Case 2:07-cv-02513-GMS Document 512 Filed 03/02/12 Page 1 of 5

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Timothy J. Casey (#013492) James L. Williams (#026402) SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C. 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540 Telephone: (602) 277-7000 Facsimile: (602) 277-8663 timcasey@azbarristers.com Counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office Thomas P. Liddy (#019384) MARICOPA COUNTY ATTORNEYS OFFICE Civil Services Division 222 N. Central, Suite 1100 Phoenix, Arizona 85004 602-506-8066 Co-counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office IN THE UNITED STATES DISTRICT COURT

12 FOR THE DISTRICT OF ARIZONA 13 Manuel de Jesus Ortega Melendres, et al., 14 Plaintiffs, 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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No. CV 07-02513-PHX-GMS vs. Joseph M. Arpaio, et al., Defendants. DEFENDANTS MOTION IN LIMINE NO. 3: CITIZEN LETTERS AND COMPLAINTS

Pursuant to Rules 401 through 403, 801 through 805, and 901 of the Federal Rules of Evidence, Defendants move for entry of an order in limine precluding the admission into evidence of racially or ethnically discriminatory or insensitive citizen letters and complaints sent to Defendants. These citizen complaints and letters are inadmissible for at least the following reasons: (1) such evidence is irrelevant to Plaintiffs claims and inadmissible pursuant to Rules 401-402 of the Federal Rules of Evidence, (2) any marginal probative value attributable to such evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and considerations of undue delay and waste of time so as to render such evidence inadmissible pursuant to Rule 403 of the Federal Rules of Evidence, (3) such

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evidence constitutes and contains inadmissible hearsay pursuant to Rules 801 through 805 of the Federal Rules of Evidence, and (4) such evidence cannot be authenticated and is, therefore, inadmissible pursuant to Rule 901 of the Federal Rules of Evidence. A state actor normally can be held responsible for a private [action] only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the [private action] must in law be deemed to be that of the State. Blum v. Yaretsky, 457 U.S. 991, 1004-1005 (U.S. 1982). Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment. Id. Rather, to establish that Defendants acted with discriminatory intent, Plaintiffs must establish that the decisionmaker... selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Wayte v. United States, 470 U.S. 598, 610 (1985). In Doe v. Village of Mamaroneck, 462 F.Supp.2d 520, 531 89 (S.D.N.Y 2006), the Village stated that the so-called quality of life issues caused and justified its increased and unprecedented police presence near the park where day laborers gathered. Village of Mamaroneck at 530. The court found these expressed reasons to be wholly pretextual and noted that [t]o the extent Village officials did receive complaints from residents concerning the behavior of the day laborers, the Village took no steps to investigate and determine whether those complaints were genuine and/or whether they were motivated, consciously or unconsciously, by racial animus towards the day laborers. Id. at 553. In this case, and in sharp contrast to the facts in Village of Mamaroneck, every MCSO saturation patrol was conducted because there were race and ethnicity-neutral factors related to criminal activity occurring at the site that controlled Chief Sands decision to conduct a particular saturation patrol at a particular location. See Defendants Response in Opposition to Plaintiffs Motion for Partial Summary Judgment at p. 21-26. Plaintiffs cannot establish that these communications caused an action to be taken by Defendants with a discriminatory motive that had a discriminatory effect on Plaintiffs; such citizen
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communications are irrelevant to Plaintiffs Equal Protection claims. In fact, Defendants actions, including saturation patrols, are not conducted based upon such communications. Id. There is also no evidence of any wholly pre-textual justification for saturation patrols or other actions. Rather Defendants take considerable steps to investigate citizen letters and complaints to determine whether they are genuine and not merely motivated by racial animus. Id. Plaintiffs seek to use this evidence to cast the unjustified specter of Defendants assent to the views expressed by the authors of these statements simply because Defendants did not expressly refute or denounce these statements to the authors but, instead, properly investigated them to determine their legitimacy and whether any action was justified. However, absent a causal nexus between these citizen letters and complaints and any discriminatory intent or effect or wrongful search or seizure relevant to the named Plaintiffs, this evidence simply is not relevant. Any minimally probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and considerations of undue delay and waste of time. Plaintiffs intend to offer these out-of-court statements, which constitute hearsay, contain hearsay within hearsay, and cannot be properly authenticated, into evidence for all purposes. DATED this 2nd day of March, 2012. SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C. /S/Timothy J. Casey ______ Timothy J. Casey James L. Williams 1221 E. Osborn Rd., Suite 105 Phoenix, Arizona 85014 Telephone: (602) 277-7000 Facsimile:(602) 277-8663 timcasey@azbarristers.com Counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office

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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2012, I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: The Honorable G. Murray Snow United States District Court 401 West Washington Street, Phoenix, Arizona 85003-2158 Stanley Young, Esq. Andrew Carl Byrnes, Esq. COVINGTON & BURLING, LLP 333 Twin Dolphin Road Redwood Shores, California 94065 Counsel for Plaintiffs Daniel Pochoda, Esq. Annie Lai, Esq. ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, Arizona 85014 Counsel for Plaintiffs Cecillia Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Counsel for Plaintiffs Andre Segura, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Counsel for Plaintiffs Nancy Ramirez, Esq. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 634 S. Spring Street, 11th Floor Los Angeles, California 90014 Counsel for Plaintiffs Thomas P. Liddy Deputy County Attorneys, Civil Services Division Maricopa County Attorneys Office 222 N. Central, Suite 1100 Phoenix, Arizona 85004 Co-counsel for Defendants Joseph M. Arpaio and the Maricopa County Sheriffs Office
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_/S/Eileen Henry _____ Eileen Henry, Paralegal SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.