Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 1 of 12

1
2
3
4
5
6
7
8
9

Steven H. Rosenbaum (NY Bar #1901958)

Sameena Shina Majeed (DC Bar # 491725)
R. Tamar Hagler (CA Bar #189441)
Eric W. Treene (NY Bar #2568343)
Sean R. Keveney (TX Bar #24033862)
Matthew J. Donnelly (IL Bar #6281308)
Emily M. Savner (NY Bar #5214358)
Sharon I. Brett (NY Bar #5090279)
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Phone:
(202) 353-4081
Facsimile: (202) 514-1116
E-mail: emily.savner@usdoj.gov

10
11

Attorneys for the United States

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA

12
13
14

United States,
No. 3:12cv8123-HRH

15
16
17

Plaintiff,
v.

UNITED STATES REPLY CLOSING

ARGUMENT REGARDING
INJUNCTIVE RELIEF

Town of Colorado City, Arizona, et al.,

18

Defendants.
19
20
21
22
23

The United States has proposed a set of reforms that addresses the varied ways in
which Colorado City and Hildale (the Cities) have discriminated against non-FLDS
individuals with respect to police services and housing, and aims to end Defendants civilrights violations and prevent the Cities from using other means to continue such

24 violations.
25

Defendants, however, continue to oppose, and attempt to put off, virtually any

26 reform by this Court. The running theme of Defendants latest brief is that this Court
27 should defer to some other entitythe Cooke court with respect to potential injunctive
28 relief under the Fair Housing Act (FHA), the Peace Officer Standards and Training

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 2 of 12

1 (POST) agencies with respect to the CCMO, Arizona state-court proceedings regarding
2 the United Effort Plan (UEP) Trusts subdivision request, and other state and local
3 institutions on the various other issues adjudicated in this case. Given the extensive
4 factual record, this Court stands in the best position to craft tailored, comprehensive relief
5 that would alleviate the need for future, repetitive litigation and to end what have been
6 and what will, without significant Court-ordered relief, continue to beintentional and
7
8
9

egregious civil-rights violations.

A. Disbandment of the CCMO is Necessary and Tailored to Defendants Multiple
Pattern-or-Practice Violations.
Defendants reject disbandment of the CCMO and proffer instead a Strategic Plan

10 that their expert Mr. Corsentino prepared without knowing what he was trying to remedy,
11 and which he concedes will not fix the CCMOs unconstitutional conduct. Defendants
12 proposal will not address the violation at the heart of this casethe operation of the
13 CCMO as an arm of the FLDS churchand the Court therefore should reject it as
14 insufficient and order the disbandment of the CCMO.
15
16
17
18
19
20
21
22
23
24
25
26
27

1.

Defendants Vague Strategic Plan is Insufficient and Not Tailored to the

Proven Pattern-or-Practice Violations.

Initially, Defendants attempt to downplay the broad scope of the jurys advisory
verdict as isolated single violations, Defs. Resp. at 2-3, ignoring that the jury found three
pattern or practice violations, namely a pattern or practice of violating the Establishment
Clause; a pattern or practice of violating aspects of the Fourth Amendment; and a pattern
or practice of violating the Equal Protection Clause. Jury Instruction No. 26, ECF No.
913; Verdict Form Nos. 1, 3 & 5, ECF No. 932.
Defendants then submit a vague Strategic Plan prepared by Mr. Corsentino
following a cursory and incomplete review of the CCMO and the trial evidence. He did
not interview anyone other than Defendant employees, Corsentino Hrg Tr. 581-86; did
not review any of the UEP litigation orders, id. at 587; only reviewed three witnesses trial
testimony (which did not include that of two CCMO officers) and three trial exhibits, id.
at 587-88; was not aware of evidence that Defendants had altered police reports and logs,

28

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 3 of 12

1 id. 587-89; and was not aware of information concerning POST decertifications of CCMO
2 officers, id. at 598-99. Most importantly, Mr. Corsentino did not consider evidence of
3 misconduct occurring before he was hired to be relevant, instead admitting he was
4 concerned only with what he observed from July 2016 forward. Id. at 589-94. Despite
5 reviewing only a fraction of the trial evidence, he stated he did not agree with the jurys
6 verdict, id. at 591, and formulated his opinion without knowing, let alone tailoring his
7 recommendations to, the constitutional violations found by the jury. Id. at 595-97.

Not surprisingly then, Mr. Corsentino himself agrees that his Strategic Plan, the

9 plan now adopted by Defendants and recommended to this Court as the remedy for the
10 constitutional violations found by the advisory jury, will not fix the CCMO or remedy
11 those violations. Corsentino Hrg Tr. 617-18; see id. at 617 (stating with regard to
12 Strategic Plan, Its not going to fix it.; I cant assure the Court that theres going to be a
13 finite, predictable outcome based on this strategic plan.); see also Harris Hrg Tr. 346-48
14 (opining that Strategic Plan would not remedy constitutional violations found by advisory
15 jury), 389-90.

The Strategic Plan does not account for the nature and extent of the violations and

16

17 the history of Defendants resistance to reform. For example, the Strategic Plan intends to
18 tweak the CCMO hiring process, removing Town Manager David Darger and the Town
19 Council from the hiring committee. The final selection of candidates, however, still is left
20 to the Town Council that the Church controls. Moreover, outside law enforcement,
21 including Mr. Corsentino, participated in the hiring committee for the latest CCMO hire,
22 whom Arizona POST subsequently refused to certify because he had engaged in a pattern
23 of criminal activity, including felony conduct that the CCMO should have detected
24 through any properly conducted background check, Decl. of M. Perkovich, Arizona
25 POST (Jan. 6, 2017), ECF No. 1026-1. This Court should have no faith that a new hiring
26 process will remedy the misconduct.
27
28

Similarly, the Plans reliance on body cameras does not provide an adequate remedy.
CCMO officers continued their misconduct even though UEP representatives have been
3

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 4 of 12

The Strategic Plans other reforms amount to vague intentions to rewrite policies

2 and conduct additional training. Defendants have had years of disciplinary findings by the
3 POST agencies, orders in the UEP litigation condemning their actions, and the Cooke
4 verdict, and they chose not to reform their policies. Defendants have also purported to
5 conduct training previously, which has not deterred the CCMOs misconduct. See, e.g.,
6 D. Darger Hrg Tr. 857-58 (testifying Town has conducted discrimination training for
7

years, including after the Cooke verdict and prior to this cases verdict).
This Court should find that, based on the evidence presented, piecemeal personnel

8
9
10

changes and changes in policies, procedures, and training likely will leave the CCMO
entangled with the FLDS Church. That was the reasoned opinion of Expert Chief Harris,
Harris Hrg Tr. 319-26, 347-48, 382, who performed a thorough review of the CCMO for

11

the liability phase at trial and again for the remedy hearing, id. at 315-19, and who
12
13

subsequently determined that disbandment was the remedy most likely to ensure
constitutional policing in the Cities.

14
15
16
17

Defendants also are wrong to suggest the Court simply rely on the POST agencies
as already in place and working. Defs. Resp. at 12. As trial evidence demonstrated, the
CCMO has remained undeterred despite the POST agencies constantbut piecemeal
2

decertification of CCMO officers and Chiefs. POST is the licensing agency for peace

18 officers, controlling individual officers certifications based on POSTs own rules of

19 conduct. See Mann Trial Tr. 1551-52; ECF No. 1022-3. POST does not have the
20
21

video recording their interactions with the CCMO for years. See, e.g., Jeff Barlow Hrg
Tr. 39-40; see also Ex. 328. Moreover, the CCMO has already shown during the recent
23 Zoo incident that they will not record or will erase critical incidents. U.S. Digest Fact #
386, ECF No. 1022-2; Harris Hrg Tr. 369; Corsentino Hrg Tr. 613.
22

24
25
26
27
28

Contrary to Defendants position, Utah POSTs closing of investigations is not an

exoneration of wrongdoing. See Defs. Resp. at 10-11. As Defendants concede, Utah
POSTs closing of its investigations merely show that Utah POST did not uncover
sufficient evidence to satisfy its heightened, clear-and-convincing-evidence standard for
criminal behavior. Corsentino Hrg Tr. 610-11. Utah POST also initially certified the
newly hired CCMO officer, who Arizona POST later found to have engaged in criminal
conduct. See ECF No. 1026-1.
4

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 5 of 12

1 injunctive authority that this Court has to craft department-wide reforms to address
2 department-wide constitutional violations.
3
4
5
6

2.

Disbandment is Tailored to the CCMOs Violations and will Ensure

Constitutional Police Services at Approximately the Same Cost.

Defendants inappropriately point this Court to relief agreed to by other police

departments to address different problems. Defs. Resp. at 6-7. None of the other cases
cited by Defendants involved a massive, long-standing, pattern-or-practice violation of the

7 Establishment Clause, where a police force existed to serve the will of a church. See U.S.
8 Reply to Defs. Jt. Resp. to Post-Trial Br. 3-4, ECF 941. This Court should find this
9 unique circumstance requires the comprehensive disbandment remedy.
10

Defendants can contract for constitutional police services, with 24-hour coverage,

11 with outside law enforcement at approximately the same cost as they currently budget for
12 policing and dispatch services. Contrary to Defendants statement, the proposed order
13 submitted by the United States shows that the United States does not intend to force the
14 Defendants to contract with the County Sheriffs, but rather gives Defendants the choice
15 of the entity or entities with which to contract. See Defs. Resp. at 7; cf. Proposed Order
16 10-12, ECF No. 1022-1. The United States put the County Sheriffs forth as an option
17 to give this Court confidence that outside law-enforcement agencies are willing and able
18 to provide comparable coverage, but with constitutional services.
19
20
21
22
23

Defendants argue that the Counties will provide less coverage. In support,
Defendants point to the Mohave County Sheriffs Offices (MCSO) draft contract, but
fail to note that this was an illustrative, negotiable proposal. Schoppmann Hrg Tr. 20305, 195, 219-20. Defendants also isolate a statement by the Washington County Sheriff
that he currently does not have the staff to provide a 24-hour police presence in Hildale,
but leave out that he envisioned hiring more staff to fulfill any contract (and that this

24

hiring would not delay any takeover because veteran officers would be assigned to the
25
26
27

Cities). See Pulsipher Hrg Tr. 267, 244-45.

The County Sheriffs Offices can and would contract for coordinated services and
stagger their schedules to avoid duplicative costs and match the level of services already

28

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 6 of 12

1 being provided in the Cities. Id. at 246-47, 281; Schoppmann Hrg Tr. 205-07. Through
2 their mutual-aid agreement regarding cross-jurisdictional policing, the Washington
3 County Sheriffs Office (WCSO) and MCSO could stagger their schedules to have at
4 least one deputy present in the Cities at all times, and that deputy could cross into the
5 other Countys jurisdiction to respond to an emergent situation. Schoppmann Hrg Tr.
4

6 192; Pulsipher Hrg Tr. 245-46; Ex. 514.

Contracting with outside law enforcement should not elevate costs. As previously
7
8
9
10

briefed, Mr. Rondeau, Defendants expert accountant, admitted that coordinated, 24-hour
coverage by the Sheriffs, with dispatch provided by St. George, would provide the same
level of police coverage the CCMO currently provides at approximately the same cost as
the Cities currently budget for law enforcement and dispatch in year one, about $200,000

11

less in subsequent years, and approximately $90,000 less than Defendants inadequate
12
13
14
15

Strategic Plan. See Ex. 535; Rondeau Hrg Tr. 1032-45. Moreover, Colorado Citys own
financial statements indicate that the Town has an approximately $1 million surplus in
unrestricted money, which is available for new spending at the [Towns] discretion. See
Ex. 3293 at 012; Ex. 3516 at 001.

16
17
18

Defendants suggest that this Court does not know the MCSOs ability or willingness to

19 take over police services. MCSO Special Counsel Schoppmann, however, testified to the
20 MCSOs position, including that of newly elected Sheriff Schuster, and asked this Court

to disband the CCMO. Schoppmann Hrg Tr. 184-85; see also Ex. 513.

21
22
23
24
25
26
27
28

Defendants also incorrectly argue that WCSOs responding to emergency calls at the
request of MCSO would violate certification requirements and constitute impersonating a
peace officer. WCSO deputies may lawfully cross over as peace officers, Ariz. Rev.
Stat. 13-105(29) (any person vested by law with a duty to maintain public order and
make arrests), into Mohave County with the prior consent of the Mohave County Sheriff,
Ariz. Rev. Stat. 13-3871 (extending authority of peace officer outside of jurisdiction
with prior consent of sheriff with primary responsibility for law enforcement within the
jurisdiction), and may do so pursuant to the existing mutual-aid agreement between
MCSO and WCSO, Ariz. Rev. Stat. 13-3872 (granting power to enter into mutual-aid
agreements for law enforcement). See also State v. Torres, No. 1 CA-CR 10-0934, 2012
WL 112677, at *2 (Ariz. Ct. App. Jan. 12, 2012) (holding federal DEA agent had
authority for arrest in Mohave County pursuant to Ariz. Rev. Stat. 13-3871).
6

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 7 of 12

1
2

B. The Detailed Injunctive Relief Proposed by the United States is Necessary to

Remedy the Defendants Pattern or Practice of FHA Violations.
A decade of religiously motivated opposition to the UEP Trust and the presence of

3 non-FLDS families in the Cities, a pattern of refusing to abide by court orders, and
4 findings by two federal juries show that significant, court-ordered relief is necessary to
5 end Defendants pattern or practice of violating the FHA.
6
7

1.

The Cooke Injunction and Pending State-Court Litigation do not Support

Defendants Efforts to Avoid an Injunction.

Defendants object to all meaningful injunctive relief proposed by the United States

8 to remedy years of FHA violations. Specifically, they maintain that injunctive relief is not
9 necessary to remedy their violations of the FHA because identical injunctive relief [i.e.,
10 the Cooke injunction] already exists. Defs. Resp. at 12. They also maintain that
11 subdividing the land in Colorado City is not an appropriate remedy for this Court to order
12 because the issue is being litigated in state court. These positions are flawed.
13

First, simply relying on the Cooke injunction is insufficient. See Havens Realty

14 Corp. v. Coleman, 455 U.S. 363, 380 (1982) (recognizing the broad remedial intent of
15 Congress embodied in the Act). As this Court has held, the claims in the instant case
16 are much broader than the issues that were raised in the Cooke case and thus there is not
17 a substantial overlap of evidence as to the two cases. Order at 19, ECF No. 618; see also
18 id. at 21 (declining to find collateral estoppel in the United States favor, in part, to avoid
19 the conclusion that the United States should be limited to the relief order in the Cooke
20
21
22
23
24

case). Indeed, this Court specifically recognized that there may be a need for a broader
injunction in this case [than in Cooke] if plaintiff prevails on its FHA claim. Id. at 23.
To defer to the Cooke order would not address the broader violations proven in this case.
Second, the Cooke injunction has been an inadequate vehicle to hold Defendants in
contempt for future violations. Indeed, the Cooke court expressly deferred addressing a
motion filed by the UEP Trust in deference to the instant proceedings. See Order [Re:

25

UEP Renewed Mtn. to Show Cause], Cooke v. Town of Colorado City, No. 3:10cv8105
26
27

(D. Ariz. Aug. 5, 2016) (holding, In light of ongoing litigation before Judge Holland . . .
the Court finds that a temporary stay in this action is appropriate.), ECF No. 753.

28

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 8 of 12

1 Moreover, the Cooke injunction, and the mandates of the FHA that it restates, failed to
2 prevent the Defendants from continuing to harass and intimidate known Government
3 witnesses and continuing to discriminate with respect to housing and police services since
4 it was issued, including in the months before trial.

Third, deferring resolution of the United States request for an order subdividing

6 Colorado City is also not appropriate. Defendants, without using the term abstention or
7
8
9
10

citing to any federal law governing such a request, essentially ask this Court to invoke
5

Colorado River abstention to refuse to order subdivision. Rather than articulating the
appropriate legal doctrine, they simply suggest that this Court need not resolve the
subdivision question because a state court has already retained jurisdiction. Defs. Resp.
at 19. The relevant law, however, indicates that abstention is improper. Colorado River

11

abstention is triggered by the test set forth in R.R. St. & Co. Inc. v. Transp. Ins. Co., 656
12
13
14
15

F.3d 966, 978-79 (9th Cir. 2011). The abstention factors should be examined in a
pragmatic and flexible way, as a part of a balancing process rather than as a mechanical
checklist. Am. Intl Underwriters (Philippines), Inc. v. Contl Ins. Co., 843 F.2d 1253,
1257 (9th Cir. 1988) (citations omitted).

16
17

Colorado City, motivated by religious opposition to the UEP Trust, adopted an

onerous subdivision ordinance only after receiving the Trusts subdivision proposal and

18 then, for a decade, used procedural hurdles and additional roadblocks to refuse to
19 subdivide.6 Only three years after the United States brought this action, and after the
20
21

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)
22 (articulating abstention doctrine based on concerns of judicial administration and aimed at
avoiding duplicative litigation in federal and state forums); see id. at 818-19 (listing non23 exclusive factors for consideration and balancing).
6

24
25
26
27
28

Furthermore, Defendants fail to mention, justify, or even address key facts evidencing
the discriminatory intent with which Colorado City refused to approve the Trusts
subdivision request, instead relying on the testimony of the Towns hired engineer, Dale
Miller (who is not a lawyer) to expound on the legality of the Trusts counter offer, Defs.
Resp. at 17-18, as well as the reasonableness of the Trusts actions. However, Mr. Miller,
who only began working on subdivision issues in Colorado City in 2014, is unaware of the
religious nature of the opposition to subdivision and unaware of the religious dictates of
the FLDS Church and the United Order that mandate communal ownership of property,
8

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 9 of 12

1 verdict in the Cooke case, did Colorado City initiate state-court litigation raising the issue
2 of whether it has the authority under Arizona law to regulate subdivision. Ex. 3377 at
7

3 002. Under these facts, the Colorado River factors weigh against abstention: (1) this
4 Court had jurisdiction over the issue before the state court did; (2) the United States claim
5 is a federal one, not a state-law claim; (3) Defendants request is untimely given that
6 Colorado City litigated and tried this case in this forum and only now invokes abstention;
7
8

and (4) the United States is not a party to the state-court litigation and cannot protect its
interests in that case. See R.R. St. & Co. Inc., 656 F.3d at 978-79.
For the foregoing reasons, deference to the Cooke injunction and the state-court

9
10

litigation concerning subdivision is not warranted.

2.

11
12

With respect to the relief proposed by the United States related to building permits

13
14
15

Defendants Arguments Against Other Injunctive Relief Concerning

Building Permits, Transfer of Water Connections, the Impact Fee, and a
Court-Appointed Monitor are Unavailing.

and the transfer of water connections, Defendants assert that the Court should trust
Defendant city officials, Andrew Barlow and David Darger, whose bias and
discriminatory animus the United States established, to resolve any policy issues and

16

positively respond[] to residents who believe they are being treated unfairly. See Defs.
17
18
19
20
21

Resp. at 20-23. The trial evidence demonstrated that Defendants discriminatory practices
are entrenched. Even their arguments supporting their proposed reforms show their
determination to place FLDS residents religious interests above fair, non-discriminatory
treatment: Defendants continue to argue that an owners signature should not be made
mandatory on building-permit applications primarily because the Building Department

22 should not get involved in resolving property disputes, id. at 21, while arguing to the
23 contrary in the context of water connection transfers that their procedures were intended to
24
25

Miller Hrg Tr. 991, 995 & 1010, and thus discounts the extent to which Colorado Citys
26 refusal to allow the Trust to subdivide was motivated by religion. See id. at 995, 1008-09.
7

The United States does not dispute Colorado Citys insistence, in this case and in the
state-court litigation, that Colorado City has the right to regulate subdivision; however,
28 that authority does not justify applying subdivision rules in a discriminatory manner.
27

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 10 of 12

1 protect a current customer occupying that property from illegal self-help evictions, id. at
8

2 22. Failing to remedy these policies would allow Defendants to continue to use the
3 ubiquitous property dispute issues to simultaneously allow FLDS occupiers to receive
4 building permits to modify property they do not own while requiring non-FLDS residents
5 to undertake unnecessary eviction proceedings in order to obtain their water service.

In the context of the culinary water impact fee, Defendants again promise belated

6
7
8
9
10

self-correction and argue that no Court-ordered relief is appropriate because they will
update their impact-fee analysis sometime within the next three years, noting that [if] the
UEP Trust believes [the current fee] is unreasonable, it can file a complaint with the Utah
State Ombudsman . . . . Defs. Resp. at 24. This ignores the admissions of Defendants
hired engineer that the Cities current impact fee, the fee currently being charged

11

disproportionately to non-FLDS residents, was larger than normal, Shaffer Hrg Tr. 935,
12
13
14
15
16
17

and was larger than normal precisely because Defendants withheld essential information
and unreasonably refused to cooperate with the Trust for the benefit of the Cities
residents. It also ignores that the United States has challenged the reasonableness of the
impact fee in the instant, appropriate venue, and that, based on the jurys verdict, this
Court has the power and the duty to order such relief as is necessary to eliminate any
traces of discrimination in the Cities provision of water services to residents.

18

Lastly, only a monitor tasked with overseeing Defendants policies and practices

19 affecting housing going forward will be able to ensure that these municipalities, whose
20 potential means of discrimination are numerous, do not merely continue some variation of
21 the illegal conduct after this Court has issued its judgment and the glare of this omnibus
22 litigation no longer brings Defendants pervasive pattern of civil-rights abuses into focus.
23
24
25
26

Defendants provide no citations to the record for their descriptions of their 2015 and
27 2016 modifications to their Water Services Regulations, see Defs. Resp. at 22, nor did
they provide their current policy document, making it impossible for the United States or
28 this Court to assess the extent to which it addresses the identified problems.
10

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 11 of 12

Respectfully submitted this 24th day of January 2017,

STEVEN H. ROSENBAUM
Chief
Special Litigation Section

3
4
5

SAMEENA SHINA MAJEED

Chief
Housing and Civil Enforcement Section

6
7

R. TAMAR HAGLER
Deputy Chief

8
9

ERIC W. TREENE
Special Counsel

10
11

/s/ Emily M. Savner

SEAN R. KEVENEY
MATTHEW J. DONNELLY
EMILY M. SAVNER
SHARON I. BRETT
Attorneys
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Phone:
(202) 353-4081
Facsimile: (202) 514-1116
E-mail: emily.savner@usdoj.gov

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

11

Case 3:12-cv-08123-HRH Document 1027 Filed 01/24/17 Page 12 of 12

CERTIFICATE OF SERVICE

I certify that on January 24, 2017, I caused a copy of the foregoing United States
Reply Closing Argument Regarding Injunctive Relief to be sent via the Courts ECF
3 system to the following:
2

4
5
6
7
8
9
10
11
12

Jeffrey C. Matura
Asha Sebastian
Melissa J. England
Graif Barrett & Matura, P.C.
1850 North Central Avenue, Suite 500
Phoenix, Arizona 85004
Attorneys for Defendant Town of Colorado City
R. Blake Hamilton
Ashley M. Gregson
Durham Jones & Pinegar
111 East Broadway, Suite 900
Salt Lake City, Utah 84111
Attorneys for Defendants City of Hildale, and Twin City Water Authority

13
14
15

s/ Emily M. Savner
EMILY M. SAVNER
Attorney for the United States

16
17
18
19
20
21
22
23
24
25
26
27
28

12