doj v arpaio # 336 | d.ariz._2-12-cv-00981_336

8/21/2019 DOJ v Arpaio # 336 | D.Ariz._2-12-cv-00981_336

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William R. Jones, Jr., Bar #001481John T. Masterson, Bar #007447Joseph J. Popolizio, Bar #017434Justin M. Ackerman, Bar #030726JONES, SKELTON & HOCHULI, P.L.C.2901 North Central Avenue, Suite 800Phoenix, Arizona 85012Telephone: (602) 263-1700Fax: (602) [email protected]

[email protected] [email protected] [email protected]

Attorneys for Defendant Joseph M. Arpaio

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v.

Maricopa County, Arizona; Maricopa CountySheriff’s Office; and Joseph M. Arpaio, in hisofficial capacity as Sheriff of MaricopaCounty, Arizona,

Defendants.

NO. CV12-00981-PHX-ROS

DEFENDANT ARPAIO’S MOTIONFOR PARTIAL SUMMARYJUDGMENT

(Oral Argument Requested)

Pursuant to Rule 56(a), Defendant Joseph M. Arpaio moves for Partial

Summary Judgment on Plaintiff’s Complaint. Summary Judgment is appropriate because

(1) the District Court’s injunction in Melendres v. Arpaio, No. CV-07-02513, removes the

case or controversy as to Counts One, Two, Three, and Five and deprives Plaintiff o

standing for those claims; (2) the record is devoid of any evidence that Limited English

Proficiency (“LEP”) Inmates lack meaningful access to information and services under

Counts Four and Five; (3) Plaintiff cannot prove that Defendant lacked probable cause for

his alleged retaliation against “critics” under Count Six; and (4) Plaintiff’s prayer for

relief is an impermissible “obey the law injunction.” This Motion is supported by the

accompanying Statement of Facts.

Case 2:12-cv-00981-ROS Document 336 Filed 10/27/14 Page 1 of 24


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I. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON COUNTSONE,

1TWO, THREE, AND FIVE REGARDING DISCRIMINATORY

TRAFFIC STOPS.

Before this Court can decide whether Melendres v. Arpaio has preclusive

effect on the Claims asserted in this case, [See Statement of Facts in Support of Defendant

Arpaio’s Motion for Partial Summary Judgment (“SOF”) ¶ 1] it must first decide if it has

jurisdiction over Plaintiff’s Claims. See Gospel Missions of Am. v. City of Los Angeles

328 F.3d 548, 554 (9th Cir. 2003). Ironically, it is the Court’s ruling in Melendres that

deprives this Court of an active case or controversy as well as Plaintiff of standing for its

claims involving discriminatory traffic stops in Counts One, Two, Three, and Five.2

A. This Court lacks jurisdiction over Plaintiff’s claims involving

discriminatory traffic stops because the Melendres order has eliminatedthe case or controversy asserted by Plaintiff’s claims.

“The jurisdiction of federal courts depends on the existence of a case or

controversy under Article III of the Constitution.” Public Utilities Com'n v. Federal

Energy Regulatory Comm'n, 100 F.3d 1451, 1458 (9th Cir.1996) (quotations omitted). A

case or controversy exists when one party demonstrates that it has suffered injury-in-fact

which fairly can be traced to acts or omissions of the second party and when there is a

substantial likelihood that the relief requested will redress the injury claimed. Johnson vWeinberger , 851 F.3d 233, 235 (9th Cir. 1988); see also Davis v. Federal Election

Commission, 554 U.S. 724, 732-33 (2008) (“To qualify as a case fit for federal-court

1The only parts of Counts One, Two Three, and Five that Defendant is not moving

for summary judgment involves the alleged discriminatory conduct by Defendant duringworksite operations pursuant to a valid warrant targeting identity theft and fraud.2 As a threshold issue, although this Court stated that E.E.O.C. v. Goodyear

Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) may be dispositive on this issue during

its most recent status conference, Goodyear is distinguishable from the facts of this case.First, the class action preceding Goodyear did not involve similar claims of injunctiverelief as this Court is faced with. Therefore, the issues Defendant raises with this Court’ssubject matter jurisdiction and standing were not at issue in Goodyear . FurthermoreDefendant is not asserting that the res judicata effects of Melendres bar plaintiff’s claimsunder Counts One, Two, Three and Five. Rather, Defendant is asserting that Melendres,independent of its res judicata effects, deprives this Court of an active case or controversyas well as Plaintiff of an actual injury for standing purposes. Paradoxically, it is Plaintiffwho asserts that the res judiciata effects of Melendres apply to this case by making anissue preclusion argument. [SOF ¶ 1].



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adjudication, an actual controversy must be extant at all stages of review, not merely at

the time the complaint is filed.”) (emphasis added).

Plaintiff cannot show a substantial likelihood that the injunction it requests

“will redress the injury claimed,” because the Melendres Order has already remedied the

wrongs Plaintiff claims. As shown below, the Melendres Complaint alleged the same

discriminatory traffic stop issues that Plaintiff now asserts:3

Melendres Complaint [SOF ¶ 2] Plaintiff’s Complaint [SOF ¶ 3]

131. Defendants, acting under color of lawand in concert with one another, engaged,and continued to engage, in profiling and

discriminatory treatment of Plaintiffs andother Latino individuals based on their race,color and/or ethnicity.

132. Defendants have acted pretextually,with racial motivation and withoutreasonable suspicion or probable cause tostop, detain, question, search and/or arrestPlaintiffs or any of the other Latinoindividuals referred to above.

135. By their conduct described above,Defendants . . . have devised and

implemented a policy, custom and practiceof illegally stopping, detaining, questioningor searching Latino individuals because oftheir race, color and/or ethnicity.

166. The Defendants . . . have engaged inlaw enforcement practices, including trafficstops . . . with the intent to discriminate

against Latino persons in Maricopa Countyon the basis of their race, color, or nationalorigin.

169. The Defendants . . . haveunreasonably searched, arrested, anddetained numerous persons in MaricopaCounty, including searches and arrestswithout probable cause or reasonablesuspicion.

174. The Defendants have engaged in lawenforcement practices with the intent to

discriminate against Latinos on the basis oftheir race, color, or national origin.

Similarly, Plaintiff also seeks injunctive relief already afforded in

Melendres. Plaintiff seeks injunctive relief requiring the Court to address the following

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

searches, and arrests; response to crimes of sexual violence4; posse operations; jail

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

retaliation; oversight and transparency; and community engagement.” [SOF ¶ 4] The

3Plaintiff alleged at the October 6, 2014 status conference hearing that the

Melendres’ Complaint did not involve Claims of discriminatory conduct for generaltraffic stops by Defendant. This is not true. [SOF ¶ 5]4 Plaintiff has stipulated, and this court has recognized, that Plaintiff is not pursuingcrimes of sexual violence either in its Complaint or in this case. [SOF ¶ 6]



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Melendres Court fully decided this controversy. Following a 142 page findings of fac

and conclusions of law, it issued a 59 page supplemental permanent injunction on these

very issues, ordering an exceptional amount of oversight and reform over Defendant’s

training, policies, and procedures. The following provides a brief outline of the changes

required by the Melendres Order:

(1) establishing an independent monitor to screen Defendant’sactivity for discriminatory behavior;

(2) reform of Defendant’s policies and procedures to ensure bias free policing;

(3) adequate training to ensure compliance with reformed policies;

(4) reforms on the number of supervising officers in the field;

(5) requirements to collect data sufficient to measure theeffect of any racial bias on Defendant’s traffic enforcement;

(6) requirement that the independent monitor have access tothis information;

(7) public meetings on Defendant’s reform initiatives whichinclude the ability to adopt or modify measures that take intoaccount public feedback;

(8) sustained community outreach so that Defendant can hearand appropriately respond to community concerns;

(9) an implementation of an “early identification system” toidentify and respond to potentially problematic behaviors asearly as possible;

(10) policies and procedures that encourage the reporting of potential misconduct and to ensure that any misconduct isappropriately investigated and addressed; and

(11) reporting requirements to keep apprised the monitor, the parties, the Court and the community on Defendant’s reform

efforts.

[SOF ¶¶ 7-8]

Given the similar claims and broad-ranging relief ordered in Melendres

there is simply no substantial likelihood that this Court could grant Plaintiff any relief tha

has not already been ordered in Melendres. Accordingly, since no remaining controversy



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exists on these issues, this Court lacks subject matter jurisdiction to consider Plaintiff’s

allegations in Counts One, Two, Three, and Five involving discriminatory traffic stops.5

B. The Melendres injunction order deprives Plaintiff of Article IIIstanding to raise the discriminatory traffic stop claims in Counts OneTwo, Three and Five.

Because the Melendres Court already issued the injunction Plaintiff seeks

here, Plaintiff also lacks standing to assert its discriminatory traffic stop claims. Oregon

v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting DaimlerChrysler Corp

v. Cuno, 547 U.S. 332, 352 (2006)) (“A plaintiff must demonstrate standing ‘for each

claim he seeks to press’ and for ‘each form of relief sought.”’); City of Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983) (Notwithstanding the fact that plaintiff had standing to

pursue damages, he lacked standing to pursue injunctive relief.). To satisfy Article III's

standing requirements a plaintiff must show: (1) it has suffered an “injury in fact” that is

concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Mayfield v. United States

599 F.3d 964, 971 (9th Cir. 2010). “The party invoking federal jurisdiction bears the

burden of establishing these elements.” Lujan, 504 U.S. at 561.

1. Plaintiff cannot demonstrate an immediate or future threat ofdiscriminatory traffic stops.

A plaintiff seeking injunctive relief premised upon alleged past wrongs mus

demonstrate a “real or immediate threat of an irreparable injury” to satisfy the injury in

5 The Melendres defendants’ appeal of the injunctive Order does not change theeffect of that Order on this Court’s subject matter jurisdiction or Plaintiff’s standing. SeeState of California Dept. of Soc. Services v. Thompson , 321 F.3d 835, 846 (9th Cir. 2003)(“the bare act of taking an appeal” does not defeat the res judicata effect of a federaldistrict court decision); Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 1988) (“Theestablished rule in the federal courts is that a final judgment retains all of its res judicataconsequences pending decision of the appeal.”). In addition, in moving for summary

judgment on Counts One, Two, Three and Five, Defendant Arpaio does not waive anyappellate rights in Melendres.



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fact prong of the standing test. Clark v. City of Lakewood , 259 F.3d 996, 1007 (9th Cir

2001) (emphasis added) (quoting Lyons, 461 U.S. at 105 (1983)); see also Hodgers-

Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999). In addition, Plaintiff must

show the existence of an official policy or its equivalent likely to cause future injury. See

Lyons, 461 U.S. at 105–06 (stating that “[i]n order to establish an actual controversy in

this case, Lyons would have had not only to allege that he would have another encounter

with the police but also” to allege the existence of an official policy or its equivalent); see

also Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004) (holding that Plaintiff lacked

standing to seek injunctive relief because he failed to demonstrate a likelihood of future

harm even if he were subjected to an official policy).

Plaintiff cannot make this showing. The Melendres injunction is

comprehensive in stamping out any possibility of discriminatory policies and future

behavior by Defendant. [See SOF ¶ 8] As set forth above, it broadly outlines and has

established intensive oversight by an independent monitor and that the Court, community

and parties involved in the litigation will all be apprised of Defendant’s progress. [See

id.] The order ensures extensive training and supervision of Defendant’s employees and

heightened misconduct reporting systems. [See id.] It also requires increased community

outreach and communication with regard to Defendant’s policies and conduct. [See id.]

With these extensive safeguards in place, Plaintiff cannot meet its burden of showing a

“real and immediate threat” of repeated future harm by Defendant or the existence of an

official policy or its equivalent likely to cause future injury. Clark, 259 F.3d at 1007; see

also Lyons, 461 U.S. at 112 (Holding because the police conduct complained of was not

likely to occur to Plaintiff in the foreseeable future, the district court lacked standing to

enter injunctive relief.); Shain, 356 F.3d at 216 (holding same).6

6 Plaintiff’s failure to establish a likelihood of future injury similarly renders theirclaims for declaratory relief unripe [SOF ¶ 9]. See Hodgers-Durgin v. de la Vina, 199F.3d 1037, 1044 (9th Cir. 1999) (“In suits seeking both declaratory and injunctive reliefagainst a defendant's continuing practices, the ripeness requirement serves the samefunction in limiting declaratory relief as the imminent-harm requirement serves in limitinginjunctive relief.”).



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2. Plaintiff cannot meet the “redressability” element of standing.

In addition to being unable to show the threat of future harm, Plaintiff

cannot meet its burden of showing the redressability element of Article III standing.

Plaintiff must be able to show a likelihood that the alleged injury will be redressed by a

favorable decision. See Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982). The

focus for redressability is “always upon the ability of the court to redress the injury

suffered by the plaintiff; if the wrong parties are before the court, or if the requested relief

would worsen the plaintiff's position, or if the cour t is unable to grant the relief that

relates to the harm, the plaintiff lacks standing.” Id. (emphasis added).

As the following chart clearly demonstrates, Plaintiff cannot make this

showing because Melendres already granted the injunctive relief Plaintiff seeks here:

Melendres Injunction [SOF ¶ 8] Plaintiff’s Proposed Injunction [SOF ¶ 4]

Reporting requirements to keep apprisedthe monitor, the parties, the Court and thecommunity on Defendant’s reform efforts.

An independent monitor to screenDefendant’s activity for discriminatory

behavior;

Implementation of an “early identificationsystem” to identify and respond to

potentially problematic behaviors as earlyas possible;

Oversight and transparency;

Reform of Defendant’s policies and procedures to ensure bias free policing;

Non-discriminatory policing and stops

searches, and arrests; Posse operations;Adequate training to ensure compliancewith reformed policies;

Policies and training;

Reforms on the number of supervisingofficers in the field;

Supervision;

Sustained community outreach so thatDefendant can hear and appropriately

respond to community concerns;

Community engagement;

Policies and procedures that encourage thereporting of potential misconduct andensure that any misconduct is appropriatelyinvestigated.

Misconduct complaint intake, investigation

In addition, Defendant has not only implemented the above mentioned changes, but has

gone above and beyond the Melendres Order’s requirements. [See SOF ¶¶ 10-52]



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Therefore, because the Melendres injunction already provided the redress

Plaintiff seeks here, Plaintiff lacks standing because it cannot demonstrate that there is any

remaining remedy this Court can order to redress its claims.7 See e.g., Sharp v. United

Airlines, Inc., 967 F.2d 404, 410 (10th Cir. 1992) (“it is clear that . . . there is a risk of

duplicative recoveries or the necessity of apportioning damages if plaintiffs are allowed

standing.”); 87th Street Owners Corp. v. Carnegie Hill–87th Street Corp., 251 F.Supp.2d

1215 (S.D.N.Y.2002) (Summary Judgment appropriate because plaintiff was unable to

identify a single action that the court could order the defendant to take that had not yet

been undertaken by third parties).

3. Defendant’s compliance with the Melendres Order mootsPlaintiff’s Counts One, Two, Three, and Five involvingdiscriminatory traffic stops.

Another reason to grant Defendant summary judgment is that the claims are

moot, given that Melendres has already resolved the discriminatory traffic stop issue

“Generally, an action is mooted when the issues presented are no longer live and therefore

the parties lack a legally cognizable interest for which the courts can grant a remedy.”

Alaska Ctr. For Env't v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir. 1999). This occurs

when the requested relief has already been secured in another proceeding or when full

relief has been granted to another party on the same issue. See e.g., Kittel v. Thomas

620 F.3d 949, 951 (9th Cir. 2010) (Petitioner sought habeas corpus petition mooted when

the regulation on which his petition rested held invalid in a different action); Hispanic

Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 1236, 1243 (11th Cir

2012) (ruling in one case that provisions of state statute were pre-empted mooted claims

by private plaintiffs to restrain parts of the same provisions on a different ground).

Here, the Melendres Court has already made a determination that Defendant

unlawfully discriminated against Latinos during traffic stops and has put into place a

7 See supra n.3 , noting that the Melendres complaint did raise generadiscriminatory traffic enforcement issues.



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comprehensive scheme to ensure discrimination no longer occurs. [See SOF ¶¶ 7-8]

Additionally, the independent monitor in Melendres is overseeing Defendant Arpaio to

ensure that Defendant is fully complying with the injunctive order. [See SOF ¶ 8]

Further, the Sheriff and his command staff have personally seen to Maricopa County

Sheriff’s Office (“MCSO”) continued cooperation with the Court appointed monitor and

his team of 13 people to ensure that the MCSO complies with the Melendres Order in

every respect. [See SOF ¶¶ 10-52] Accordingly, the conduct alleged by Plaintiff is

simply no longer occurring. Thus, Plaintiff’s discriminatory traffic claims are moot.8

II. THE RECORD LACKS EVIDENCE THAT DEFENDANT’S TREATMENTOF LEP INMATES VIOLATES TITLE VI.

Plaintiff alleges in Counts Four and Five that Defendant has excluded and

denied LEP Latino prisoners from participating in and benefiting from Defendant’s

programs and activities relating to the operation of Maricopa County Jails which has had

an adverse and disparate impact on Latino LEP prisoners. [Complaint ¶¶ 178, 184] Title

VI provides that “[n]o person in the United States shall, on the ground of race, color, or

national origin, be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financialassistance.” 42 U.S.C. § 2000d. To survive summary judgment, Plaintiff must show that

Defendant receives federal funding and that he engages in intentional racial

discrimination. Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th

Cir.1994), overruled in part on other grounds by Daviton v. Columbia/HCA Healthcare

8 Defendant also notes that given the Court’s supervision and enforcemenmechanisms put in place by Melendres, traditional exceptions to the mootness doctrine do

not apply to save Plaintiffs claims under Counts One, Two, Three, and Five. See NativeVill. of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (holding that for the“capable of repetition yet evading review” exception to apply “a Plaintiff must allege atype of injury which is of such inherently limited duration that it is likely always to

become moot prior to review.”); see also Ctr. For Biological Diversity v. Lohn, 511 F.3d960, 965 (9th Cir. 2007 ) (holding that the “voluntary cessation” exception to mootnessdoes not apply when complying with a court order ) (emphasis added). Plaintiff has notalleged an injury inherently limited in duration nor can it overcome the issues of mootnessinvolved due to Defendants compliance with the Court Order issued in Melendres. [SeeSOF ¶¶ 10-52]



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Corp., 241 F.3d 1131 (9th Cir. 2001). The Defendant does not dispute that his office

receives federal funding, but Plaintiff cannot show that there has been intentional racial

discrimination as to LEP inmates in violation of Title VI.

A. The standard for Title VI LEP inmate discrimination focuses onwhether reasonable steps were taken by a recipient to provide LEPinmates with meaningful access to information and services.

To prove intentional discrimination under Title VI, Plaintiff must show that

“a challenged action was motivated by an intent to discriminate.” Elston v. Talladega

County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). This requires a showing that

the decision maker was not only aware of the complainant’s race, color, or national origin,

but that the recipient acted, at least in part, because of the complainant’s race, color, or

national origin. Id. In the absence of such evidence, claims of intentional discrimination

under Title VI are analyzed using the Title VII burden shifting analytic framework

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973); Rashdan v. Geissberger, 12-16305, 2014 WL 4194090 (9th Cir. Aug. 26, 2014)

(“We now join the other circuits in concluding that McDonnell Douglas also applies to

Title VI disparate treatment claims.”).

Under this analysis, to demonstrate a Title VI claim, Plaintiff must establish

“more than the mere occurrence” of isolated, accidental, or sporadic discriminatory acts

by Defendant. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 336

(1977). Rather, Plaintiff must demonstrate that the failure to provide information and

services in a language other than English resulted in a significant number of LEP

beneficiaries being unable to fully realize the intended benefits of a federally assisted

program or activity. See Lau v. Nichols, 414 U.S. 563, 568 (1974) (holding that the lack

of access to LEP beneficiaries “denied them meaningful opportunity to participate in the

educational program – all earmarks of the discrimination banned by [the Title VI

implementing regulations].”). The Department of Justice has interpreted Lau to require

Title VI funding recipients to take reasonable steps to provide meaningful access to the



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recipient’s programs under the following four factor test:

What constitutes reasonable steps to ensure meaningful accesswill be contingent on a number of factors. Among the factorsto be considered are the number or proportion of LEP personsin the eligible service population, the frequency with whichLEP individuals come in contact with the program, theimportance of the service provided by the program, and theresources available to the recipient.

See 65 F.R. 50123-01, 50124 (Aug. 16, 2000) (emphasis added); see also Auer v. Robbins

519 U.S. 452, 461 (1997) (holding that an agency’s interpretation of its own regulation is

“controlling” unless plainly erroneous or inconsistent with the regulation).

B. The record is replete with evidence that Defendant took and continueto take reasonable steps to provide LEP inmates with meaningful acces

to information and services.As a matter of law, Plaintiff cannot carry its burden to demonstrate that

Defendant has failed to reasonably provide LEP inmates with meaningful access to

information and services. The record, in fact, is quite to the contrary. Defendant’s “DI-6

Policy for Limited English Proficiency (LEP) Inmates” outlines the following extensive

measures taken at its jails9

to ensure LEP inmates receive meaningful access to

information and services:

(1) Inmate Access to Programs: Inmates, including hearing-impaired inmates, shall not be denied access to any programsor services based solely on their limited ability to speak, read,or understand the English language.

10

(2) Rights and Protections: LEP inmates shall be affordedthe same rights and protections mandated by the Prison RapeElimination Act (PREA) and all other associated andapplicable federal, state, and local laws and ordinances.

9 The Maricopa County Jail system consists of six jails: 4th Avenue Jail, DurangoJail, Estrella Jail, Towers Jail, Lower Buckeye Jail, and the In-Tents Jail facilities. TheMaricopa County Jails are designed to hold, in the aggregate and at full capacity, 10,872inmates. On average, approximately over the past two years, 32% of all inmates in the

jails have been Hispanic with 6.3% of those inmates being documented as LEP. [SOF ¶¶53-54]10 For example, Defendant’s jails offers bilingual classes for LEP inmates includingAnger Management, 12-Steps, Parenting, Cognitive, and AA. Furthermore, any inmatesrequesting to take an English only class would never be refused entry due to their LEPdesignation. Finally, religious services are also offered in English and Spanish. [SOF ¶¶70-72]



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(3) Identification and Records: LEP inmates are identified,and recorded as such, during the intake and classification

process at Central Intake or the Self-Surrender Center locatedat the Lower Buckeye Jail (LBJ).11 Once identified as a LEPinmate, a comment shall be placed in the Jail ManagementSystem (JMS). The comment will then print on the housingunit rosters.

(4) Language Identification Signs: Language identificationsigns shall be posted in Central Intake, the Self-SurrenderCenter at LBJ, and all inmate housing units to assist staffmembers in identifying the language of a LEP inmate.

12

(5) Inmate Informational Postings: All inmate informational postings in the jail housing units shall be in English andSpanish, at a minimum.

(6) Booklets and Forms: Booklets and forms issued forinmate use, including, but not limited to, the Rules and

Regulations for Inmates booklet; the Inmate Request Form(Tank Orders); the Inmate Grievance Form, including alllevels of appeals; the Inmate Legal Services Request (ILS)form; and Health Needs Request Form (HNR) shall beavailable in English and Spanish. Additional forms shall bemade available, as needed.

(7) Training: The Training Division shall provide a LEPtraining course during the Basic Academy, as well ascontinuing training for detention staff. This course shallinclude information regarding available resources to assiststaff members in communicating with LEP inmates.

(8) Detention Language Roster: The Training Division shall be responsible for maintaining a Detention Language Roster.13

11 At all steps during inmate intake, MCSO has put into place redundancies to ensurethat LEP inmates are properly identified and cared for. The first step during inmate intakeat either Central Intake or at LBJ is for inmates to go through a medical assessment todetermine if they are medically stable to be in the jail system. During the medicalassessment, an information officer meets and greets all incoming inmates and answers anyquestions about the intake process. This officer also determines if an inmate should bedesignated as LEP, and gives each inmate a bilingual information sheet which explains theintake procedure. Additionally, the information officer is one step in the LEPidentification process as every officer that comes into contact with the inmate during theintake procedure gathers information on whether the inmate is LEP (based on interactions

with the inmate and his or her ability to communicate with MCSO officers). FurthermoreLEP identification training is provided to each officer. Finally, LEP designation can alsocome from the IA Courts as inmates regularly request interpreters to fully understand thequestions posed by the court. [SOF ¶¶ 55-64]12 Since 2007, a year before the Plaintiff’s investigation began, MCSO has postedextensive bilingual signs throughout MCSO Jails, which in total amount to more than1850 signs. [SOF ¶ 75]13

As of August 8, 2014, the roster contains over 240 names of voluntary bilingual ormultilingual officers, 172 of which speak Spanish. [SOF ¶ 91]



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(9) LEP Manager: The Custody Business Operations/SpecialProjects Division shall be responsible for assigning a LEPManager to each jail facility.

14

(10) Available Resources: Resources available tocommunicate with LEP inmates include, but are not limited to,the following:

A. Voiance Language Services (1-866-533-4998,Access Code 985692). Detention Officers inassignments with regular inmate contact shall berequired to carry a “wallet card” listing the contactinformation for Voiance Language Services.

B. Detention Language Roster.

C. During an emergency situation when the security ofa facility or the safety or health of an officer, staffmember, or inmate may be at risk, an officer may

request another inmate to provide interpretation for aLEP inmate. Officers shall use discretion whenconsidering this option.15

(11) Reasonable Accommodations: Accommodations shall be considered if a LEP inmate requires special attention.Every reasonable effort shall be made to provide a LEP inmatewith meaningful access to information, programs, andservices.

(12) Assisting the Public: The Sheriff’s InformationManagement Services (SIMS) shall request bilingual andmultilingual personnel, as well as Voiance Language Services,

to assist members of the public who are LEP individuals when providing non-confidential information on the public jailinformation telephone line or, in the Bonds and Fines lobby at

14 The duties of the LEP Manager include, but are not limited to (1) maintaining aLEP Manager Manual which includes current resources available to all detention staff thatassist them in communicating with LEP inmates; (2) maintaining and updating all LEP orinmate informational postings in the intake areas and housing units, (3) ensuring the jailmaintains text telephone (TTY) machines in good working order and all detention officersare aware of how to properly operate them; (4) ensuring all detention personnel are keptup to date on all LEP-related information; (5) conduct random monthly interviews of twoLEP inmates and one officer regarding their LEP related experiences and concerns; (6)compiling weekly statistics regarding the number of LEP inmates housed at the facilityand the languages they speak, which is captured in a JMS report each Monday and madeavailable on the Sheriff’s Office Intranet. [SOF ¶¶ 68, 78-79]15 In addition to what is required pursuant to the DI-6 Policy, Defendant hasembarked on a multi-million dollar project, known as the Sierra Detention System, tomake bilingual jail announcements automatically with a mere selection and touch ofcomputer monitors in all jails. The Sierra Detention System is already running in 4th

Avenue Jail, and installation of the system is underway in the rest of the MCSO facilities,which will be completed within the next year. Sierra has also informed MCSO that this

project is the largest of its kind ever attempted in the detention industry. [SOF ¶¶ 96-99]



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the 4th Avenue Jail.

(13) Visitation: Detention personnel assigned to the Visitationarea of each jail facility shall take all reasonable steps to assistLEP members of the public when requesting to visit an inmateor requesting jail-related information, including utilizing

bilingual and multilingual detention personnel and VoianceLanguage Services.

(14) Language Services: All Office language services, asrequired or applicable when conducting detention-relatedOffice business, shall be provided free of charge to inmates,their family members, or members of the general public.

[SOF ¶ 68]

Defendant’s DI-6 policy explicitly notes that “[i]t is the policy of

[Defendant’s] Office to provide for effective communication with inmates and the public

with limited English language proficiency, regarding detention-related Office business,

and to be in compliance with Title VI of the Civil Rights Act of 1964, as amended and all

other applicable laws.” [SOF ¶ 73] Furthermore, the record is uncontested that

Defendant’s DI-6 policy is enforced within Defendant’s jails and that the current DI-6

policy is only the most recent incarnation of a long standing effort by Defendant to ensure

LEP inmates have meaningful access to information and services.16

On the other hand, Plaintiff’s experts have not opined that Defendant’s DI-6Policy does not provide LEP inmates with meaningful access to any program or services

offered at Defendant’s jails. Neither could they point to a single, specific instance where

an inmate was not classified as LEP nor that misclassification resulted in harm to any

inmate. [SOF ¶ 100] It, therefore, comes as no surprise that there has not been a single

inmate grievance or complaint from a former inmates’ family or friends produced by

Plaintiff complaining of LEP issues in the Maricopa County jails. [SOF ¶ 101] In fact

the most convincing piece of evidence in the record demonstrating Defendant’s

compliance with Title VI is that during Plaintiff’s investigation of Defendant’s Jails the

16 The DI-6 policy was originally enacted in 2013. However, even before theestablishment of a formal LEP policy, Defendant took reasonable steps to ensure that LEPinmates had access to programs and services. [SOF ¶¶ 65-67] By way of example, priorto DI-6, Defendant employed use of the language line for over two decades. [SOF ¶ 81]



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U.S. Department of Justice, Marshall’s Service, certified all of Defendant’s jails as

“compliant” (the highest assessment possible) with the requirements that “Detainees are

not discriminated against based on gender, race, religion, national origin, or disability”

and that detainees are provided “opportunities to communicate to staff, both written and

verbal” and when necessary “communications aids are provided (translations, translators

hearing impaired aids, etc.).” [SOF ¶¶ 102-104]

Accordingly, even when viewing the facts in the light most favorable to the

Plaintiff, it has not and cannot meet its burden of showing Title VI violations. The

undisputed facts show that Defendant has gone well beyond taking “reasonable steps” to

ensure LEP inmates have meaningful access to the information and services provided by

Defendant’s Jails.17 Thus, Defendant is entitled to summary judgment on Counts Four

and Five of Plaintiff’s Complaint involving a Title VI violation. See Franklin v. D.C.

960 F. Supp. 394, 432 (D.D.C. 1997) rev'd in part, vacated in part on other grounds, 163

F.3d 625 (D.C. Cir. 1998) (holding no Title VI violation because “LEP Hispanic inmates

are not being barred from participation in prison programs because of their race, color or

national origin. While the programs are open to all inmates, limited-English proficient

inmates' participation is limited only by their English fluency.”).

III. THE RECORD DOES NOT SUPPORT PLAINTIFF’S RETALIATIONCLAIMS UNDER COUNT SIX.

Plaintiff alleges that Defendant violated 42 U.S.C. § 14141 by retaliating

against persons in Maricopa County, thereby chilling future protected speech under the

First Amendment. [Complaint ¶¶ 187-88] The persons allegedly chilled are largely

unnamed attorneys, judges, and protestors who allegedly spoke out against MCSO and

Sheriff Arpaio. [ Id . at ¶¶ 140-42, 148-50] Despite Plaintiff’s characterizations, Summary

Judgment in favor of Defendant is appropriate on Count Six because (1) as a matter of law

17Defendant also notes that by having a LEP policy in place, Plaintiff can only raise a

claim that Defendant has failed to implement that policy fully, and such a failure cannot,as a matter of law, constitute intentional discrimination.



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Plaintiff cannot demonstrate a pattern and practice of discrimination and (2) injunctive

relief is inappropriate because it is not reasonably foreseeable that Defendant will

investigate, arrest, file judicial and/or bar complaints, or initiate lawsuits against any

alleged critic without reasonable suspicion or probable cause in the future.

A. Plaintiff cannot demonstrate a pattern and practice of retaliation under42 U.S.C. § 14141.

Section 14141 permits the Attorney General to bring a civil action to “obtain

appropriate equitable and declaratory relief to eliminate a pattern or practice of

unconstitutional conduct by law enforcement officers.” Plaintiff alleges that Defendant

has engaged in a “pattern or practice” of retaliation against his critics by (1) filing judicia

and/or bar complaints and (2) investigating, arresting, and instituting lawsuits against

alleged critics of Defendant’s immigration policies. [See Complaint ¶¶ 140-50]

However, as a matter of law, Plaintiff cannot carry its burden of showing a pattern and

practice of discrimination because an absolute privilege applies to any filing of

professional complaints in Arizona and Plaintiff has failed to prove the absence of

reasonable suspicion or probable cause for Defendant’s alleged retaliatory investigations

arrests and prosecutions.

1. Defendant is protected by an absolute privilege for any allegedretaliation by filing judicial and/or bar complaints.

Plaintiff first relies on Arizona Bar complaints and complaints to the

Arizona Commission on Judicial Conduct to demonstrate Defendant engaged in a pattern

and practice of retaliation. [Complaint at ¶¶ 140-41] However, Arizona courts have held

that “public policy and legal precedent compel us to adopt the position that there is an

absolute privilege extended to anyone who files a complaint with the State Bar alleging

unethical conduct by an attorney.” Drummond v. Stahl , 127 Ariz. 122, 126, 618 P.2d 616,

620 (App.1980); see also Ledvina v. Cerasani, 213 Ariz. 569, 572, ¶ 8, 146 P.3d 70, 73

(App. 2006) (holding same for complaints given to law enforcement); In re Moore, 186

B.R. 962, 977 (Bankr. N.D. Cal. 1995) (applying state law on privilege to hold that



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“summary judgment in Defendant's favor should be granted against Plaintiffs on the

grounds that Plaintiffs are barred, as a matter of law, from bringing an action against

Defendant for wrongful prosecution of administrative proceedings, based upon

Defendant's filing of the State Bar Complaint.”). Therefore, any alleged retaliation by

Defendant involving filing judicial or bar complaints is absolutely privileged and cannot

serve as a basis to support a § 14141 claim involving a pattern and practice of retaliation.

2. Plaintiff must allege the absence of probable cause in order toestablish a retaliatory investigation, arrest or prosecution hasoccurred.

In Hartman v. Moore, 547 U.S. 250, 265-66 (2006), the Supreme Court held

that a plaintiff who sues criminal investigators on a retaliatory prosecution claim alleging

a First Amendment violation must plead and prove the absence of probable cause as an

element of plaintiff’s claim. In Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th

Cir. 2006), the Ninth Circuit interpreted Hartman to only apply in the context of

retaliatory prosecution claims and held that a Plaintiff does not need to allege the absence

of probable cause to support a claim for retaliatory arrests. Since publication of Skoog

the Ninth Circuit has shifted away from this conclusion and returned to the general

principle announced in Hartman that a Plaintiff must establish the absence of probable

cause to prove retaliation.

This shift began in May 2008, when the Ninth Circuit noted, in contrast to

its statement in Skoog , that Hartman applies equally to First Amendment retaliatory arrest

and retaliatory prosecution cases. See Back v. City of Upland , 527 F.3d 853, 864 (9th Cir

2008). In December 2008, the Ninth Circuit, in Dietrich v. Ascuaga’s Gold Nugget , 548

F.3d 892 (9th Cir. 2008), clarified that the Hartman standard applies only to retaliatory

prosecution cases, but emphasized that the existence of probable cause has “high

probative force” even in “ordinary” retaliation cases not involving a criminal prosecution

Id. at 901; see also Ford v. City of Yakima, 706 F.3d 1188, 1194 n.2 (9th Cir. 2013)

(noting that the presence of probable cause is “not irrelevant to an individual’s claim tha



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he was booked and jailed in retaliation for his speech.”).

Despite the waxing and waning of the Ninth Circuit, in its most recent

opinion on this issue, it affirmatively stated that the existence of probable cause is

dispositive of a retaliatory arrest claim. In Acosta v. City of Costa Mesa, 718 F.3d 800

825 (9th Cir. 2013), the Court noted that in the context of a First Amendment retaliation

arrest claim, resolution of the alleged retaliation “turns on whether probable cause existed

to seize [the plaintiff].” (Emphasis added). The Acosta Court relied on Reichle v

Howards, 132 S. Ct. 2088, 182 (2012), where it noted that “the Supreme Court held that it

had never recognized, nor was there a clearly established First Amendment right to be free

from a retaliatory arrest that is otherwise supported by probable cause.” Acosta, 718 F.3d

at 825; see also Reichle, 132 S.Ct. at 2097 ([I]t was not clearly established that an arrest

supported by probable cause could give rise to a First Amendment violation.”).

Accordingly, relying on Reichle, the court in Acosta held that “even assuming that Acosta

was arrested in retaliation for his remarks, because probable cause existed for a violation

of § 2-61, the officers are still entitled to qualified immunity, not only for the removal of

Acosta from the chambers, but also for his subsequent arrest.” Id. Accordingly, pursuant

to Acosta and Rechlie, a plaintiff bringing a claim for retaliatory investigation or arrest

must allege the absence of probable cause. See also Am. News & Info. Services, Inc. v

Gore, 12-CV-2786 BEN KSC, 2014 WL 4681936 (S.D. Cal. Sept. 18, 2014) (analyzing

Skoog, Rechlie, and Acosta and concluding that in light of Acosta’s statement about

Rechlie, the Court should dismiss plaintiff’s claims involving retaliatory arrests due to the

failure to prove probable cause did not exist).

The record in this case is devoid any of evidence that Defendant’s

investigations, arrests, and lawsuits lacked probable cause. Rather, as a smokescreen

Plaintiff has attempted to bootstrap the Arizona bar’s investigation of former Maricopa

County Attorney Andrew Thomas and alleged retaliations against unnamed critics to

assert it has sufficient evidence of a pattern and practice of retaliation under § 14141



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However, Plaintiff cannot escape that it has failed to show that Defendant’s actions lacked

probable cause for any of the alleged instances of retaliation. Therefore, it comes as no

surprise that Plaintiff at least admitted that “the existence of probable cause is not at issue

in many of the instances of retaliation challenged by the United States . . . .” [SOF at ¶

105] Thus, Plaintiff’s baseless allegations of retaliation cannot remotely support a claim

that Defendant has engaged in “a pattern or practice of conduct” against his critics in

violation of § 14141.

In conclusion, as a matter of law, Defendant has not instituted a “pattern and

practice” of retaliation against his alleged critics because (1) any judicial and/or bar

complaints filed on his behalf are absolutely privileged and (2) Plaintiff has not

demonstrated the absence of probable cause for any alleged retaliatory investigations

arrests or prosecutions. Accordingly, because the record does not support any of the

alleged instances of retaliation, Defendant could not have committed a “pattern and

practice” of retaliation under 42 U.S.C. § 14141. Therefore, summary judgment is

appropriate on Plaintiff’s claims under Count Six.

B. Injunctive relief on Count Six is improper because Plaintiff canno

prove potential for immediate and future retaliation by Defendant.As previously stated, a plaintiff seeking injunctive relief premised upon an

alleged past wrong must demonstrate a “real and immediate threat ” of repeated future

harm to satisfy the injury in fact prong of the standing test. See Lyons, 461 U.S. at 105

Clark, 259 F.3d at 1007. Plaintiff only seeks injunctive relief in this case, and as such

cannot rely on any alleged past retaliation alone to establish standing, it must prove that

there is a “real and immediate threat” of repeated future retaliation by Defendant. Clark

259 F.3d at 1007. However, notwithstanding the truth of Plaintiff’s allegations, the

record is uncontested that Defendant has not authorized any investigations, arrests

professional complaints or lawsuits against any alleged “critic” since 2010:

MR. MASTERSON: Well -- and this is a big assumption.

Let's assume that they could prove that the Sheriff's Office



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retaliated against someone in the Maricopa County area

because of their opinions or criticisms of Sheriff Arpaio. Let's

assume that to be the case. What we don't have is that

occurring or even an allegation of that occurring since 2010.

Not a one.

THE COURT: Okay. Let me stop you. Mr. Caspar, is that

correct?

MR. CASPAR: None of the allegations in this case have

occurred since the Sheriff stopped this conduct in 2010.

[SOF ¶¶ 106-110 (emphasis added)] Moreover, the record is devoid of any facts or

evidence that there was or will be retaliatory efforts by Defendant against his critics

sufficient to demonstrate a real or immediate threat of repeated future harm.

While there may be a presumption of future injury when a defendant has

voluntarily ceased its alleged activity in response to the threat of litigation, see United

States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) , this presumption is inappropriate

when a plaintiff cannot prove the underlying allegation or when the challenged activity

“could not reasonably be expected to recur.” Olagues v. Russoniello, 770 F.2d 791, 794

(9th Cir. 1985). “Further, where the defendant is a government actor – and not a private

litigant – there is less concern about the recurrence of objectionable behavior.” D.C

Prof'l Taxicab Drivers Ass'n v. D.C ., 880 F. Supp. 2d 67, 75 (D.D.C. 2012); see also

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir.2009); Ragsdale v

Turnock , 841 F.2d 1358, 1365 (7th Cir.1988); True the Vote, Inc. v. I.R.S., No. CV 13-

734, slip op. at 10. (D.D.C. Oct. 23, 2014) (Order siding with Department of Justice’s

argument that deference should be given when the Government ceases a complained of

activity in the face of litigation). As previously discussed, because Plaintiff cannot

demonstrate that Defendant has engaged in a pattern and practice of retaliation, this court

cannot presume he will do so in the future. Furthermore, Defendant has not initiated any

new investigations, arrests, professional complaints or lawsuits against any alleged critic

for the past four years (and counting), a period longer than the alleged retaliation. Thus



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there is no evidence to reasonably expect Defendant will "retaliate” in the future.

Finally, the voluntary cessation presumption only applies to prevent a case

from becoming moot. See Lovell v. Brennan, 728 F.2d 560, 563, 564 (1st Cir. 1984) (It

was not an abuse of discretion to dismiss an action claiming unconstitutional conditions in

a state prison, even though the district court suggested that conditions may have been

unconstitutional at the time suit was filed and was concerned that the improvements that

had been made were done in response to the litigation. The court was entitled to presume

that state authorities would continue to comply with the constitution, and the burden is on

the plaintiff to demonstrate the need for injunctive relief.); Ciampa v. Massachusetts

Rehabilitation Com'n, 718 F.2d 1, 2-3 (1st Cir. 1983) (holding that a finding of mootness

was better understood as one resting on a lack of demonstrated remedial need rather than

mootness); Familias Unidas v. Briscoe, 544 F.2d 182, 188 (5th Cir. 1976) (“Questions of

necessity and propriety of the relief sought, while jurisdictional, should not be confused

with the doctrine of mootness. Cessation and reassurance regarding future state action

may in practicality render an action for injunctive relief ‘moot,’ in terms of the relief

sought, while leaving unaffected the actual underlying case or controversy for a

declaratory judgment.”); Halkin v. Helms, 690 F.2d 977, 1003-1009 (D.C. Cir. 1982) (The

court found that although discontinuance of the specific surveillance program that had

affected the plaintiffs did not establish Article III mootness, there was not a sufficiently

live controversy to warrant injunctive or declaratory relief). Even assuming Plaintiff’s

claim is not moot, in the context of requesting injunctive relief, Plaintiff has failed to

demonstrate the possibility of future injury. Thus, Plaintiff still lacks standing for its

retaliation claims because it cannot demonstrate the likelihood of future harm.

Given Plaintiff’s failure to prove a pattern and practice of retaliation and

Defendants uncontested compliance with the law for the past four years, summary

judgment is appropriate because there is no live controversy to warrant injunctive relief

under Count Six. See Lyons, 461 U.S. at 105.



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IV. PLAINTIFF’S PRAYER FOR RELIEF SEEKS AN IMPROPER OBEY THELAW INJUNCTION.

Finally, summary judgment is appropriate on Counts I-IV because Plaintiff

requests improper relief in the form of an obey the law injunction.

Blanket injunctions to “obey the law” are disfavored. Metro-Goldwyn-

Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D. Cal. 2007). Such

injunctions are not specific in terms and fail to describe in reasonable detail the act or acts

sought to be restrained. Rule 65(d), Fed.R.Civ.P. Injunctive relief must be narrowly

tailored to fit specific legal violations. Id. Injunctions ordering Defendants to make only

lawful arrests” and to “not discriminate on the basis of race” are invalid “obey the law”

injunctions. See e.g., Keyes v. School Dist. No. 1, 895 F.2d 659, 668-69 & n. 5 (10th

Cir.1990) (stating that provisions of injunction that prohibited defendants “from

discriminating on the basis of race, color or ethnicity in the operation of the school

system” and directing defendants “to use their expertise and resources to comply with the

constitutional requirement of equal education opportunity for all who are entitled to the

benefits of public education in Denver, Colorado” are obey the law injunctions); Payne v.

Travenol Labs., Inc., 565 F.2d 895, 897 (5th Cir.1978) (prohibiting “discriminating on the

basis of color, race, or sex in employment practices or conditions of employment” is an

general obey the law injunction); see also Burton v. City of Belle Glade, 178 F.3d 1175

1200-01 (11th Cir. 1999) (noting that, pursuant to Rule 65(d), “an injunction must

‘contain “an operative command capable of enforcement”; court is not capable of

enforcing “so broad and vague an injunction” that simply requires that one obey the law.”)

An order requiring Defendants to “refrain from engaging in any of the

predicate discriminatory acts forming the basis of the pattern or practice of unlawful

conduct described herein” would be an unenforceable “obey the law” injunction

[Complaint ¶ 192] Such an order would not comply with Rule 65(d), in that it would lack

specificity as to the enjoined conduct. It would be little more than a direction to “not

discriminate.” Similarly inappropriate is Plaintiff’s “specific” request that the court issue



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an injunction to do the following:

Order the Defendants, their officers, agents, and employees toadopt and implement policies, procedures, and mechanisms toremedy the pattern or practice of unlawful conduct describedherein, and by specifically addressing, inter alia, the followingareas: policies and training; non-discriminatory policing and

jail operations; stops, searches, and arrests; response to crimesof sexual violence; posse operations; jail operations;supervision; misconduct complaint intake, investigation, andadjudication; retaliation; oversight and transparency; andcommunity engagement.

[Complaint ¶ 193] This request is so overbroad that neither the Court nor Defendant can

determine what the terms of such an injunction might be. Certainly Defendant would no

be able to determine from such an injunction what specific conduct is enjoined

Furthermore, as previously demonstrated, if the Melendres related relief and “crimes of

sexual violence” stipulation were stricken from Plaintiff’s prayer for injunctive relief, then

all that remains is a request that the Court issue an injunction involving “jail operations”

and “retaliation.” This fails to rise to the level of specificity required by Rule 65(d)

Accordingly, Plaintiff’s request for relief is an improper “obey the law” injunction.

CONCLUSION

For the aforementioned reasons, Defendant Arpaio requests this Court togrant summary judgment in his favor on Plaintiff’s Counts I, II, III, IV, V, and VI of

Plaintiff’s complaint, with the exception of Plaintiff’s claims involving worksite

operations in Counts I, II and III.DATED this 27th day of October, 2014.

JONES, SKELTON & HOCHULI, P.L.C.

By s/ Joseph J. PopolizioWilliam R. Jones, Jr.John T. MastersonJoseph J. PopolizioJustin M. Ackerman2901 North Central Avenue, Suite 800Phoenix, Arizona 85012Attorneys for Defendant Joseph M. Arpaio



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283885779.1 24

CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of October, 2014, I caused the

foregoing document to be filed electronically with the Clerk of Court through the

CM/ECF System for filing; and served on counsel of record via the Court’s CM/ECF

system.

s/ Mance Carroll


doj v arpaio # 336 | d.ariz._2-12-cv-00981_336

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