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Melendres v. Arpaio

United States District Court, D. Arizona

August 19, 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,

          ORDER RE VICTIM COMPENSATION

          HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Parties’ Joint Notice of Stipulated Judgment for the Victim Compensation Plan (Doc. 1747). Both parties acknowledge that compensation to the victims of a contempt falls within the legitimate scope of a civil contempt proceeding. Nevertheless, at the outset of the contempt hearings, the Court expressed concern that to the extent that damages were different than compensation, damages might be more appropriately pursued in a class action pursuant to 42 U.S.C. § 1983.

         Perhaps as a result, the parties entered negotiations to determine an appropriate alternative procedure by which victims might achieve compensation. In other words, victims would have the right to opt to participate in the compensation procedure or, alternatively assert their rights in a separate § 1983 action or otherwise.

         The Joint Notice indicates both the substantial matters on which the parties have reached agreement as to victims’ compensation as well as the few remaining areas on which they were unable to reach agreement. In light of their extensive negotiated agreement, the Joint Notice also set forth the separate issues pertaining to the compensation plan on which each desired to preserve appellate rights. The parties also set forth separate forms of the compensation plan, each incorporating their proposals where they could not otherwise agree.[1] They then asked the Court to rule on the provisions of their plan upon which they could not agree in light of the Court’s earlier guidance on the questions.

         The principle topic on which the parties could not reach agreement was over the rate of compensation to be paid for wrongful incarceration under their compensation plan-with Plaintiffs and Defendants recommending different rates. At a hearing, the Court expressed that Plaintiffs had not set forth a sufficient evidentiary basis on which it could enter an order resolving this disagreement. In a supplemental response, Plaintiffs suggest that the notice be modified to inform potential participants of their right to apply to either the Court or the Plan Administrator for individualized or representative damage hearings to achieve their compensation. They also agreed to a cap of $10, 000 for the duration aspect of the compensation resulting from the detention, without that cap affecting a claimant’s ability to receive other damages arising from his or her detention. In response, the County while otherwise objecting to the Plaintiff’s proposals, accepted the $10, 000 cap.

         While the Court wishes to provide a reasonable compensation plan for victim claimants, it cannot conclude that it now has an evidentiary basis to resolve the dispute. Further, the rate offered by the County, (with the increased compensation cap for detention of $10, 000 agreed to by the parties in the supplemental briefing) may not be an unreasonable rate for victims who wish to claim it rather than going through the necessary dislocations offered by a regular or class action lawsuit. The method suggested by Plaintiffs is akin to multiple separate claims for damages. The Court declines to take it up, but will enter a compensation order that will provide a method for victims who wish to pursue it to achieve substantial compensation for the Sheriff’s contempts consistent with the matters agreed to by all parties. The Plaintiffs also request that the Court enter judgment jointly and severally against the individual non-party contemnors. Nevertheless Plaintiffs provide insufficient legal authority for such a step. Sheriff Arpaio is a defendant in his official capacity only. None of the other non-party contemnors are even a party. Even assuming the Court had the authority to make its judgment against Sheriff Arpaio in his official capacity applicable to him and the others in their personal capacities; it would seem to provide only a symbolic benefit at best. As a practical matter most if not all of the individual contemnors would be unable to shoulder the expense involved even of notice, let alone payment, of the compensation amounts. Where the County is a willing participant to provide for compensation, payment is guaranteed here for those who opt in to the payment procedure. It is therefore ordered that:

         I. Third-Party, Neutral Claims Administrator

         A. BrownGreer is designated to serve as a neutral, third-party administrator to manage the Notice and Claims Processing Plan to compensate individuals who suffered injury as a result of any violations by the MCSO of the Court’s December 23, 2011 Preliminary Injunction Order.

         B. BrownGreer’s fees will be paid by Defendants at rates specified in the price list attached to both parties’ proposals in Doc. 1747.

         II. Eligibility

         A. Participation in this scheme for victim compensation is voluntary and is intended as an alternative for eligible individuals to any other means available for obtaining relief for injuries resulting from alleged violations of the Court’s Preliminary Injunction. Claimants who submit claims and are determined to be eligible to participate in the plan must waive and extinguish any right they might otherwise have to obtain relief for the same conduct through any other avenue. The rights of any individual who does not participate in the compensation plan will not be affected.

         B. Individuals who have submitted a claim regarding the same conduct in another forum and received a determination, or those who have a pending claim in another forum, are not eligible to participate in this program. If the individual has a pending claim in another forum, he or she must withdraw such a claim in order to participate in this alternative compensation scheme. As with all other individuals who choose to seek remedies through this compensation scheme, those who withdraw a claim pending in another forum in order to submit an application under this scheme will be required to waive and extinguish any right they might otherwise have to obtain relief for the same conduct through any other avenue.

         C. Compensation under this program will be available to those asserting that their constitutional rights were violated as a result of detention by MCSO in violation of the Court’s Preliminary Injunction from December 23, 2011 to May 24, 2013.

         D. Individuals detained in violation of the Court’s Preliminary Injunction will be eligible for compensation, including in any operation in which MCSO detained persons when they had no basis to do so under state law and transported them somewhere in a motor vehicle in Maricopa County.

         III. Compensation Fund

         The Board of Supervisors will create a fund of $500, 000 for payment of claims adjudicated in favor of claimants. In the event that amount is exhausted through the payment of claims and is insufficient to provide compensation to all successful claimants, additional claims adjudicated in favor of claimants will be honored and timely paid by the County through further allocations if necessary. If all claims adjudicated in favor of claimants are fully paid out and there remains an unspent sum in the original or any supplemental allocated funds, such amount will revert to the County.

         IV. Notice Plan

         A. BrownGreer will be provided with a budget of $200, 000 to spend on notice and outreach to potentially eligible individuals about the availability of compensation. BrownGreer will utilize its expertise to determine how monies allocated for notice can most effectively be employed to maximize the likelihood that potential claimants will be reached.

         B. The notice plan may include use of radio, digital/online and print advertising, earned media placements, and partnership with nongovernmental organizations and embassies. It should target individuals in at least Maricopa County, along the U.S./Mexico Border and in Mexico. Notice will be provided in English and Spanish, with a heavy focus on Spanish-language media and sites.

         C. BrownGreer will consult with the Parties in the development of the notice plan and the text of any notices, press releases or scripts developed. The cost for any such services will be paid out of the notice budget provided for in IV.A. above.

         D. BrownGreer will develop a claim website for the case, a toll-free phone number and an email account, to provide information about how to make a claim. The cost for any such services will be paid out of the notice budget provided for in IV.A. above.

         E. Individual notice will be provided to any individuals identified by the Parties as potentially eligible for compensation for whom a current address can be found, i.e., through commercially available database services, and other methods. All costs for such services will be paid out of the notice budget provided for in IV.A above.

         V. Claims Adjudication Plan

         A. Claims must be initiated within 365 days from the first issuance of program notice by BrownGreer through any public media outlet (which will also be the date when BrownGreer will be ready to begin receiving applications).

         B. BrownGreer will be provided a sum of $75, 000 in start-up fees to implement the claims processing program.

         C. All materials must be available in English and Spanish, and any other languages as needed. Language should be calculated to be understandable to individuals who will be making claims.

         D. In all cases, it is claimant’s burden to establish their entitlement to compensation by a preponderance of the evidence. BrownGreer will be responsible for evaluating the credibility and competency of evidence and witnesses, and determining the appropriate weight to be assigned to evidence adduced.

         E. The Parties recognize that available documentation and testimony may already establish a case that some individuals were subject to violations of the Preliminary Injunction. Thus, a multi-step and multi-track system ensures that the burden on claimants for whom such uncontested evidence exists is reduced and the resources committed to this program are used efficiently.

         F. Claim Initiation Form.

         Claimants will first be required to complete a claim initiation form. This form would ask for the following basic information:

1. Contact information: current address and phone number where individual can be reached
2. Identity information: name, name provided to MCSO (if different), DOB and reliable proof of identity
3. Details of encounter: date in the applicable time period or 30-day date range if precise date is unknown, type of encounter (traffic stop, other), and names, address and telephone number of others in vehicle (if known)
4. Approximate length of detention by MCSO. (In cases involving transfer to ICE/CBP, claimant to provide length of detention up ...

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