Académique Documents
Professionnel Documents
Culture Documents
11
22
33
44
9
9
10
10
11
11
12
12
13
13
14
14
15
15
16
16
17
17
18
No. 2:07-cv-02513-GMS
UNITED STATES RESPONSE TO
DEFENDANT ARPAIOS
POSITIONS REGARDING
INTERNAL INVESTIGATIONS
and
19
18
20
19
21
20
22
21
23
22
24
23
v.
Joseph M. Arpaio, in his official capacity as
Sheriff of Maricopa County, AZ; et al.
Defendants.
25
24
26
25
27
26 United States submits this response brief to Defendant Arpaios arguments submitted in
28
27 the Joint Memorandum Re: Internal Investigations, ECF No. 1715. Defendant Arpaio
28 largely re-argues issues that the United States and Plaintiffs have previously briefed.
1 The United States stands on its previous arguments and generally concurs in the
2 positions and arguments that Plaintiffs submit in their response brief today. See
3 Response, ECF No. 1720. The United States submits this separate response to:
4 (1) emphasize this Courts ample authority to enter the remedies; and (2) explain that
5 additional expert testimony on which internal affairs investigations need to be reopened
6 would be duplicative and unnecessary.
7
I.
DISCUSSION
A. This Cour t has Ample Author ity Enter the Pr oposed Remedies.
This Court should reject Defendant Arpaios misplaced federalism and due
10 process arguments regarding this Courts power to remedy his deficient internal affairs
11 practices that are causing constitutional harm to the Plaintiff Class.
12
Defendant Arpaio states his concern that this Courts remedying his
13 constitutionally deficient internal affairs practices violates federalism and state comity,
14 while simultaneously agreeing to a remedial order vesting internal affairs authority in an
15 independent third party. Jt. Memo. Re: Internal Inv. at 9-11. As previously briefed, this
16 Court has the power initially to remedy federal constitutional violations, and
17 subsequently to modify these remedial orders based on changed circumstances, including
18 additional remedies for civil contempt to compel future compliance with its previous
19 orders. See U.S. Mem. Resp. to Findings of Fact at 1-3, ECF No. 1685. This Court has
20 already found that the MCSOs internal affairs policies and practices are discriminatory
21 and cause harm to the Plaintiff Class. Findings of Fact 882-889, ECF No. 1677. This
22 discriminatory pattern of violations affecting a class of plaintiffs makes Defendant
23 Arpaios citations to non-pattern cases like Rizzo v. Goode, 423 U.S. 362 (1976),
24 unavailing. The Supreme Court has repeatedly upheld the appropriateness of federal
25 injunctive relief to combat a pattern of illicit law enforcement behavior. LaDuke v.
26 Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985), amended, 796 F.2d 309 (9th Cir. 1986)
27 (collecting cases). Moreover, to the extent state comity counseled for first allowing
28 Defendant Arpaio latitude to attempt to remedy his constitutionally deficient operations,
1 his and other MCSO officers contempt of this Courts previous orders forced the
2 necessary intrusion into MCSOs internal affairs operations. See also Findings of Fact
3 218-222 (MCSO declining Courts previous invitation to refer investigations to
4 outside authority and instead electing to handle such investigations on its own).
5
This Court should also reject Defendant Arpaios misplaced due process
6 arguments. The proposed procedure for re-opening, and future, internal affairs
7 investigations and any resulting discipline is narrowly tailored to remedy Defendant
8 Arpaios constitutionally deficient practices and complies with federal Due Process.
9 Defendant Arpaio asserts that deputies have a property interest in their employment, and
10 thus purportedly are entitled to all state law procedural protections for internal affairs
11 investigations. Jt. Memo. Re: Internal Inv. at 11-14. As the United States has previously
12 briefed, deputies likely have a property interest in their continued employment that
13 implicates Due Process Clause protections. U.S. Mem. Resp. to Findings of Fact at 13.
14 This purported property interest, however, does not transform the Arizona state code of
15 procedural protections for police officers into federally required Due Process Clause
16 rights. See Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir.1994) ([I]f state procedures
17 rise above the floor set by the due process clause, a state could fail to follow its own
18 procedures yet still provide sufficient process to survive constitutional scrutiny. (quoting
19 Rogers v. Okin, 738 F.2d 1, 8 (1st Cir. 1984))), overruled on other grounds by Sandin v.
20 Conner, 515 U.S. 472, 48384 (1995); accord James v. Rowlands, 606 F.3d 646, 657
21 (9th Cir. 2010); Power Rd.-Williams Field LLC v. Gilbert, 14 F. Supp. 3d 1304, 1312-13
22 (D. Ariz. 2014).
23
As previously briefed, the Plaintiffs proposed process where deputies will have
24 notice and an opportunity to be heard before any proposed discipline, and the opportunity
25 to appeal any discipline determination to the Maricopa County Law Enforcement Merit
26 Commission provides adequate federal Due Process. See Jt. Memo. Re: Internal Inv. at
27 2-3; see also Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1405 (9th
28 Cir. 1989) (Ordinarily, due process of law requires [notice and] an opportunity for some
This Court should therefore reject, for example, Defendant Arpaios suggestion
12 that the state procedural 180-day time limit to complete investigations trumps this Courts
13 power to order the re-investigation of previous deficient investigations or to order
14 constitutionally adequate future investigations. Similarly, if the Maricopa County Law
15 Enforcement Merit Commission reverses any discipline on appeal for state law reasons
16 that conflict with this Courts ordered remedial process, that non-federal process would
17 also stand as an impermissible impediment. In short, state procedural laws cannot trump
18 this federal Courts orders remedying Defendant Arpaios federal Constitution violations.
19
20
This Court already has explicitly assigned to the Monitor Team the authority and
21
investigations are flawed and whether new investigations are warranted. Order at 19,
23
ECF No. 795. Despite this, Defendant Arpaio states, without any explanation or
24
internal affairs investigations were inadequate. See Jt. Memo. Re: Internal Inv. at 18 n.
26
14. It is entirely unclear, however, what such expert testimony could accomplish that
27
would not be duplicative of functions that this Court has already explicitly assigned to the
28
5 time and resources seeking and presenting the proposed expert opinions. It therefore
6 would be entirely appropriate, as well as far more efficient than Defendant Arpaios
7 proposal, for either the Monitor (or the independent investigator) to identify which
8 internal affairs investigations were inadequate and need to be redone. In the event that a
9 Party disagrees with the Monitors or the independent investigators determination, the
10
10 Party may file an objection with the Court and provide an explanation as to why they
11
11 believe that the contested investigation was adequate or inadequate; the Court may then
12
12 determine whether the challenged investigation was inadequate and needs to be re-
13
13
14 opened. This Court should accordingly find that additional expert testimony is
14
15 duplicative and unnecessary.
15
16
16
17
II.
CONCLUSION
For the foregoing reasons, this Court should reject Defendant Arpaios arguments that
17
18 this Court lacks power to order the proposed remedies for his contempt and constitutional
19 violations, and find that expert testimony on which internal affairs investigations to
18
20 reopen would be duplicative and unnecessary.
19
21
20
22
21
23
22
24
23
25
Respectfully submitted,
Robert J. Moossy, Jr.
Deputy Assistant Attorney General
Civil Rights Division
24
26
25
27
Steven H. Rosenbaum
Chief, Special Litigation Section
26
28
27
Timothy D. Mygatt
Deputy Chief
28
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CERTIFICATE OF SERVICE
I certify that on June 23, 2016, I filed the foregoing through the Courts CM/ECF
2 system which will serve a true and correct copy of the filing on counsel of record.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28