Melendres #1916 - Nov 23 TRANSCRIPT (Status Conference)

Case 2:07-cv-02513-GMS Document 1916 Filed 12/09/16 Page 1 of 34
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF ARIZONA
4 Manuel de Jesus Ortega Melendres, )

et al., )
5 )
Plaintiffs, ) No. CV 07-2513-PHX-GMS
6 )
vs. ) Phoenix, Arizona
7 ) November 23, 2016
Joseph M. Arpaio, et al., ) 9:02 a.m.
8 )
Defendants. )
9 )
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
15
BEFORE THE HONORABLE G. MURRAY SNOW
16
(Status Conference)
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22 Court Reporter: Gary Moll

401 W. Washington Street, SPC #38
23 Phoenix, Arizona 85003
(602) 322-7263
24
Proceedings taken by stenographic court reporter
25 Transcript prepared by computer-aided transcription
CV07-2513, Melendres v. Arpaio, 11/23/16 Status Conference 2
1 A P P E A R A N C E S
3 For the Plaintiffs:

American Civil Liberties Union Foundation
4 Immigrants' Rights Project
By: Cecillia D. Wang, Esq. - Telephonically
5 39 Drumm Street
San Francisco, California 94111
6
American Civil Liberties Union Foundation
7 Immigrants' Rights Project
By: Andre Segura, Esq. - Telephonically
8 125 Broad Street, 18th Floor
New York, New York 10004
9
American Civil Liberties Union of Arizona
10 By: Brenda Munoz Furnish, Esq.
By: Kathleen E. Brody, Esq.
11 P.O. Box 17148
Phoenix, Arizona 85011
12
For the Intervenor United States of America:
13 U.S. Department of Justice - Civil Rights Division
By: Jennifer L. Mondino, Esq. - Telephonically
14 950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
15
U.S. Department of Justice - Civil Rights Division
16 By: Cynthia Coe, Esq. - Telephonically
601 D. Street NW, #5011
17 Washington, D.C. 20004
18 U.S. Department of Justice - Office of Civil Rights

By: Maureen Johnston, Esq. - Telephonically
19 600 D Street NW
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1 A P P E A R A N C E S
3 For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
4 Jones, Skelton & Hochuli, PLC
By: John T. Masterson, Esq.
5 By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
6 Phoenix, Arizona 85012
7 Cooper & Kirk, P.L.L.C.

Michael W. Kirk, Esq. - Telephonically
8 1523 New Hampshire Avenue, N.W.
9
Also present:
10 Chief Robert Warshaw, Monitor- Telephonically
Commander John Girvin, Deputy Monitor- Telephonically
11 Chief Raul Martinez, Deputy Monitor- Telephonically
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1 P R O C E E D I N G S
3 THE COURT: Please be seated.
4 THE CLERK: This is civil case number 07-2513,
5 Melendres, et al., v. Arpaio, et al., on for status conference. 09:02:28
6 Counsel, please announce your appearances. And please
7 make sure to speak into the microphone.
8 MS. BRODY: Good morning, Your Honor. Kathy Brody and
9 Brenda Munoz Furnish on behalf of the plaintiffs from the ACLU
10 of Arizona. 09:02:40
11 THE COURT: Good morning.
12 MR. MASTERSON: Happy Thanksgiving, Judge. John
13 Masterson and Joe Popolizio for Sheriff Arpaio.
14 THE COURT: To you, too.
15 Anybody on the phone? 09:02:57
16 CHIEF WARSHAW: Good --
17 MR. SEGURA: Good morning.
18 CHIEF WARSHAW: I'm sorry.
19 MR. SEGURA: Go ahead, Chief.
20 CHIEF WARSHAW: Yeah. Good morning, Your Honor. This 09:03:02
21 is Chief Warshaw from the Monitoring Team, and also on the
22 phone are Chief Martinez and Commander Girvin.
24 MR. SEGURA: Good morning, Your Honor. This is Andre
25 Segura and Cecillia Wang, also on the line for plaintiffs. 09:03:17
2 MR. KIRK: Good morning, Your Honor.
3 MS. WANG: Good morning, Your Honor.
4 MS. MONDINO: Good morning, Your Honor. Also on the
5 line is Jennifer Mondino with the United States. 09:03:28
6 MR. KIRK: Good morning, Your Honor. Michael Kirk,
7 also on the line on behalf of the defendants.
8 MS. JOHNSTON: Good morning, Your Honor. Maureen
9 Johnston, also on behalf of the Department of Justice.
10 MS. COE: Good morning, Your Honor. Cynthia Coe on 09:03:44
11 behalf of the Department of Justice.
12 THE COURT: Is that everyone? Apparently.
13 Who's speaking on behalf of the parties in today's
14 status hearing?
15 MR. SEGURA: This is Andre Segura. I will be speaking 09:04:02
16 for plaintiff.
17 MR. MASTERSON: I will be, Judge.
18 THE COURT: All right. And so I ordered the status
19 hearing because plaintiffs were concerned about the lack of a
20 specific schedule to address concerns that arose because of a 09:04:16
21 study commissioned by the MCSO which demonstrated -- well,
22 first is the MC -- the MCSO study commissioned by ASU; second
23 is compliance with some of the requirements of the initial
24 supplemental permanent injunction.
25 And I notice Mr. Masterson has moved to the podium so 09:04:39

1 I'll hear from you first, Mr. Masterson.
2 MR. MASTERSON: Thank you, Judge. I want to bring the
3 Court up to date on what we've done with respect to addressing
4 the issues that have come up in connection with the ASU
5 reports. 09:04:57
6 As you know, we had the last status conference on
7 November 10. November 11, Friday, was Veterans Day. The
8 following Monday we had a conference call with the monitors
9 regarding those issues and essentially how we're going to move
10 forward. 09:05:17
11 On the ASU report issues, we had discussions with -- I
12 think we had Monitors Girvin, Anders, Riggs, and
13 Dr. Polakowski, and we discussed the issues that came up in the
14 status conference and how we were moving forward with the ASU
15 report. 09:05:31
16 During that discussion Commander Girvin raised --
17 THE COURT: Just a question: Was this just between
18 defense counsel and the monitor?
19 MR. MASTERSON: Yes, sir.
20 THE COURT: Okay. Go ahead. 09:05:42
21 MR. MASTERSON: During the conversation, Commander
22 Girvin raised or proposed an idea, the idea being: Would we
23 consider inviting certain representatives of the plaintiffs'
24 counsel into this particular TA to aid us in order to help
25 speed things along with respect to addressing the concerns in 09:06:05

1 the ASU report? I initially had some reservations about that,
2 but we talked through it and I agreed that I thought that would
3 be a good idea and may help us move forward more quickly on
4 those issues.
5 So two days later, on November 16, Commander Girvin 09:06:22
6 reached out to the parties to become involved in the TA process
7 to help us interpret the data and then develop the methodology
8 for moving forward.
9 On the following Friday, November 18, as promised
10 during the conference call of November 16, MCSO delivered to 09:06:40
11 the monitors an initial -- two documents: One was an ASU
12 Traffic Stop Annual Report Initial Assessment Rules and
13 Methodology, and the second was the Supervisory
14 Responsibilities For Traffic Stop Review.
15 On November 21, the following Monday -- well, this 09:07:00
16 Monday, last Monday -- we again had another conference call
17 with the monitors and the plaintiffs' attorneys, this time
18 about getting involved in the process. And we discussed how it
19 would work and -- how I thought it would work, how the monitors
20 envisioned it moving forward. Mr. Segura was on the line and 09:07:19
21 had a few questions and we discussed it, and I think we are
22 going to have the plaintiffs' counsel, one from each side, I
23 think, although I saw an e-mail this morning -- I apologize. I
24 saw an e-mail this morning from Mr. Segura I think that
25 proposed, at least initially, maybe more than one be involved, 09:07:42

1 because they're not sure who could be present at certain
2 meetings or something. Anyway, I haven't dealt with that yet
3 because that just came in this morning. But at any rate,
4 they're going to get involved in the TA process on this
5 particular issue. 09:07:52
6 Then yesterday, Judge, we had another conference call
7 with the monitors on the drafts that were provided the previous
8 Friday and the monitors had some questions, concerns, and
9 comments on the documents that had been provided. And what we
10 agreed that was going to happen was the monitors were going to 09:08:13
11 prepare a version -- or their suggestion for the supervisory
12 responsibility for review and get it to us.
13 I don't know if it will be -- I doubt it will be --
14 well, it's not going to be this week but I think early next
15 week, because the monitors are coming out here on December 1st 09:08:32
16 and 2nd at the end of next week to meet with us again on these
17 very issues. So we're going to be moving forward and,
18 hopefully, after those monitor visits on Thursday and Friday of
19 next week we're going to have our methodologies hammered out
20 and they're going to be ready to move forward. 09:08:48
21 In the meantime, what MCSO was working on -- and we
22 discussed this with the monitors on Tuesday -- was we're
23 building spreadsheets for the deputies who were identified as
24 outliers in the second ASU report, because we've already done
25 it for the first ASU report, and then we're going to run the 09:09:10
1 rules that we have proposed on those deputies for both years.
2 What we're going to see is if we're coming up with the same
3 group for both years, and then we can evaluate whether certain
4 deputies should be eliminated.
5 There's some questions we have, Judge, because, for 09:09:29
6 example, if a deputy makes one stop and that one stop happens
7 to be a member of the plaintiffs' class, well, that deputy's
8 going to be an outlier, because 100 percent of that deputy's
9 stops, then, are going to be someone in the plaintiffs' class.
10 So we're trying to figure out the best way to maybe weed out 09:09:50
11 certain deputies who shouldn't be in the group, and that's one
12 of the -- one of the things we're hoping to sort out during
13 this evaluation process that's going to occur once we develop
14 the spreadsheets for the outlier deputies from ASU report
15 number 2. 09:10:07
16 So after that happens, then we're going to sit down
17 with the monitors and go through the proposed supervisory
18 review methodologies and our methodologies that we sent to them
19 last week and hopefully come to an agreement, and maybe with
20 the input or help of the plaintiffs' lawyers which we invited 09:10:26
21 to attend this TA we can get this done fairly quickly. So
22 that's where we are on that.
23 THE COURT: All right.
24 Mr. Segura.
25 MR. SEGURA: Yes, Your Honor. Mr. Masterson is 09:10:38

1 correct that we've agreed to engage in the TA process. We
2 think it's a good step forward. The questions that we raised
3 that Mr. Masterson referred to were primarily about our not
4 waiving any right to bring any matters to the Court's attention
5 either at the close of this or during the process if we have a 09:11:00
6 disagreement with how things are proceeding, and I think
7 Mr. Masterson also expressed that he would also want to seek
8 relief on his end if defendants disagree with how things are
9 proceeding.
10 So I think we are -- we are okay with that. I mean, 09:11:17
11 obviously our concern is if this, again, is not completed
12 adequately pursuant to the Court's orders, that we would want
13 to obviously raise that with you and seek whatever additional
14 remedies are necessary. We are obviously not there yet, and
15 we're going to engage in this process and see if we can help 09:11:39
16 move this along as fast as possible.
17 THE COURT: All right. Does plaintiff-intervenor have
18 anything they want to say on this topic?
19 MS. JOHNSTON: Hello, Your Honor. This is Maureen
20 Johnston. We were also on the call yesterday with 09:11:57
21 Mr. Masterson and Mr. Segura and others, and we are still
22 determining whether we will be able to participate in the TA
23 process. And we have the same concerns that Mr. Segura did but
24 agree that it seems like it would be okay and that we should be
25 able to move forward, that the MCSO should be able to move 09:12:19
1 forward quickly with this, and we will have an answer for
2 Mr. Masterson very soon whether we can participate, too.
3 THE COURT: I take it, Mr. Masterson, the
4 plaintiff-intervenor is invited to participate, just as
5 plaintiffs were invited to participate. 09:12:34
6 MR. MASTERSON: They sure were, yes.
7 THE COURT: All right. And so plaintiff-intervenor,
8 the question is at your end whether you're going to choose to
9 participate or not?
10 MS. JOHNSTON: Yes, Your Honor. We just have to 09:12:44
11 discuss it internally. We just had the conversation a couple
12 of days ago, so we will have an answer as soon as possible for
13 Mr. Masterson.
14 THE COURT: All right. So I take it, in summary, that
15 the parties have been extended -- that all parties have been 09:12:56
16 extended the opportunity to participate in the process of how
17 to handle the ASU studies and any outliers; to go through and
18 resolve -- to see if they can arrive at a consensus at
19 resolving which outliers are statistically significant, if you
20 will, and which are not; and once you've arrived at that 09:13:16
21 conclusion, what kind of discipline or other action needs to be
22 taken against the outliers by their supervisors or others to
23 make sure that they come in compliance with the decree and
24 ethnically balanced policing; that in that process, while the
25 parties are willing to work together in good faith, no party is 09:13:38

1 surrendering the opportunity to raise matters to this Court.
2 Is that a correct summation?
3 MR. MASTERSON: That's correct, Judge. I think the
4 word "discipline" might be a bit harsh in this situation,
5 because we really don't know at this point whether any of the 09:13:50
6 deputies are doing anything --
7 THE COURT: Yeah.
8 MR. MASTERSON: -- wrong.
9 THE COURT: Well, you'll -- you're --
10 MR. MASTERSON: So we're going to be intervening to 09:13:57
11 figure that out.
12 THE COURT: All right. You're going to be working
13 together to determine whether discipline or some other response
14 is appropriate, given whatever the data show.
15 MR. MASTERSON: Absolutely. 09:14:04
16 THE COURT: All right. And you're going to be working
17 together with all parties in that respect.
18 MR. MASTERSON: If they all agree to participate.
19 THE COURT: Correct.
20 All right. That sounds -- sounds like the parties are 09:14:13
21 attempting their best to cooperate and come up with a solution
22 and I appreciate that. And I think it will be more productive
23 in the long run, and I'll be happy to resolve any matters that
24 you cannot resolve in good faith amongst yourselves.
25 I believe there was another issue as it pertained to 09:14:31

1 deadlines that came from the first supplemental injunctive
2 order that the MCSO has already missed, and as I recall, last
3 time there was concern by the plaintiffs and they wanted to
4 work together with defendants to arrive at some sort of a
5 commitment to implement specifically I believe it was the EIS 09:15:01
6 program.
7 I believe that I had checked with the monitor -- and
8 maybe I ought to check with the monitor on this last issue, the
9 ASU issue as well -- but I checked with the monitor, and the
10 monitor was also trying to work with the parties and see if 09:15:11
11 they could come up with an acceptable implementation schedule.
12 And I believe you were going to report back to me on
13 that, which I will take up in just a second, but first I just
14 want to check with you, Chief Warshaw, and see if you have any
15 concerns about the ASU studies that you think need to be raised 09:15:28
16 in this status conference.
17 CHIEF WARSHAW: No, Your Honor. I think the parties
18 have accurately represented what's transpired since the last
19 status conference. We will be some having some of our folks on
20 site next week along with Commander Girvin, at which time, 09:15:49
21 hopefully, we'll be in a position to finalize the process
22 through which MCSO supervisors will intervene as it pertains to
23 those deputies whose records show that they could in fact be
24 outliers. This would be consistent with the Court's hope that
25 the parties establish and maintain meaningful communication. 09:16:14

1 THE COURT: Thank you.
2 Second issue, Mr. Masterson.
3 MR. MASTERSON: Your Honor, Mr. Popolizio had
4 conversations with the plaintiffs on this issue because I had
5 to attend to a 25-page motion for summary judgment in another 09:16:30
6 case, so he's going to address these particular issues.
7 THE COURT: All right. Thank you.
8 MR. POPOLIZIO: Good morning, Your Honor.
9 THE COURT: Good morning, Mr. Popolizio.
10 MR. POPOLIZIO: With regard to the conversations had 09:16:43
11 and the approach to the development of the EIS, the Early
12 Intervention System, we did speak with plaintiffs, and we, of
13 course, have spoken with the monitors as well.
14 Sometime back, I don't know the exact date, it was
15 more than several weeks ago, there was a telephone call that 09:17:07
16 occurred with Dr. Polakowski, individuals from CI Technology,
17 and people from the Technology Bureau at MCSO, to discuss the
18 development of EIS and target dates.
19 My understanding as it sits right now is I think
20 there -- if there is a rub between the parties at all, it is 09:17:32
21 about the target dates versus deadlines. The monitor suggested
22 an approach to this process of target dates where dates are set
23 out as targets of development steps along the way, with the
24 ultimate goal of developing the Early Intervention System. And
25 that would build in a reasonable -- reasonableness approach to 09:17:56

1 things that if for some reason something could not be developed
2 by a certain date in time, you know, well enough before that --
3 that target date would approach, that MCSO would approach the
4 monitors, and, of course, the parties would know that, too,
5 and, you know, indicate why. 09:18:15
6 I think that's -- and the plaintiffs and the
7 intervenor all speak for themselves, but I think that's
8 understood that's the approach, and that's the approach that
9 the monitor wants to take, with the exception of the plaintiffs
10 want a deadline, a final deadline for development of EIS. And 09:18:32
11 I think, Your Honor, from our perspective, that it defies the
12 logic and also the approach of the monitor with regard to EIS.
13 To set a -- any deadline, it would be -- you know, an ultimate
14 deadline would be quite difficult, and it would only be a
15 guess. And I think by proceeding, as you said, with an 09:19:00
16 acceptable implementation schedule, I think the monitor has
17 provided that with the target dates.
18 So we didn't come up or agree to an --
19 THE COURT: Well, let me ask and make sure that I
20 understand: Would you have a target date for final 09:19:15
21 implementation? I mean, it seems to me to some extent we're
22 dealing with semantics here. If you have target dates for
23 implementation, presumably those target dates would also
24 include a final implementation date.
25 MR. POPOLIZIO: And I may, just from lack of 09:19:30

1 knowledge, Your Honor, may not know if that was established,
2 but I doubt that that was. And I think that it is difficult to
3 do that because of all the moving parts involved in developing
4 this.
5 So you have the outside vendor, CI Technology; you 09:19:43
6 have the parties participating in this; also, you have the
7 Monitor Team; and as things are developed and go, I think that
8 will become in focus, a target date for the final development
9 or implementation of the plan. But I think, as I understand
10 it, the target dates that are established here right now are 09:20:08
11 the steps leading up to that date, and I think that as time
12 goes on and things are accomplished, then that will become
13 clear, but right now, no.
14 THE COURT: All right. Mr. Segura.
15 MR. SEGURA: Yes, Your Honor. Mr. Popolizio is 09:20:24
16 correct that we are -- the rub is that we would and continue to
17 believe that an ultimate target date is important, and it
18 should be a reasonable one and after everyone has come together
19 to figure that out.
20 I understand from the last status conference that Your 09:20:44
21 Honor may not be inclined to set a deadline now, so this may be
22 something that we need to raise when the new sheriff is on
23 board, if necessary.
24 But as Mr. Popolizio mentioned, there are a lot of
25 moving parts to this process. What we have right now are 09:21:01
1 certain target dates -- and I believe I mentioned this during
2 the last status conference -- on certain steps to achieve
3 paragraphs within the Court's order, so these are steps to
4 getting an EIS system up and running, but for many of these
5 target dates they're just the initial date. 09:21:23
6 And that could be, for example, the date by which
7 there will be a model interface with just the sampling of
8 factors that will go into it. So that's just the first step.
9 But there's no target date for getting that model -- for
10 example, incorporating all of the requirements of the Court's 09:21:39
11 order.
12 So what we spoke with Mr. Popolizio about during our
13 meet and confer this week is in the meantime coming up with
14 a -- a more detailed project management plan. This is
15 something that needs to not only be with the -- you know, 09:21:58
16 include steps from the EIS side, but also from the IT side of
17 MCSO, and so an overall comprehensive plan that would bring all
18 these moving pieces together.
19 And I believe Mr. Popolizio -- and please correct me
20 if I'm wrong -- suggested that there are plans of this nature 09:22:19
21 within MCSO, but I don't think that we've seen those. So what
22 I think we're really looking for at this point if we cannot get
23 that deadline is a more comprehensive plan so that everyone can
24 be on notice, everyone can understand what the moving pieces
25 are, who's responsible for which piece, and I think that 09:22:39
1 would do a lot to -- to help everyone understand the
2 feasibility of the process.
3 MR. POPOLIZIO: Well, Your Honor, MCSO does have a
4 project plan, and that is more detailed, and MCSO is cognizant
5 of the target deadlines as they were provided, certain target 09:22:59
6 deadlines as provided in the October 28th, 2016 memo from the
7 monitor.
8 So a plan exists, it is more detailed, and I know that
9 the next step and the next question is going to be: Can we see
10 it? And, yes. Yes. 09:23:17
11 THE COURT: Have you turned the plan over to the
12 monitor? Is the monitor aware of the plan?
13 MR. POPOLIZIO: I do not know if Mr. -- if, excuse me,
14 Dr. Polakowski and Dr. Carnevale have either seen it or have
15 discussed it with MCSO, but -- so I don't know, Your Honor, but 09:23:34
16 that could be done also.
17 With regard to time-specific individuals with specific
18 parts of the order, in the last monitor site visits
19 Chief Warshaw specifically stated and resisted that and stated
20 that he did not want to micromanage in that way. 09:23:55
21 So I don't know how productive that would be, Your
22 Honor, I don't know all the moving parts, but we do have a
23 project plan, and that's in place right now.
24 THE COURT: Plaintiff-intervenors want to be heard on
25 this? 09:24:13
1 MS. JOHNSTON: Yes, Your Honor. We agree with the
2 plaintiffs, in that there's a difference between micromanaging
3 and planning a project, and a project of the size of an EIS we
4 believe should consider, you know, the various steps that are
5 going to be needed -- that MCSO is going to need to take to get 09:24:27
6 this thing operational. We would hope that a project plan
7 would include all of the steps that MCSO can envision are
8 necessary, and we would be happy to work with MCSO to develop
9 such a project plan, or to amend the project plan that it
10 sounds like Mr. Popolizio is going to share with us all. 09:24:48
11 THE COURT: Was that Ms. Johnson?
12 MS. JOHNSTON: Sorry, Your Honor, yes.
14 Chief Warshaw?
15 Are you there? Chief Warshaw? 09:25:06
16 CHIEF WARSHAW: Yes, Your Honor.
17 I believe the parties are saying the same thing. What
18 was discussed during the site visit specifically on October
19 20th just a few weeks ago was some target dates for some
20 specific paragraphs. These target dates were not determined by 09:25:28
21 us, they were discussed openly and agreed upon openly, and we
22 simply memorialized them in a memorandum of October 28th.
23 To date, some of those target dates have in fact been
24 met. None are delinquent. I am certainly sensitive to the
25 thinking of both the plaintiffs and the plaintiffs-intervenors 09:25:54

1 about a date certain which would be consistent with the Court's
2 supplemental permanent injunction, specifically paragraph 79,
3 but I think as was aptly stated by I believe it was Mr. Segura,
4 there are some unforeseen circumstances that will inevitably
5 occur that can be of a technical nature, that can be of a 09:26:22
6 financial nature, and our only point about not pushing a
7 specific date, date certain, was our recognition based on our
8 experience that those obstacles will in fact occur.
9 That being said, if I may, Your Honor, setting a date
10 that would be aspirational in nature may be something that the 09:26:54
11 parties or the Court would want to consider so energy can be
12 properly channeled at least to some date which we hope would
13 bring all the pieces together where we can have a fully
14 functional Early Intervention System.
15 THE COURT: Let me ask along that line, and I guess I 09:27:19
16 would look for a different word than "aspirational," although I
17 think I understand what you're saying, is it possible to put
18 together a comprehensive look at steps looking at where we are
19 now and where we need to be, and having target dates for steps
20 of implementation along the way? 09:27:49
21 CHIEF WARSHAW: Yes.
22 THE COURT: And so it's possible to have a target date
23 for final implementation.
24 CHIEF WARSHAW: Yes, it is possible, but I think built
25 into the calculus would need to be an understanding that even 09:28:04

1 some of those target dates may be missed, but the answer to
2 your question is yes.
3 THE COURT: Yeah, let me flesh that out a little bit
4 with you and with the parties. When you say "aspirational," I
5 don't like aspirations, because aspirations can be devoid of 09:28:23
6 consequences. On the other hand, I do appreciate the reality
7 of what you're telling me, that based on your experience, this
8 is a final and very difficult step because it has to
9 incorporate lots of things, and sometimes things can come in
10 that are unexpected and foul up the process, and, in fact, I 09:28:41
11 think, if I understood you correctly, it's been your experience
12 that al- -- I think you said always happens.
13 CHIEF WARSHAW: Yes, sir. That would be correct.
14 THE COURT: But here is what I'm looking for. If we
15 had target dates for specific steps of implementation 09:28:57
16 ultimately resulting in a final implementation date that were
17 chronological, if that's feasible -- in other words, we need to
18 do this before we do that, before we do that -- I think it's
19 possible to assess the defendants' good faith in attempting not
20 just for you to assess that -- of course, I'm interested 09:29:16
21 chiefly in your assessment, but not just for you to assess
22 that, but for plaintiffs and plaintiff-intervenors to assess
23 whether or not there's a good faith reason why a particular
24 step of implementation just was not able to be implemented.
25 And if that's the case, and plaintiffs and 09:29:35

1 plaintiff-intervenors acknowledge it, or if they don't, they
2 can bring it before me, but if it is the case that there's just
3 been something that is going to postpone things, I think
4 everybody can recognize it, realize that the schedule needs to
5 be adjusted accordingly, and move on. 09:29:50
6 That way, I think that it gives plaintiffs and
7 plaintiff-intervenors, as well as the MCSO, a date that allows
8 some flexibility but also some responsibility, because
9 ultimately, I guess if there was disputes about whether or not
10 there was a good faith attempt at implementation, I would 09:30:08
11 decide the issue.
12 Is something like that feasible?
13 CHIEF WARSHAW: Yes. I would agree with that, yes.
14 THE COURT: Any objection to proceeding along that
15 line, Mr. Popolizio? 09:30:20
16 MR. POPOLIZIO: No, Your Honor.
17 THE COURT: Any objection by plaintiffs or
18 plaintiff-intervenors to proceeding along that line?
19 MR. SEGURA: Your Honor, just to clarify, are you
20 suggesting that once this -- the plan is developed with 09:30:32
21 successive steps, that there would be the -- an ultimate target
22 date which MCSO could seek relief from, or any party, if things
23 are proceeding with -- in good faith?
24 THE COURT: Yes. And again, I don't like the term
25 "aspirational" because that seems like it doesn't have 09:30:54

1 sufficient responsibility. But at the same time, I think it's
2 naive not to respect the experience of Chief Warshaw, who says
3 things frequently do come up that are not the result of bad
4 faith by the underlying agency.
5 And I expect if the parties are working together in 09:31:10
6 good faith and those things come up, those will be recognized
7 by both parties. And if they're not I can decide that issue.
8 MR. SEGURA: Absolutely, Your Honor, and I think that
9 that's -- that's exactly what we've asked -- we asked for
10 initially, and that sounds like a good plan to us. 09:31:30
11 THE COURT: Okay. Plaintiff-intervenors?
12 MS. JOHNSTON: Yes, Your Honor. This is Maureen
13 Johnston. We agree with plaintiffs. That sounds like an
14 excellent approach.
15 THE COURT: All right. So I'm going to order the 09:31:44
16 monitor to work with the parties to come up with that schedule.
17 It may be significantly based on the implementation plan that
18 Maricopa County already has in place, but I don't know --
19 Have you seen that plan yet, Chief Warshaw, to your
20 knowledge? 09:32:00
21 CHIEF WARSHAW: I have not seen that plan, unless
22 Commander Girvin can shed light on that as to whether or not
23 Dr. Polakowski has.
24 COMMANDER Girvin: Your Honor, this is Commander
25 Girvin. I do not believe that we've seen that plan as of yet. 09:32:11
1 THE COURT: All right. So why don't I ask you to
2 consider sharing that plan, Mr. Popolizio, with the monitor and
3 the parties. The monitor can then review the steps; see if
4 they are chronologically important; establish target dates that
5 are realistic but ambitious. And of course, I think that 09:32:26
6 probably by the time that's done, we'll have the opportunity
7 to -- and it seems to me important to get the input of the new
8 sheriff. If he's going to have any objections or anything else
9 he wants to be heard on that, we ought to let that happen, or
10 at least give him time to realize what he's looking at and be 09:32:44
11 heard.
12 Is there anything else that the parties need to
13 bring up? I have one other thing.
14 MR. SEGURA: One other issue, Your Honor -- this is
15 Andre Segura -- just to clarify about the response to the ASU 09:33:02
16 report. We discussed and have been discussing through this
17 technical assistance process addressing the individual outlier
18 deputies, or at least whether there's an indicia of an outlier.
19 My understanding is that through this we'll also be
20 discussing the response to the agency-wide or systemic issue 09:33:23
21 that are also present in both reports, and I just want to
22 confirm that that's the understanding.
23 THE COURT: I do recall that we had that discussion
24 last time.
25 Mr. Masterson? 09:33:37

1 MR. MASTERSON: We did have that discussion last time,
2 Judge, and I also raised we -- we haven't really asked for
3 technical assistance specifically in this area, but I will tell
4 you it's my opinion we're going to need it. And that is
5 because during the site visit, our last site visit, my 09:33:55
6 conversations with both the monitors and counsel for
7 plaintiffs-intervenors, nobody has a real good idea about how
8 to move forward on that particular issue, and I do not, either.
9 So this could be an area where we do need to sit down with
10 everybody and work together. 09:34:21
11 I -- and I mentioned this at the last hearing --
12 reached out to counsel for the Department of Justice asking for
13 any suggestions or help that they could provide in this area
14 because I'm sure they've dealt with this issue across the
15 country and we really haven't. 09:34:38
16 So I'm willing to work with everybody to try to come
17 up with a plan here, but I will tell you right now I'm -- I'm
18 at a bit of a loss as to how to move on that issue.
19 THE COURT: Are some of those issues identified pretty
20 clearly in the report? In other words, does the Department of 09:34:52
21 Justice have an idea, by reading the report, what the
22 institutional issues are going to be on which you need some
23 assistance?
24 MR. MASTERSON: Well, I don't know that it is clear
25 from the report. I think what you're possibly dealing with 09:35:07
1 here, or you could infer from the report, is that there may be
2 instances of implicit bias. I'm not exactly sure how to deal
3 with implicit bias. Because, I mean, we have bias-based
4 policing training that all of our officers have gone through
5 and will continue to go through it, and it's referenced in many 09:35:35
6 different places throughout the policies.
7 I don't know where to go after that, I really don't.
8 If you're dealing with what at least my understanding of an
9 implicit bias is, I'm not sure exactly what you do as far as
10 more training to try to solve that problem, if in fact it 09:35:53
11 exists.
12 THE COURT: Well, I do presume that that is something
13 that the Department of Justice is familiar with in terms of its
14 multiple consent decrees across the country.
15 Am I wrong about that, Ms. Johnson? 09:36:12
16 MS. JOHNSTON: You're not wrong about that, Your
17 Honor. Mr. Masterson is right. This is a really, really hard
18 thing to address in an agency. We're definitely willing to
19 work with Mr. Masterson and with the rest of the MCSO to try to
20 put together a plan. 09:36:26
21 We provided a few notes in our response to the ASU
22 report in our comments to that report, but this is something
23 that really involves organizational change, and it's very, very
24 difficult to change an organization and it requires significant
25 buy-in from the employees. And so, you know, it does require a 09:36:45
1 deliberate approach that is very, very strongly supported by
2 the management of the agency.
3 I think -- well, I think what I will say is that we
4 do think that the most effective ways are through the creation
5 of clear policies and effective supervisory roles and a robust 09:37:07
6 accountability system, and so -- you know, so we think that
7 MCSO should continue to ensure that those things are really
8 strongly supported by command staff at the agency.
9 We do hope that at the TA session, should we be able
10 to participate, that we can continue to discuss this with 09:37:31
11 Mr. Masterson. There are a number of jurisdictions that have
12 tried to address this, and I think looking at those
13 jurisdictions would be really helpful to MCSO in figuring out
14 where to go from here.
15 I would say, though, that the report was very, very 09:37:47
16 clear. There were significant findings of organizational-wide
17 bias. So this is not just limited to individuals within the
18 MCSO; this is a much larger problem than that.
20 I assume by what you've said that you're willing to 09:38:02
21 cooperate, or you're willing to present some of your thoughts
22 to Mr. Masterson about approaches that the MCSO can take
23 designed to cure this implicit bias issue as it -- as it --
24 MS. JOHNSTON: Yes, Your Honor.
25 THE COURT: -- pertains organizationally. And that 09:38:25

1 this will be part of the ongoing discussion, and if you come up
2 with specifics that are acceptable both to plaintiff and
3 plaintiff-intervenors, it seems to me that we can then
4 contemplate the imposition of target dates, just as we have
5 done with the -- on the triage, the more immediate issue of the 09:38:44
6 outliers.
7 Any party object to doing it that way?
8 MR. SEGURA: No, Your Honor.
9 MS. JOHNSTON: No, Your Honor.
10 THE COURT: Does that work for you? 09:39:04
11 MR. MASTERSON: Yes.
12 THE COURT: All right. Is there anything else we need
13 to raise?
14 Mr. Kirk, I did note that I've required you to reply
15 on your emergency motion by Monday, and I did that without 09:39:16
16 really taking into account the intervening Thanksgiving
17 holiday. I have three sentencing days in a row and so I'm
18 unlikely to take up the reply -- or take up the emergency
19 motion until Thursday or Friday in any event, and I thought if
20 you want an extra two days, because I won't get to it, to 09:39:34
21 reply, you can have them. If you don't want them, you don't
22 need to take them, but I'll just offer that to you so it
23 doesn't ruin your Thanksgiving.
24 MR. KIRK: Your Honor, this is Michael Kirk. Thank
25 you very much. That's very kind of you. We've been planning 09:39:52
1 and are on track to meet the deadline that you set, but in case
2 the holidays do intervene, I will greatly accept the extra two
3 days, since, as you say, you won't be able to look at it, in
4 any event, because of your sentencings.
5 Thank you very much, Your Honor, and happy 09:40:09
6 Thanksgiving.
7 THE COURT: All right. Unless there's anything else,
8 then, I'm going to wish happy Thanksgiving to everybody, too,
9 and if you're traveling, please be safe.
10 MR. MASTERSON: Thank you, Judge. 09:40:22
11 THE COURT: Is there any need to set another status
12 conference, or if the parties need one will they just request
13 one?
14 MR. MASTERSON: I don't see why we need to set one
15 right now, but certainly if we have something we need to bring 09:40:32
16 to the Court's attention or require the assistance of the
17 Court, we can -- we can ask for one.
18 THE COURT: All right. Mr. Segura, are you in
19 agreement -- agreement with that?
20 MR. SEGURA: You know, given that we have a task to -- 09:40:42
21 or I guess MCSO has a task to produce the project management
22 plan and ultimate dates, I think it would be helpful for us to
23 have a target date to set the target dates by. I wouldn't want
24 this to -- obviously, this is the holiday season and things can
25 sort of slide, so I would want us to continue pushing, and I 09:41:08

1 think we have, but having a date for, for example, when we can
2 report back to the Court, I think would be helpful.
3 THE COURT: All right. Well, then I'm going to ask
4 the monitor, because I've found that he's been very responsive.
5 How long do you think it will take, once you get 09:41:23
6 MCSO's schedule, to determine whether or not it adequately
7 takes into account the steps that are necessary and to
8 reproduce those steps and get a schedule and review it with the
9 parties, Chief?
10 CHIEF WARSHAW: It will be a few weeks, Your Honor. 09:41:37
11 And we, of course, would want at that time to have some
12 consultation with the incoming sheriff as well.
13 THE COURT: Do you know when it is that the new
14 incoming sheriff takes office, Mr. Masterson? Is it the 4th?
15 Or what date is it? 09:41:52
16 MR. MASTERSON: I'm not sure. The weekend -- I think
17 December 31st is a Saturday, but I'm not positive about that.
18 THE COURT: I think you're right about that. So it
19 would be the 1st. The 1st is a Monday, and then does he take
20 office on the 2nd or is it some other date? 09:42:06
21 MR. MASTERSON: I don't know, Judge. I think -- I
22 think --
23 CHIEF WARSHAW: Your Honor, my -- if I may, Your
24 Honor -- my understanding is that he is to be sworn in on the
25 4th. 09:42:18
1 THE COURT: All right. So assuming we want to give
2 you time to brief the new sheriff on all of this, how long --
3 how long will that take? Do you have any idea?
4 You can try and get on his schedule now, even though
5 he's not yet the sheriff, and I suppose you can brief him on 09:42:38
6 this --
7 MR. MASTERSON: Well --
8 THE COURT: -- now if -- if your current client will
9 authorize it.
10 MR. MASTERSON: In fact, I attended a meeting Monday 09:42:44
11 for four hours with the incoming sheriff, and we're meeting
12 again with the incoming sheriff this coming Monday for a couple
13 hours on some of these -- some of these issues, not all of
14 these issues but some of these issues. So we're in the
15 briefing process right now, Judge, and we're going to try to 09:43:02
16 get him up to speed as quickly as possible.
17 THE COURT: All right. So if we had a -- if the
18 monitor had a schedule in place by the time he took office and
19 we were to schedule a status follow-up in early January, early-
20 to mid-January, is that workable for you? 09:43:18
21 MR. MASTERSON: I think it is, Judge.
22 THE COURT: All right. Kathleen, do we have a date?
23 MR. MASTERSON: One thing.
24 THE COURT: Yeah.
25 MR. MASTERSON: I'm going to be out of town for two 09:43:26

1 days in mid-January. I'm not certain what those days --
2 somewhere 12th through the 15th or something like that, I just
3 don't know what days they are exactly.
4 THE COURT: Well --
5 CHIEF WARSHAW: Your Honor -- 09:43:43
6 THE COURT: Yes.
7 CHIEF WARSHAW: I apologize. Your Honor, if I might,
8 might I advise the Court that we are going to have a quarterly
9 site visit commencing, I believe, on January 21st. So usually
10 that brings all of the parties into town, and the entire 09:44:01
11 Monitoring Team will be into town -- will be in town as well.
12 THE COURT: Yeah, and --
13 CHIEF WARSHAW: So that --
14 THE COURT: You can accomplish a lot during those
15 weeks, so what if we were to set the schedule, say, for the 09:44:12
16 25th or the 24th, which is toward the end of --
17 CHIEF WARSHAW: Correct.
18 THE COURT: -- your stay here?
19 CHIEF WARSHAW: I would concur with that, Your Honor.
20 THE COURT: Okay. And then that won't pose you a 09:44:24
21 problem.
22 MR. MASTERSON: That would be great, Judge.
23 THE COURT: And does that work for you, Ms. Johnson?
24 MS. JOHNSTON: Yes, Your Honor.
25 THE COURT: How about you, Mr. Segura? 09:44:34

1 MR. SEGURA: Yes, works for us as well. Thank you.
2 THE COURT: All right.
3 Do we have the date, Kathleen?
4 THE CLERK: I'm just getting it, Judge.
5 THE COURT: All right. 09:44:45
6 (Pause in proceedings.)
7 THE CLERK: January 26th at 10:00 a.m.
8 THE COURT: Is that a Friday?
9 THE CLERK: Do you want it on a Friday?
10 THE COURT: What day is the 26th? 09:45:06
11 THE CLERK: I can do it on the 27th. 26th is
12 Thursday.
13 THE COURT: 26th is fine. January 26th at what time?
14 THE CLERK: 10:00 a.m.
15 THE COURT: January 26th, 10:00 a.m. 09:45:17
16 All right. Thank you. Have a happy Thanksgiving.
17 (Proceedings concluded at 9:45 a.m.)
18
19
20
21
22
23
24
25
2 C E R T I F I C A T E
7 I, GARY MOLL, do hereby certify that I am duly
8 appointed and qualified to act as Official Court Reporter for
9 the United States District Court for the District of Arizona.
10 I FURTHER CERTIFY that the foregoing pages constitute
11 a full, true, and accurate transcript of all of that portion of
12 the proceedings contained herein, had in the above-entitled
13 cause on the date specified therein, and that said transcript
14 was prepared under my direction and control.
15
16
17 DATED at Phoenix, Arizona, this 23rd day of November,
18 2016.
19
20
21
s/Gary Moll
22
23
24
25

Melendres #1916 - Nov 23 TRANSCRIPT (Status Conference)

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Case 2:07-cv-02513-GMS Document 1916 Filed 12/09/16 Page 1 of 34

1 UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ARIZONA

4 Manuel de Jesus Ortega Melendres, )

22 Court Reporter: Gary Moll

3 For the Plaintiffs:

18 U.S. Department of Justice - Office of Civil Rights

3 For the Defendant Joseph M. Arpaio and Maricopa County

7 Cooper & Kirk, P.L.L.C.

3 THE COURT: Please be seated.

4 THE CLERK: This is civil case number 07-2513,

5 Melendres, et al., v. Arpaio, et al., on for status conference. 09:02:28

6 Counsel, please announce your appearances. And please

7 make sure to speak into the microphone.

8 MS. BRODY: Good morning, Your Honor. Kathy Brody and

9 Brenda Munoz Furnish on behalf of the plaintiffs from the ACLU

11 THE COURT: Good morning.

12 MR. MASTERSON: Happy Thanksgiving, Judge. John

13 Masterson and Joe Popolizio for Sheriff Arpaio.

14 THE COURT: To you, too.

15 Anybody on the phone? 09:02:57

16 CHIEF WARSHAW: Good --

17 MR. SEGURA: Good morning.

18 CHIEF WARSHAW: I'm sorry.

19 MR. SEGURA: Go ahead, Chief.

20 CHIEF WARSHAW: Yeah. Good morning, Your Honor. This 09:03:02

21 is Chief Warshaw from the Monitoring Team, and also on the

22 phone are Chief Martinez and Commander Girvin.

23 THE COURT: Good morning.

24 MR. SEGURA: Good morning, Your Honor. This is Andre

1 THE COURT: Good morning.

2 MR. KIRK: Good morning, Your Honor.

3 MS. WANG: Good morning, Your Honor.

4 MS. MONDINO: Good morning, Your Honor. Also on the

5 line is Jennifer Mondino with the United States. 09:03:28

6 MR. KIRK: Good morning, Your Honor. Michael Kirk,

7 also on the line on behalf of the defendants.

8 MS. JOHNSTON: Good morning, Your Honor. Maureen

9 Johnston, also on behalf of the Department of Justice.

10 MS. COE: Good morning, Your Honor. Cynthia Coe on 09:03:44

11 behalf of the Department of Justice.

12 THE COURT: Is that everyone? Apparently.

13 Who's speaking on behalf of the parties in today's

15 MR. SEGURA: This is Andre Segura. I will be speaking 09:04:02

17 MR. MASTERSON: I will be, Judge.

18 THE COURT: All right. And so I ordered the status

19 hearing because plaintiffs were concerned about the lack of a

20 specific schedule to address concerns that arose because of a 09:04:16

21 study commissioned by the MCSO which demonstrated -- well,

22 first is the MC -- the MCSO study commissioned by ASU; second

23 is compliance with some of the requirements of the initial

24 supplemental permanent injunction.

25 And I notice Mr. Masterson has moved to the podium so 09:04:39

1 I'll hear from you first, Mr. Masterson.

2 MR. MASTERSON: Thank you, Judge. I want to bring the

3 Court up to date on what we've done with respect to addressing

4 the issues that have come up in connection with the ASU

6 As you know, we had the last status conference on

7 November 10. November 11, Friday, was Veterans Day. The

8 following Monday we had a conference call with the monitors

9 regarding those issues and essentially how we're going to move

11 On the ASU report issues, we had discussions with -- I

12 think we had Monitors Girvin, Anders, Riggs, and

13 Dr. Polakowski, and we discussed the issues that came up in the