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Melendres v. Arpaio

United States District Court, D. Arizona

July 20, 2016

Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
v.
Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona; et al. Defendants. and United States of America, Plaintiff-Intervenor,

          SECOND SUPPLEMENTAL PERMANENT INJUNCTION/ JUDGMENT ORDER

          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 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 in, among other things, failing to provide requested discovery materials prior to the underlying trial in this matter.

         On May 13, 2016, the Court issued detailed Findings of Fact. (Findings of Fact, Doc. 1677.) The Court found that Sheriff Arpaio and his command staff knowingly failed to implement the Court’s preliminary injunction, resulting in harm to many Plaintiff class members who were detained in violation of their constitutional rights. (Doc. 1677 at ¶¶ 1-164.) The Court also found that Defendants 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, thereby impeding the litigation, harming the Plaintiff class, and resulting in a trial that did not completely address-and remedies that did not fully repair-the MCSO’s violations of Plaintiffs’ constitutional rights. (Id. at ¶¶ 165-217, 239-94.) The contempt hearing further established that after Defendants disclosed to the Court extensive MCSO misconduct, including its failure to provide additional evidence pursuant to Defendants’ discovery obligations, the Court allowed Defendants at their insistence to seek to investigate and discipline that misconduct and to disclose newfound evidence. (Id. at ¶¶ 220-22.) Nevertheless, instead of forthrightly meeting their responsibilities, Defendants continued to intentionally withhold relevant evidence during the course of their ensuing investigation and the eventual contempt hearing. (Id. at ¶¶ 218-386.) Further, in investigating the misconduct with respect to members of the Plaintiff class, Sheriff Arpaio and the MCSO manipulated all aspects of the internal affairs process to minimize or entirely avoid imposing discipline on MCSO deputies and command staff whose actions violated the rights of the Plaintiff class. (Id. at ¶¶ 387- 875.)

         The facts of this case are particularly egregious and extraordinary. The MCSO’s constitutional violations are broad in scope, involve its highest ranking command staff, and flow into its management of internal affairs investigations. Thus the necessary remedies-tailored to the violations at issue-must reach that far.

         The parties have briefed and argued before the Court the sources and scope of the Court’s authority to issue remedies in light of the Findings of Fact, including Defendants’ concerns regarding federalism and due process. See, e.g., Plaintiff’s Memorandum on Remedies for Civil Contempt (Doc. 1684); United States’ Memorandum in Response to Findings of Fact (Doc. 1685); Defendants’ Responsive Memorandum to Court’s Findings of Fact (Doc. 1687); Parties’ Joint Memorandum Re: Internal Investigations (Doc. 1715); Plaintiffs’ Response to Defendant Arpaio’s Briefing Re: Internal Affairs (Doc. 1720); United States’ Response to Defendant Arpaio’s Positions Re: Internal Investigations (Doc. 1721); Defendant Arpaio’s Reply in Support of Briefing Re: Internal Affairs Investigations and Discipline (Doc. 1729). The Court therefore prefaces its remedial order with an analysis of these issues.

         I. SOURCES OF THE COURT’S AUTHORITY TO FASHION REMEDIES

         Had the Court had access to the evidence withheld by the MCSO and the evidence to which it led, the Court would have entered injunctive relief much broader in scope. (Doc. 1677 at ¶ 890). Although this bad faith failure to produce evidence gave rise to various remedies, the Parties agreed to pursue any relief for the Defendants’ withholding of discovery in the same evidentiary hearings that would be necessitated by the Court’s Order to Show Cause for contempt. (See Id. at ¶¶ 891-93).

         A principal purpose of the hearing was, therefore, to provide the Plaintiff class the relief it would have had, to the extent possible, had Defendants complied with their discovery obligations prior to trial.

         The Court derives authority to fashion remedies in this instance from multiple sources, including the Court’s broad and flexible equitable powers to remedy past wrongs, Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 12-16 (1971), the Court’s equitable authority to modify its injunctions in light of changed circumstances, United States v. Swift & Co., 286 U.S. 106, 114-15 (1932), and the Court’s authority to impose remedial sanctions for civil contempt, Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827-29 (1994).

         A. Broad Remedial Powers

         In “cases involving the framing of equitable remedies to repair the denial of a constitutional right[, ] [t]he task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.” Swann, 402 U.S. at 15-16. Federal courts focus on three factors when applying equitable principles. Milliken v. Bradley, 433 U.S. 267, 281 (1977). First, “with any equity case, the nature of the violation determines the scope of the remedy.” Swann, 402 U.S. at 16. “The remedy must therefore be related to the condition alleged to offend the Constitution.” Milliken, 433 U.S. at 281 (internal quotation marks omitted). “Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Id. “Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Id. However, if the authorities “fail in their affirmative obligations . . . judicial authority may be invoked.” Id. (quoting Swann, 402 U.S. at 15). “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann, 402 U.S. at 15.

         “[I]njunctive relief must be tailored to remedy the specific harm alleged.” Melendres v. Arpaio, 784 F.3d 1254, 1265 (9th Cir. 2015) (quotation omitted), cert. denied sub nom. Maricopa Cty., Ariz. v. Melendres, 136 S.Ct. 799, 193 L.Ed.2d 711 (2016). “Nevertheless, the district court has broad discretion in fashioning a remedy [and] is permitted to order ‘relief that the Constitution would not of its own force initially require if such relief is necessary to remedy a constitutional violation.’” Id. (quoting Toussaint v. McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986)). “Therefore, an injunction exceeds the scope of a district court’s power only if it is ‘aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.’” Id. (quoting Milliken, 433 U.S. at 282).

         Moreover, “the enjoined party’s ‘history of noncompliance with prior orders can justify greater court involvement than is ordinarily permitted.’” Id. (quoting Sharp v. Weston, 233 F.3d 1166, 1173 (9th Cir. 2000)). When faced with “repetitive failures to comply with orders[, ]” a district court is “‘justified in entering a comprehensive order to insure against the risk of inadequate compliance.’” Sharp, 233 F.3d at 1173 (quoting Hutto v. Finney, 437 U.S. 678, 687 (1978)).

         Here, as in Sharp, the Court orders remedies which are necessary to cure the MCSO’s constitutional violations, in light of the MCSO’s history of noncompliance. See Id. at 1173. To the extent that the Court orders reforms of the MCSO’s policies and practices, these reforms are necessary “to insure against the risk of inadequate compliance, ” id. (quoting Hutto, 437 U.S. at 687), because absent such reforms, there is no way to determine whether policies or practices that insulated those who violated the constitutional rights of the Plaintiff class from investigation and discipline would continue to do so. Further, the reforms are aimed at eliminating a condition that flows from the MCSO’s violation of the constitutional rights at issue-namely, the tacit authorization and condonation that the MCSO conveys to its deputies when police misconduct related to members of the Plaintiff class is exempted from the normal internal affairs system and is treated with special leniency or is entirely swept under the rug.[1]

         “Members of the Plaintiff class constituted the overwhelming majority of the victims of the multiple acts of misconduct that were the subject of virtually all of the flawed investigations” summarized in the Court’s Findings of Fact. (Findings of Fact, Doc. 1677 at ¶ 888.) So long as individuals within the MCSO can disobey the Court’s orders with impunity, the rights of the Plaintiff class are not secure. “[T]he ability to effectively investigate and discipline officers . . . is essential to correcting the underlying constitutional violations found in this case, and thus to the final resolution of this longstanding litigation.” Madrid v. Woodford, No. C90-3094 TEH, 2004 WL 2623924, at *8-9 (N.D. Cal. Nov. 17, 2004). The Court’s orders in this case have required implementation of new policies. A system that effectively ensures compliance with the Court’s orders requires five “interrelated components, ” each of which “builds upon and reinforces the others”: written policies, training, supervision, investigation, and officer discipline. Madrid v. Gomez, 889 F.Supp. 1146, 1181 (N.D. Cal. 1995). “[A] meaningful disciplinary system is essential, for if there are no sanctions imposed for misconduct, [an organization’s] . . . policies and procedures become a dead letter.” Id.

         Defendants continue to “manipulate[e] the operation of their disciplinary processes to minimize or altogether avoid imposing fair and equitable internal discipline for misconduct committed against members of the Plaintiff class.” (Findings of Fact, Doc. 1677 at ¶ 889.) In light of Defendants’ repeated violations of the Court’s orders and their continued attempts “to conceal additional past mistreatment of the Plaintiff class as it comes to light in order to avoid responsibility for it, ” (id., ) the Court has the authority to mandate reforms of the MCSO’s internal affairs system in order to ensure the MCSO’s continued compliance with the Court’s permanent injunction (Doc. 606) and to coerce the MCSO’s compliance with the Court’s previous orders, as well as with orders the Court may enter in the future as the need arises.

         B. Equitable Authority to Modify Injunctions

         “A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” Swift, 286 U.S. at 114. “The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.” Sys. Fed’n No. 91, Ry. Emp. Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 647 (1961). A modification is appropriate when a court, faced with new facts, must make a change “to effectuate . . . the basic purpose of the original” injunction. Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942) (holding a modification making a consent decree more onerous for the enjoined entity to be reasonable where it effectuates the purpose of the original consent decree).

         Before the Court entered its injunction, Plaintiffs requested provisions “revising the internal affairs division of the MCSO and the investigation and resolution of complaints.” (See, e.g., Doc. 603 at Tr. 7.) The Court denied much of the relief sought. (Findings of Fact, Doc. 1677 at ¶ 883.) Neither Plaintiffs nor the Court knew that “the MCSO had deprived the Plaintiffs of considerable evidence of misconduct towards members of the Plaintiff class.” (Id. at ¶ 884.) Had Defendants disclosed such evidence, Plaintiffs could have demonstrated “the MCSO’s inadequate, bad faith, and discriminatory internal investigation policies and practices as well as additional harms.” (Id. at ¶ 885.) Because Defendants failed to disclose that evidence, the Court was unable “to timely evaluate that evidence in fashioning the appropriate injunctive relief for the Plaintiffs.” (Id.)

         “Had the evidence that Defendants withheld from the Court and the information to which it led been presented at trial, the Court would have entered injunctive relief much broader in scope.” (Id. at ¶ 890.) It is incumbent upon the Court now, equipped as it is with additional facts, to amend the injunction and grant the relief that would have been appropriate at the time of the original injunction had the MCSO disclosed such evidence in a timely manner, as was their duty.

         C. Civil Contempt Authority

         “[A] contempt sanction is considered civil if it is remedial, and for the benefit of the complainant.” Bagwell, 512 U.S. at 827. A contempt sanction is “civil and remedial if it either ‘coerce[s] the defendant into compliance with the court’s order, [or] . . . compensate[s] the complainant for losses sustained.’”[2] Id. at 829 (quoting United States v. Mine Workers, 330 U.S. 258, 303-304 (1947)).

         Ensuring that the MCSO has a functional system of investigating officer misconduct and imposing discipline is a remedial measure designed to coerce the MCSO into compliance with the Court’s orders. (Findings of Fact, Doc. 1677 at ¶¶ 888-89.) The MCSO must have in place an effective means of imposing discipline upon its own officers in order to ensure that officers do not feel at liberty to disregard MCSO’s policies. To the extent that such policies are in place to protect the rights of the Plaintiff class, an effective disciplinary system is an essential component of Plaintiffs’ protection. The MCSO’s flawed investigations “demonstrate the Defendants’ ongoing, unfair, and inequitable treatment of members of the Plaintiff class.” (Findings of Fact, Doc. 1677 at ¶ 887.)

         II. FEDERALISM

         “[A]ppropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 379 (1976). Federalism concerns “are highly contextual and must be evaluated on a case-by-case basis.” Stone v. City & Cty. of S.F., 968 F.2d 850, 860 (9th Cir. 1992), as amended on denial of reh’g (Aug. 25, 1992).

         “Where federal constitutional rights have been traduced, . . . principles of restraint, including comity, separation of powers and pragmatic caution dissolve.” Id. (citation omitted). “Nonetheless, federal courts should always seek to minimize interference with legitimate state activities in tailoring remedies.” Id. at 861. “In employing their broad equitable powers, federal courts should ‘exercise the least possible power adequate to the end proposed.’” Id. (quoting Spallone v. United States, 493 U.S. 265, 280 (1990)). However, “when the least intrusive measures fail to rectify the problems, more intrusive measures are justifiable.” Id.

         “Federal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.” Id. “[O]therwise valid state laws or court orders cannot stand in the way of a federal court’s remedial scheme if the action is essential to enforce the scheme.” Id. at 862.

         Defendants cite Rizzo, a case in which the Supreme Court held that a district court departed from the principles that govern injunctive relief, including principles of federalism, when it “injected itself by injunctive decree into the internal disciplinary affairs of [a] state agency.” (Doc. 1715 at 12 (quoting Rizzo, 423 U.S. at 380).) The facts of Rizzo, however, are diametrically opposed to the facts of the case at hand. In Rizzo, the district court had found an unrelated assortment of constitutional violations committed by a few individual rank and file police officers, a problem which the court indicated was “fairly typical of those afflicting police departments in major urban areas.” Id. at 375. The district court also found that “the responsible authorities [i.e., command staff] had played no affirmative part in depriving any members of the two respondent classes of any constitutional rights.” Id. at 377. Thus, the Supreme Court held that when the district court attempted to fashion “prophylactic procedures . . . designed to minimize [isolated constitutional violations] on the part of a handful of its employees” without evidence of any unconstitutional plan or policy promulgated by the responsible authorities, the remedy ordered by the district court was “quite at odds with the settled rule that in federal equity cases the nature of the violation determines the scope of the remedy, ” and moreover, “important considerations of federalism” weighed against the unnecessary intrusion into state affairs. Id. at 378 (internal quotation omitted).

         The Rizzo Court distinguished cases in which the district court found “the pattern of police misconduct upon which liability and injunctive relief were grounded was the adoption and enforcement of deliberate policies by the defendants, ” or a “persistent pattern” that “flowed from an intentional, concerted, and indeed conspiratorial effort” to deprive a class of its constitutional rights. Id. at 373-75 (citing Hague v. CIO, 307 U.S. 496 (1939) and Allee v. Medrano, 416 U.S. 802 (1974)).

         Here, the Court found the presence of those exact distinguishing characteristics. In the underlying case, the Court determined that the Defendants were systematically violating the Fourth and Fourteenth Amendment rights of the Plaintiff class in several different respects including the adoption of unconstitutional policies. Melendres v. Arpaio, 989 F.Supp.2d 822, 826-27 (D. Ariz. 2013), adhered to, No. CV-07-02513-PHX-GMS, 2013 WL 5498218 (D. Ariz. Oct. 2, 2013), aff’d in part, vacated in part, 784 F.3d 1254 (9th Cir. 2015), and aff’d, 784 F.3d 1254 (9th Cir. 2015) (“Melendres 2013 FOF”). The MCSO continued to adhere to these policies after the Court ruled in 2011 that they violated Plaintiffs’ constitutional rights. See, e.g., Id. at 825 (“The LEAR policy, however, remains in force.”); Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 994 (D. Ariz. 2011), aff’d sub nom. Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).

         Moreover, and more recently, the Court found in its May 2016 Findings of Fact that “Defendants intentionally failed to implement the Court’s preliminary injunction . . ., 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.” (Findings of Fact, Doc. 1677 at 1-2.) “To escape accountability . . ., 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.” Id. at 2. The Court found that Defendants were “manipulating the operation of their disciplinary processes to minimize or altogether avoid imposing fair and equitable internal discipline for misconduct committed against members of the Plaintiff class. Id. at ¶ 889.

         Under the facts of this case, the Court has fashioned remedies which account for and balance the need to respect the prerogatives of state officials with the need to prevent them from exercising their discretion in a way that violates Plaintiffs’ constitutional rights and the need to provide a remedy for the past deprivation of those rights. The Court previously fashioned less intrusive remedies, but those remedies were not effective due to Defendants’ deliberate failures and manipulations. (See, e.g., id. at ¶¶ 365-69.) The Court must do what is necessary to achieve the end goal of “restoring the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct” and eventually restoring authority to MCSO command staff, once there is a “system that is operating in compliance with the Constitution.” Missouri v. Jenkins, 515 U.S. 70, 89 (1995). Here, the scope of Defendants’ constitutional violation is broad; the violation permeates the internal affairs investigatory processes, which have been manipulated to provide impunity to those who violate the rights of the Plaintiff class.[3](See Findings of Fact, Doc. 1677 ¶¶ 387-765.) The remedy, as is determined by the scope and nature of the violation, must reach as far as the violation flows. Jenkins, 515 U.S. at 98; Milliken, 433 U.S. at 282. “[W]here, as here, a constitutional violation has been found, the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the condition that offends the Constitution.” Milliken, 433 U.S. at 282 (internal quotation marks omitted).

         As such, “there is no merit to [Defendants’] claims that the relief ordered here violates the Tenth Amendment and general principles of federalism.” Id. at 291. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” Id.

         There is also no merit to Defendants’ prospective argument that the Rooker-Feldman doctrine prevents the Court from reviewing a decision of a merit commission or state court regarding the discipline of an MCSO employee whose conduct has been investigated pursuant to this Court’s remedial scheme.

         “Rooker-Feldman . . . is a narrow doctrine, confined to cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Lance v. Dennis, 546 U.S. 459, 464 (2006) (internal quotation omitted). “The doctrine has no application to judicial review of executive action, including determinations made by a state administrative agency.” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 n.3 (2002). Moreover, “the rule has long stood that a state court judgment entered in a case that falls within the federal courts’ exclusive jurisdiction is subject to collateral attack in the federal courts.” In re Gruntz, 202 F.3d 1074, 1079 (9th Cir. 2000).

         The Court has had exclusive jurisdiction over this case for nine years. To the extent that the Court has ordered remedies that will result in internal affairs investigations of individuals at the MCSO, those investigations stem from this case. The Court has the jurisdiction to see that its orders are followed and that the Plaintiffs’ rights are vindicated. Rooker-Feldman is inapplicable.

         III. DUE PROCESS

         A. The Arizona Police Officer’s Bill of Rights

         Arizona has codified a police officer’s “bill of rights.” A.R.S. §§ 38-1101-1115. Pursuant to this Arizona law, “[a]n employer shall make a good faith effort to complete any investigation of employee misconduct within one hundred eighty calendar days after the employer receives notice of the allegation by a person authorized by the employer to initiate an investigation of the misconduct.” Id. § 38-1110(A). “If the employer exceeds the one hundred eighty calendar day limit, the employer shall provide the employee with a written explanation containing the reasons the investigation continued beyond one hundred eighty calendar days.” Id. “On an appeal of discipline by the employee, a hearing officer, administrative law judge or appeals board may dismiss the discipline if it is determined that the employer did not make a good faith effort to complete the investigation within one hundred eighty calendar days.” Id. § 38-1110(C).

         Defendants argue that this state law “creates federally protected constitutional rights because that statutory scheme contains ‘particularized standards or criteria’ to create a property interest.” (Doc. 1729 at 7 (quoting Allen v. City of Beverly Hills, 911 F.2d 367, 369-70 (9th Cir. 1990).) Defendants quoted Allen for the proposition that “[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 911 F.2d at 369-70.

         However, Defendants failed to note that the next paragraph in the Allen opinion clarifies that “[w]hether an expectation of entitlement is sufficient to create a property interest will depend largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [decisionmaker].” Id. at 370 (internal quotation omitted). The Arizona statute at issue here does not contain mandatory language, as it merely provides that the administrative law judge or appeals board “may” dismiss the discipline, as an exercise of its discretion. A.R.S. § 38-1110.

         Moreover, in Allen, the plaintiff of a § 1983 action claimed that “his layoff constituted a deprivation of a constitutionally protected property interest without due process of law.” Allen, 911 F.2d at 369. Even if the plaintiff in that case had successfully made a case that he had a constitutionally protected property right in continued employment (he did not), his constitutional rights could be violated only if he were deprived of such an interest without due process of law. Thus, Allen does not stand for the proposition that state law can affect what due process itself entails.

         Here, the Parties do not dispute that MCSO employees have a property interest in their jobs. Rather, Defendants suggest that the Arizona statute changes what constitutes the due process to which the property interest holder is entitled. That proposition was squarely rejected in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). In Loudermill, the Supreme Court stated in no uncertain terms that the answer to the question of “what process is due . . . is not to be found in [an] Ohio statute.” Id. Nor is it to be found in an Arizona statute. Rather, due process is a matter of settled constitutional law. Due process requires “a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Id. at 542. MCSO employees will not be denied that.

         Thus, the requirement under Arizona law that employers must make a good faith effort to complete investigations within 180 days is not incorporated into the constitutional guarantee of due process. Moreover, where the MCSO deliberately ensured that 180 days passed in order to protect certain employees from Melendres-related discipline, dismissing that discipline would impede the vindication of Plaintiffs’ constitutional rights. That cannot stand. Swann, 402 U.S. at 45 (“[S]tate policy must give way when it operates to hinder vindication of federal constitutional guarantees.”).

         B. Reliance on the Court’s Findings of Fact

         Any employee subject to an investigation will have a hearing, at which he or she can present evidence and raise a defense. On the other hand, a great deal of evidence was set forth during the 21 days of evidentiary hearings, some of which may be relevant to a given investigation, and this evidence need not be disregarded.

         IV. GC-17, MCSO’S PRINCIPAL DISCIPLINARY POLICY, APPLIES TO ALL EMPLOYEES

         Sheriff Arpaio is the appointing authority over certified employees in the MCSO, and he has unique disciplinary authority over all deputies within the MCSO, according to state law. See Hounshell v. White, 220 Ariz. 1, 202 P.3d 466 (App. 2008). The MCSO’s principal disciplinary policy, GC-17, applies to all employees and sets out disciplinary matrices that apply to virtually all employees. There is, generally speaking, a disciplinary matrix for regular employees (non-exempt regular status employees) and a slightly more demanding disciplinary matrix for management employees (exempt regular status employees). The disciplinary matrix is slightly more demanding for management employees because, as MCSO policy makes clear, management employees should typically be held to a higher standard of conduct. (Ex. 2001 at MELC416243.) Nevertheless, even for those employees subject to a disciplinary matrix, Sheriff Arpaio, and his designee, Chief Deputy Sheridan, have the authority to ignore the matrix and impose whatever discipline they deem appropriate.

         Chief Deputy Sheridan is the highest level management employee within the MCSO. As an employee, he is clearly subject to departmental policy and discipline, and he has previously been a principal or a person of interest in the disciplinary process. Chief Deputy Sheridan is, however, an unclassified employee. Thus, although he is subject to GC-17, there is no specific disciplinary matrix that applies to him. Defendants argue that because there is no specific disciplinary matrix that applies to him, the Court should take greater care, due to federalism concerns, in subjecting his misconduct to evaluation (or re-evaluation) and to potential discipline than it takes with respect to other MCSO employees.

         Nevertheless, as the Findings of Fact make clear, Sheriff Arpaio and Chief Deputy Sheridan are the authors of the manipulation and misconduct that has prevented the fair, uniform, and appropriate application of discipline on MCSO employees as that misconduct pertains to the members of the Plaintiff class. Sheriff Arpaio, as an elected official of Maricopa County, however, is not subject to any MCSO disciplinary policy. He is also, of course, an official who is elected by the people of Arizona. Neither of these factors is true with respect to Chief Deputy Sheridan. To the extent that Sheriff Arpaio and Chief Deputy Sheridan have manipulated the Internal Affairs process at the MCSO to ensure that many employees-including Chief Deputy Sheridan-were disciplined in a relatively lenient manner or not at all for violating the rights of the Plaintiff class, a remedy is necessary and within the scope of the Court’s authority, as the condition flows from the constitutional violation at issue in this case. See Milliken, 433 U.S. at 282.

         Pursuant to state law, Chief Deputy Sheridan can be disciplined. His discipline is at the discretion of Sheriff Arpaio. In light of Sheriff Arpaio’s manipulations in this case, the discretion granted to the sheriff by state law does not prevent the Court from ordering that appropriate discipline be imposed, as failure to do so would be an undue impediment of the remedies to which the Plaintiff class is entitled as a result of the deprivation of their constitutional rights.

         Due to Sheriff Arpaio and Chief Deputy Sheridan’s manipulation of the disciplinary process, the Court has fashioned a remedy in which an independent internal affairs investigator, and an independent disciplinary authority, both nominated by the parties, shall make and review disciplinary decisions for all employees pertaining to the misconduct discussed in the findings of fact. Those independent authorities are experienced in police discipline and shall have the authority, independent from the Court, to decide discipline. The Independent Authorities shall apply the disciplinary matrices, but have the authority to disregard the disciplinary matrices in cases in which they provide appropriate justification for doing so. They shall have the authority to determine the appropriate discipline for Chief Deputy Sheridan. In doing so they shall approximate MCSO policy as closely as possible. Because Chief Deputy Sheridan is the highest level management employee within the MCSO, they shall thus apply categories of misconduct and presumptive levels of discipline to him that are no less exacting than those set forth in the disciplinary matrix for exempt regular status employees of the MCSO, in order that Sheridan be “held to a higher standard.” (Id.; Ex. 2001 at MELC416243.)

         In light of the above, the following procedures and authorities are hereby ordered. These procedures are numbered consecutively to those set forth in the Court’s previous Supplemental Permanent Injunctive orders, (Doc. 606, 670), which are incorporated herewith.

         IT IS HEREBY ORDERED entering this Second Supplemental Permanent Injunction/Judgement Order as follows:

         XIV. ADDITIONAL DEFINITIONS

         160. This Second Supplemental Permanent Injunction incorporates all definitions in the Court’s first Supplemental Permanent Injunction (Doc. 606 ¶ 1).

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

         162. “Misconduct” means a violation of MCSO policies or procedures; violation of federal, state, or local criminal or applicable civil laws; constitutional violations, whether criminal or civil; violation of administrative rules; and violation of regulations.

a. “Minor misconduct” means misconduct that, if sustained, would result in discipline and/or corrective action less severe than a suspension;
b. “Serious misconduct” means misconduct that, if sustained, would result in discipline of suspension, demotion, or termination;
c. “Misconduct indicating apparent criminal conduct by an employee” means misconduct that a reasonable and trained Supervisor or internal affairs investigator would conclude could result in criminal charges due to the apparent circumstances of the misconduct.
d. “Internal affairs investigator” means any employee who conducts an administrative investigation of misconduct, including investigators assigned to the Professional Standards Bureau or Supervisors in the employee’s Division or Bureau who are assigned to investigate misconduct.
e. “Preponderance of the Evidence” means that the facts alleged are more likely true than not true.
f. “Clear and Convincing Evidence” means that the party must present evidence that leaves one with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This standard of proof is higher than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.
g. “Principal” means an employee against whom a complaint of misconduct or wrongdoing has been made and who is a subject of a misconduct investigation.
h. “Tester” means a person who poses as a civilian making a fictitious complaint for assessment purposes.
i. “Class Remedial Matters” means possible misconduct involving members of the Plaintiff class and the MCSO or the remedies to which such class members are entitled as set forth in the Findings of Fact and various supplemental orders of this Court.

         XV. MISCONDUCT INVESTIGATIONS, DISCIPLINE, AND GRIEVANCES

         162. The Sheriff will ensure that all allegations of employee misconduct, whether internally discovered or based on a civilian complaint, are fully, fairly, and efficiently investigated; that all investigative findings are supported by the appropriate standard of proof and documented in writing; and that all officers who commit misconduct are held accountable pursuant to a disciplinary system that is fair, consistent, unbiased and provides due process. To achieve these outcomes, the Sheriff shall implement the requirements set out below.

         163. All policies, procedures, protocols, training materials, and other material required by this Order are subject to the same process of review and comment by the parties and approval by the Monitor described in Section IV and ¶ 46 of the first Supplemental Permanent Injunction (Doc. 606).

         A. Policies Regarding Misconduct Investigations, Discipline, and Grievances

         164. Within one month of the entry of this Order, the Sheriff shall conduct a comprehensive review of all policies, procedures, manuals, and other written directives related to misconduct investigations, employee discipline, and grievances, and shall provide to the Monitor and Plaintiffs new policies and procedures or revise existing policies and procedures. The new or revised policies and procedures that shall be provided shall incorporate all of the requirements of this Order. If there are any provisions as to which the parties do not agree, they will expeditiously confer and attempt to resolve their disagreements. To the extent that the parties cannot agree on any proposed revisions, those matters shall be submitted to the Court for resolution within three months of the date of the entry of this Order. Any party who delays the approval by insisting on provisions that are contrary to this Order is subject to sanction.

         165. Such policies shall apply to all misconduct investigations of MCSO personnel.

         166. The policies shall include the following provisions:

a. Conflicts of interest in internal affairs investigations or in those assigned by the MCSO to hold hearings and make disciplinary decisions shall be prohibited. This provision requires the following:
i. No employee who was involved in an incident shall be involved in or review a misconduct investigation arising out of the incident.
ii. No employee who has an external business relationship or close personal relationship with a principal or witness in a misconduct investigation may investigate the misconduct. No such person may make any disciplinary decisions with respect to the misconduct including the determination of any grievance or appeal arising from any discipline.
iii. No employee shall be involved in an investigation, whether criminal or administrative, or make any disciplinary decisions with respect to any persons who are superior in rank and in their chain of command. Thus, investigations of the Chief Deputy’s conduct, whether civil or criminal, must be referred to an outside authority. Any outside authority retained by the MCSO must possess the requisite background and level of experience of internal affairs investigators and must be free of any actual or perceived conflicts of interest.
b. If an internal affairs investigator or a commander who is responsible for making disciplinary findings or determining discipline has knowledge of a conflict of interest affecting his or her involvement, he or she should immediately inform the Commander of the Professional Standards Bureau or, if the holder of that office also suffers from a conflict, the highest-ranking, non-conflicted chief-level officer at MCSO or, if there is no non-conflicted chief-level officer at MCSO, an outside authority. Any outside authority retained by the MCSO must possess the requisite background and level of experience of internal affairs investigators and must be free of any actual or perceived conflicts of interest.
c. Investigations into an employee’s alleged untruthfulness can be initiated by the Commander of the Professional Standards Bureau or the Chief Deputy. All decisions not to investigate alleged untruthfulness must be documented in writing.
d. Any MCSO employee who observes or becomes aware of any act of misconduct by another employee shall, as soon as practicable, report the incident to a Supervisor or directly to the Professional Standards Bureau. During any period in which a Monitor is appointed to oversee any operations of the MCSO, any employee may, without retaliation, report acts of alleged misconduct directly to the Monitor.
e. Where an act of misconduct is reported to a Supervisor, the Supervisor shall immediately document and report the information to the Professional Standards Bureau.
f. Failure to report an act of misconduct shall be considered misconduct and may result in disciplinary or corrective action, up to and including termination. The presumptive discipline for a failure to report such allegations may be commensurate with the presumptive discipline for the underlying misconduct.
g. No MCSO employee with a rank lower than Sergeant will conduct an investigation at the District level.

         67. All forms of reprisal, discouragement, intimidation, coercion, or adverse action against any person, civilian, or employee because that person reports misconduct, attempts to make or makes a misconduct complaint in good faith, or cooperates with an investigation of misconduct constitute retaliation and are strictly prohibited. This also includes reports of misconduct made directly to the Monitor, during any period in which a Monitor is appointed to oversee any operations of the MCSO.

         168. Retaliating against any person who reports or investigates alleged misconduct shall be considered a serious offense and shall result in discipline, up to and including termination.

         169. The Sheriff shall investigate all complaints and allegations of misconduct, including third-party and anonymous complaints and allegations. Employees as well as civilians shall be permitted to make misconduct allegations anonymously.

         170. The MCSO will not terminate an administrative investigation solely on the basis that the complainant seeks to withdraw the complaint, or is unavailable, unwilling, or unable to cooperate with an investigation, or because the principal resigns or retires to avoid discipline. The MCSO will continue the investigation and reach a finding, where possible, based on the evidence and investigatory procedures and techniques available.

         171. Employees are required to provide all relevant evidence and information in their custody and control to internal affairs investigators. Intentionally withholding evidence or information from an internal affairs investigator shall result in discipline.

         172. Any employee who is named as a principal in an ongoing investigation of serious misconduct shall be presumptively ineligible for hire or promotion during the pendency of the investigation. The Sheriff and/or the MCSO shall provide a written justification for hiring or promoting an employee or applicant who is a principal in an ongoing investigation of serious misconduct. This written justification shall be included in the employee’s employment file and, during the period that the MCSO is subject to Monitor oversight, provided to the Monitor.

         173. Employees’ and applicants’ disciplinary history shall be considered in all hiring, promotion, and transfer decisions, and this consideration shall be documented. Employees and applicants whose disciplinary history demonstrates multiple sustained allegations of misconduct, or one sustained allegation of a Category 6 or Category 7 offense from MCSO’s disciplinary matrices, shall be presumptively ineligible for hire or promotion. MCSO shall provide a written justification for hiring or promoting an employee or applicant who has a history demonstrating multiple sustained allegations of misconduct or a sustained Category 6 or Category 7 offense. This written justification shall be included in the employee’s employment file and, during the period that the MCSO is subject to Monitor oversight, provided to the Monitor.

         174. As soon as practicable, commanders shall review the disciplinary history of all employees who are transferred to their command.

         175. The quality of investigators’ internal affairs investigations and Supervisors’ reviews of investigations shall be taken into account in their performance evaluations.

         176. There shall be no procedure referred to as a “name-clearing hearing.” All pre-disciplinary hearings shall be referred to as “pre-determination hearings, ” regardless of the employment status of the principal.

         B. Misconduct-Related Training

         177. Within three months of the finalization of these policies consistent with ¶ 164 of this Order, the Sheriff will have provided all Supervisors and all personnel assigned to the Professional Standards Bureau with 40 hours of comprehensive training on conducting employee misconduct investigations. This training shall be delivered by a person with subject matter expertise in misconduct investigation who shall be approved by the Monitor. This training will include instruction in:

a. investigative skills, including proper interrogation and interview techniques, gathering and objectively analyzing evidence, and data and case management;
b. the particular challenges of administrative law enforcement misconduct investigations, including identifying alleged misconduct that is not clearly stated in the complaint, or that becomes apparent during the investigation;
c. properly weighing the credibility of civilian witnesses against employees;
d. using objective evidence to resolve inconsistent statements;
e. the proper application of the appropriate standard of proof;
f. report-writing skills;
g. requirements related to the confidentiality of witnesses and/or complainants;
h. considerations in handling anonymous complaints;
i. relevant MCSO rules and policies, including protocols related to administrative investigations of alleged officer misconduct; and
j. relevant state and federal law, including Garrity v. New Jersey, and the requirements of this Court’s orders.

         178. All Supervisors and all personnel assigned to the Professional Standards Bureau also will receive eight hours of in-service training annually related to conducting misconduct investigations. This training shall be delivered by a person with subject matter expertise in misconduct investigation who shall be approved by the Monitor.

         179. Within three months of the finalization of these policies consistent with ¶ 164 of this Order, the Sheriff will provide training that is adequate in quality, quantity, scope, and type, as determined by the Monitor, to all employees on MCSO’s new or revised policies related to misconduct investigations, discipline, and grievances. This training shall include instruction on identifying and reporting misconduct, the consequences for failing to report misconduct, and the consequences for retaliating against a person for reporting misconduct or participating in a misconduct investigation.

         180. Within three months of the finalization of these policies consistent with ¶ 164 of this Order, the Sheriff will provide training that is adequate in quality, quantity, scope, and type, as determined by the Monitor, to all employees, including dispatchers, to properly handle civilian complaint intake, including how to provide complaint materials and information, and the consequences for failing to take complaints.

         181. Within three months of the finalization of these policies consistent with ¶ 164 of this Order, the Sheriff will provide training that is adequate in quality, quantity, scope, and type, as determined by the Monitor, to all Supervisors on their obligations when called to a scene by a subordinate to accept a civilian complaint about that subordinate’s conduct and on their obligations when they are phoned or emailed directly by a civilian filing a complaint against one of their subordinates.

         C. Administrative Investigation Review

         182. The Sheriff and the MCSO will conduct objective, comprehensive, and timely administrative investigations of all allegations of employee misconduct. The Sheriff shall put in place and follow the policies set forth below with respect to administrative investigations.

         183. All findings will be based on the appropriate standard of proof. These standards will be clearly delineated in policies, training, and procedures, and accompanied by detailed examples to ensure proper application by internal affairs investigators.

         184. Upon receipt of any allegation of misconduct, whether internally discovered or based upon a civilian complaint, employees shall immediately notify the Professional Standards Bureau.

         185. Effective immediately, the Professional Standards Bureau shall maintain a centralized electronic numbering and tracking system for all allegations of misconduct, whether internally discovered or based upon a civilian complaint. Upon being notified of any allegation of misconduct, the Professional Standards Bureau will promptly assign a unique identifier to the incident. If the allegation was made through a civilian complaint, the unique identifier will be provided to the complainant at the time the complaint is made. The Professional Standards Bureau’s centralized numbering and tracking system will maintain accurate and reliable data regarding the number, nature, and status of all misconduct allegations, from initial intake to final disposition, including investigation timeliness and notification to the complainant of the interim status, if requested, and final disposition of the complaint. The system will be used to determine the status of misconduct investigations, as well as for periodic assessment of compliance with relevant policies and procedures and this Order, including requirements of timeliness of investigations. The system also will be used to monitor and maintain appropriate caseloads for internal affairs investigators.

         186. The Professional Standards Bureau shall maintain a complete file of all documents within the MCSO’s custody and control relating to any investigations and related disciplinary proceedings, including pre-determination hearings, grievance proceedings, and appeals to the Maricopa County Law Enforcement Merit System Council or a state court.

         187. Upon being notified of any allegation of misconduct, the Professional Standards Bureau will make an initial determination of the category of the alleged offense, to be used for the purposes of assigning the administrative investigation to an investigator. After initially categorizing the allegation, the Professional Standards Bureau will promptly assign an internal affairs investigator.

         188. The Professional Standards Bureau shall administratively investigate:

a. misconduct allegations of a serious nature, including any allegation that may result in suspension, demotion, or termination; and
b. misconduct indicating apparent criminal conduct by an employee.

         189. Allegations of employee misconduct that are of a minor nature may be administratively investigated by a trained and qualified Supervisor in the employee’s District.

         190. If at any point during a misconduct investigation an investigating Supervisor outside of the Professional Standards Bureau believes that the principal may have committed misconduct of a serious or criminal nature, he or she shall immediately notify ...


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