B (March 2012 interview in which Sheriff Arpaio acknowledges that he continues to arrest undocumented persons); Ex. 2828A (Arpaio states that he will continue to enforce state laws and federal laws); Ex. 2829A (April 5, 2012 interview with CBS Evening News in which Arpaio notes that people do not like him because he is enforcing illegal immigration laws); Ex. 196A (August 31, 2012 Fox News Interview in which the Sheriff states with respect to immigration: “I’m enforcing state laws and federal laws. I enforce all the laws.”); Ex. 84 (October 18, 2012 MCSO press release that states: “In addition six Illegal Aliens were turned over to ICE for deportation, ” and further states: “We will continue to be vigilant in the fight against identity theft and Illegal Immigration. . . .”); Ex. 2832C (January 27, 2013 interview in which Arpaio states: “There are a certain group [sic] here that don’t want me to enforce the immigration laws.”).)
64. Chief Sands told Mr. Casey that the press releases describing the back-up plan were issued to assist Sheriff Arpaio in his upcoming re-election campaign. (Doc. 1417 at Tr. 1690:12-1691:5, 1695:2-7; Doc. 1422 at Tr. 1959:24-1961:2.)
65. The Court finds that Sheriff Arpaio knowingly and intentionally ensured that the MCSO did not comply with the preliminary injunction.
2. Chief Deputy Sheridan Knowingly and Intentionally Failed to Implement the Preliminary Injunction.
66. Chief Deputy Sheridan admits that he is in civil contempt for violating the orders of the Court. (Doc. 1043 at Tr. 925:14-927:2, 970:9-13.)
67. Chief Deputy Sheridan is the second in command at the MCSO and is responsible for all of its operations. (Doc. 1043 at Tr. 822:10-11, 23-25, 864:7-9.) Within the MCSO, only he and Public Information Officer Lisa Allen report directly to Sheriff Arpaio. (Doc. 1027 at Tr. 602:8-17; Doc. 1043 at Tr. 823:3-16.) The MCSO designated Sheridan the interim Chief Deputy for Maricopa County in September 2010, after David Henderschott retired. (Doc. 1051 at Tr. 344:14-20; Doc. 1043 at Tr. 948:19- 21; Doc. 1465 at Tr. 1478:9-20.) Sheridan transitioned from “interim Chief Deputy” to “Chief Deputy” in May 2011. (Doc. 1043 at Tr. 948:22-23.)
68. Despite his position as second in command at the MCSO, Chief Deputy Sheridan testified that he remained ignorant of the preliminary injunction until March 27, 2014. (Doc. 1043 at Tr. 887.) This testimony is demonstrably false.
69. In between November 30, 2011, the time that the Court requested supplemental briefing concerning the MCSO’s authority to enforce federal civil immigration law, and December 16, 2011, the date on which the MCSO filed its supplemental brief acknowledging that it had no such authority, Chief Deputy Sheridan met with Mr. Casey, Chief Sands, Chief MacIntyre, and Sergeant Palmer from the HSU about this case. (Doc. 1389 at Tr. 1087:24-1088:23; Doc. 1417 at Tr. 1628:3-7; Ex. 2533 at MELC210537.)
70. As of December 23, 2011, Chief Deputy Sheridan was aware of the Melendres litigation, (Doc. 1043 at Tr. 887:22-888:2, 890:17-19, ) and he believed that lawsuits were a serious matter. (Id. at Tr. 889:9-11, 890:20-22.)
71. On December 23, 2011, Mr. Casey sent an email designated as one of high importance to Chief Deputy Sheridan. (Doc. 1043 at Tr. 887:22-888:5; Doc. 1422 at Tr. 1748:4-1749:3; Ex. 187.) The email had a copy of the preliminary injunction attached, and the portion of the email regarding the preliminary injunction was written in bold. (Ex. 187.)
72. The Defendants have represented to the Court that Chief MacIntyre’s only duty in connection with the receipt of the December 23, 2011 email was to ensure that Chief Deputy Sheridan and Chief Sands both knew of the preliminary injunction. (See, e.g., Doc. 989 at Tr. 12:2-4.)
73. Chief Deputy Sheridan subscribes to and reads The Arizona Republic. (Doc. 1043 at Tr. 901-05.) The Republic featured a series of articles pertaining to the issuance of the preliminary injunction, and Sheridan acknowledges that he may have read the articles. (Id. at Tr. 905.)
74. Chief Deputy Sheridan participated with both Sheriff Arpaio and Chief MacIntyre in the January 2012 meeting, see supra ¶ 26, in which MacIntyre slowly and carefully explained the preliminary injunction and what it required to Arpaio, Sheridan, and the other chiefs. (Doc. 1422 at Tr. 1878:19-1881:8; cf. Ex. 2219 at MELC209817.)
75. Chief Deputy Sheridan was also part of the meeting between Sheriff Arpaio and Chief Sands, see supra ¶¶ 34-35, at which Sands indicated to Arpaio that the preliminary injunction needed to be disseminated throughout the MCSO, but Arpaio told Sands to only discuss it within the HSU. (Doc. 1017 at Tr. 259:7-17, 260:9-16, 261:4- 20.)
76. On January 31, 2012, Chief Deputy Sheridan was present at a meeting of the Maricopa County Board of Supervisors at which the Board discussed with the County Attorney the preliminary injunction granted by this Court, and the County’s appeal of that injunction. (Doc. 1389 at Tr. 1107-1110, 1113:6-11; Ex. 2878.)
77. Chief Deputy Sheridan was kept apprised of settlement discussions between Plaintiffs’ and Defendants’ counsel. (Doc. 1043 at Tr. 891-94; Ex. 2541.)
78. Chief Deputy Sheridan held a status conference with Chief MacIntyre and Mr. Casey about this case on February 6, 2012. (Ex. 2533 at MELC210549.) He had a similar conference on March 23, 2012. (Doc. 1417 at Tr. 1674:5-17; Ex. 2533 at MELC210556.)
79. Mr. Casey further met with Chief Deputy Sheridan to discuss the Melendres case on April 3, 2012. (Ex. 2510; Ex. 2533 at MELC210559; Doc. 1417 at Tr. 1675:2-5.) Sheridan received briefings on the progress of the trial as it occurred. (See, e.g., Ex. 2533 at MELC210580.) On September 25, 2012, Mr. Casey sent an email to Sheridan, among others, informing him that the Ninth Circuit had affirmed this Court’s preliminary injunction. (Doc. 1389 at Tr. 1075:17-21; Ex. 2511.)
80. Chief Deputy Sheridan was aware of the existence of Sheriff Arpaio’s back-up plan for delivering unauthorized persons to the Border Patrol. (Doc. 1389 at Tr. 1082-83.)
81. And as Chief Deputy reporting to Sheriff Arpaio, Sheridan was well aware of the political benefit that Arpaio received from the MCSO continuing to make immigration arrests, and the importance Arpaio placed on the public perception that the MCSO was continuing to do so.
82. On October 11, 2012, Mr. Casey sent an email of high importance to Chief Deputy Sheridan and two others. He attached a letter from Plaintiffs’ counsel and various MCSO press releases explaining that Plaintiffs’ counsel had alleged that recent actions and press releases by the MCSO demonstrated that the MCSO was violating this Court’s preliminary injunction. (Ex. 2512.)
83. The email indicated the need for Chief Deputy Sheridan and the other recipients to immediately learn the facts surrounding the incidents and press releases that Plaintiffs’ counsel alleged violated the preliminary injunction, especially in light of the pending election, so that Defendants’ counsel could advise and respond to the situation. (Doc. 1417 at Tr. 1683-89; Doc. 1389 at Tr. 1076:23-1078:6; Ex. 2512.)
84. On the same day, Mr. Casey also copied Chief Deputy Sheridan on correspondence sent to the lieutenant then in charge of the HSU in aid of his factual investigation. (Doc. 1389 at Tr. 1083:19-1084:7; Ex. 2513.)
85. A week later, Mr. Casey copied Chief Deputy Sheridan on his correspondence back to Plaintiffs’ attorney in which he responded to the Plaintiffs’ allegations. (Doc. 1389 at Tr. 1084:20-1085:6; Ex. 2514.)
86. Chief Deputy Sheridan testified that he read the Court’s findings of fact and conclusions of law when they came out in May 2013. He had multiple extended conferences with Mr. Casey two days later. (Ex. 2533 at MELC210605.) Those findings discuss in several places the preliminary injunction and the MCSO’s violation of it.
87. Nonetheless, despite overwhelming evidence to the contrary, Chief Deputy Sheridan denies having any knowledge of the injunction until March 2014. (Doc. 1043 at Tr. 887.) Chief Deputy Sheridan further testified that he was not involved in trial preparation, and does not believe that he ever spoke to Mr. Casey until after the Melendres trial. (Id. at Tr. 950, 953.) The Court finds these to be knowing misstatements.
88. Upon resuming his testimony in September, Chief Deputy Sheridan stated that in December 2011, the Melendres case was not an important matter relative to the other matters he was dealing with, and that he did not pay any attention to it since it was principally in the hands of Chief Sands. (See Doc. 1465 at Tr. 1383:12-1386:6.)
89. This testimony is not credible. Immigration enforcement was extremely important to Sheriff Arpaio in terms of the publicity that it generated for him and for the MCSO. It is not credible that Chief Deputy Sheridan, as Arpaio’s immediate subordinate in charge of all of the MCSO’s operations, would have been wholly ignorant of a matter of such importance to Arpaio.
90. Further, many of the issues Chief Deputy Sheridan cites as preoccupying had been ongoing for some time, e.g., the matter relating to Sheriff Arpaio’s failure to investigate a number of child abuse cases arising from El Mirage. These matters were not new to Sheridan. He had assumed the duties of acting Chief Deputy in September 2010 and had been given the position in May 2011-seven months before the preliminary injunction was issued.
91. Chief Deputy Sheridan could not have remained in perpetual ignorance of the preliminary injunction during the seventeen months in which it was in force, especially in light of his involvement with the Melendres case, the issues it presented with respect to Sheriff Arpaio’s political popularity, and the amount of correspondence he received about it.
92. The Court thus finds that Chief Deputy Sheridan was fully apprised of the terms of the preliminary injunction and fully informed of Sheriff’s Arpaio’s decision to ignore it. He was responsible for implementing its terms, and he did nothing to do so.
3. Former Executive Chief Brian Sands Is Liable for Civil Contempt for Knowingly and Intentionally Failing to Comply with the Preliminary Injunction.
a. Chief Sands Knew that the Preliminary Injunction Existed and Was in Force.
93. Between 2009 and the date of his retirement in 2013, Chief Sands was the principal contact between the MCSO and its outside attorneys in the Melendres case. (Doc. 1417 at Tr. 1613.) This includes the time during which the preliminary injunction was issued. He was also the Chief of Enforcement at the MCSO.
94. The MCSO’s counsel had multiple extended meetings with Chief Sands about this case both before and after the MCSO avowed to this Court that it did not attempt to enforce federal immigration law, and between then and when the preliminary injunction issued. Such conferences occurred on at least December 6, 15, 16, 21, and 22, 2011. (Doc. 1417 at Tr. 1628, 1629; Ex. 2533 at MELC210537-39.)
b. Chief Sands Understood the Meaning of the Preliminary Injunction
95. Chief Sands received a copy of the preliminary injunction from Mr. Casey, (Doc. 1051 at Tr. 338:9-14; Ex. 187), which he discussed with him. (Doc. 1422 at Tr. 1956:5-7, see Ex. 2534.) Sands understood its meaning, (Doc. 1017 at Tr. 269:13-25, 271:2-18; see Doc. 1417 at Tr. 1641:2-1642:2, 1647:23-1648:5; Doc. 1422 at Tr. 1956:19-1957:1), and he was in charge of handling it. (Doc. 1422 at Tr. 1965.)
96. As such, Chief Sands had actual notice of the preliminary injunction.
97. Chief Sands does not dispute that Mr. Casey instructed him that the MCSO must either have probable cause to arrest suspected illegal immigrants on a state criminal charge or release them entirely. (Doc. 1422 at Tr. 1969-71, 1974-77.)
98. Chief Sands testified that Mr. Casey specifically told him that the preliminary injunction affected the operations of the HSU and all saturation patrols. (Doc. 1017 at Tr. 256-57.)
99. Further, Chief Sands does not contest Mr. Casey’s testimony that in August of 2012, after Casey learned through trial testimony in this matter that the MCSO was continuing to violate the preliminary injunction, that Casey instructed Sheriff Arpaio and Sands not to further detain unauthorized persons in the absence of state charges. (Doc. 1422 at Tr. 1979:18-23.)
100. Chief Sands does not contest Mr. Casey’s testimony that they agreed that the MCSO would cease detaining such persons. He also does not contest Casey’s testimony that after Casey became aware of Arpaio’s back-up plan in September 2012, that Casey met with both Sands and Arpaio and advised them that in his opinion this conduct violated the preliminary injunction. (Doc. 1422 at Tr. 1979:18-23.) Nor does Sands contest Casey’s testimony that Sands told him that Arpaio had published his backup plan to gain advantage in the upcoming election. (Id. at Tr. 1979:18-23.)
c. Chief Sands Knowingly Permitted the HSU to Continue Its Practices in Violation of the Preliminary Injunction.
101. There is no evidence that Chief Sands did anything to correct Mr. Casey’s misimpression, initially received from Sheriff Arpaio, that the preliminary injunction did not significantly affect MCSO’s operations.
102. For example, when Mr. Casey communicated to Chief Sands on January 4, 2012 that Sheriff Arpaio indicated to him that the preliminary injunction had no significant effect on MCSO operations, there is no evidence that Sands attempted to correct Arpaio’s misleading statements to Casey. (Doc. 1417 at Tr. 1656:12-1648:7; Ex. 2535 (“During the call, [Sheriff Arpaio] indicated that . . . the injunctive relief is, in actual practice, relatively harmless to MCSO field operations.”).)
103. In fact, Chief Sands furthered that misunderstanding by himself assuring Mr. Casey that no violations of the preliminary injunction were occurring. (Doc. 1417 at Tr. 1680:2-10.)
104. Chief Sands knew that HSU deputies were transporting unauthorized immigrants for whom they had no state charge to ICE or the Border Patrol, yet he did nothing to stop them. (Doc. 1021 at Tr. 356.)
105. Chief Sands testified that he told Chief Trombi to read the preliminary injunction but did not know whether Trombi did so.
106. Chief Sands and Chief Trombi continued to receive shift summaries and emails from HSU operations that indicated if the unit arrested anyone, for what charges they were arrested, and the number of people the HSU turned over to ICE because there were no state charges. (Doc. 1051 at Tr. 378:2-13, 381:19-382:2; Ex. 212 (March 31, 2011 email from Lieutenant Sousa to Sands and others explaining that the HSU is turning over individuals it cannot charge to ICE); see also Ex. 2219 at MELC209890-93.)
107. Chief Sands and Chief Trombi also received departmental reports after HSU interdiction events that described the time, location, people involved, and a narrative of the event. (Doc. 1051 at Tr. 377:13-24.) Both chiefs were aware that the HSU continued to detain persons for whom there were no state charges. Sands also knew that immigration interdiction operations continued to happen regularly in the HSU after the injunction. (Id. at Tr. 356:3-7.)
108. Instead of directing the HSU to cease such operations, or at least to conduct them within the bounds of the preliminary injunction, Chief Sands, together with Sheriff Arpaio, pressured the HSU to increase the number of unauthorized aliens they arrested in their operations. (See, e.g., Ex. 2559B at MELCIA0132648.) They were doing this for the political benefit it provided Arpaio. (See Doc. 1017 at Tr. 276:16-277:13; Doc. 1422 at Tr. 1806:7-10, 1846:12-17.)
d. Chief Sands Failed to Communicate the Requirements of the Preliminary Injunction to His Subordinates.
109. Chief Sands spoke to Lieutenant Sousa once a day during this period. (Doc. 1027 at Tr. 763:25-764:3.) Sands testified that he told Sousa not to violate the preliminary injunction. He does not recall giving him any more specific instruction. (Doc. 1422 at Tr. 1965-67.)
110. Yet, Chief Sands knew that Lieutenant Sousa had, or purported to have, an understanding that the HSU did not need to alter its practices to be in compliance with the preliminary injunction. (Doc. 1027 at Tr. 707-11, 759-61.)
111. In April, when Lieutenant Jakowinicz replaced Lieutenant Sousa as the head of the HSU, Chief Sands discussed the preliminary injunction order with Jakowinicz for only a few minutes and only told him that he should read it and study it. (Doc. 1017 at Tr. 264:5-21.) Sands never mentioned completing the training scenarios nor that HSU operations were in violation of the injunction, nor did he mention that the MCSO could not detain persons for whom it had no state charge to turn them over to ICE or the Border Patrol.
e. Chief Sands Failed to Oversee the Implementation of Training Scenarios Drafted in Response to the Preliminary Injunction.
112. Chief Sands emphasizes that he should not be held in contempt because he arranged for Lieutenant Sousa and Sergeant Palmer to prepare training scenarios for HSU deputies concerning the scope of the preliminary injunction. (Doc. 1422 at Tr. 1975-78.)
113. Yet, Sheriff Arpaio, Chief Sands, and Lieutenant Sousa all represented to Mr. Casey that the preliminary injunction did not materially affect the MCSO’s operations, and that such operations did not have to change to be in compliance. (Doc. 1417 at Tr. 1680:2-10; Doc. 1027 at Tr. 759-61.) In light of the direction that Casey was receiving, he did not view the training scenarios as more than a prophylactic measure. (Doc. 1417 at Tr. 1652; see Ex. 2535.) Neither did Sousa. (Ex. 2219 at MELC209890.)
114. Further, Lieutenant Sousa testified that it was he who directed Sergeant Palmer to create the training scenarios. (Doc. 1027 at Tr. 773; Ex. 2219 at MELC209890 (“Based on my review of these strings of emails, I believe I initiated this training and was not directed or ordered to by Chief Trombi or Chief Sands.”). Although Sousa acknowledged that it was possible Chief Sands directed him to create the training scenarios, Sousa testified that as he remembered it, he had taken the initiative without direction from Sands. (Doc. 1027 at Tr. 779:21-780:15.)
115. In any event, Sergeant Palmer’s training scenarios were never completed, and they never went out. Chief Sands was copied on all communications regarding the training scenarios. He was thus aware that the training scenarios were not being prepared in a timely fashion and that the scenarios were never completed or promulgated.
f. Chief Sands Did Not Take Reasonable Steps to Implement the Preliminary Injunction.
116. In his briefs submitted in conjunction with the evidentiary hearing, but not in his testimony itself, Chief Sands argues that he should not be held in contempt because he would have been fired for doing anything other than what he did with regard to the preliminary injunction.
117. It may be that Chief Sands felt pressure or was ordered to benefit Sheriff Arpaio and his 2012 electoral chances by not implementing the terms of the preliminary injunction. In any case, however, he misled at least counsel for Arpaio, if not his own subordinates, about the actual nature and effect of the injunction on the MCSO’s operations. As such, he was aware of the Court’s order and did not take reasonable steps to implement it.
118. A party is liable for civil contempt if clear and convincing evidence demonstrates that the relevant actor(s) did not take all reasonable steps to comply with the Court’s specific and definite orders. Balla v. Idaho State Bd. Of Corr., 869 F.2d 461, 466 (9th Cir. 1989); Stone v. City & Cnty. Of S.F., 968 F.2d 850, 856 (9th Cir. 1992) (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 404 (9th Cir. 1976)).
119. For a non-party to be held in contempt, it “must either abet the defendant or must be legally identified with him.” N.L.R.B. v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1977).
120. Chief Sands is in civil contempt for its violation.
4. Lieutenant Sousa Is Liable for Civil Contempt for Failing to Take Reasonable Steps to Implement the Preliminary Injunction.
a. Lieutenant Sousa Knew the Preliminary Injunction Existed.
121. Lieutenant Sousa immediately read the preliminary injunction after it was sent to him on December 23, 2011. (Doc. 1027 at Tr. 707-08.)
122. Lieutenant Sousa came to the conclusion, which he subsequently shared with Mr. Casey and Chief Sands, that nothing about the HSU’s operations needed to change in light of the requirements of the preliminary injunction. (Doc. 1027 at Tr. 707- 11, 760-61.)
123. Lieutenant Sousa testified that part of the reason for his conclusion was that he believed (erroneously) that once the HSU called ICE during an immigration interdiction traffic stop and ICE said that it wanted the MCSO to hold the person, the detention then became ICE’s detention rather than the MCSO’s. (Doc. 1027 at Tr. 775 (“A: The way I believed it was back then, I believed that once I said they wanted him and detained him, it was their detention. Q: You know that not to be accurate now, though? A: I know exactly what the judge meant now, it’s not accurate. Q: But back then that was your interpretation? A: Yes, ma’am.”).)
124. Nevertheless, such a belief was not reasonable because the authority described would merely constitute 287(g) authority in all HSU officers, an authority which was selective even when it existed within the MCSO, and which Sousa knew to have been cancelled two years earlier.
1) The Training Scenarios Prepared by Sergeant Palmer After Discussing the Meaning of the Preliminary Injunction with Lieutenant Sousa Demonstrate that Sousa Understood that the Injunction Required Changes to MCSO Policies.
125. Despite his view expressed to Mr. Casey and Chief Sands that the HSU’s operations were not violating the injunction, Lieutenant Sousa testified that he recommended the preparation of training scenarios for the MCSO as a whole. However, in light of the fact that he did not think that the HSU was violating the injunction, he did not see any urgency in doing so. (Ex. 2219 at MELC209890 (“I didn’t believe we were violating the Order, so there was no urgency in my mind at the time to get the Order out Office wide.”).)
126. He testified that he made the recommendation because of his understanding of the need to halt the larger MCSO practice, existing at the time, of phoning ICE during traffic stops in which the MCSO encountered unauthorized persons-thus violating the preliminary injunction. (Doc. 1027 at Tr. 710:11-711:24.)
127. It is not possible for the Court to discern how Lieutenant Sousa thought that the HSU practice in this regard was permissible under the injunction, while the larger MCSO practice was not.
128. Nevertheless, on January 11, 2012, Lieutenant Sousa assigned Sergeant Palmer to begin drafting training scenarios for an e-learning program on the preliminary injunction. (Doc. 1051 at Tr. 328:4-17, 329:3-12; Ex. 189; Ex. 2536.) This training, if implemented, would have changed how the HSU operated. (Doc. 1051 at Tr. 375:7-13.)
129. Eight days later, on January 19, 2011, Sergeant Palmer returned a draft containing four training scenarios to Lieutenant Sousa. According to Palmer, these training scenarios were “constructed . . . in accordance with the many conversations [Sousa and Palmer] have had, as well as taking into account the information conveyed to [them] both from Tim Casey concerning Judge Snow’s order.” (Ex. 2538; Ex. 189; Doc. 1017 Tr. at 239-40.)
130. The Court concludes therefore that the training scenarios prepared by Sergeant Palmer are persuasive evidence of what, at the time, they believed the preliminary injunction required.
131. At least the first two scenarios drafted by Sergeant Palmer represent a clear understanding of the principles set forth in the preliminary injunction. For example, the second scenario involves a fifteen minute traffic stop in which the passengers are apparently unauthorized aliens. The scenario makes clear that the MCSO deputies “cannot detain based solely on the reasonable suspicion these passengers may be illegal aliens, ” but rather, the persons must be released. (Ex. 2538 at CaseySub000047.) Palmer testified that this was his understanding of the Court’s order and that it would have changed the way the MCSO had operated in the past. (Doc. 1017 at Tr. 160, 162.)
132. Lieutenant Sousa similarly testified that scenario #2 indicated a change from existing MCSO policy. (Doc. 1027 at Tr. 793-94.)
133. There is no indication in the training scenarios or otherwise that MCSO deputies could turn an MCSO stop into an ICE stop if they timely called ICE and received direction from ICE to take the person into custody.
134. The only possible exceptions to scenario #2 are those set forth in scenario #3 and to some extent scenario #4. (Ex. 2538.)
135. Scenario #3 incorrectly posited that the HSU might maintain some authority to turn persons over to ICE if they cited, but did not arrest, unauthorized persons on state charges. (Ex. 2538.)
136. Scenario #4 incorrectly assumed that there was probable cause to believe that all persons involved in the stop of a suspected human smuggling load were involved in the crime of human smuggling without setting forth facts sufficient to draw that conclusion as to each individual person involved in the stop. (Ex. 2538.)
2) Other Evidence Undermines Lieutenant Sousa’s Purported Interpretation of the Preliminary Injunction’s Demand.
137. In October 2015, during his second round of testimony in the evidentiary hearing, Lieutenant Sousa testified that Mr. Casey misguided him concerning the scope of the injunction. (Doc. 1458 at Tr. 2704-08; see, e.g., Ex. 2219 at MELC209889 (“Based on sitting through the Civil Contempt of Court Hearing in April of this year and listening to all testimony, I got the sense Tim Casey was telling us what we wanted to hear; not what we needed to hear.”).)
138. Nevertheless, Lieutenant Sousa’s testimony was that, after reading the preliminary injunction and discussing it with Mr. Casey, it was he who told Casey that the HSU was not violating the terms of the preliminary injunction, not vice-versa.
139. Lieutenant Sousa further testified that Mr. Casey never used the terms “arrest or release” in discussing the court’s preliminary injunction order with him. (Doc. 1458 at Tr. 2705-08.) But Sousa’s testimony is not inconsistent with Casey’s testimony. Casey testified that he did not immediately develop the “arrest or release” rubric, but rather developed it shortly after the issuance of the preliminary injunction to more simply explain the concept involved to MCSO leadership. (Doc. 1417 at Tr. 1647.) According to Casey’s contemporaneous time records, the last conference he had with Sousa on the topic of the preliminary injunction was on December 30-only one week after the injunction was issued. (Ex. 2533.)
140. Nonetheless, even if Mr. Casey did not use the exact “arrest or release” rubric in describing the terms of the preliminary injunction to Lieutenant Sousa, Sergeant Palmer’s training scenario #2 indicates that the basic meaning of the preliminary injunction was communicated to Sousa very early on.
141. Moreover, Lieutenant Sousa testified that he called Mr. Casey within a week of receiving the Court’s preliminary injunction and told him his theory about an MCSO stop becoming an ICE stop if ICE was timely contacted and direction was timely received. He testified that Casey never told him this was an incorrect understanding. (Doc. 1458 at Tr. 2705; see also Ex. 2219 at MELC209889.) As mentioned, however, in his April testimony, Sousa had testified that this was his understanding, not that he had confirmed it with Casey. (Doc. 1027 at Tr. 775.)
142. Further, even if Lieutenant Sousa’s supposed understanding had been correct, it would not permit the HSU to hold persons after ICE had refused them so that it could locate another federal agency to take them from the MCSO. Sousa, nonetheless, knew the HSU engaged in this practice. (Doc. 1027 at Tr. 720-21.)
143. Nor would it justify the HSU’s practice of taking all persons detained in a suspected human smuggling load into custody for questioning. Sousa also knew that the HSU engaged in this practice.
144. Sergeants Palmer and Trowbridge independently related that, pursuant to the instruction that they received from Chief Sands and Lieutenant Sousa, the HSU detained everyone in human smuggling loads and took them to the HSU offices even when they did not have probable cause to believe that some of them had committed a state crime. (Doc. 1017 at Tr. 172-77, 246-49; Doc. 1021 at Tr. 430-33, 451, 454-55; see, e.g., Ex. 2219 at MELC209796 (“Sands said understanding of the court order was that it meant MCSO was not allowed to detain people for being undocumented but MCSO could still hold them for questioning if it was trying to build a case against human smugglers.”); see also Ex. 2219 at MELC209791-92 (“I [Palmer] was told if we have indicators of human smuggling, um, we are allowed to continue asking questions and furthering investigation in the detainment so long as we are moving forward in that regard.”); Ex. 2219 at MELC90789 (Sergeant Trowbridge discussing the continued questioning of detainees by the MCSO or by ICE).)
145. The interview process conducted at the HSU offices could take anywhere from a few to several hours. (Doc. 1017 at Tr. 175:17-176:1, 176:17-20.) If, during the interviews, a basis was discovered to bring state charges against such persons, state charges were brought. If no basis was discovered, then MCSO officers would call ICE or the Border Patrol to arrange to deliver such persons to them. (Id. at Tr. 176:2-16.) They would further make Lieutenant Sousa aware of such transfers of non-chargeable persons to ICE or the Border Patrol. (Id. at Tr. 178.)
146. Thus, there is simply no evidence that the HSU ever made any detentions of the type that Lieutenant Sousa claimed he ran by Mr. Casey. The evidence is to the contrary.
147. Nor does Lieutenant Sousa’s supposed understanding appear within the scenarios prepared by Sergeant Palmer after “the many conversations” Palmer had with Sousa on the topic. (Doc. 1017 at Tr. 239-40; Ex. 2538; Ex. 189.) It is in fact inconsistent with Palmer’s scenario #2.
148. Nor is Lieutenant Sousa’s October testimony consistent with his own April testimony in which he indicated that while he did not believe the HSU was violating the injunction, he did believe that other MCSO deputies may have done so by phoning ICE during traffic stops in which they encountered unauthorized persons. (Doc. 1027 at Tr. 710:11-711:24.) If, as he testified, this was the reason he believed all MCSO officers should receive training on the preliminary injunction, it is inconsistent with his later testimony that it was permissible for MCSO members to make calls to ICE during a traffic stop.
b. Lieutenant Sousa, Regardless of His Implausible Interpretation of the Preliminary Injunction, Allowed the HSU to Contravene the Court’s Order.
149. Although Lieutenant Sousa did take steps to prepare what he considered to be prophylactic training scenarios, he testified that he did not consider such training urgent, and his actions belie any urgency.
150. Lieutenant Sousa never made a concerted effort to bring the training scenario project to a conclusion during the final three months he remained at the HSU, although he did remind Lieutenant Jakowinicz and Sergeant Palmer of its pendency before his departure.
151. Lieutenant Sousa was aware of the preliminary injunction and its terms, and he was the commanding officer of the HSU, yet he did not take reasonable steps to implement the preliminary injunction within the HSU, he did not set forth the nature of the HSU’s procedures to his attorney in order to determine whether they required adjustment, and he did not take action to understand the injunction’s true scope.
5. Chief MacIntyre Is Not Liable for Civil Contempt.
152. Chief MacIntyre was initially Mr. Casey’s point of contact on the Melendres case. (Doc. 1417 at Tr. 1618; 1422 at Tr. 1904:17-1905:3.) Casey testified that MacIntyre was a trusted member of Sheriff Arpaio’s executive staff, and Arpaio liked to solicit MacIntyre’s opinion on legal matters. (Doc. 1417 at Tr. 1635.) After MacIntyre was replaced by Chief Sands as the principal client contact, Arpaio asked Casey to keep MacIntyre in the loop on the case; Casey did so as a courtesy. (Id. at Tr. 1633-35.)
153. Chief MacIntyre agrees with Mr. Casey and Sheriff Arpaio’s description of his role and relationship with Arpaio in this respect. (Doc. 1422 at Tr. 1868:10-1870:3; see also Ex. 2219 at MELC209813; Ex. 32 at 13 of 53 (“In my capacity as the Deputy Chief, Custody Bureau One for the MCSO . . . I work as needed with attorneys for the Maricopa County Attorney’s Office and/or Outside Counsel in their defense of civil litigation matters pending in state or federal courts against Sheriff Joseph M. Arpaio and/or the MCSO.”).)
154. With the possible exception of Sheriff Arpaio, Chief MacIntyre was as aware as anyone that Arpaio and the MCSO were in constant violation of the preliminary injunction during its pendency.
155. But there seems to be no dispute that Chief MacIntyre had no command authority by which he could implement the orders in Melendres with the MCSO patrols. (Doc. 1495 at Tr. 3666.)
156. Thus there is an insufficient basis on which to find that Chief MacIntyre had sufficient personal responsibility for implementing the preliminary injunction. He is therefore not liable for civil contempt for failing to take reasonable steps to implement it.
B. The MCSO’s Failure to Follow the Preliminary Injunction Harmed Members of the Plaintiff Class.
157. During the period that the preliminary injunction was in place, the MCSO continued its immigration interdiction operations. As a result of its street interdiction operations, and in violation of the preliminary injunction, the HSU detained and turned over at least 157 persons whom it could not charge for violating any state or federal laws to ICE and/or the Border Patrol. (Doc. 1051 at Tr. 384:4-14, 386:16-22; Ex. 208; Ex. 209.)
158. The HSU also continued its workplace enforcement and other operations. After such operations, and in violation of the preliminary injunction, it arrested, detained, and transported additional members of the Plaintiff class to ICE and/or the Border Patrol when it could not charge these people for committing any state or federal crime.
159. The MCSO did not keep records on persons whom its regular non-HSU patrol officers detained and turned over to ICE. (Doc. 1353 at Tr. 9-10.)
160. Nevertheless, Lieutenant Sousa testified that it was a common occurrence to hear deputies from District II call federal authorities concerning the referral of an unauthorized immigrant to them. (Doc. 1458 at Tr. 2610-12; see also Ex. 2219 at MELC209810.)
161. During the period that the preliminary injunction was in place, the MCSO used pre-textual traffic stops to examine a person’s citizenship and enforce federal civil immigration law. The MCSO used race as one factor among others in determining whom it would stop, regardless of whom it ultimately arrested and/or detained. As a result, the MCSO stopped members of the Plaintiff class who were authorized residents of the United States that it would not have otherwise had grounds to stop if it complied with the preliminary injunction.
162. Further, the MCSO detained persons for unreasonable periods of time to investigate their immigration status. (Doc. 579.)
163. Defendants’ violation of the preliminary injunction therefore resulted in harm to many class members who were detained when they otherwise would not have been regardless of whether they were ultimately transferred to ICE or the Border Patrol.
164. Plaintiffs do not allege that Defendants continued to enforce federal civil immigration law after this Court issued its findings of fact and conclusions of law on May 24, 2013. (Doc. 579.)
II. THE MCSO FAILED TO COMPLY WITH COURT RULES, DISCOVERY OBLIGATIONS, AND COURT ORDERS REQUIRING PRODUCTION (COUNTS TWO AND THREE OF THE ORDER TO SHOW CAUSE).
165. Sheriff Arpaio admits that he is in civil contempt for the MCSO’s failure to provide recordings, documents, and other tangible items that were requested by Plaintiffs prior to the underlying trial in this matter. (Doc. 1027 at Tr. 626:6-627:10, Tr. 627:16- 19.)
166. The Court so finds.
167. Chief MacIntyre, who was also noticed as a possible non-party contemnor on this count of the Order to Show Cause, was outside counsel’s chief client contact at the start of this litigation. It was to MacIntyre that Mr. Casey sent Plaintiff’s original demand to preserve documents and tangible items. (Doc. 1417 at Tr. 1618:18-21; Ex. 32, Doc. 235-1 at 21.) MacIntyre denies his personal liability for civil contempt.
168. The original preservation letters were sent by Plaintiffs to the MCSO on or about July 21, 2008. Those letters requested that the MCSO “preserve all documents, including but not limited to all electronically stored information (“ESI”) that are relevant to” or resulting from specifically enumerated “crime suppression operations” and future such saturation patrols that were the focus of the underlying lawsuit in this case. (Ex. 32, Doc. 235-1 at 23-24.)
169. In Mr. Casey’s email of the same date transmitting the preservation letter to Chief MacIntyre, Casey directed MacIntyre to “[p]lease make certain that the appropriate person at the MCSO knows to KEEP AND PRESERVE the attached listing of categories of information.” (Ex. 32, Doc. 235-1 at 21.)
170. Chief MacIntyre testified that at the time he may not have known who that appropriate person was. (Doc. 1422 at Tr. 1901-03.) As a result, he apparently sent the preservation letter to no one. MacIntyre’s failure to send the preservation letter to anyone is sufficiently blameworthy to merit sanction against Defendants. However, the preservation order was not a Court order, and therefore failure to appropriately communicate the litigation hold does not merit a finding of contempt against MacIntyre.
171. In addition to the litigation hold demand, Plaintiffs’ counsel sent, at the same time, a largely identical Arizona Public Records Access Act request to then Captain Paul Chagolla. Captain Chagolla directly forwarded the Request to Lieutenant Doris Culhane-then the director of the MCSO Legal Liaison Office. (Ex. 32, Doc. 235 at 31 ¶ 5.)
172. Lieutenant Culhane averred that she treated the request as a “litigation hold” and instructed the “appropriate units within the MCSO to keep and preserve all electronic and hard copy documents prepared in the future that were responsive to [the] request.” (Ex. 32, Doc. 235-1 at 32-33 ¶ 7.)
173. In February 2009, Plaintiffs followed up the preservation demands with broad interrogatories and document production requests seeking any documents or tangible things referencing MCSO traffic stops, created during MCSO traffic stops, resulting from MCSO traffic stops, or guiding an officer’s discretion during MCSO traffic stops. (Doc. 65 at 5 ¶ 13; Doc. 843 at 9 n.3.) Examples of the relevant discovery requests are cited in the Order to Show Cause. (Doc. 880 at 18-20.)
174. Mr. Casey relayed these interrogatories to the Legal Liaison Office. (Doc. 1417 at Tr. 1620.) According to MCSO procedure, litigation discovery requests were handled by that office.
175. At some point, because of Mr. Casey’s perception that the Legal Liaison Office did not timely respond to the discovery requests, Casey asked Chief Sands if he could directly contact Lieutenant Sousa regarding requests for materials and information that he thought would be at the HS U.Sands authorized such direct contact with Sousa. (Doc. 1417 at Tr. 1618-19; Doc. 1027 at Tr. 662, 664, 777.)
176. It remained Mr. Casey’s impression that the Legal Liaison Office handled the document requests with respect to the MCSO as a whole, but Casey was authorized to inquire directly with Lieutenant Sousa where document requests pertained to the HSU. (Doc. 1417 at Tr. 1619-20.)
177. By the fall of 2009, Mr. Casey and/or the Legal Liaison Office had made a large number of requests from Lieutenant Sousa for documents and other materials responsive to discovery. (See, e.g., Ex. 32, Doc. 235-2 at 3 ¶¶ 5-8.)
178. At that time, however, Plaintiffs discovered that Defendants had destroyed their individual stat sheets pertaining to HSU operations despite the preservation order. Lieutenant Sousa testified that he did not know about the MCSO’s preservation obligation and the necessity of preserving documents and items until after Plaintiffs discovered that the HSU had destroyed the stat sheets. (Doc. 1027 at Tr. 662, 765-67.)
179. If Lieutenant Sousa had not been previously aware of any order or direction to preserve materials related to HSU operations, then presumably neither had any HSU staff member.
180. On December 8, 2009, in response to his apparently new knowledge of the preservation order, Lieutenant Sousa sent out an inaccurately narrow description of it to HSU staff. The email limited the scope of the types of materials HSU deputies should save to “all incoming and outgoing emails [that] reference any operations we are running for the purpose of future litigation.” (Ex. 216.) The directive said nothing about retaining recordings, reports, documents, identifications, license plates, personal property, or other items seized from members of the Plaintiff class. (See id.)
181. Lieutenant Sousa acknowledged that the process for communicating and generating responses to discovery requests “could have been a lot better” at the HSU. (Doc. 1027 at Tr. 778-79.)
182. When Lieutenant Sousa received a discovery request, responses to such requests were not logged properly. (Doc. 1027 at Tr. 664, 778.)
183. Lieutenant Sousa did not personally request that individual HSU deputies search for responsive documents and items. Nor did he search the files or computers of other HSU personnel for such responsive documents. (Doc. 1027 at Tr. 673.)
184. While Sousa testified that he believes he directed his sergeants to search for such responsive documents, (id.), Sergeant Palmer testified in the April 2015 evidentiary hearings that he was never requested to search for video or audio recordings prior to May 2014. (Doc. 1017 at Tr. 229-30.)
185. Sergeant Trowbridge testified similarly to Sergeant Palmer. (Doc. 1051 at Tr. 457-59.)
186. Lieutenant Sousa testified that at the same time that he was fielding discovery requests from Mr. Casey, he was also fielding many requests from the Public Information Office within the MCSO for information regarding immigration operations and arrests. (Doc. 1027 at Tr. 664-65; see also Ex. 2559B; Ex. 2561 at MELC1337434- 36.) He was also under pressure from Sheriff Arpaio to produce high numbers of immigration arrests.
187. Lieutenant Sousa did not feel he was given adequate resources by the chain of command to deal with the various discovery and information requests and at the same time supervise HSU operations. (Doc. 1027 at Tr. 665-66, 776; Ex. 2561 at MELC1337434-36.)
188. Lieutenant Sousa left the HSU to go to SWAT in April of 2012.
189. When Lieutenant Sousa left the HSU, he instructed Lieutenant Jakowinicz, his replacement, merely that HSU members had to save emails pertaining to operations. (Doc. 1051 at Tr. 367, 392-93.) Sousa gave Jakowinicz no instructions regarding recordings, other documents, or items seized during HSU detentions.
190. Sergeant Palmer similarly left the HSU in the late spring of 2012. (Doc. 1017 at Tr. 166.)
A. The MCSO Failed to Produce Recordings of Traffic Stops.
191. Despite Defendants’ failure to provide any recordings to Plaintiffs prior to trial, MCSO members had been videotaping traffic stops with their own equipment prior to 2009. (Doc. 1027 at Tr. 675; Doc. 700 at Tr. 57; see, e.g., Ex. 154 at MELC098129.)
192. By late 2009, the MCSO was issuing body video cameras to HSU members to record their traffic stops. (Doc. 1017 at Tr. 149, 229-30; Doc. 1027 at Tr. 675, 683; Ex. 43; Ex. 44; Ex. 154.)
193. Upon the MCSO’s issuance of cameras, Lieutenant Sousa orally issued a standard operating protocol that directed HSU members to record and maintain all videos of their stops whenever possible. (Doc. 1027 at Tr. 684-85, 703; see also Doc. 1017 at Tr. 197.)
194. HSU members were issued various devices for recording their contacts including body cameras, eyeglass cameras, and cameras mounted on a dashboard. (Doc. 1017 at Tr. 195, 230; Doc. 1043 at Tr. 882:21-25; Ex. 43; Ex. 44 at MELC004763-64.)
195. HSU deputies’ recordings were transferred to CDs and stored in individual binders-one for each deputy-in HSU offices or retained on an external hard drive at the HSU. (Doc. 1017 at Tr. 194; Ex. 44 at MELC004764; see also Ex. 154 at MELC098109, MELC098111, MELC098106.)
196. As of May 9, 2011, the HSU supplemented Lieutenant Sousa’s earlier oral directive with a written policy that required HSU officers to turn in recordings of traffic stops that might be evidence in any proceedings. (Doc. 1027 at Tr. 677-82; Ex. 169 at MELC114964-65.)
197. The MCSO also issued video recording equipment to other deputies, units, and divisions. (Doc. 700 at Tr. 57.)
198. The MCSO generally had no regulations or policies governing the use of video cameras. (Doc. 1017 at Tr. 52, 81, 102.) The MCSO never issued instructions about how to handle recordings or other evidence, nor did it issue any instruction forbidding deputies to keep recordings or items of evidence in their homes. (Id. at Tr. 80-81.)
199. Nor were there systems in place within the HSU to track, collect, review, or store those videos. (Doc. 1043 at Tr. 883:8-13.)
200. In addition to video recording devices, the MCSO issued audio recording devices to almost every deputy. (Doc. 700 at 63, 65; see e.g., Ex. 154 at MELC098111, MELC098113, MELC098085, MELC098083, MELC098126, MELC098064, MELC098104.)
201. Prior to May 2014, there was no department-wide policy that governed the collection and cataloguing of recordings made with such devices. (See Doc. 700 at Tr. 63:18-25.)
202. A number of HSU deputies used their digital audio recorders to record interviews from passengers in traffic stops, which were downloaded to CDs. (Ex. 154 at MELC098111, MELC098085, MELC098076-77.)
203. Sheriff Arpaio testified that he was never asked to look for recordings before trial. (Doc. 1027 at Tr. 607-08.)
204. Although Chief Trombi directly supervised all of the MCSO’s patrol operations including those of the HSU, he testified that no one ever asked him to look for videos, documents, or anything else that might be responsive to Plaintiffs’ discovery requests. (Doc. 1017 at Tr. 100-01, 148.)
205. Moreover, Chief Trombi testified he was not aware at the time that the HSU had binders containing video recordings of traffic stops. (Doc. 1017 at Tr. 101.)
206. Sergeant Palmer testified that prior to May 2014, although he knew that recordings existed, nobody had ever asked him to gather them. (Doc. 1017 at Tr. 229.)
207. Sergeant Trowbridge likewise testified that he received no request to gather videos at any time from 2009 through 2013. (Doc. 1051 at Tr. 458.) He was not asked to gather any videos until May 2014.
208. The MCSO produced no videos to Plaintiffs prior to trial in July and August 2012. (Doc. 1417 at Tr. 1620.)
209. After trial, “[i]n June of 2014, HSU and CEU personnel went back to [former HSU offices] to clear out any remaining equip[ment], case files, [etcetera].” (Ex. 43 at MELC104078.) In addition to finding “many boxes containing detective’s copies of cases, ” they also found “loose CDs.” (Id.) The 1451 CDs principally contained audio interviews of persons detained from human smuggling loads and a few videotapes of traffic stops conducted by Deputy Armendariz. (Id. at MELC104079.)
210. Several months later, the MCSO conducted an additional search of former HSU offices. In that search, investigators found, among other things, 578 compact discs. (Doc. 1633 at 3.)
211. An additional CD was found a few days later in the Roeser Building. (Doc. 1633 at 3.) These discoveries subsequently became the partial subject of IA #2015-018 discussed below.
212. It is not clear to the Court whether such recordings have yet been provided to Plaintiffs.
213. In the spring of 2014, the Phoenix Police Department responded to a call concerning Deputy Charley Armendariz, who was a significant MCSO witness in the underlying trial.
214. On May 1, 2014, a search was conducted of Deputy Armendariz’s home.
215. In addition to confiscated property, see infra Part II.C, the MCSO also discovered in Deputy Armendariz’s possession thousands of video clips of traffic stops that Armendariz had conducted during the period relating to the Plaintiffs’ claims. (Doc. 700 at 50.)
216. By the May 14, 2014 court hearing on the matter, the MCSO had reviewed some of the Armendariz videos which revealed what the MCSO characterized as “problematic” activity by Deputy Armendariz during traffic stops. (Doc. 700 at 91.)
217. In that hearing, the MCSO also acknowledged that other officers made recordings which were not regulated, tracked, or kept by the MCSO. The MCSO did not disclose the HSU’s practice of recording stops until after the Armendariz videos came to light. Thus, the MCSO had produced none of the video and audio recordings that were responsive to Plaintiffs’ discovery requests.
1. The MSCO Violated the Court’s May 14, 2014 Order to Quietly Gather Recordings Responsive to Plaintiff’s Discovery Requests.
218. At the hearing, the Court discussed the possibility that recordings made by officers other than Deputy Armendariz might also reveal problematic activity, and that other officers would be unlikely to turn in such recordings if that were the case. The Court discussed the need to maximize the MCSO’s ability to retrieve such recordings and to develop a plan for how that might effectively be done. (Doc. 700 at Tr. 59-63.)
219. The Court issued instructions that the MCSO was to formulate, with the Monitor’s approval, a plan to quietly gather responsive recordings made by the officers. (Doc. 700 at Tr. 59-63.)
220. The Court also discussed whether the MCSO should assign the investigation of the issues arising from these materials to a separate agency or a third party in light of the potential conflict of interests arising from the discovery of this material. (Doc. 1027 at Tr. 636-37; Doc. 1043 at Tr. 971-72.)
221. The MCSO declined to refer any follow-up investigations to a third party and chose instead to conduct its own investigations. The MCSO acknowledged that its internal investigations arising from these matters would be closely reviewed by the Court and its court-appointed Monitor. (Doc. 1017 at Tr. 14-15; Doc. 1027 at Tr. 636-37.)
222. Sheriff Arpaio agreed that he would cooperate fully with the Monitor and not withhold any information from him. (Doc. 1027 at Tr. 575.) Chief Deputy Sheridan did the same. (Doc. 1043 at Tr. 826-27.)
223. The MCSO violated the Court’s orders that same day. That afternoon, the MCSO scheduled a meeting with the Monitor to arrive at an agreed upon plan to collect the outstanding video recordings. Prior to that meeting but after the Court hearing, Sheriff Arpaio and Chief Deputy Sheridan held a meeting with their lawyers in Arpaio’s office. (Doc. 1043 at Tr. 828-29.) Without consultation with the Monitor, Sheridan directed Chief Trombi to send an email to 27 MCSO division and bureau commanders directing them to gather video recordings from their personnel. (Id. at Tr. 830, 856-59; Doc. 1027 at Tr. 610; Doc. 803 at Tr. 59:20-22; Ex. 38.)
224. In the following meeting with the Monitor Team that afternoon, the MCSO agreed on a plan in which the MCSO internal affairs officers would individually identify and question-without advance warning-those officers most likely to have videos relevant to this lawsuit and require them to turn in the recordings. (Doc. 1043 at Tr. 840- 41, 934-35). Chief Deputy Sheridan did not tell the Monitor Team that he had already directed Chief Trombi to send the mass email to MCSO commanders. (Id. at Tr. 840:21- 24.) To the extent that Sheridan represented to the Monitor Team that the MCSO had not yet taken steps to collect the videos, Sheridan’s statement to the Monitor Team was inaccurate. (Doc. 1017 at Tr. 116:6-9.)
225. As a result of Chief Trombi’s email, any officers who might also have recorded themselves in problematic activities were informed in advance that the MCSO was collecting such recordings. Thus, the approach agreed upon between the MCSO and the Monitor was not possible. (Doc. 1043 at Tr. 840:18-20.)
226. Immediately after this meeting, Chief Deputy Sheridan met again with Chief Trombi and attorney Ms. Christine Stutz. (Doc. 1043 at Tr. 844:13-16, 856:7-13.) During this meeting, Trombi told Sheridan that he had already sent the email, per Sheridan’s instructions. (Id. at Tr. 847:12-17; Doc. 1017 at Tr. 115.)
227. Chief Deputy Sheridan called the Monitor after this meeting, around 5:15 in the evening. (Doc. 1043 at Tr. 848:16-20.) In that telephone call, Sheridan made the false statement to the Monitor that Chief Trombi sent the email without his knowledge. (Id. at Tr. 848:24-849:2.)
228. Chief Deputy Sheridan testified at the evidentiary hearing that his statement to the Monitor was not a false statement, even though he knew when he called the Monitor that he had ordered Chief Trombi to send out the email and that Trombi had done so. (Doc. 1043 at Tr. 849-51.) Sheridan maintained, “[J]ust because I told him to send an e-mail doesn’t mean that I knew he had already sent it.” (Id. at Tr. 850:4-5.) Sheridan denied that his statement could be fairly understood to mean that he was not the one who directed Trombi to send the email. (Id. at Tr. 850:15-25.)
229. This attempted explanation seeks to twist the meaning of words beyond their reasonable usage. Chief Deputy Sheridan was intentionally untruthful to the Monitor.
230. Chief Deputy Sheridan wrote a letter that same night, May 14, 2014, to the Monitor. (Doc. 1043 at Tr. 853:20-23.) In that letter, Sheridan again intentionally and untruthfully stated that neither he nor Chief Trombi remembered who directed Trombi to send the email, and that Trombi stated it was a collective decision of all parties. (See Id. at Tr. 853:20-855:9, 856:14-20.)
231. In the hearing, Chief Deputy Sheridan similarly testified that “his best recollection at the time” was that it was a collective decision of all parties. (Doc. 1043 at Tr. 855:15.) He gave this testimony even while acknowledging that at five o’clock that afternoon Chief Trombi and Ms. Stutz reminded him that he had issued the order. Again, this explanation is neither credible nor persuasive.
232. Chief Trombi himself testified that Chief Deputy Sheridan’s statements to the Monitor regarding who issued the directive are not accurate. (Doc. 1017 at Tr. 114- 16.)
233. Sheriff Arpaio did not discipline Chief Deputy Sheridan or Chief Trombi for violating the Court’s May 14, 2014 orders. (Doc. 1027 at Tr. 633:17-19, 635:19- 22.).
234. Nevertheless, at some point, the MCSO did conduct an internal affairs investigation into the matter. Sheriff Arpaio delegated to Chief Olson, Chief Deputy Sheridan’s subordinate, the responsibility of making the disciplinary decision. (Doc. 1458 at Tr. 2559.)
235. Chief Deputy Sheridan admits that his instruction to Chief Trombi violated the Court’s orders. (Doc. 1043 at Tr. 830, 841.)
236. Sheriff Arpaio admits he was part of the decision to have Chief Trombi send out the email and he did not object to Chief Deputy Sheridan giving the instruction. (Doc. 1027 at Tr. 575-76.)
237. Both Sheriff Arpaio and Chief Deputy Sheridan have admitted that they are in civil contempt for the violation of that order.
238. The Court so finds.
2. The MCSO Destroyed Many Responsive Recordings.
239. The day after the May 14 hearing, Sergeant Mike Reese of the Internal Affairs Division took possession of all of the remaining binders in HSU custody that contained DVDs of video recordings of traffic stops. (Ex. 44 at MELC004764; see, e.g., Ex. 154 at MELC098106, MELC098071, MELC098087.)
240. Because the MCSO could not “take back” the memorandum sent out by Chief Trombi, the MCSO proceeded to attempt to collect the videotapes in the survey method that Chief Deputy Sheridan had directed Trombi to initiate.
241. The MCSO command staff sent several follow-up emails to patrol division and posse members that threatened disciplinary action for non-compliance with Chief Trombi’s collection efforts. (Doc. 1043 at Tr. 873-74.)
242. As of March 20, 2015, ten months later, the MCSO still had not received responses from all personnel directed to respond regarding video recordings. (Doc. 1043 at Tr. 874-75, 881; see also Doc. 755 at 6 n.2.)
243. Those video clips that the MCSO turned over to the Plaintiffs during the discovery process leading up to the evidentiary hearing were compiled and set forth in Exhibit 214.
244. The results of the Trombi survey demonstrate that many recordings were made and destroyed during the period of the preservation order.
245. The Court further finds for the reasons below that many responsive recordings were destroyed both intentionally and otherwise by MCSO officers.
246. When Lieutenant Sousa received the May 2014 direction from Chief Trombi requiring him to turn over all of his recordings involving interactions with the general public, he submitted approximately 20 HSU stops which were still on his laptop. He is certain that he participated in “far more” stops than that. (Doc. 1027 at Tr. 697-98; see also Ex. 164.)
247. Lieutenant Sousa is aware of persons within the MCSO who did not comply with Chief Trombi’s directive at all. (Doc. 1027 at Tr. 695-96.)
248. Lieutenant Sousa concluded that it is unlikely that all outstanding videos were collected. (Doc. 1027 at Tr. 697.)
249. Sergeant Palmer stated that he frequently destroyed video recordings he made of his HSU interactions with the public. (Doc. 1017 at Tr. 196; Ex. 176 (“I did not record traffic stops routinely from beginning to end, and I did not routinely impound or otherwise administratively retain recorded traffic stops that did not somehow present themselves as being significant, either stemming from a legal matter or an anticipated complaint.”); Ex. 154 at MELC098109 (noting his deletion of “multiple videos of traffic stops based on personal subjective reasoning”).)
250. Others did the same. (See, e.g., Ex. 154 at MELC098129 (Deputy Templeton: “I would delete the unnecessary audio/video files directly from the Scorpion body camera.”); Ex. 154 at MELC098126 (Deputy Silva: “These recordings did not contain any evidentiary value so I did not copy any of the footage to CD/DVD and place into the HSU files.”).)
251. Further, rather than making DVDs of all of their recordings, other HSU personnel downloaded the recordings to their own flash drives or external hard drives, or they left the recordings on the recording devices when they returned the devices to the HSU. (Ex. 154 at MELC098076-77, MELC098128, MELC098120.)
252. Further, not counting the over 4300 video clips retrieved from Deputy Armendariz’s garage, (Doc. 1465 at Tr. 1425, 1429), and the over 2000 video clips still in the binders in the HSU, the Trombi survey method was relatively unproductive, resulting in 2163 video clips for the entire remaining MCSO during the relevant period. (Doc. 755 at 2-3, 6.)
253. Chief Trombi’s email survey method provided advanced warning that videos would be collected and thus resulted in the destruction of problematic videos.
254. When the MCSO sought to retrieve recordings through the Trombi survey, many HSU officers claimed that despite the directive to record their traffic stops whenever possible, they did not record their stops. (Doc. 1027 at Tr. 702-03; Ex. 154 at MELC098111 (Quintero, very few recordings), MELC098106 (Ochoa, very few recordings), MELC098095 (Martinez, two recordings, one in 2009 and one in 2013), MELC098085 (Komorowski, no recordings), MELC098092 (Madrid, no recordings), MELC098058 (Brockman, no recordings).)
255. The Court does not find it credible that all of these HSU deputies made or kept very few recordings (or none) despite the directive that they must record their stops whenever possible.
256. Because its initial review of the Armendariz videotapes indicated “problematic” activity, the MCSO reviewed the video clips to determine whether they contained evidence of problematic activity by MCSO employees. If they did, the initial reviewers referred the video clips to a secondary review by MCSO lieutenants to determine whether an internal affairs investigation should be initiated.
257. As of October 2014, the review of the 2163 video clips provided by the entire MCSO in response to the Trombi survey resulted in the referral of only 30 video clips for secondary review and resulted in only six IA investigations. (Doc. 755 at 6.)
258. By way of comparison, the review of the approximately 6700 video clips received from Deputy Armendariz or the HSU resulted in the referral of 370 video clips for secondary review and ultimately resulted in 33 IA investigations. Thus, proportionally, the review of the video clips from the Trombi survey resulted in about one-fourth as many referrals to secondary review, and about one-half as many IA investigations, as did the review of the Armendariz/HSU video clips. (See Doc. 755 at 3.) This suggests to the Court that the officers might have been selective about the clips they turned in or might have simply declined to turn in responsive clips.
259. The Court finds that at least some officers declined to submit some or all of their responsive video clips out of fear or belief that the clips would reveal problematic conduct.
B. The MCSO Failed to Produce Documents
260. Although prior to trial, Defendants did turn over numerous documents to Plaintiffs, Defendants did not request documents from some of the persons most likely to have them.
261. As has been noted above, Sheriff Arpaio, Chief Trombi, Lieutenant Jakowinicz, and Sergeant Trowbridge all testified that they were not asked to search for responsive documents prior to trial. (Doc. 1017 at Tr. 100-01, 148; Doc. 1051 at Tr. 391:12-19, 446, 458, 461; Doc. 1027 at Tr. 607-08.)
262. On their June 2014 return to the HSU’s former offices at Enforcement Support, the MCSO found, in addition to IDs and audio recordings, “many boxes containing detective’s copies of cases.” (Ex. 43 at MELC104078.)
263. In November 2014, Chief Deputy Sheridan again instructed HSU deputies to search former HSU offices. After that search, Mr. Casey informed the Court that new evidentiary items that were likely responsive to Plaintiffs’ pretrial discovery requests, including an additional 22 boxes of reports, had been located in the old HSU offices.(Doc. 788 at 2.)
264. The MCSO’s discoveries in November resulted in IA #2015-018 through IA #2015-021, see infra Part III.B.4.
265. Mr. Casey provided Plaintiffs with the incident reports found in the 22 boxes. There were 124 reports that Plaintiffs were not given prior to trial. (Ex. 215.)
266. On February 12, 2015, the Court issued an order requiring Defendants to provide additional discovery in this matter. All responsive documents were due by February 27, 2015. (Doc. 881.)
267. Captain Skinner testified that he issued internal orders within the MCSO to comply with the Court’s February 2015 discovery orders.
268. Lieutenant Sousa, however, testified that, apparently despite these orders, he was not asked to search for any of the ordered discovery.
269. Captain Skinner and attorney Ms. Michele Iafrate searched for Lieutenant Sousa’s documents the day before Sousa’s re-opened deposition took place in mid-April 2015. (Doc. 1027 at Tr. 704-05.) Even then, Sousa does not believe that anyone searched the desktop computer he used at the HSU, even though he believes that documents would likely be there, as well as in the buffalo drive that Iafrate copied. (Id. at Tr. 705.)
270. Sergeant Palmer was not asked to search for documents responsive to the Court’s February 2015 order until April 7, 2015. (Doc. 1017 at Tr. 199.) Palmer’s documents were finally searched on April 13 by two members of the MCSO Court Compliance Unit. (Id.) They searched his current computer but not the computer he used while he worked at the HSU. (Id. at 200-01.)
271. Sergeant Palmer believes that while he was at the HSU he might have had other documents that would have been responsive to the Court’s discovery order, but there is no indication that the computer that he ...