doj v arpaio # 334 | d.ariz._2-12-cv-00981_334

8/21/2019 DOJ v Arpaio # 334 | D.Ariz._2-12-cv-00981_334

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Richard K. Walker (SBN 004159)Charles W. Jirauch (SBN 004219)WALKER & PESKIND, PLLC 16100 N. 71

st Street, Suite 140

Scottsdale, AZ [email protected] [email protected]

Phone: 480/483-6336Facsimile: 480/483-6337

Dan K. Webb (admitted pro hac vice)

J. Erik Connolly (admitted pro hac vice)

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

[email protected]

[email protected]

Phone: 312/558-5600

Facsimile: 312/558-5700

Counsel for Defendant Maricopa County, Arizona

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v.

Maricopa County, Arizona; Maricopa Coun-ty Sheriff’s Office; and Joseph M. Arpaio, inhis Official Capacity as Sheriff of MaricopaCounty, Arizona,

Defendants.

NO. CV12-00981-PHX-ROS

DEFENDANT MARICOPACOUNTY’S MOTION FORSUMMARY JUDGMENT

Case 2:12-cv-00981-ROS Document 334 Filed 10/27/14 Page 1 of 19

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://c/Users/mmg/AppData/Local/Microsoft/Local/Microsoft/Local/Microsoft/Desktop/[email protected]://c/Users/mmg/AppData/Local/Microsoft/Local/Microsoft/Local/Microsoft/Desktop/[email protected]:[email protected]:[email protected]:[email protected]


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INTRODUCTION

“In exercising their equitable powers federal courts must recognize the special delica-

cy of the adjustment to be preserved between federal equitable power and State administra-

tion of its own law.” City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983). Thus, it is an

“ordinary rule of statutory construction that if Congress intends to alter the usual constitu-

tional balance between States and the Federal Government, it must make its intention to do

so unmistakably clear in the language of the statute.” Stoner v. Santa Clara County Ofc. of

Ed ., 502 F.3d 1116, 1121 (9th Cir. 2007). This lawsuit flouts these principles, intruding on

the role of local government by invoking statutes that authorize no such intrusion —

especially not in the manner that occurred here, without notice or warning.

Worse, even if federal law allowed the intrusion contemplated here (it does not), it

would do nothing to fix the problem. All the violations alleged by Plaintiff arise from the

acts or omissions of the Sheriff , and Plaintiff can obtain complete relief from the Sheriff. No

relief can be obtained by enjoining the County, which, under Arizona’s distinct constitutional

and statutory scheme, lacks any authority over law enforcement or incarceration. That ex-

plains why Plaintiff sent statutorily required warnings to the Sheriff, but none to the County

None of this is lawful, sensible, or justiciable. And there is no genuine dispute of material

fact on any of these points. Summary judgment should be granted.

SUMMARY OF ARGUMENT

The Court should grant the County summary judgment on three grounds. First , Plain-

tiff did not give the County an opportunity to cure any alleged violations by the County, as

required by Title VI of the Civil Rights Act of 1964. Indeed, Plaintiff cannot prevail on its

Title VI claims against the County regardless of its failure to provide notice, because Title



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VI does not authorize such claims by Plaintiff. Thus, Plaintiff lacks statutory standing.

Second , Plaintiff cannot prevail on any of its claims (Title VI or § 14141) because the

Court cannot enter the requested injunction against the County. At the pleading stage, Plain-

tiff assured the Court that the evidence developed during discovery would identify an injunc-

tive remedy that could be imposed against the County’s Board of Supervisors that would re-

dress the alleged discriminatory practices. That was a false promise. Discovery has con-

firmed that only the Sheriff has authority, under Arizona law, to redress the allegedly dis-

criminatory practices. The Board has no authority in these areas and any injunction ordered

by the Court against the Board could not legally be obeyed. The case is not justiciable.

Third , thus far, this Court has assumed — without actually deciding — that § 14141 au-

thorizes claims against a municipality based on the liability of the Sheriff. Respectfully, the

actual language and drafting history of these statutes are different from that of § 1983, on

which this preliminary assumption appears to have been based. That is why Plaintiff cites

not a single case imputing liability under § 14141. The shoe does not fit. Summary judg-

ment must also be granted on this ground.

FACTS

In May 2012, Plaintiff sued the Sheriff, Maricopa County Sheriff’s Off ice, and Mari-

copa County. The complaint alleged a pattern and practice of discriminatory behavior by the

Sheriff, specifically that he and his staff had discriminated against Latinos since 2006 in traf-

fic stops, saturation patrols, and worksite raids, and that they had violated the rights of Latino

prisoners not proficient in English and retaliated against those who spoke out against his

practices. The complaint did not identify any discriminatory behavior by the Board. Out of

194 paragraphs, the complaint addressed the County in only five. Plaintiff notified the



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County that it would be sued the day before filing the complaint.

In the complaint, Plaintiff asked the Court to enter a variety of injunctive orders:

Order the Defendants, their officers, agents, and employees to refrain from engaging

in any of the predicate discriminatory acts forming the basis of the pattern or practice

of unlawful conduct described herein;

Order the Defendants, their officers, agents, and employees to adopt and implement

policies, procedures, and mechanisms to remedy the pattern or practice of unlawful

conduct described herein, and by specifically addressing, inter alia, the following

areas: policies and training; non-discriminatory policing and jail operations; stops,

searches, and arrests; response to crimes of sexual violence; posse operations; jail

operations; supervision; misconduct complaint intake, investigation, and adjudication;

retaliation; oversight and transparency; and community engagement.

Compl. ¶¶ 192-93. This relief necessarily focuses on the alleged discriminatory behavior of

the Sheriff and his deputies, not on any conduct by the County, which has been accused of

engaging in no discriminatory or unconstitutional practices.

Discovery has been extensive. The County has produced over 22,000 pages of docu-

ments. The parties have deposed 61 fact witnesses and 9 experts. At significant taxpayer

cost, the evidentiary record now confirms what the County long knew — namely, (1) nothing

shows that the Board engaged in discriminatory practices; (2) nothing shows that the Board

received notice of any such practices or an opportunity to cure them; and (3) nothing shows

that the Board can control the Sheriff as to law enforcement and jail policies. Plaintiff has

had every opportunity to find evidence justifying this suit against the County. It has failed.

ARGUMENT

I. The notice requirements of Title VI were not satisfied here, and, in any event

there is no claim for relief for the government to enforce Title VI.

Summary judgment must be granted because Title VI requires notice and an

opportunity to comply by “voluntary means,” but Plaintiff gave this opportunity only to the

Sheriff. And in any event, Title VI does not empower Plaintiff to bring a claim against the



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County for the alleged practices of the Sheriff.

A. As the record now confirms, Plaintiff cannot show that it complied with

Title VI’s prerequisites to filing claims against the County.

Under Title VI, “[c]ompliance with any requirement … may be effected … by any

other means authorized by law,” only “[p]rovided” the government “has advised the appro-

priate person or persons of the failure to comply with the requirement and has determined

that compliance cannot be secured by voluntary means.”

42 U.S.C. § 2000d-1; see also 28 C.F.R. § 42.108(d). Here, Plaintiff provided notice in 2011

of alleged violations solely by the Sheriff. As the letter states, its purpose was “to report the

findings of the Civil Rights Division’s investigation into civil rights violations by the

Maricopa County Sheriff’s Office.” SOF ¶ 6, Ex. 1 at 1 (emphasis added). No mention is

made in the letter, or in any later letter, of alleged violations by the County or the Board.

As Plaintiff itself has conceded, the letter accuses the County of no unlawful

practices; it describes no remedial measures that the County (as opposed to the Sheriff) must

take; and it asserts no knowledge of, or complicity in, the alleged unlawful practices by the

County. SOF at ¶ 9. The point was to put the Sheriff on notice:

The Civil Rights Division accordingly notifies you that, absent MCSO taking clear

steps toward reaching an agreement with the Division to correct these violations in the

next 60 days, the United States will conclude that voluntary compliance is not

possible and will initiate civil litigation to compel compliance with Section 14141 and

Title VI.

Id . at ¶ 6, Ex. 1 at 20. None of this was sufficient to notify the County of any alleged

improper conduct on its part, much less provide it with a meaningful opportunity to comply

as the statute requires, by “voluntary means.” 42 U.S.C. § 2000d-1.

B. Title VI does not authorize a claim against the County for alleged

practices of the Sheriff.

Further, the Court should award judgment to the County on Counts Three through



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Five because: (1) Plaintiff does not have statutory standing to bring a claim to enforce Title

VI; and, even if it did, (2) Plaintiff could only bring a claim against the Sheriff.

Plaintiff mistakenly assumes that it may sue to enforce alleged violations of Title VI.

“Compliance with … this section [Title VI] may be effected” as follows:

(1) by the termination of or refusal to grant or to continue assistance under such

program or activity to any recipient as to whom there has been an express finding on

the record, after opportunity for hearing, of a failure to comply with such requirement,

but such termination or refusal shall be limited to the particular political entity, or part

thereof, or other recipient as to whom such a finding has been made and, shall be

limited in its effect to the particular program, or part thereof, in which such

noncompliance has been so found, or

(2) by any other means authorized by law: Provided, however, That no such actionshall be taken until the department or agency concerned has advised the appropriate

person or persons of the failure to comply with the requirement and has determined

that compliance cannot be secured by voluntary means.

42 U.S.C. § 2000d-1. Plaintiff has foregone the first option —“refus[ing] … to continue

assistance … to the particular political entity” as to which Plaintiff made a “finding … of a

failure to comply.” Instead, Plaintiff relies solely on the second option.

But that option (“any other means authorized by law”) does not include the

government’s filing suit. Consider the sharp contrast between the language just quoted from

Title VI, which says nothing about a lawsuit, and the following, which appears in Title IV:

Whenever the Attorney General r eceives a complaint in writing … and the Attorney

General … certifies that the signer or signers of such complaint are unable … to

initiate … appropriate legal proceedings for relief … the Attorney General is

authorized, after giving notice of such complaint to the appropriate school board or

college authority and after certifying that … such board or authority has had a

reasonable time to adjust the conditions alleged in such complaint, to institute for or

in the name of the United States a civil action …[.]

42 U.S.C. § 2000c-6. Thus, Congress knew how to authorize a lawsuit by Plaintiff. It did so

in express terms in Title IV, but not in Title VI. That is “strong evidence” that no lawsuit

was authorized here. See Northstar Fin. Advisors, Inc. v. Schwab Inv., 615 F.3d 1106, 1117



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(9th Cir. 2010) (where statute showed “Congress knew how to create a private right of action

to enforce a particular section,” silence in another section was “strong evidence … that

Congress did not intend to create a private right of action”); see also E.E.O.C. v. Peabody W.

Coal Co., --- F.3d ---, 2014 WL 4783087, at *10 (9th Cir. Sept. 26, 2014) (“Congress d id

not carve out from Title VII’s prohibitions any similar exemption for preferences based on

tribal affiliation. That Congress could have created such an exemption or exception, but saw

no need to do so, suggests that it did not understand Title VII to reach tribal affiliation.”).

Indeed, in 1986 Congress “ratified” the existence of a “ private right ” of action under

Title VI by “ex pressly abrogat[ing] States’ sovereign immunity against suits brought in

federal court to enforce Title VI.” Alexander v. Sandoval , 532 U.S. 275, 280 (2001)

(emphasis added). Yet still, despite the clear silence of Title VI, Congress created no public

right of action. That judgment should be respected. Northstar Fin. Advisors, Inc., 615 F.3d

at 1117; Peabody, 2014 WL 4783087, at *10.1

Finally, even if the government could sue under Title VI (it cannot), it could only

validly sue the Sheriff. Under the federal guidelines for enforcing Title VI (which the

government never mentions), enforcement must be focused on the entity that actually

committed the infraction, which the guidelines call “Subgrantees.” 28 C.F.R. § 50.3, III

Where federal assistance flows to subgrantees, “the Federal Agency should instruct the

approving agency — typically a State agency — to defer approval or refuse to grant funds.” Id

In other words, the grantee is not the guarantor of the subgrantee’s compliance; nor is it

1 Although several cases outside this jurisdiction concluded otherwise years ago, those cases

employed a dated understanding of the Civil Rights Act that liberally implies rights of actionin contravention of Congress’s intent. That mode of reasoning was expressly rejected in

Alexander . See 532 U.S. at 287 (“Respondents would have us revert in this case to theunderstanding of private causes of action that held sway 40 years ago when Title VI wasenacted. . . . Having sworn off the habit of venturing beyond Congress’s intent, we will notaccept respondents’ invitation to have one last drink.”).



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responsible for a subgrantee’s failure to comply. The grantee’s responsibility begins and

ends with obeying the command of the federal granting agency to refuse funds to a non-

compliant subgrantee. There is no evidence in the record that any such command was issued

here.

As the Seventh Circuit has put it, the Civil Rights Act as amended “was not, so far as

we are able to determine — there are no cases on the question — intended to sweep in the

whole state or local government, so that if two little crannies (the personnel and medical de-

partments) of one city agency (the fire department) discriminates, the entire city government

is in jeopardy of losing its federal financial assistance.” Schroeder v. City of Chicago, 927

F.2d 957, 962 (7th Cir. 1991). And just as the United States could not use its grievances

against the Sheriff to justify defunding the entire County, it cannot use those grievances to

justify enjoining the entire County. Thus, the relief sought here is not only procedurally pre-

cluded (because no notice was given), and unavailable (because Title VI gives no claim for

relief to Plaintiff), it is overbroad (because it must be targeted to the Sheriff).

II. Plaintiff failed to provide the County notice and an opportunity to cure, becaus

Plaintiff has always known the conduct alleged here cannot be redressed by an

injunction against the County.

To establish Article III standing, Plaintiff must show that the harms it alleges are

“likely to be redressed” by a judgment against the County. Lujan v. Defenders of Wildlife

504 U.S. 555, 561 (1992). Plaintiff assured this Court that the “fully developed record”

would “elucidate” how Plaintiff could obtain meaningful relief from the County in this case

against the County Sheriff. Dkt. 43 (Opp. to MTD at 5). That has not happened. Instead

after 70 depositions and production of some 22,000 pages of documents, there remains no

evidence establishing the Board’s legal authority to remedy the violations alleged here —



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none. Plaintiff can obtain complete relief from the Sheriff alone.

To begin with, this is not a Section 1983 case, and Plaintiff seeks no money damages.

Rather, Plaintiff asks this Court to “[o]rder the Defendants … to refrain from engaging in

any of the … discriminatory acts forming the basis of the … unlawful conduct”; and “to

adopt … mechanisms to remedy the … conduct … and by … addressing … the following

areas: policies and training; non-discriminatory policing and jail operations; stops, searches

and arrests; response to crimes of sexual violence; posse operations; jail operations;

supervision; misconduct complaint intake, investigation, and adjudication; retaliation;

oversight and transparency; and community engagement.” Compl. ¶¶ 192-93. None of this

falls within the purview of the County. The County is not alleged to have “engage[d]” in any

of the “discriminatory acts” at issue. Id . ¶ 192. And the County cannot “implement …

mechanisms to remedy the pattern or practice of unlawful conduct” alleged, because the

County Board lacks any authority over both “policing and jail oper ations.” Id . ¶ 193.

Here is why. “The powers of Maricopa County are exercised by the Maricopa County

Board of Supervisors, as well as agents and officers acting under the Boar d’s authority.”

Reed v. Purcell , 2010 WL 4394289, at *1 (D. Ariz. 2010). Thus, the question here is wheth-

er the Board legally can obey the order Plaintiff seeks or compel compliance with that order

by another, independent agent or officer not acting under the Board’s authority. It cannot.2

The Sheriff is a constitutionally independent officer established by Arizona law. See

Ariz. Const. art. XII, §§ 3-4 (providing that there shall be created in and for each County of

2 Although the Board lacks authority to compel the Sheriff’s compliance, it embraces its ob-ligation, consistent with the limits on its legal powers and its duty to protect the MaricopaCounty taxpayers through sound fiscal management, to facilitate compliance of the Sheriffand other constitutional officers with judicial orders. This is precisely the role the Board iscurrently playing with respect to the remedial order issued by the court in Melendres v.

Arpaio, Case No. CV 07-02513-PHX-GMS.



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the State a Sheriff and that the Sheriff’s duties and powers shall be prescribed by law). The

Sheriff is elected by citizens of Maricopa County every four years. Ariz. Const. art. XII, § 3

The Sheriff “is responsible for the operation of MCSO, both in its policing and jail opera-

tions.” Compl. ¶ 11; see also A.R.S. § 11-441(A)(1), (2) (“[t]he sheriff shall … [p]reserve

the peace [and a]rrest … all persons who attempt to commit or who have committed a public

offense”); id. § 11-441(A)(5) (“[t]he sheriff shall … [t]ake charge of and keep the county jail

… and the prisoners in the county jail”).

Thus, under Arizona law, neither the County nor the Board of Supervisors has

authority over these functions, which are the sole province of the Sheriff. See A.R.S. § 11-

251 (detailing the scope of the County’s authority with no mention of authority over law

enforcement or incarceration). It has long been an established principle of Arizona law that

“the county board of supervisors may exercise no powers except those specifically granted

by statute and in the manner fixed by statute. Actions of the Board accomplished by a meth-

od unrecognized by statute have been described as ‘without jurisdiction and wholly void.’”

Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 420, 586 P.2d 978, 981

(1978) (citing State Board of Control v. Buckstegge, 18 Ariz. 277, 158 P. 837(1916).)

This is the precise issue addressed in Hounshell v. White, 202 P.3d 466 (Ariz. App

2008), which considered whether an Arizona Board of Supervisors has “power to supervise

and impose discipline” on “employees of other county officers.” Id . at 471. The answer was

no. As the court explained, “the Arizona legislature knows how to expressly grant a board of

supervisors the power to supervise and impose discipline when it wishes to do so. It has no

done so with respect to deputies and employees of other county officers, and we can only

conclude that its choice in this regard was intentional.” Id . In short, the County and Board



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are not authorized to control the Sheriff as to law enforcement or incarceration. Those

activities fall within the sole responsibility of the Sheriff. See A.R.S. §§ 11-251, 11-441.

Arizona’s constitutional convention debates confirm that constitutional officers may

not direct one another. In 1910, a proposition was offered to establish the County offices at

issue here — including the Sheriff and three Supervisors — all of whom were elected. John S

Goff, The Records of the Az. Const. Convention of 1910, 1138 (1991). A motion was offered

to create the office of Assessor, and a debate ensued over whether he should be elected or

appointed by the Board. The delegate from Maricopa County urged that he must be appoint-

ed by the Board; other wise, it could have “no control over him”:

He is not responsible to the board of supervisors in any way, shape or form, and if

he does his duty he never could be re-elected. The board could not say “Mr. As-

sessor, you put that property at a wrong valuation.” The assessor must be a quali-

fied man . . . and if the board has no control over him he will make his arbitrary

assessments in a way so he can be re-elected.

Id . at 504. When others agreed, one delegate countered that Board-appointment would actu-

ally make it more likely that an Assessor would try to keep his position by doctoring assess-

ments for Board members. Id . at 505. This argument prevailed, and the Assessor was made

an elected officer. Id . Thus, for Arizona’s founders, there was a clear dichotomy between

officers who were elected and thus “not responsible to the Board in any way, shape or form,”

(id .), and those appointed by the Board, who must submit to it. The Sheriff is elected.

Of course, the County, in managing its budget, has the formal right to supervise the

Sheriff’s “official conduct” with respect to his involvement in “assessing, collecting, saf e-

keeping, managing, or disbursing public revenues” (A.R.S. § 11-251(1)), to examine his

accounts and performance (id . § 11-251(10)), and to require him to report to the Board

“under oath on any matter connected with the duties of his office” (id . § 11-253). But none



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of these would allow the County to correct the alleged pattern here of discriminatory practic-

es. No “supervisor ” can alter behavior merely by examining and requiring reports when she

lacks authority to require a change in practice or discipline. Yet that is the statutory situation

here. And this fits precisely with the debates at the Arizona constitutional convention.

Finally, it is no answer to point to the County’s “contractual assurances,” because

“[t]he State has a right to regulate and control contracts and the Constitution and laws of the

State are a part of every contract.” Sch. Dist. No. One of Pima Cnty. v. Hastings, 106 Ariz

175, 177-78 (1970). And no “assurance” could expand the Board’s authority beyond that

provided in Arizona law. See Banner Health v. Med. Sav. Ins. Co., 216 Ariz. 146, 149 (Ariz

Ct. App. 2007); Paczosa v. Cartwright Elem. Sch. Dist. No. 83, 222 Ariz. 73, 77 (Ct. App

Div. 1 2009).

III. Plaintiff cannot hold the County liable under § 14141 or Title VI for the allegedly

improper actions of the Sheriff.

As there is no allegation that the Board engaged in discrimination, Plaintiff must per-

suade the Court that the County can be held liable pursuant to § 14141 and Title VI based on

the actions of the Sheriff. That requires imputation. According to Plaintiff, the County can

be held liable for the Sheriff’s action because the Sheriff is the “policymaker” for the County

in the areas of law enforcement and jail operations. But unlike § 1983, § 14141 and Title VI

do not authorize claims against a municipality based on imputation, and neither this Court

nor any other has yet held otherwise. The Court should not do so here.

A. Neither § 14141 nor Title VI authorizes imputation liability.

The textual differences between § 1983 on the one hand, and § 14141 and Title VI on

the other, show that the acts of the Sheriff cannot be imputed to the County. The Supreme

Court “grounded” imputation liability at least “in part in the language of § 1983.” Dkt. 43 at


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6. Section 1983 renders liable “[e]very person who, under color of any statute, ordinance

regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects,

or causes to be sub jected, any citizen of the United States” to a constitutional deprivation

Two parts of this statute are critical.

First , § 1983’s emphasis on “any statute, ordinance, regulation, custom, or usage”

shows that “the touchstone of the § 1983 action … is an allegation that official policy is re-

sponsible for a deprivation of rights protected by the Constitution.” Monell v. Dep’t of Soc

Servs. of City of New York , 436 U.S. 658, 690 (1978) (emphasis added). Thus, the Supreme

Court has “required a plaintiff seeking to impose liability on a municipality under § 1983 to

identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cnty

Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997).

Second , section 1983 extends liability to any person who “subjects, or causes to be

subjected ” another person to a constitutional tort. 42 U.S.C. § 1983 (emphasis added). This

means there is municipal liability “when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to repre-

sent official policy, inflicts the injury.” Monell , 436 U.S. at 694. As the Ninth Circuit has

explained, because “Congress explicitly provided ‘that A’s tort became B’s liability if B

‘caused’ A to subject another to a tort,’” “‘constitutional deprivations’ could subject a mu-

nicipality to liability under § 1983 if they were the result of a ‘governmental “custom”’ suf-

ficient to establish causation.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir

2012) (citing and quoting Monell , 436 U.S. at 690-92).

Thus, it is not necessary under § 1983 that the municipality itself “subjects” the plain-

tiff to injury. It suffices if the municipality “causes” the plaintiff “to be subjected” to injury



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by virtue of a “policy or custom” adopted on its behalf by an official policymaker . That is

the textual basis for imputation. Because neither § 14141 nor Title VI contains these key

phrases, the § 1983 cases allowing imputation are wholly inapposite.

1.

Section 14141 does not authorize imputation.

Section 14141 cannot be read to allow imputation. The statute renders liable a “gov-

ernmental authority, or any agent thereof, or any person acting on behalf of a governmental

authority.” 42 U.S.C. § 14141(a) (emphasis added). And it requires that the particular entity

or individual “engage in a pattern or practice of conduct by law enforcement officers.” Id. It

is not enough that the government entity “cause” the plaintiff “to be subjected” to injury, as

it would be in the § 1983 context. The entity itself must “engage” in the “pattern or prac-

tice.” As confirmed by dictionaries published contemporaneously with § 14141’s passage

the relevant definition of “engage” is to “involve one’s self ; to take part in.” Black’s Law

Dictionary 528 (6th ed. 1990) (emphasis added); see also American Heritage Dictionary 454

(2d college ed. 1991) (“[t]o involve oneself or become occupied; participate”); Merriam-

Webster’s Collegiate Dictionary 383 (10th ed. 1995) (“to take part; PAR TICIPATE”).

Thus, the only entities or persons liable under § 14141 are those who themselves par-

ticipate in the illegal “pattern or practice of conduct by law enforcement officers.” This does

not include a municipality whose “policymaker” could be said to have engaged in such a

practice. Section 14141 imposes liability on only one person in that situation: the govern-

ment “agent” (or “person acting on behalf of the” government)—not the “governmental au-

thority” itself. It is that person, and only that person, who can be said to have “engage[d]”—

to have involved himself — in the pattern or practice of misconduct, and § 14141(b) gives the

Attorney General power to pursue claims against that person.



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The nature of the relief offered by § 14141 confirms this reading, as it authorizes on-

ly “the Attorney General” to “obtain appropr iate equitable and declaratory relief to eliminate

the pattern or practice.” 42 U.S.C. § 14141(b). Unlike § 1983, § 14141 has no private righ

of action. Compare Rehberg v. Paulk , 132 S. Ct. 1497, 1501 (2012) (“Section 1983 … cr e-

ates a private right of action”), with Johnson v. Dodson, 2014 WL 4513380, at *4 (N.D. Tex

Sept. 12, 2014) (“§ 14141 does not create a private right of action”), and I-Remiel Azariah:

Ibn Yahweh v. Shelby Cnty. Gen. Sessions Court , 2014 WL 1689297, at *7 (W.D. Tenn. Apr

29, 2014) (collecting cases). Also unlike § 1983, § 14141 authorizes no money damages

United States v. City of Columbus, 2000 WL 1133166, at *3-4 (S.D. Ohio 2000).

Imputing liability to a municipality for a “pattern or practice” engaged in by another

would be nonsensical. To be sure, in the context of § 1983 and money damages, imputation

makes sense. As the Supreme Court explained in Monell , “[a] damages remedy … is a vital

com ponent of any scheme for vindicating cherished constitutional guarantees,” and “owing

to the qualified immunity enjoyed by most government officials, many victims of municipal

malfeasance would be left remediless if the city were” not held liable. 445 U.S. at 651

Here, the County has monetary responsibility with respect to the Sheriff, so it would have the

authority to pay money damages under § 1983 on an imputation theory. A.R.S. § 11-444(b).

There is no similar rationale for imputation in § 14141, which authorizes neither a

private right of action nor money damages. Moreover, imposing an injunction on a munici-

pality because of actions of its “ policymaker ” would be pointless. If indeed the Sheriff “had

final policymaking authority concerning the particular constitutional or statutory violation at

issue” (Dkt. 43 at 7 (internal quotation marks omitted))3, it would make no sense for § 14141

3 See Dkt. 43 at 8 (“Sheriff has final authority over law enforcement and jail practices.”).



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to authorize injunctive relief as to a different entity that necessarily lacks the authority to stop

the alleged misconduct. See Ariz. State Bd. for Char ter Schools v. U.S. Dep’t of Educ., 464

F.3d 1003, 1008 (9th Cir. 2006) (“[S]tatutory interpretations which would pr oduce absurd

results are to be avoided.” (internal quotation marks omitted)). The Sheriff would not in any

way be “deterred” by the existence of a fruitless injunction against the County.

2.

Title VI does not authorize imputation.

For many of the same reasons, imputed liability is unavailable under Title VI. First

the Supreme Court has held that Title IX, which prohibits sex discrimination, does not permit

“liability … solely on principles of vicarious liability.” Gebser v. Lago Vista Indep. Sch.

Dist., 524 U.S. 274, 288 (1998). Courts uniformly interpret Title VI, which prohibits race

discrimination, in the same way. See, e.g., Santos v. Peralta Cmty. Coll. Dist., 2009 WL

3809797, at *7 (N.D. Cal. Nov. 13, 2009) (“a theory of vicarious liability is not viable under

Title VI”); Goonewardena v. New York , 475 F. Supp. 2d 310, 328 (S.D.N.Y. 2007); cf

Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998) (interpreting

Title VI in accord with Gebser and Title IX).

Second , once again, Plaintiff has not cited, and the County has not found, any case

relying on imputation to impose equitable relief under Title VI. This is not surprising. Title

VI lacks any of the language used in § 1983 that led the Supreme Court to impute liability

under that statute. The relevant inquiry under Title VI is whether the defendant acted with a

“[d]iscriminatory purpose.” Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 279; see Alex-

ander , 532 U.S. at 281 (2001) (“Title VI itself directly reaches only instances of intentional

discrimination.” (internal quotation marks and alteration omitted)). Here, the only defendant

that Plaintiff claims acted with discriminatory intent is the Sheriff. It would be fruitless to



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enjoin an entity other than the one that was engaging in purposeful discrimination.

3. Any doubt must be resolved against imputation.

Plainly neither § 14141 nor Title VI authorizes imputed liability. But even if there

were some doubt (there is not), that doubt must be resolved against imputing liability here. It

is a well settled that “if Congress intends to alter the usual constitutional balance between

States and the Federal Government, it must make its intention to do so unmistakably clear in

the language of the statute.” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765

787 (2000); Stoner , 502 F.3d at 1121 (same). This is especially true “when a party seeks in-

junctive relief in federal court against a state or local government or governmental entity,”

since “concerns of federalism counsel r espect for the integrity and function of those bodies.”

Sig. Prop. Int’l Ltd. P’ship v. City of Edmond , 310 F.3d 1258, 1269 (10th Cir. 2002).

Imposing an injunction on the County requiring it to take certain actions with respect

to law enforcement and jail administration, which are wholly within the Sheriff’s constitu-

tional power, would run afoul of Arizona state law and principles of federalism. Especially

given that Plaintiff has been unable to state what injunctive relief it wants imposed on the

County, the Court should not interpret § 14141 or Title VI to authorize injunctive relief and

thereby undermine core federalism principles. See Rizzo v. Goode, 423 U.S. 362, 378 (1976)

(“[F]ederal courts must be constantly mindful of the special delicacy of the adjustment to be

preserved between federal equitable power and State administration of its own law.”).

B. Even if either statute allowed imputation, it would not apply here.

Even if liability could be imputed under § 14141 (it cannot), it could be no broader

than that under § 1983. Monell , 436 U.S. at 690; Dkt. 43 at 6-7 (admitting the same). Thus

summary judgment must be entered for the County because the County indisputably is not



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liable under Monell . As the undisputed record evidence confirms, the County cannot control

the Sheriff’s policies and practices relating to law enforcement or jailing. For Plaintiff that is

fatal, because “[a] sheriff’s policy or act cannot be said to speak for the county if the county

has no say in what … action the sheriff takes.” Grech v. Clayton Cnty., 335 F.3d 1326, 1331

(11th Cir. 2003) (en banc). Even if the Sheriff could be dubbed a “policymaker,” his actions

cannot be imputed to the County without evidence showing that the County “caused” him to

engaged in the complained-of conduct. Monell , 436 U.S. at 695. Plaintiff cannot show that.

For this reason, among others, it is no answer to point to § 1983 cases in which the

Sheriff was considered a “policymaker” for the County, as none performed the required mul-

ti-factored analysis. McMillian v. Monroe Cnty., 520 U.S. 781, 787-92 (1997); Cortez v

Cnty. of Los Angeles, 294 F.3d 1186, 1189 (9th Cir. 2002). We understand that the Court did

not grant leave to the County to seek summary judgment based on Plaintiff’s inability to jus-

tify imputation here, even assuming imputation were available under § 14141 and Title VI (it

is not). We thus decline to address the issue. The issue is ripe, however, because the undis-

puted facts show that the Board did not empower the Sheriff in the areas of law enforcement

and incarceration; and the Board cannot control the Sheriff in those areas. There can there-

fore be no imputation here. See McMillian, 520 U.S. at 787-92; Cortez , 294 F.3d at 1189.

CONCLUSION

For all of these reasons, the Court should enter judgment in favor of the County.



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DATED: October 27, 2014

WALKER & PESKIND, PLLC

By:/s/ Richard K. WalkerRichard K. Walker

Charles W. Jirauch16100 N. 71

st Street, Suite 140

Scottsdale, Arizona 85254-2236

WINSTON & STRAWN, LLP

By:/s/ Dan K. WebbDan K. Webb (admitted pro hac vice)

J. Erik Connolly (admitted pro hac vice)

35 West Wacker Drive

Chicago, IL 60601

Counsel for Defendant Maricopa County, Arizona

NOTICE OF ELECTRONIC FILING AND CERTIFICATE OF SERVICE

I hereby certify that on October 27, 2014, I electronically filed Defendant Maricopa

County’s Motion for Summary Judgment with the Clerk of the Court for filing and upload-

ing to the CM/ECF system which will send notification of such filing to all parties of record.

/s/ Michelle Giordano


doj v arpaio # 334 | d.ariz._2-12-cv-00981_334

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