melendres # 1573 | sands memo

8/20/2019 Melendres # 1573 | Sands Memo

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M. Craig Murdy (011016) [email protected] A. Dodd (031084) [email protected] BRISBOIS BISGAARD & SMITH LLP

Phoenix Plaza Tower II2929 North Central Avenue, Suite 1700

Phoenix, Arizona 85012-2761Telephone: 602.385.1040Facsimile: 602.385.1051Firm email: [email protected] for Brian Sands

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarlysituated; et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, in his individual andoffice capacity as Sheriff of MaricopaCounty, Arizona; et al.

Defendants.

No. 07-cv-02513-PHX-GMS

RESPONDENT BRIAN SANDS’MEMORANDUM REGARDINGORDER TO SHOW CAUSE CLOSINGARGUMENT

Respondent Executive Chief Brian Sands (ret.) (hereinafter “Chief Sands” or

“Sands”), by and through undersigned counsel, respectfully submits the following

memorandum in support of his closing argument, and respectfully requests that Court:

1. Find that he took all reasonable steps to communicate the Court’s 12/23/11

Order to the appropriate individuals within MCSO, and therefore, civil

contempt sanctions are not warranted.

2. Find that there is no evidence that he willfully disobeyed the Court’s

12/23/11 Order.

Case 2:07-cv-02513-GMS Document 1573 Filed 11/20/15 Page 1 of 22

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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LEWIS BRISBOIS BISGAARD & SMITH LLP

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II. THIS COURT’S ORDER TO SHOW CAUSE

A. Order to Show Cause Re Chief Sands

On February 12, 2015 this Court issued an Order to Show Cause. Doc. 880. With

regard to Chief Sands, the order provided in part:

A. Preliminary Injunction Violations

. . . The Court orders the following individuals to show cause why they should not

be held in contempt for their failure to abide by and apprise MCSO deputies of the

terms of the preliminary injunction:

. . .

4. Executive Chief Brian Sands

Before his retirement, Chief Sands was the Chief of Enforcement at MCSO and

reported directly to the Chief Deputy. (Doc. 530 at 6.) With respect to the

injunction’s execution, Sands allegedly understood it to be the attorney’s

responsibility to communicate the order to his subordinates, but could not confirm

whether or not any directives to this effect had been given. (Doc. 843, Ex. C, at 43

(Dep. Of Brian Sands at 185:12-20, Maricopa Cnty., No. 2– 12 – cv – 00981 –

ROS).) Therefore, it appears that Executive Chief Sands may have also failed to

take reasonable steps to communicate the injunction to the appropriate individuals

within MCSO after receiving notice of it from defense counsel.

Doc. 880, p. 15.

Thus, the very narrow issue is whether Chief Sands “failed to take reasonable steps

to communicate the injunction to the appropriate individuals within MCSO after receiving

notice of it from defense counsel.” The evidence establishes that Chief Sands took

reasonable steps to communicate the injunction to appropriate individuals within MCSO.

III. APPLICABLE LAW

A. There are Two Types of Contempt and Their Procedural Contours Are Well

Established

In International Union, United Mine Workers of America v. Bagwell , 512 U.S. 821,



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827, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1994) the Court explicitly stated that there are

only “two forms of contempt” and their procedural contours are well established.”

Criminal contempt is a crime in the ordinary sense, and criminal penalties may not

be imposed on someone who has not been afforded the protections that the Constitution

requires of such criminal proceedings. Id. at 826. The required constitutional protections,

included but are not limited to proof beyond a reasonable doubt, and for “serious” criminal

contempts involving imprisonment beyond six months, the right to a trial by jury. Id .

In contrast, coercive civil contempt sanctions - penalties designed to compel future

compliance with a court order - are avoidable through obedience, and may be imposed in

an ordinary civil proceeding upon notice and an opportunity to be heard. Id. at 827.

The paradigmatic coercive, civil contempt sanction involves confining the

contemnor indefinitely until he complies with an affirmative command such as an order to

pay alimony, or to surrender property, or to make a conveyance. Id. at 828. Similarly,

imprisonment for a fixed term is coercive when the contemnor is given the option of

earlier release if he complies. Id. In these circumstances, the contemnor is able to purge

the contempt and obtain his release by committing an affirmative act, and thus “carries the

keys of his prison in his own pocket.” Id.

By contrast, a fixed sentence of imprisonment is punitive and criminal if imposed

retrospectively for a “completed act of disobedience” such that the contemnor cannot avoid

or abbreviate the confinement through later compliance. Id. at 829. When a contempt

involves the prior conduct of an isolated prohibited act, the resulting sanction has no

coercive effect. Id . The defendant has furnished nothing, and he cannot shorten the term

by promising not to repeat the offense. Id.

This dichotomy between coercive and punitive imprisonment has been extended to

the fine context. Id. A contempt fine accordingly is considered civil and remedial if it

either coerces the defendant into compliance with the court’s order, or compensates the

complainant for losses sustained. Id. Where a fine is not compensatory, it is civil only if

the contemnor is afforded an opportunity to purge. Id. “Thus, a ‘flat, unconditional fine’



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totaling even as little as $50 announced after a finding of contempt is criminal if the

content nor has no subsequent opportunity to reduce or avoid the flying through

compliance.” Id.

The coercive function of a civil contempt fine is not applicable at bar because Chief

Sands is no longer employed by MCSO and therefore, cannot purge any civil fine through

affirmative action. 512 U.S. at 829 (a contempt fine is a criminal sanction if the

contemnor has no subsequent opportunity to avoid the fine through compliance).

B. Criminal Contempt Requires Willful Disobedience Proved Beyond a

Reasonable Doubt

Criminal contempt requires proof beyond a reasonable doubt that the contemnor

knew of the order and willfully disobeyed the same. United States v. Baker, 641 F.2d

1311, 1317 (9th Cir. 1981). “Willfulness is defined ‘as a volitional act done by one who

knows or should reasonably be aware that his conduct is wrongful.’” Id. see also Falstaff

Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983) (“Willfulness in

this context means a deliberate or intended violation, as distinguished from an accidental,

inadvertent, or negligent violation of an order.”).

Chief Sands would submit that there is complete lack of evidence which would

support a determination, beyond a reasonable doubt, that he willfully disobeyed the Order.

In fact, the evidence establishes that Chief Sands: a) expressed relief about the Order

because he did not want to turn people over to the federal government; b) recognized the

urgency of the Order; c) recognized that it was important that MCSO comply with the

Order; d) was supportive of the idea of training MCSO deputies about the Order; and e)

that he never directed anyone to violate the Order. See Section IV , infra.

C. Civil Contempt Must Be Established by Clear and Convincing Evidence

Civil contempt “consists of a party’s disobedience to a specific and definite court

order by failure to take all reasonable steps within the party’s power to comply.” Reno Air

Racing Ass’n., Inc. v. McCord , 452 F.3d 1126, 1130 (9th Cir. 2006). “The party alleging



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civil contempt must demonstrate that the alleged contemnor violated the court’s order by

‘clear and convincing evidence.’” In re Dual-Deck Video Cassette Recorder Antitrust

Litig., 10 F.3d 693, 695 (9th

Cir. 1993). “The burden then shifts to contemnors to

demonstrate why they were unable to comply.” Stone v. City and County of San

Francisco, 968 F.2d 850, 856 (9th

Cir. 1992). “[S]ubstantial compliance” with a court

order is sufficient to avoid contempt. In re Dual-Deck, 10 F.3d at 695, see also Vertex

Distributing v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891-92 (9th Cir. 1982), and

Shuffler v. Heritage Bank , 720 F.2d 1141, 1146-47 (9th Cir. 1983).

Clear and convincing evidence requires that the claim or defense is highly probable.

See Ninth Circuit Manual of Model Jury Instructions Civil, 1.4 Burden of Proof – Clear

and Convincing Evidence, see also Colorado v. New Mexico, 467 U.S. 310, 316 (1984)

and Murphy v. I.N.S., 54 F.3d 605, 610 (9th

Cir. 1995) (the burden of proving a matter by

clear and convincing evidence is a “heavier burden than the preponderance of the evidence

standard”).

D. The Court Must Use the Least Possible Power and Exercise Restraint and

Discretion in Selecting Contempt Sanctions

In selecting contempt sanctions, the court must use “the least possible power

adequate to the end proposed.” Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct.

625, 107 L.Ed. 2d 644 (1990) (emphasis added), see also Shillitani v. United States, 384

U.S. 364, 369, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). The court’s contempt power “must

be exercised with restraint and discretion.” Inst. of Cetacean Research v. Sea Shepherd

Conservation Soc’y, 774 F.3d 935, 951 (9th Cir. 2014).



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E. Civil Contempt Sanctions May Be Imposed to Coerce Obedience to a Court

Order or to Compensate for Actual Injuries

Civil contempt sanctions may be imposed to coerce obedience to a court order, or to

compensate the party pursuing the contempt action for injuries resulting from the

contemptuous behavior, or both. United States v. United Mine Workers, 330 U.S. 258,

303-04, 91 L. Ed. 884, 67 S. Ct. 677 (1947), and Shuffler , 720 F.2d at 1147.

“Unlike the punitive nature of criminal sanctions, civil [contempt] sanctions are

wholly remedial.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th

Cir. 1992).

“Compensatory awards are limited to ‘actual losses sustained as a result of . . .

contumacy.’” General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th

Cir. 1986)

Compensatory contempt sanctions are generally limited to an amount equal to the actual

“injuries caused by the noncompliance at-issue.” In re Dual-Deck, 10 F.3d at 696.

F. Equity Does Not Require Resignation from Employment to Comply

In Inst. of Cetacean Research, 774 F.3d at 958 the Court concluded that under the

circumstances “it would not be equitable to hold [Sea Shepard’s Administrative Director]

in contempt” as she “could only comply with the injunction by resigning from her paid

employment.”

Chief Sands recognizes that the Court’s Order to Show Cause is directed to the

narrow issue of whether he “failed to take reasonable steps to communicate the injunction

to the appropriate individuals within MCSO after receiving notice of it from defense

counsel.” Doc. 880, p. 15. However, to the extent the alleged contempt is premised on a

failure to communicate the injunction to MCSO deputies other than HSU deputies the

evidence establishes that the Sheriff told Chief Sands that only Human Smuggling deputies

should be briefed. See Section IV.D, infra.



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G. Coercive Civil Contempt Sanctions Against Chief Sands Are Not

Appropriate

Coercive civil contempt sanctions against Chief Sands are not appropriate.

Coercive civil sanctions are meant to compel compliance with an order. Chief Sands is no

longer employed by MCSO, and therefore, he has does not have any influence on MCSO’s

operations. See Inst. of Cetacean Research v. Sea Shepard Conservation Soc’y, 2105 U.S.

Dist. Lexis 72676, 11 - 12 (W.D. Wash. 2105) (“the probable effectiveness of a sanction

against the Former Directors is minimal, as there is no evidence or suggestion that the

Former Directors currently have any influence on Sea Shepherd US's activities.”)

Again, Chief Sands recognizes that the Court’s Order to Show Cause is only

directed to the narrow issue of whether he “failed to take all reasonable steps to

communicate the injunction to the appropriate individuals within MCSO after receiving

notice of it from defense counsel.”

H. Civil Contempt Damages

Damages for civil contempt awards must be proven by a preponderance of the

evidence. Lichtenegger v. Bank of Montreal (In re SK Foods, LP), 2015 U.S. Dist. Lexis.

106252, at 37 citing Ahearn ex rel. N.L.R.B. v. Int'l Longshore & Warehouse Union,

Locals 21 & 4, 721 F.3d 1122, 1130 (9th Cir. 2013).

I. Damages May Not Be Based on “Mere Speculation or Guess”

“Although compensatory damages need not be determined with certainty, they may

not be based upon ‘mere speculation or guess.’” Silver Sage Partners, LTD v. City of

Desert Hot Springs, 251 F.3d 814, 824, (9th Cir. Cal. 2001), citing Story Parchment Co. v.

Paterson Parchment Paper Co., 282 U.S. 555, 563, 75 L. Ed. 544, 51 S. Ct. 248 (1931).

J. Defenses and Mitigating Factors

Substantial compliance with a court order – by taking all reasonable steps to comply

– is a defense to civil contempt. In re Dual-Deck , 10 F.3d at 695. The Ninth Circuit’s rule

with regard to contempt has long been whether the alleged contemnors performed “all



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reasonable steps within their power to insure compliance” with the court’s orders. Stone,

968 F.2d at 856. “A [person] fails to take all reasonable steps where there is “little

conscientious effort on [his] . . . part . . . to comply.” Stone, 968 F.2d at 857. Inadvertent

violations of a court order will not support a finding of civil contempt. Id.

To assess whether someone has taken all reasonable steps the court may consider

factors such as whether the person has a history of noncompliance or failed to comply

despite the pendency of a contempt motion. Frank ex. rel. NLRB v. HTH Corp. 832 F.

Supp. 2d 1179, 1187. Finally, “[a] defendant who takes subsequent steps to correct a

violation may be found to have made “every reasonable effort” to comply. Vertex Distrib.,

Inc., 689 F.2d at 892.

“‘Good faith’ is not a defense per se to civil contempt because the

disobedience to the court's order need not be willful.” In re Dual-Deck , 10 F.3d at 695.

Nonetheless, courts generally hold that a person should not be held in contempt if his

actions “appear to be based on a good faith and reasonable interpretation of the court's

order.” Id.1

Thus, good faith efforts are generally considered in determining what

penalties, if any, to impose. TiVo Inc. v. EchoStar Corp. 646 F.3d 869, 880 (Fed. Cir.

2011) (“Although a defendant's diligence and good faith efforts are not a defense to

contempt, these factors may be considered in assessing penalties, a matter as to which the

district court has considerable discretion.”).

Although the court has broad discretion in exercising its contempt powers, Ninth

Circuit jurisprudence reveals that courts generally reserve a finding of contempt against

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non-parties for clear and intentional violations of a court order.2

IV. THE EVIDENCE

A. Overview of the Evidence

The evidence establishes that Chief Sands immediately ensured that the order was

conveyed to Lieutenant Sousa of the Human Smuggling Unit, and directed that Sergeant

Brett Palmer prepare training scenarios. In addition, when Lieutenant Sousa transferred

out of the Human Smuggling Unit, Chief Sands directed his replacement, Lieutenant Brian

Jakowinicz to read and study the Order.

B. Initial Emails Re the Order and Training

1. 12/23/11 - Tim Casey sends email to Sands, MacIntyre, Sheridan and Sousaregarding the Court’s Order. Ex. 187.

a. Casey’s email provides in part:

The court is enjoining the MCSO “from detaining any person based solely on

knowledge, without more, that the person is in the country without unlawful

authority. To be clear, the court is not enjoining MCSO from enforcing valid

state laws, or detaining individuals when officer [sic] have reasonable

suspicion that individuals are violating a state criminal law. Instead, it is

enjoining MCSO from violating federal, rights protected by the United States

Constitution in the process of enforcing valid state law based on an incorrect

understanding of law.

2. 1/11/12 – Sousa emails Palmer requesting that he “write up a couple of

scenarios (right way and wrong way) based on Judge Snows order to MCSO

and your conversations with Tim Casey.” Ex. 2540.

be based on a good faith and reasonable interpretation of the . . . order.”).

2See e.g.s. Peterson v. Highland Music, 140 F.3d 1313, 1325 (9th Cir. 1998) (finding non-parties

in contempt where they “flagrantly and deliberately” assisted the parties in violating the court’s judgment); Inst. Of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 955(9th Cir. 2014) (upholding civil sanctions against non-party board members because they knewthere was a “very high risk” their actions would lead to a violation of injunction).



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a. Chief Sands, Rollie Seebert (MCSO Training), Chief Trombi (HSU)

were copied on the email. Ex 2540.

3. 1/19/12 – Palmer emails Sousa his “rough construction of an eLearning

segment based on Judge Snow’s order.” Ex. 2540.

a. Palmer’s email indicated that he “constructed this in accordance with

the many conversations you & I have had as well as taking into

account the information conveyed to us both from Tim Casey

concerning Judge Snow’s Order.” Ex. 2540.

b. Palmer’s email indicates that he “created these scenarios with Patrol

Deputies as the focus.” Ex. 2540.

c. Chief Sands was not copied on Palmer’s email, although Sergeant

Trowbridge (HSU) was copied.

4. 1/24/12 – Sousa emails Casey re Palmer’s scenarios, asking that Casey

contact him after he has reviewed the scenarios. Ex. 2540

a. Chief Sands, Chief Trombi, Seebert (MCSO Training), Lt. Jakowinicz

were copied on the email. Ex. 2540.

5. 2/27/12 – Sousa emails Casey asking “Did you ever get a chance to look at

the scenarios listed below?” Ex. 2540.

a. Chief Sands was not copied on Sousa’s email. Ex. 2540.

6. 2/28/12 – Casey emails Sousa indicating “no, but I will.” Ex. 2540.

a. Chief Sands was not copied on Casey’s email. Ex. 2540.

7. 3/27/12 - Sousa emails Palmer indicating “We still need to address the listed

emails, once Tim signs off on the scenarios, Brian [Jakowinicz] can make

sure Chief Sands and Trombi are good with you getting with training and

putting out the training via E Learning.” Ex. 2540

a. Chief Sands was not copied on Sousa’s email. Ex. 2540.

C. Attorney Timothy Casey’s Testimony

Tim Casey has testified:



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1. Chief Sands was “very cooperative at all times.” Casey – Direct, 9/29/15

Evidentiary Hearing at 1619:23.

2. “I think I shared this with you during my deposition, I normally would not

have copied him [Sousa] on it [12/23/11 email] as lieutenant of HSU. I

believe Brian suggested during a telephone conference that I copy him so he

gets it, because HSU at the time was the proverbial tip of the spear. They

were the ones that were most likely to be in a position to either comply or

violate this, so we wanted to make sure that he got it right away.” Casey -

Direct, 9/29/15 Evidentiary Hearing, p. 1633:15-22 (italics added).

a. Consequently, Sands ensured that the lieutenant in charge of the “tip

of the spear” received the Court’s order the day that it was issued.

3. “[H]e [Sands] recognized the urgency on it, and it was important that his

people under Enforcement Support comply.” Casey - Direct, 9/29/15

Evidentiary Hearing, p. 1640:3-5.

4. Chief Sands expressed relief about the order because he did not want to turn

people over to the federal government. Casey - Direct, 9/29/15 Evidentiary

Hearing, p. 1641:14 – 1642:2.

a. See also, Casey – CX Como 9/30/15 Evidentiary Hearing, p. 1813:8 –

15:

Q. At any point in time did Mr. Sands, Chief Sands, ever express any

reluctance to comply with the Court's preliminary injunction order?

A. None. And he actually had expressed relief -- as did, I remember,

Joe Sousa and others -- because they never liked turning anyone over

to ICE. So now they had internally the ability to say: We're

following the Court's order in not doing that.

b. See also Casey – CX Como 9/30/15 Evidentiary Hearing, p. 1813:16

– 21, Sands was “very supportive” with regard to putting out training

to the deputies.



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c. See also, CX Como 9/30/15 Evidentiary Hearing, p. 1828:5 – 13:

Q. Was that consistent with what you had seen from Chief Sands

throughout the time that he was involved in the Melendres case, that

he wanted to see compliance with the Court’s orders?

A. Yes.

d. See also Ex. 2534, 12/23/11 Casey email to James Williams

(“Frankly, I am relatively pleased. So are Chiefs Sands and

MacIntyre.”)

5. That he explained that the order essentially provided for arrest or release and

that “from Sands on down there was relief, because they did not want to ever

do it in the first place.” Casey - Direct, 9/29/15 Evidentiary Hearing , p.

1647:6 – 1649:5.

6. Chief Sands was very supportive of the idea of having training on the order.

Casey - Direct, 9/29/15 Evidentiary Hearing , p. 1652:7-17, 1763:4 – 11.

7. By the time he spoke with Palmer about the order in January 2012, it was his

(Casey) understanding that Palmer had been briefed by Sousa and that

Palmer had “briefed the troops” about the order. Casey - Direct, 9/29/15

Evidentiary Hearing, p. 1776:15 – 1777:2.

a. See also, Casey - CX Como, 9/30/15 Evidentiary Hearing . p. 1816:24

– 1817:12

Q. Okay. Let's talk, then, about the other things that you and Chief

Sands discussed in that early phone call about how to implement the

order. One of them, I believe, was to get the word out immediately to

HSU deputies.

A. Correct.

Q. And you had a conversation with Sergeant Palmer within

approximately two weeks or three weeks of that order being issued in

which he indicated that he, in fact, had briefed the HSU deputies on



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the preliminary injunction order.

A. Yes, and that he had also been briefed already by Joe Sousa.

Q. So that item that you and Chief Sands had discussed appeared to

have been complied with within three weeks?

A. Yes, I think that's fair.

8. Following Andre Segura’s October 11, 2012 correspondence regarding

possible violations of the order, he (Casey) and Sands met with the Sheriff.

a. Sands indicated to Casey that if the meeting “doesn’t go right” he

would resign. Casey indicated that he would also resign. Casey -

Direct, 9/29/15 Evidentiary Hearing, p. 1690:12 – 1694:6.

b. Ten months later Sands took early retirement, and 13 months later

Casey withdrew. Sands – Cross 4/22/15, p. 320:17 – 21.

i. To the extent Casey’s withdrawal was based on the preliminary

injunction, the same was based on “resistance from his client

[the Sheriff]” from “being told what to do.” Casey - Direct,

9/29/15 Evidentiary Hearing, p. 1718:3 - 20.

D. Chief Sands’ Testimony

Chief Sands has testified:

1. He spoke with the Sheriff and recommended that all deputies be informed of

the order. However, the Sheriff stated that were are going to do what are

attorneys say, and that only Human Smuggling deputies should be briefed.

Sands – Direct, 4/21/15, p. 261:4-20.

2. He told Jakowinicz that he should read and study the order. Sands – Direct,

4/21/15, p. 264:8 - 11.

3. Sousa was “excellent” about follow-up, “was very hard-working,” “was a

self-starter,” and was “one of the best division commanders.” Sands – Cross

4/22/15, p. 333:19 – 25.

4. He was not informed of any issues with regard to the training, and if he had



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been informed he “would have brought the parties together to get the job

done. Sands – Cross 4/22/15, p. 334:23 – 335:1.

5. He would not be involved in minutia of developing training. Sands – CX

Como, 9/30/15, p. 1976:6 – 15.

E. Lieutenant Sousa’s Testimony

Lieutenant Sousa has testified:

1. Chief Sands never told him to disregard, or to violate the order. Sousa –

Redirect, 4/23/15, p. 789:4 – 9.

2. He is a goal oriented person. Sousa – Cross, 4/23/15, p. 787:9-10.

3. That when he is given a task, or when he assumes a task, he typically does

everything he needs to follow it to completion, “especially if it’s a high-

ranking person.” Sousa – Cross, 4/23/15, p. 787:11-13.

4. If a superior gives him a direction, it is his practice to try to do everything in

his power to complete that task without having to go back to the superior

frequently. Sousa – Cross, 4/23/15, p. 787:14-18.

5. If he encounters a roadblock, he is not opposed to going back to the superior

if he is unable to solve the problem. Sousa – Cross, 4/23/15, p. 787:19-22.

6. He has no memory of going back to Chief Sands and saying: Chief, we’re

kind of stuck on these training scenarios. They’ve been sent to Mr. Casey

and he’s never responded. Sousa – Cross, 4/23/15, p. 787:23 to 788:2.

7. When HSU transitioned to Jakowinicz in April 2012, he assumed Jakowinicz

would pick up the ball and move it along. Sousa – Cross, 4/23/15, p. 788:7-

10.

8. When he sent Jakowinicz March 27, 2012 email about the training scenarios,

that was his way of letting Jakowinicz know, hey, this is unfinished

business, please pick it up and move it along. Sousa – Cross, 4/23/15, p.

788:11-17.

9. Chief Sands would have no way of knowing of this roadblock unless



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someone went back to him and told him about it. Sousa – Cross, 4/23/15, p.

788:25 to 789:3.

10. He would typically follow-up and not take something to his superiors unless

a problem arose. Lt. Sousa did not cc Chief Sands on follow-up emails, so

he would not know there was any problem with Casey getting back to him.

Sousa – CX Como 10/9/15, p. 2777:14 to 2778:23.

F. Lieutenant Jakowinicz’s Testimony

Lieutenant Jakowinicz has testified:

1. That when he took over HSUP spoke to Lieut. Souza about the order and

training scenarios. Jakowinicz – Cross, 4/22/15, p. 419:17 – 23.

2. He does not recall going to chief sands and indicating that there was any

logjam with regard to the training scenarios. Jakowinicz – Cross, 4/22/15, p.

420:12-15.

3. He met with the Sheriff and was asked what he would do if ICE refused to

take someone whom MCSO could not arrest on state charges, but were

believed to be undocumented. The Sheriff indicated “You call Border

Patrol. That’s my order. I’m the Sheriff. I want you calling Border Patrol.”

Jakowinicz – Direct, 4/22/15, p. 371:9 – 372:4.

G. Sergeant Palmer Testimony

1. Recalls reading the order, and “believe[s] it was disseminated to the HSU

staff via Lieutenant Sousa.” Palmer - Direct, 4/21/15, p. 156:14 – 18.

2. After reading the order he “consulted with my superior, Lieutenant Sousa,

my co-supervisors, and received direction on how to the Human Smuggling

Unit was to do business pursuant in accordance with this Court’s order.”

Palmer – Cross, 4/21/15, p. 217:18 - 218:5.

3. After reading the order, he conducted training for all squads within the

Human Smuggling Unit. Palmer – Cross, 4/21/15, p. 218:5 – 24.

a. He was assisted in the training by co-supervisors, Sergeant



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Trowbridge and Deputy Brockman. Palmer – Cross, 4/21/15, p. 220:3

– 8.

b. He believes that all Human Smuggling Deputies were present for the

training. Palmer – Cross, 4/21/15, p. 233:7 – 9.

c. He is “a hundred percent certain that the informal briefing training

occurred, yes.” Palmer – Cross, 4/21/15, p. 233:20 – 23.

4. Chief Sands never told Palmer to violate the order, and never said he was not

going to comply with the order. Palmer – Cross, 4/21/15, p. 234:20 – 25.

5. His opinion is that the training he prepared did not take place because the

same was “contrary to the goals and objectives of the Sheriff.” Palmer –

Direct, 4/21/15, p. 171:6 -8.

6. He had an argument with the Sheriff that related to the content of the judge’s

preliminary injunction order. Palmer – Direct 4/21/15, p. 171:9-12.

a. Sometime “very shortly following the judge’s order on December

23rd, 2011,” “[n]ear the end of December 2011” or possibly “into

January 2012,” [t]he HSU interdiction teams were conducting

interdiction” when they stopped “a suspected human smuggling load

vehicle.” Palmer – Direct 4/21/15, p. 171:14-18 & 171:23-25.

b. They “detained the entire occupants in the vehicle, [and] removed

them to [MCSO’s] Enforcement Support Division for continued

investigation.” Palmer – Direct 4/21/15, p. 172:6-8.

c. “Upon completion of that is when [they] determined there would be

three to five individuals that would not be able to meet criteria for

state charges for one reason or another, that there was no probable

cause existing for their charging in the human smuggling statute under

state law.” Palmer – Direct 4/21/15, p. 176:2-6.

d. Sergeant Palmer went to “move those three to five individuals on their

way, not detain them any longer, because [he] no longer had the



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authority to do that.” Palmer – Direct 4/21/15, p. 176:8-10.

e. He “contacted detention removal office for ICE in downtown

Phoenix, which [he] had done on numerous occasions in the past over

the four years I was in the unit, and this was the first time that ICE

DRO had refused to accept individuals from [them] following Judge

Snow's order on December 23rd, 2011.” Palmer – Direct 4/21/15, p.

176:22 to 177:2.

f. “Because ICE DRO had refused them, [Sergeant Palmer] was able to

identify Customs and Border Patrol in Casa Grande at their Casa

Grande station.” “[A] CBP officer . . . verified, in talking with one of

the individuals, that . . . they were going to be illegal aliens in the

United States and had instructed [Palmer] that, yes, they would accept

them from [MCSO] if [Palmer] would provide transportation.” “To

that end, [Sergeant Palmer] instructed one of our detention officers

assigned to the unit to drive them to the Casa Grande Border Patrol

station where we would turn them over to their care.” Palmer – Direct

4/21/15, p. 177:20 to 178:2.

g. He “contacted . . . [his] lieutenant, Joe Sousa, and informed him of the

situation.” Palmer – Direct 4/21/15, p. 178:8-10.

h. “Lieutenant Sousa called [Palmer] back and advised [him] that [he]

needed to call Sheriff Arpaio directly on his cell phone, that he was

requiring a briefing directly from [him] regarding . . . this incident.”

Palmer – Direct 4/21/15, p. 178:19-22.

i. He “advised the sheriff very succinctly and directly of the situation, . .

. that [he] was turning [these individuals] over to Customs and Border

Patrol . . . , and why it was happening.” Palmer – Direct 4/21/15, p.

179:20-23.

j. In response, “[t]he sheriff took a very authoritative stance with



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[Sergeant Palmer] and told [him] that [he] was not to release those

individuals, that [he] would maintain custody of those individuals and

hold them at the Enforcement Support Division pending [the

Sheriff’s] arrival.” Palmer – Direct 4/21/15, p. 180:3-6.

k. He “told the sheriff immediately that that was an unlawful order and I

was not going to follow it.” Palmer – Direct 4/21/15, p. 180:10-11.

l. He told the Sheriff “it would violate a federal court order.” Palmer –

Direct 4/21/15, p. 180:12-14.

m. “The sheriff became argumentative with [Sergeant Palmer] and again

attempted to direct [him] to maintain custody of those individuals

pending [the Sheriff’s] arrival for an immediate briefing. Palmer –

Direct 4/21/15, p. 180:16-18.

n. The Sheriff did “not immediately” “acquiesce when [Sergeant

Palmer] told him that [he] believed his order violated a federal court

order.” Palmer – Direct 4/21/15, p. 180:19-21.

o. “[T]he sheriff, eventually, when [Sergeant Palmer] wasn’t giving

ground, . . . backed down and instructed [Palmer] to just provide him

with photographs of those three to five individuals.” Palmer – Direct

4/21/15, p. 181:5-8.

p. He did not want to be in an argument with the sheriff, and

“instruct[ed] the detention officer to take the photographs.” Palmer –

Direct 4/21/15, p. 181:13-17.

V. DAMAGES

A. Plaintiff’s Request

Plaintiff’s Memorandum of Law and Facts Re Contempt Proceedings and Request

for Order to Show Cause requests that “individuals who have been detained in violation of

the Court’s preliminary injunction should be compensated for their unconstitutional

detention in violation of this Court’s preliminary injunction order in an amount



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commensurate to the length of his or her detention and any other facts particular to the

harm suffered.” Doc. 843, p. 19. Plaintiffs indicated that they “intend to submit detailed

request for damages after identifying such individuals in investigating the extent of the

harms they have suffered.” Doc. 843, p. 20.

Plaintiffs also requested compensation to the plaintiff class as a whole for having

“to spend 18 months living in fear that they would be unlawfully seized by Defendants and

further damaged the relationship between a look at community and the MCSO.”

B. Plaintiffs Did Not Present Testimony from Any Class Member During the

Course of the Evidentiary Hearing

Plaintiffs did not present any testimony at the evidentiary hearing regarding any

potential class member having lived in fear that they would be unlawfully seized.

C. The Threat of Future Harm Not Yet Realized in Sufficient

“The threat of future harm, not yet realized, is not enough.” Prosser and Keeton on

the Law of Torts § 30 at 165 (5th ed. 1984), see also Rose v. Sierra Vista, 2015 U.S. Dist.

Lexis 150463 (Ariz. 2015) (“Transitory physical phenomena, such as crying, nightmares,

insomnia, and headaches, that are themselves inconsequential and do not result in

substantial bodily harm, cannot support a claim for negligent infliction of emotional

distress.”), Price v. Town of Dewey-Humboldt , 2012 U.S. Dist. Lexis 87995 (Ariz. 2012)

(“Psychosomatic symptoms that present only ‘transitory physical phenomena’ are not the

type of bodily harm which would sustain a cause of action for emotional distress.”),

Lombardi v. Copper Canyon Academy, LLC, 2010 U.S. Dist. Lexis 100196 (Ariz. 2010)

(“Ms. Lombardi alleges that Defendants' conduct caused her, inter alia, anxiety, pain and

suffering, and depression. In Arizona, short-lived physical manifestations do not

sufficiently constitute physical injury for purposes of a NIED claim.”).

D. Proximate Cause

In order to recover damages, the contempt must have been the proximate result of

Plaintiffs’ damages. See e.g. Yanish v. Barber , 232 F.2d 939, 947 (9th Cir. 1956) (“The petitioner

entirely failed to carry the burden of proof to show that he suffered damages which were the



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proximate result of the violation of the letter of the order”), and Stearns-Roger Corp. v. Local

1182, 1971 U.S. Dist. LEXIS 13150, (Ariz. 1971) (“Plaintiff is entitled to remedial damages

proven and established as the proximate result of the contumacious conduct of the defendants”).

E. Mitigation of Damages

A plaintiff has a duty to use reasonable efforts to mitigate damages. See Ninth Circuit

Manual of Model Jury Instructions Civil, 5.3 Damages – Mitigation, see also, Meyers v.

City of Cincinnati, 14 F.3d 1115, 1119 (6th

Cir. 1994) (plaintiff in a 42 U.S.C. 1983 action

“has a duty to mitigate damages”).

F. Plaintiff’s Damage “Evidence”

Plaintiff’s Request identified four potential detentions in violation of the order:

1. September 20, 2012 - Two individuals were detained that were not charged

with any crime and transferred to ICE. Doc. 843, p. 5.

a. Technically the foregoing is not evidence.

2. September 26, 2012 – Two individuals were detained that were not charged

with any crime and transported to Border Patrol. Doc. 843, p. 6 – 7.


3. October 8, 2012 – One individual detained without being charged with any

crime and transported to Border Patrol.


4. November 1, 2012 – Unknown number of persons detained. Doc. 843, p. 8.


5. Ex. 207 indicates that 14 individuals were transported to ICE between

12/23/11 – 12/31/11, i.e. after the Court’s Order.

6. Ex. 208 indicates that 97 individuals were transported to ICE between 1/1/12

– 12/31/12.

a. Exhibit 208 indicates that between 1/1/12 and 7/24/12 approximately

39 individuals were transported to ICE. The exhibit sticker covers the

column depicting the number of persons transported to ICE between



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3/29/12 – 4/9/12. Consequently, the number of persons is

approximate.

7. Ex. 209 indicates that 60 individuals were transported to ICE between 1/1/13

– 12/31/13.

a. Chief Sands retired 7/31/13. Ex. 209 suggest that 54 individuals were

turned over to ICE between 1/1/13 – 7/31/13.

b. Plaintiffs learned that MCSO was detaining people and transporting

them to ICE on July 24, 2012. Trail Transcript, Arpaio, July 24,

2012, p. 502:14 – 503:2.

8. This Court’s November 18, 2015 Order (Doc. 1566) indicates that HSU

interdiction patrols detained and turned over to ICE 171 individuals for

whom it had no state charges but whom it suspected of being in the country

without authorization. This figure corresponds with the figures set forth in

exhibits 207, 208 and 209.

G. Response to Court’s Inquiries

This Court’s Order (Doc. 1566) requested that the parties:

1. Highlight any testimony or exhibits that demonstrate the number of persons

that may have been impacted by MCSO’s violation of the order and the

different ways in which they may have been impacted.

a. As indicated above, Chief Sands is aware of exhibits 207, 208 and

209 which identify persons allegedly detained without state criminal

charges and transferred to ICE.

2. Why the identity of such individuals and the harm to them may or may not

be ascertainable.

a. Chief Sands is not aware of the identity of the individuals or the harm

H. Civil Contempt Damages Provide An Adequate Remedy

To the extent the court determines that Chief Sands “failed to take reasonable steps

to communicate the injunction to the appropriate individuals within MCSO” compensatory



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damages provides an adequate remedy to any persons harmed by such a failure.

Chief Sands would submit that any such damages should be limited to the

approximately 53 persons that were transported to ICE between 12/23/11 (Order) and

7/24/11 (date that Plaintiffs learned that the LEAR policy was in effect).

VI. CONCLUSION

In light of the foregoing points and authorities, Chief Sands respectfully requests

that the Court find:

1. Find that he took all reasonable steps to communicate the Court’s 12/23/11

Order to the appropriate individuals within MCSO, and therefore, civil

contempt sanctions are not warranted.

2. Find that there is no evidence that he willfully disobeyed the Court’s

12/23/11 Order.

RESPECTFULLY SUBMITTED November 20, 2015.

LEWIS BRISBOIS BISGAARD & SMITHLLP

By/s/ M. Craig Murdy

M. Craig MurdyDane A. DoddAttorne s for Brian Sands

CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2015, I electronically transmitted theforegoing RESPONDENT BRIAN SANDS’ MEMORANDUM REGARDINGORDER TO SHOW CAUSE CLOSING ARGUMENT to the Clerk’s office using the

Court’s CM/ECF System, and thereby served all counsel of record in this matter.

/s/ Kathleen Biondolillo


melendres # 1573 | sands memo

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