doj v arpaio # 345 | d.ariz._2-12-cv-00981_345

8/21/2019 DOJ v Arpaio # 345 | D.Ariz._2-12-cv-00981_345

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3916284.1

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)

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 1 of 19


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3916284.1 1

INTRODUCTION

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.

I. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON COUNTSONE, TWO, THREE, AND FIVE REGARDING DISCRIMINATORYTRAFFIC STOPS.

1

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

1Defendant is not moving for summary judgment on Plaintiff’s claims involving

alleged discriminatory conduct during worksite operations pursuant to a valid warranttargeting 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 duringits most recent status conference, Goodyear is distinguishable from the facts of this case.First, action preceding Goodyear did not involve similar claims of injunctive relief as inthis case. Therefore, the issues Defendant raises with this Court’s subject matter

jurisdiction and standing were not at issue in Goodyear . Furthermore, Defendant is notasserting that the res judicata effects of Melendres bar Plaintiff’s claims under CountsOne, Two, Three and Five. Rather, Defendant is asserting that Melendres, independent ofits res judicata effects, deprives this Court of an active case or controversy as well asPlaintiff of an actual injury for standing purposes. Paradoxically, it is Plaintiff who



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A. This Court lacks jurisdiction over Plaintiff’s claims involvingdiscriminatory 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 v

Weinberger , 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

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. Further, 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 anddiscriminatory 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 arrest

Plaintiffs or any of the other Latinoindividuals referred to above.

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

without probable cause or reasonablesuspicion.

asserts that the res judiciata effects of Melendres apply to this case by making an issue

preclusion argument. [SOF ¶ 1].3

Plaintiff 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].



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135. By their conduct described above,Defendants . . . have devised andimplemented a policy, custom and practiceof illegally stopping, detaining, questioningor searching Latino individuals because oftheir race, color and/or ethnicity.

174. The Defendants have engaged in lawenforcement practices with the intent todiscriminate against Latinos on the basis oftheir race, color, or national origin.

Similarly, Plaintiff also seeks injunctive relief already afforded in Melendres

by requesting the Court to address the following areas: “policies and training; non-

discriminatory policing . . .; stops, searches, and arrests; response to crimes of sexual

violence4; posse operations; . . . supervision; misconduct complaint intake, investigation

and adjudication; . . . oversight and transparency; and community engagement.” [SOF ¶

4]. The Melendres Court fully decided this controversy. Following a 142 page findings

of fact 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. [See 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

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.

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

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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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

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 inthis 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]. The Melendres Order 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



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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).5

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 court is unable to grant the relief tha

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

Plaintiff cannot make this showing because Melendres has already granted

the injunctive relief Plaintiff seeks. [Compare SOF ¶ 8 with SOF ¶ 4]. In addition

Defendant has not only implemented the changes required by Melendres, but has gone

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

5Plaintiff’s failure to establish a likelihood of future injury similarly renders its

claims 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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this Court can order to redress its claims. 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 Stree

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

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

Additionally, the independent monitor and Judge Snow in Melendres are 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



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Maricopa County Sheriff’s Office (“MCSO”) continued cooperation with the Cour

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.6

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 financial

assistance.” 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 (9thCir.1994), overruled in part on other grounds by Daviton v. Columbia/HCA Healthcare

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.

6 Defendant also notes that given the Court’s supervision and enforcemen

mechanisms put in place by Melendres, traditional exceptions to the mootness doctrine donot 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 ). Plaintiff has not alleged an injuryinherently limited in duration nor can it overcome the issues of mootness involved due toDefendants compliance with the Court Order issued in Melendres. [See SOF ¶¶ 10-52].



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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 andservices 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

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, the



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importance 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 accesto 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. To start with, the

following list summarizes how Defendant’s DI-6 Policy involving LEP inmates ensures

they receive meaningful access to information and services under Title VI:

(1) No inmate shall be denied access to any programs orservices based solely on their ability to understand English.

(2) LEP inmates shall be afforded the same rights and protections mandated by federal, state, and local laws.

(3) Redundant identification and classification intake procedures.

7

(4) Inmate informational postings, booklets, and forms shall be provided in English and Spanish.8

(5) The implementation of a LEP training course during BasicAcademy, as well as continuing training for detention staff.

7 At all steps during inmate intake, MCSO has redundancies to ensure that LEPinmates are properly identified and cared for. The first step during inmate intake at eitherCentral Intake or at LBJ is for inmates to go through a medical assessment to determine ifthey are medically stable to be in the jail system. During the medical assessment, aninformation officer meets and greets all incoming inmates and answers any questionsabout the intake process. This officer also determines if an inmate should be designatedas LEP, and gives each inmate a bilingual information sheet which explains the intake

procedure. Additionally, the information officer is one step in the LEP identification process as every officer that comes into contact with the inmate during the intake procedure gathers information on whether the inmate is LEP (based on interactions withthe inmate and his or her ability to communicate with MCSO officers). Furthermore, LEPidentification training is provided to each officer. Finally, LEP designation can also comefrom the IA Courts as inmates regularly request interpreters to fully understand thequestions posed by the court. [SOF ¶¶ 55-64]8 Since 2007, before the Plaintiff’s investigation began, MCSO has posted extensive

bilingual signs throughout its Jails, which total more than 1850 signs. [SOF ¶ 75]



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(6) The maintenance of a Detention Language Roster.9

(7) Assigning a LEP Manager for each facility.10

(8) Ensuring resources are available to communicate with LEPinmates, including but not limited to the Voiance LanguageTranslation line and the Detention Language Roster.

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(9) Requiring that every reasonable effort shall be made to provide a LEP inmate with meaningful access to information, programs, and services.

[SOF ¶ 68] Defendant’s DI-6 policy also 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.12

9 The roster contains over 240 names of voluntary bilingual or multilingual officersto provide on demand translation, 172 of whom speak Spanish. [SOF ¶ 91]10

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]11 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 4

th

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]12 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] For example, Defendanhas employed the use of a telephonic translation service for over two decades. [SOF ¶ 81]



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On the other hand, Plaintiff’s experts have not opined that Defendant’s DI-6

Policy 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

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

“compliant” (the highest assessment possible) with the requirements that “[d]etainees 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 a Title VI violation. Defendant

has gone well beyond taking “reasonable steps” to ensure LEP inmates recieve

meaningful access to the information and services provided by Defendant’s jails. 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.”).



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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

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.

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 (1) an absolute privilege applies to any filing of

professional complaints in Arizona and (2) Plaintiff has failed to prove the absence of

reasonable suspicion or probable cause for Defendant’s alleged retaliatory actions.

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



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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). Therefore, any

alleged retaliation by Defendant involving filing judicial and/or bar complaints is

absolutely privileged and cannot serve as a basis for a pattern and practice of retaliation

claim.

2. Plaintiff must allege the absence of probable cause in order toestablish a pattern and practice of retaliation.

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. However, 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.13

In its most recent opinion on this issue, the Ninth Circuit affirmatively

stated that the existence of probable cause is dispositive of a retaliatory arrest claim. See

Acosta v. City of Costa Mesa, 718 F.3d 800, 825 (9th Cir. 2013). In Acosta, the Cour

13

This shift began in May 2008, when the Ninth Circuit noted, in contrast to itsstatement in Skoog , that Hartman applies equally to First Amendment retaliatory arrestand retaliatory prosecution cases. See Back v. City of Upland , 527 F.3d 853, 864 (9th Cir2008). In December 2008, the Ninth Circuit, in Dietrich v. Ascuaga’s Gold Nugget , 548F.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 prosecutionId. 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 thathe was booked and jailed in retaliation for his speech.”).



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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].” Id

(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

Acosta Court 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 retaliatory arrest claims 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

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



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

violation of § 14141. Therefore, summary judgment is appropriate on Count Six.

B. Injunctive relief on Count Six is improper because Plaintiff cannoprove 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. As 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. [SOF ¶¶ 106-

110]. Moreover, the record is devoid of any facts or evidence that there was or will be

retaliatory efforts by Defendant sufficient to demonstrate 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 UnitedStates 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



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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

there is no evidence to reasonably expect Defendant will "retaliate” in the future.14

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.

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

Finally, summary judgment is appropriate on Counts I-VI 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

14 Furthermore, the voluntary cessation presumption only applies to prevent a casefrom becoming moot. See Lovell v. Brennan, 728 F.2d 560, 563, 564 (1st Cir. 1984) (Itwas not an abuse of discretion to dismiss an action claiming unconstitutional conditions ina 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 thathad been made were done in response to the litigation. The court was entitled to presumethat state authorities would continue to comply with the constitution, and the burden is onthe plaintiff to demonstrate the need for injunctive relief.); see also Ciampa v

Massachusetts Rehabilitation Com'n, 718 F.2d 1, 2-3 (1st Cir. 1983) Familias Unidas v Briscoe, 544 F.2d 182, 188 (5th Cir. 1976); Halkin v. Helms, 690 F.2d 977, 1003-1009(D.C. Cir. 1982). Even assuming Plaintiff’s claim is not moot, in the context ofrequesting injunctive relief, Plaintiff has failed to demonstrate the possibility of futureinjury. Thus, Plaintiff still lacks standing for its retaliation claims because it cannodemonstrate the likelihood of future harm.



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injunction that prohibited defendants “from discriminating on the basis of race, color or

ethnicity in the operation of the school system” 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).

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

an injunction in 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.”

[SOF ¶ 4]. 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 foregoing reasons, Defendant Arpaio requests this Court to gran

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.



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3916284.1 18

DATED this 30th day of October, 2014.

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

By s/ Joseph J. Popolizio

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

CERTIFICATE OF SERVICE

I hereby certify that on this 30th 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 # 345 | d.ariz._2-12-cv-00981_345

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