melendres # 795 | d.ariz. 2-07-cv-02513 795 order w report attached

8/9/2019 Melendres # 795 | D.ariz. 2-07-Cv-02513 795 ORDER w Report Attached

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Melendres, et al.,

Plaintiffs,

v.

Maricopa, County of, et al.,

Defendants.

No. CV-07-02513-PHX-GMS ORDER

Pending before this Court are Defendants’ (1) Application to Withdraw as Counse

of Record for Defendants (Doc. 773) and (2) Request to Redact the Monitor Report, the

Brief and Response to which have been filed under seal. (Docs. 784, 791.) After

considering such matters in briefing and at oral argument the Court further perceives the

need to set forth specifications for further proceedings under its order. The Court

therefore determines as follows.

I. BACKGROUND

Approximately one year after the Court entered its Findings of Fact and

Conclusions of Law (Doc. 579), and seven months after it entered its Supplemental

Injunction (Doc. 606), it was informed by Defendants that MCSO had assumed the

investigation of Deputy Charley Armendariz from the Phoenix Police Department

Armendariz was an MCSO deputy who was assigned to the Human Smuggling Unit

(HSU). He testified at the underlying trial and his arrest statistics were admitted into

evidence and proved relevant to the outcome for Plaintiffs. Armendariz was also

personally implicated by some of the specific allegations made by two representatives of

Case 2:07-cv-02513-GMS Document 795 Filed 11/20/14 Page 1 of 21


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the Plaintiff class.

After MCSO’s criminal investigation into Deputy Armendariz began, MCSO

obtained a search warrant for his home. During their execution of the search warrant

MCSO discovered significant quantities of illegal drugs as well as hundreds of personalitems belonging to unknown individuals—including credit cards, drivers licenses

Mexican identification cards, and other personal property. Many of these items

potentially belonged to members of the Plaintiff class. Officers also discovered

numerous video recordings, apparently going back several years, of traffic stops

Armendariz had made while on patrol with a camera mounted in his eyeglasses. The

video from that eyeglass camera also revealed that a camera was mounted on the

dashboard of his patrol vehicle. Deputy Armendariz was arrested, and after he failed to

report to probation the following week officers discovered Armendariz’s body in his

home after an apparent suicide.

MCSO reviewed a few of Armendariz’s videotaped stops prior to the hearing with

the Court on May 14, 2014 and determined that, in a number of them, Deputy

Armendariz engaged in what MCSO classified as problematic behavior—e.g. behavior

that was contrary to departmental policy, the law, the constitutional rights of those he

stopped, or otherwise in violation of this Court’s orders. Further, MCSO determined that

other officers, and at least one supervisor of Deputy Armendariz who also testified at the

trial in this action, were present during one or more problematic stops.

Upon questioning by the Court at the hearing, Chief Deputy Sheridan

acknowledged that there was no departmental policy that prevented deputies from

videotaping their own traffic stops and that there was reason to believe that some deputies

did so. Further many, if not all, deputies made audio recordings of their traffic stops pursuant to departmental practice and had done so for some time, and there were other

video devices, both dashboard and body-mounted, that had been used by MCSO. There

was no procedure by which such recordings were collected and catalogued by the MCSO

No such materials had been provided to Plaintiffs, although Plaintiffs avowed that they



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asked for such materials prior to trial.

This Court’s supplemental injunctive order (Doc. 606) was fashioned to a great

extent with the participation of the parties, both by brief and at the Status Conference

held on August 30, 2013. The Supplemental Injunction was based upon the factualdeterminations made at trial concerning both specific instances of past MCSO operations

that ran afoul of the Constitution, as well as the general policies and practices in place

within MCSO that required systematic correction to cure the ongoing deprivation of the

constitutional rights of the Plaintiff class. These flawed practices included erroneous

police training, MCSO’s failure to adequately supervise rank-and-file officers, and other

deficits. The measure of the Court’s injunctive relief, however, was necessarily based on

the evidence admitted at trial of these various shortcomings. Thus, if there was not

sufficient evidence of system-wide deficiencies on the part of the MCSO admitted at trial

the Court did not enter remedies to the extent requested by the Plaintiff class. (See, e.g.

Doc. 603 at 89–91 (declining to incorporate into the Supplemental Order Plaintiffs’

suggestions regarding the inadequacy of MCSO’s existing internal investigative practices

due to the lack of evidence presented at trial on that issue).)

The matters raised by the Armendariz materials implicated a number of different

concerns for the Court:

1. In light of the property found in the possession of Deputy Armendariz

some of which apparently came from members of the Plaintiff class, and the generalized

allegations he made, the Plaintiff class may have had their constitutional rights

systematically deprived by the MCSO and the HSU in ways in addition to those

previously identified by the Court.

2. The failure of MCSO to produce the materials properly requested byPlaintiffs, and which the MCSO was under an obligation to provide, may have denied

Plaintiffs the opportunity to present such evidence at the original trial.

3. Because of MCSO’s apparent failure to proffer such materials at an earlier

juncture, many pieces of evidence that may once have been available and highly relevant



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to the Plaintiffs’ rights to relief may have since been destroyed.

4. The Plaintiffs may have also been precluded from presenting evidence

related to deficiencies in MCSO’s investigation of complaints against deputies, the

adequacy of employee supervision within MCSO and the HSU specifically, and theoverall sufficiency of the internal investigation process within MCSO, as revealed by the

Armendariz materials and their sequelae.

5. Evidence kept from Plaintiffs may have hampered Plaintiffs’ ability to

impeach the testimony of various MCSO witnesses. Such evidence now may suggest tha

some witnesses were untruthful on the witness stand or in pretrial discovery processes.

6. This evidence and impeachable testimony, if admitted at the trial of this

matter, could have resulted in a significantly expanded scope of injunctive relief entered

by this Court.1

7. To the extent that officers had recorded problematic behavior, and MCSO

had no policy regarding the collection or maintenance of these recordings, there was a

substantial risk of which MCSO should have been aware that officers might destroy

existing recordings rather than surrender them to the MCSO once they understood they

were being gathered in light of the Armendariz videotapes.

1 In making this observation the Court observes that, among other things, before trial in

this matter, Plaintiffs established that Defendants had destroyed other documents that

may have pertained to whether Defendants were violating the constitutional rights of the

Plaintiff class. (Doc. 493.) Plaintiffs nevertheless succeeded at trail in establishing that

the Defendants were violating their constitutional rights without recourse to the

evidentiary inferences that such destruction might have permitted. Plaintiffs also proved

at trial that at least some MCSO deputies were violating the preliminary injunction

entered by this Court on December 23, 2011. (Doc. 494.) Further, as they have

acknowledged, after this Court made findings of fact and conclusions of law, both Sheriff

Arpaio Chief Deputy Sheridan and Chief Trombi mischaracterized this Court’s findingsand subsequent Orders to MCSO deputies and to the public. Despite MCSO’s

compliance with some of the Orders of the Court, the above occurrences do not inspire

confidence in the MCSO’s willingness to comply with its legal obligations or with this

Court’s Orders.



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At the May 14, 2014 hearing in which the MCSO presented the Court with the

Armendariz material, the Court was concerned with how best to ensure the rapid and

department-wide retrieval of all outstanding, relevant recordings made by officers that

might still be in existence. The Court thus sealed the hearing and ordered that itssubstance was not to be shared with those outside the Courtroom. (Doc. 700 at 39–40,

69.) The Court further noted that MCSO was to immediately formulate and obtain the

Monitor’s approval of a plan designed to quietly retrieve such recordings from its officers

and employees. ( Id. at 25–27.) Approximately two hours later, the Monitor then held a

lengthy meeting with the higher officials of MCSO and members of the monitoring team

in which an investigative course of action was agreed upon. Immediately after that

meeting, however, Chief Deputy Jerry Sheridan informed the Monitor that between the

hearing in the morning and the meeting with the Monitor in the early afternoon, he and

Sheriff Joseph Arpaio had met with MCSO’s lawyers. At some point, Chief David

Trombi was called into the meeting and instructed to send an e-mail to all Departmental

Commanders, including the supervisor who had been present during one of Armendariz’s

problematic stops, to advise them that they should collect all such recordings from their

personnel. This department-wide email compromised the plan arrived at by MCSO and

the Monitor for collecting such recordings. Neither the Sheriff nor Chief Deputy Sheridan

informed the Monitor during their meeting that MCSO had already subverted the plan at

which they subsequently arrived. As a result, the hearings related to the Armendariz

recordings were taken out from under seal, as there was no longer any reason to suppose

that deputies would not be warned in advance that the MCSO was collecting such

recordings. Following this, MCSO conducted a survey-approach of its present and past

employees to collect any outstanding recordings.During this same period, MCSO also uncovered and disclosed the existence of

systematic recordings undertaken by HSU and recordings made at the apparent direction

of other MCSO departments. There was also evidence that recordings were made during

the relevant period and that are apparently no longer in existence. Apparently at least



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some of these recordings were requested by Plaintiffs in pre-trial discovery, but were not

provided to Plaintiffs prior to trial.

MCSO began an internal criminal and administrative investigation into HSU,

triggered both by the Armendariz evidence and by the allegations of Deputy CiscoPerez—a former MCSO deputy who had been dismissed for misconduct. The

administrative investigations were placed on hold while the HSU criminal investigation

proceeded. Experienced members of the Monitor team observed the interna

investigations, provided questions for both the criminal investigation and the

administrative investigation when it recommenced, and offered suggestions as to various

areas of inquiry.

When the Monitor was informed that MCSO had completed and closed the

criminal investigation into HSU, it prepared an initial evaluative report for the Court on

which both parties were allowed to comment. The Report found the conduct of two of the

assigned investigators, Lieutenant Seagraves and Sergeant Fax, satisfactory and even

praiseworthy. Lieutenant Seagraves was assigned to investigate the cause of Deputy

Armendariz’s death. Sergeant Fax was assigned to compile the complaints and other

issues surrounding Deputy Armendariz’s service within the MCSO.

In addition to the satisfactory work of Lieutenant Seagraves and Sergeant Fax in

their limited roles, however, the Report also found a great number of deficiencies in the

investigation of alleged misconduct of HSU deputies generally. These investigations

were conducted by other department personnel. The Report determined that in this

investigation the MCSO employed deficient investigative tactics, suffered from serious

irregularities in departmental processes as it related to persons under investigations, and

suffered from potential conflicts of interest. During the process of responding to thereport, MCSO identified under seal (and with more specificity than it previously had)

pending administrative investigations and their identified targets that were spawned by

the two investigations.

The Court then held a status hearing on October 28, 2014 to evaluate the adequacy



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of MCSO’s self-investigation. The part of the hearing that related to the ongoing

administrative investigations identified by Defendants was held under seal. During the

public portion of the hearing the Court expressed its concern that the internal crimina

investigation conducted by MCSO’s Professional Standards Bureau (PSB) wasinadequate and prematurely closed. Since the hearing, additional evidence has come to

light further demonstrating the inadequacy of that investigation.

In addition, the Court questioned the Defendants’ assertion of privilege to attempt

to justify their countermand of the Court’s mandate regarding the collection of recordings

made by officers that had previously been uncollected by the MCSO. At the hearing, and

in the briefing that preceded it, MCSO defended the instructions to Chief Trombi to

broadcast their collection efforts to all departmental commanders, even though such

instructions violated the direct order of this Court, by claiming that the original plan was

inconsistent with protections offered to MCSO employees by Title 38 of the Arizona

Revised Statutes. Defendants further represented that MCSO will continue to resist the

Monitor’s directives to the extent that they are inconsistent with such “rights.” See Ariz

Rev. Stat. § 38-1101.

After the October 28 hearing, significant additional materials responsive to both

Plaintiff’s pretrial discovery requests, and apparently relevant to the criminal

investigation closed by Defendants was discovered and subsequently revealed to this

Court.

The failures to follow the Court’s directives, the substantive inadequacies of many

of the MCSO’s internal investigations, the narrowness of the scope of the continuing

administrative investigations noticed by the MCSO, and the subsequent materials found

after the closure of the MCSO internal criminal investigation are troubling for the CourtIn addition to the concerns set forth above, the matters above suggest that Defendants

and/or some of their employees may continue to be engaged in efforts to frustrate the

implementation of this Court’s Orders, and may in fact be using the internal investigative

processes to conceal widespread departmental misconduct, as alleged at least in part by



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Deputies Armendariz and Perez, that occurred during the periods relevant to this lawsuit

and this Court’s subsequent Orders. The statements previously made by Deputies

Armendariz and Perez substantiate these suspicions in part. Accordingly, the Court

makes the following rulings regarding MCSO’s redaction request, and issues thefollowing clarification of the Monitor’s independent authority to investigate under its

previous orders.

II. PRIVILEGE

As this Court has previously articulated, MCSO’s assertions of statutory and

common law privileges over its evidence-collection and investigative efforts are largely

without colorable merit.

Issues of privilege in federal question cases are determined by federal law. Fed. R

Evid. 501; Lewis v. United States, 517 F.2d 236, 237 (9th Cir. 1975). The privilege and

personal privacy doctrines embodied in state statutes and constitutions may warran

consideration by this Court for reasons of logic and comity, but they are not controlling

Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976); Kerr v

U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198–99 (9th Cir. 1975). Federal courts

adopt new evidentiary privileges only to the very limited extent they “promote[]

sufficiently important interests to outweigh the need for probative evidence.” Univ. of Pa

v. E.E.O.C., 493 U.S. 182, 189 (1990) (quoting Trammel v. United States, 445 U.S. 40

51 (1980)). A “strong presumption in favor of access” is the starting point for any

privilege analysis, which can be overcome only if the party seeking to seal a judicia

record establishes “compelling reasons, supported by specific factual findings,” for the

application of the asserted privilege. Kamakana v. City & Cnty. of Honolulu, 447 F.3d

1172, 1178–79 (9th Cir. 2006). Moreover, courts “strictly construe” the rules governingclaims of privilege. Trammel, 445 U.S. at 50.

Federal civil rights cases brought against state and local law enforcement

crystallize the tension between the confidentiality interests reflected in the privilege rules

and the overarching truth-seeking principles that demand open access to judicial records



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in the administration of justice. Cf. Kamakana, 447 F.3d at 1178. Federal statutes that

empower plaintiffs to check abuses of power by state governments would be impotent if

“state authorities could effectively insulate themselves from constitutional norms simply

by developing privilege doctrines” that frustrate plaintiffs’ ability “to develop the kind ofinformation they need to prosecute their federal claims.” Kelly v. City of San Jose, 114

F.R.D. 653, 656 (N.D. Cal. 1987). Nevertheless, the court’s calculus must also

accommodate the legitimate risk that law-enforcement interests might be compromised

by the disclosure of certain kinds of sensitive information to the general public.

It is against this backdrop that the Court considers the applicability of the

identified privileges to portions of the Monitor’s Report dated September 28, 2014, as

well as the argument Defendants advanced during the October 28, 2014 Status

Conference that Arizona law justified their subversion in advance of the agreed-upon

course of action in retrieving audio and video recordings by rank-and-file officers. The

Report was made pursuant to the Monitor’s obligations under the Supplemental

Permanent Injunction (Doc. 606) to provide an update and assessment to the Court on the

sufficiency of ongoing MCSO investigations. Defendants’ primary justification for the

requested redactions of the Report is section 38-1101 of the Arizona Revised Statutes

which gives rise to limited protections for a statutorily-defined “law enforcement officer”

when he or she is being questioned by his or her “employer” and the officer or “the

employer reasonably believes the investigation could result in a dismissal, demotion, or

suspension.” Id. § 38-1101(A). Section 38-1101(L) also creates a narrow exception to

information in an officer’s personnel file that otherwise must be available for public

inspection.

The Court rejects Defendants’ overly broad use of section 38-1101 for threereasons. First, nothing in the language of the Arizona Revised Statutes lends itself to the

conclusion that section 38-1101 creates a civil litigation privilege that could be invoked

in the face of Court-ordered disclosure requirements. In other instances in which a state

statute creates litigation privileges, it does so explicitly. See Ariz. Rev. Stat. §§ 12-2232–



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2235. In contrast, the plain language of section 38-1101 merely sets forth procedural

rights conferred on state law enforcement officers facing administrative inquiries, such as

limitations on what portions of the officers’ personnel files are publically accessible

during the investigation. Compare id. § 38-1101 with id. § 39-121 (requiring that publicrecords be open for inspection by “any person” “at all times”). Apart from the Minute

Entry cited to by Defendants (Doc. 783, Ex. B), which is from a state Superior Court and

is, at any rate, not binding on this Court for the reasons set forth above, the Court has

found no Arizona case holding that section 38-1101 creates the kind of privilege

Defendants assert. Given that privilege rules are strictly construed, see Trammel, 445

U.S. at 50, the Court declines to adopt Defendants’ construction of Title 38.

Second, the narrow provision relied upon by Defendants (specifically, sub-section

(L)) does not excuse Defendants’ deviation from the Orders of this Court. Defendants

have indicated that MCSO had no policy prohibiting an officer from self-recording a

traffic stop, and, in fact, issued audio and video equipment to officers and directives to

record such stops. As such, neither MCSO nor its employees had a reasonable basis for

believing that the collection and inventory of these recordings would result in an

employee’s “dismissal, demotion, or suspension.” Ariz. Rev. Stat. § 38-1101(A)

Moreover, section 38-1101(C) states that employers need not “[d]isclose any fact to the

law enforcement officer . . . that would impede the investigation,” and section 38-

1101(D)(2) further exempts employers from the process requirements of sub-section (A)

when engaging in “[p]reliminary questioning to determine the scope of the allegations or

if an investigation is necessary.” Thus, even section 38-1101, by its own terms, reflects a

legislative prioritization of efficacy and integrity in internal investigations over some of

its enumerated process rights. MCSO’s insistence that section 38-1101 mandated that itinform officers of its retrieval efforts prior to recovering the recordings is without merit.

Third, this action was instituted in federal court pursuant to a federal statute;

accordingly, it is federal law—not Arizona law—that governs the existence and scope of

an asserted privilege. See Kerr , 511 F.2d at 197. The Arizona legislature’s choice to



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create some statutory protection may inform the calculus this Court employs to determine

questions of privilege in federal question cases, but it is not determinative. There is no

reason state officials who violate federal laws should receive preferential treatment in

asserting privileges based on their state of residency. To conclude otherwise wouldundermine two major federal policies: ensuring the vigorous enforcement of civil rights

statutes against persons who violate the Constitution under the color of state law, and

maintaining the broadest scope of access to relevant evidence in civil litigation.

In spite of the foregoing, the Court recognizes that full public disclosure of the

record is often injudicious and may even threaten Defendants’ ability to observe the

Orders of this Court. In instances like this in which discretion may be warranted, the

party seeking to seal the record must, by Motion, set forth compelling reasons for

withholding particular pieces of information from the public. Kamakana, 447 F.3d at

1178–79. In determining whether to seal the challenged materials, the Court will consider

all relevant factors including, on the one hand, the public’s history of access and the civic

interest in judicial oversight, accountability, and overall understanding of the judicial

process, and, on the other, the likelihood that disclosure would result in “improper use of

the material for scandalous or libelous purposes” or infringe on the needs of law

enforcement officials. See id. at 1179; Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d

1122, 1134–35 (9th Cir. 2003). Invoking a general category of privilege, without further

elaboration or specific linkage with particular evidence, is insufficient to satisfy the

compelling reasons standard. See Kamakana, 447 F.3d at 1184. Nor will hypothetical

harms to law enforcement interests, or the potential that disclosure would expose a party

to “embarrassment, incrimination, or . . . further litigation,” compel the Court to seal its

records. Id.Despite this Court’s earlier Order that Defendants articulate compelling reasons

for redacting the Monitor’s Report, Defendants still insist that a showing of “good cause”

suffices. The Ninth Circuit has identified two exceptions to the compelling reasons

standard, neither of which applies here. First, the standard of review is relaxed for



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documents that have traditionally been kept secret for important policy reasons. Id. The

class of materials covered by this exception is small: it extends only to those documents

for which there is “neither a history of access nor an important public need justifying

access.” Id. (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir1989)). Courts have found only two types of records to fall within this category: grand

jury transcripts and pre-indictment warrant materials. Id. The Kamakana court

emphasized that documents are not sealed on the grounds that they are traditionally kept

secret “simply because such documents are usually or often deemed confidential,” and it

rejected the argument that “documents subject to the privacy, law enforcement, and

official information privileges” automatically merit this exception. Id. at 1185. In other

words, while federal common law does recognize these qualified privileges, see Sanchez

v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), litigants must still satisfy

the compelling reasons test in demonstrating that the potential disadvantages of

disclosure outweigh the potential benefits.

A second exception to the compelling reasons standard exists for materials

“unrelated, or only tangentially related, to the underlying cause of action.” Foltz, 331

F.3d at 1135. Specifically, in drawing this distinction, the Ninth Circuit concluded that a

“particularized showing” of “good cause” suffices to preserve the secrecy of documents

attached to non-dispositive motions that are already the subject of a protective order, such

as private materials unearthed during discovery. Id.

Although the Monitor’s Report was not filed in connection with a dispositive

motion, it is a court-ordered compliance report that not only constitutes one of the court-

required remedies in this case, but also springs from allegations that are directly relevant

to the underlying causes of action and the Defendants’ failure to comply with itsdiscovery obligations. Accordingly, under the reasoning of Kamakana, the presumption

of access attaches to the Report unless Defendants can establish compelling reasons for

its sealing. See Rocky Mountain Bank v. Google, Inc., 428 Fed. Appx. 690, 692, 2001

WL 145832 (9th Cir. Apr. 15, 2011) (concluding that a compliance report lodged with



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the district court was a “quintessential judicial document” and that “[a]bsent some further

determination, the public would be entitled to access to” it).

While Defendants identified the redactions they seek by page number, they have

not provided similarly specific explanations to justify the redactions. See Kamakana, 447F.3d at 1183–84. Instead, Defendants offer only generalized reasons for withholding

categories of information from the public, such as that disclosure “threatens both the

integrity and effectiveness of such investigations” and that the information for which

redaction is sought “fall[s] squarely within the domain protected by the constitutional

right to informational privacy.” This is precisely the type of justification the court

rejected in Kamakana. Id. at 1184 (“Simply mentioning a general category of privilege

without any further elaboration or any specific linkage with the documents, does not

satisfy the burden.”). Accordingly, the Court finds that Defendants have not demonstrated

compelling reasons to redact the following items in the record.2

A. References to the Status of the Armendariz Investigation

Defendants have proposed redactions to several generic references to forensic

examinations being conducted on Armendariz’s personal computer and cell phone, but

have not specified how their investigations would be affected by the publication of this

information. Defendants also object to the Monitor’s description of a timeline of

Armendariz’s employment history—including citizen complaints, internal investigations

and other incidents—that was constructed by a sergeant within MCSO. Incongruously,

Defendants do not request redaction of the timeline itself, which is also published in the

Report. In any case, as the Kamakana court made clear, blanket claims of harm to law

enforcement interests do not constitute “compelling reasons” to keep information out of

the public record. See 447 F.3d at 1185. Without more, redaction is unmerited.

2 An appropriately redacted version of the Monitor’s Report has, thus, been made

available, withholding only those portions for which compelling reasons favor non-disclosure.



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B. Statements by Armendariz Relating to Property and Evidence

Mishandling by HSU

Defendants have proposed to redact statements made by Deputy Armendariz

during a criminal interview that “it was common for other members of HSU to leave

items like identifications laying around the office” and that a “Detention Officer would

just gather them up and take them up to his house and put them in the garage.” (Monitor’s

Report at 18–19.) Defendants offer only that disclosure of this information would

undermine the effectiveness of their ongoing investigations. Nevertheless, information

regarding Armendariz and possible evidence mishandling by HSU is already widely

known, has been discussed in hearings open to the public, and has been reported on by

the media. See Kamakana, 447 F.3d at 1184 (concluding that sealing documents wasunwarranted where the information sought to be redacted was already publicly available)

Moreover, the property discovered at Armendariz’s residence is discussed elsewhere in

the Monitor’s Report without redaction. (See Monitor’s Report at 18.) Although

Defendants also contend that disclosing this information would “contravene the purpose”

of section 38-1101(L), the proposed redactions do not implicate any identifiable law

enforcement officers other than the deceased Armendariz. Again, such undifferentiated

statements do not establish compelling reasons to seal the record.

C. Information Concerning Armendariz’s Mental Health Records

The Monitor’s Report contains several mentions of Armendariz’s voluntary

entrance into and subsequent release from a Behavioral Treatment Center, at which time

he was deemed “fit for duty.” The reasons given in support of these redactions are

grounded in the personal privacy rights of Deputy Armendariz. The Court concludes

these do not constitute compelling justification for withholding these statements.

Individuals have a constitutional right to privacy in avoiding disclosure of

personal matters, which extends to medical information. Whalen v. Roe, 429 U.S. 589

599 (1977); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir

1998). However, this right is conditional, and subject to limited impairment if properly



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justified. Whalen, 429 U.S. at 602. Like all qualified privileges, the individual’s right to

privacy in this regard must be balanced against the public’s interest in disclosure. Carlson

v. Pima Cnty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984); see also Scottsdale

Unified Sch. Dist. No. 48 of Maricopa Cnty. v. KPNX Broad. Co., 191 Ariz. 297, 302955 P.2d 534, 539 (1998).

With respect to Armendariz’s history of mental health and substance abuse

problems, several factors weigh in favor of disclosure. First, Defendants have cited no

cases establishing that an employer can invoke a deceased employee’s right to privacy to

withhold information in litigation. To the extent that the right to privacy exists for this

sort of information, the privilege is intended for Armendariz’s benefit alone and is

personal to him. Furthermore, Armendariz’s mental health and suicide are already a

matter of public record. While an individual’s right to privacy in information does not

vanish merely because the information may be available through some other public

source, the expectation of privacy in it is certainly diminished. See Scottsdale Unified

191 Ariz. at 303, 955 P.2d at 540. Finally, and most importantly, the information bears on

several important issues in this case: Armendariz was a witness at the initial trial, and a

participant in many of the activities that gave rise to Plaintiffs’ claims. Further, his

competency as an officer and his performance before and after trial and this Court’s

Orders relate directly to both the underlying police practices that gave rise to this

litigation and the quality of supervision within MCSO. Because public policy supports

disclosure and Defendants have not demonstrated that withholding this information is

justifiable, the redactions are rejected.

D. Non-specific Information Regarding Ongoing Investigations

Defendants have also requested that generic references to the existence of ongoinginvestigations be redacted, such as the phrases “two lieutenants, two sergeants, and 4

detectives,” “to do what he referred to as ‘thematic’ interviews,” “supervisory

investigation,” and “the ‘property’ investigation,” among other things. Again, Defendants

have not explained how their investigations will be in any way impeded by the release of



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this information, and the request for redaction is denied.

E. Other Proposed Redactions for Which No Justification Is Offered.

Defendants have proposed redactions to several other sentences on page nineteen

of the Monitor’s Report but do not offer any explanation for why redaction is warranted.Because Defendants’ have made no effort to comply with Kamakana, those portions of

the Report will not be sealed.

III. ORDERS CONCERNING ONGOING INVESTIGATIONS

It is obviously one of the fundamental goals of the supplementary injunctive relief

to bring MCSO’s regular PSB operations up to the standard required to ensure that the

Constitutional rights of the members of the Plaintiff class are guaranteed by MCSO going

forward. In satisfaction of its injunctive obligations, MCSO must both investigate past

and potential ongoing violations by MCSO officers and their supervisors and also

evaluate the adequacy of their investigations. ( Id. at 44–45.) This applies both to routine

PSB operations, and to PSB investigations like this one that are directly related to the

underlying case involving alleged widespread MCSO misconduct. MCSO has admitted—

indeed, insisted—on numerous occasions that it understood its responsibilities under this

Court’s Orders to undertake investigations where appropriate and to generally cooperate

with the appointed Monitor in doing so. (See, e.g., Doc. 700 at 38, 62.)

The Monitor is under a duty from this Court to certify when the MCSO’s internal

investigation procedures render it in full and effective compliance with the requirements

of the injunction, which carries with it the concomitant responsibility to evaluate the

extent to which individual investigations comply with the Order. For example, under the

Supplemental Injunction the Monitor is specifically tasked with “evaluating the

effectiveness of the MCSO’s changes in the areas of supervision and oversight andreporting the same to the parties and the Court;” with “reviewing the corrective action

taken by the MCSO concerning any possible violations of this Order or MCSO policy

and procedures and reporting the same to the parties and the Court;” and with

“assess[ing] and report[ing] on the Defendants’ implementation of this Order, ” in



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addition to appraising MCSO’s compliance with the Order generally. ( Id. at 47, 50.) The

Order also provides that the “Monitor may make additional recommendations to the

Parties regarding measures necessary to ensure timely, Full and Effective Compliance

with this Order and its underlying objectives.” ( Id. at 54.)In making such assessments, cases like the present one—which provide the MCSO

with both significant allegations of departmental misconduct and significant motivation

to obfuscate the truth to avoid embarrassment—public exposure should the allegations

prove true in whole or in part, provide the Monitor with a unique opportunity to assess

MCSO’s willingness to implement an appropriate investigation and make appropriate

determinations in cases in which it might have significant impulse to do otherwise. An

adequate internal affairs division must be willing to engage in thorough examination and

in appropriate cases, agency exposure to discipline and painful public accountability. Of

course, to make an appropriate assessment of whether MCSO’s PSB is so acting, the

Monitor must necessarily have complete access to Defendants’ internal affairs

investigations. This includes familiarity with the manner in which MCSO pursues an

investigation—be it criminal or administrative in nature—the investigation’s initial and

continuing scope in light of the information the investigation uncovers, the performance

of the investigators, and the kind of discipline—if any—ultimately imposed at its

conclusion.

To protect that information gathered by MCSO in internal administrative

processes that are adequately conducted from being publicly disclosed contrary to

relevant state law or policy, or from being drawn upon by the Monitor in whatever other

independent investigations he or the Court deems necessary to implement, the Monitor

shall implement the following procedure:1. The Monitor shall assign two or more dedicated members of the

Monitoring team who shall be specifically identified to all parties as such (hereafter “IA

Monitors”).

2. These IA Monitors will continue to oversee MCSO internal investigations



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and are to evaluate, educate, assist, and provide investigative suggestions and/or

suggested appropriate investigate subjects and targets to MCSO.

3. The IA Monitors shall be walled off from other members of the Monitoring

team, and, with the exception of the Monitor or either of the two Deputy Monitors, andthis Court, the IA Monitors shall not share with anyone the information obtained through

any PSB investigation or MCSO personnel file. Nor, except as set forth in Clause 8

below, shall the IA Monitors play any role in any independent investigation conducted by

the Monitor. Nothing in this Order prevents the Monitor from communicating any

information to the Court.

4. To the extent that the IA Monitors suggest possible subjects and targets for

internal investigation to the MCSO that are related to the MCSO’s compliance with this

Court’s Orders, the subject matter of this lawsuit, or investigations related to or arising

from the allegations of Deputies Armendariz and Perez, such suggestions shall be in a

dated writing or electronic format submitted to the Captain of PSB and to the Monitor

and his Deputy Monitors.

5. When MCSO undertakes a new investigation that relates to (a) the MCSO’s

compliance with its discovery and/or disclosure obligations in this case, (b) the MCSO’s

compliance with the resulting orders of the Court in this case, or, (c), any criminal or

administrative investigations arising from or related to the Armendariz or Perez

investigations, it is ordered to lodge under seal with the Court and to provide the Monitor

written notice specifically identifying the subjects and targets under inquiry and

specifically referencing the administrative number assigned to the investigation.

Moreover, Defendants are to update the Court, through lodging a document under seal

and the Monitor by a separate writing when new subjects are added as targets of anexisting investigation. The Monitor, Deputy Monitor or IA Monitors may have access to

such information but may not disclose it to the public or other members of the Monitor

team without the authorization of the Court. The MCSO will similarly inform the Court

when it closes such an investigation without action, when it closes an investigation with



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powers are necessary to remedy [these] violations because they are charged with

protecting these rights.” Stone v. City & Cnty. of S.F., 968 F.2d 850, 861 (9th Cir. 1992)

To this end, “federal courts are not reduced to issuing injunctions against state officers

and hoping for compliance. Once issued, an injunction may be enforced.” Hutto vFinney, 437 U.S. 678, 690 (1978). The Court’s delegation to the Monitor of the authority

to conduct investigations is not exclusive of the Court retaining authority to make its own

inquiries and to compel attendance of MCSO officials necessary to undertake such

inquiries as it pertains to the enforcement of the orders of this Court. See Degen v. United

States, 517 U.S. 820, 827 (1996).

When the Monitor conducts inquiries at the Court’s behest or pursuant to his

independent authority in the Order:

1. MCSO’s cooperation with such investigations is required. MCSO shall also

provide any necessary facilities or resources to facilitate such investigations.

2. Neither the Monitor nor the Court is required to first offer topics or subjects

for internal investigation to MCSO that MCSO is not otherwise internally investigating

prior to initiating their own investigation.

3. The Monitor shall not initiate independent investigations into matters that

the PSB is investigating when the Monitor believes that MCSO is adequately, timely and

reasonably conducting the investigation.

4. Nothing in this Order waives any of the applicable rights or privileges

belonging to subjects of the Monitor’s investigations or interviews, including those

guaranteed by the Fifth Amendment, see Miranda v. Arizona, 384 U.S. 436 (1966)

Garrity v. New Jersey, 385 U.S. 493 (1967), and the common law.

5. To the extent that the subjects of these investigations claim any recourse tothe statutory rights outlined in section 38-1101, however, those rights are limited to those

set forth in the statute itself. Investigations initiated by the Monitor at the direction of the

Court are not investigations conducted by an “employer,” and do not implicate the

statutory protections of section 38-1101. See Ariz. Rev. Stat. § 38-1101(A). There are



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also no statutory protections for persons that are not subject to being dismissed, demoted

or suspended as the result of an administrative process. Nor is there ongoing protection

for materials generated in investigations that are terminated without action, that are

terminated because any adverse action is not timely appealed, or are terminated becausethe appeal is terminated. See id. § 38-1101(L).

6. To the extent that the MCSO claims that it is privileged or otherwise

protected from providing information to the Monitor in an independent investigation or

otherwise, and the Monitor contests the existence of the privilege or the protection, the

matter shall be decided by the Court.

The parties and the Monitor will proceed pursuant to these protocols.

CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Redactions to the Monitor’s

Report are ACCEPTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED granting Application to Withdraw as Counsel of

Record for Defendants, Doc. 773, subject to the conditions set forth on the record,

IT IS FURTHER ORDERED setting a hearing on Thursday, December 4

2014 at 8:30 a.m. in Courtroom 602 of the Sandra Day O’Connor Courthouse at 401 W

Washington Street, Phoenix, Arizona 85003. The Court may, upon further notice require

MCSO command staff and other personnel to be present to respond to inquiries

concerning their compliance with the Court’s orders on this date.

IT IS FURTHER ORDERED that a copy of this Order shall be delivered to the

Maricopa County Administrative Offices to the extent that it may require the

augmentation of the Monitors’ investigative staff.

Dated this 20th day of November, 2014.



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Case 2:07-cv-02513-GMS Document 795-1 Filed 11/20/14 Page 1 of 40

TO: Honorable G. Murray Snow

FROM: Chief (Ret) Robert

S.

Warshaw, Monitor

DATE: September 28, 2014

SUBJECT: Update and Assessment

ofMCSO s

Armendariz and Related Investigations

BACKGROUND

On April 30, 2014, Former Deputy Charlie Annendariz was arrested by the Maricopa County

Sheriffs Office on various drug charges, stemming from a police response to the Armendariz

home by the Phoenix Police Department (PPD). PPD responded for a burglary in progress call.

There was no merit to the call - Armendariz was essentially hallucinating - but PPD Officers

observed narcotics and potential evidentiary property which should have been in the custody

of

MCSO. MCSO served a search warrant and recovered marijuana and other narcotics, numerous

license plates, United States and Mexico driver licenses, other types of identification, credit

cards, and over 500 DVDs which were later determined to contain videos

of

thousands

of

enforcement actions taken by Armendariz.

On May 8 2014 at approximately 1435 hours, the MCSO Special Investigations Unit and the

MCSO Tactical Operations Unit found Ramon C. Charlie Ramirez-Armendariz deceased at his

home located at 3214 W. Eugie Ave., Phoenix, AZ. Armendariz was found lying face down on

the floor with his head suspended 4-6 inches off the floor by a rope affixed to a pool table. His

death was ultimately ruled a suicide.

These events were the subject of a May 14, 2014 hearing before the Court. Further, there were

several meetings involving me and my staff, who were present for a site visit from May 13-15.

On May 15th, the Court issued an extensive Order (originally under seal), requiring that several

steps be taken to gather evidence and fully investigate the activities of Armendariz and any other

MCSO employees who may have been using recording devices - either personally owned or

agency issued - during the course of their duties. This Order also mandated that MCSO work

closely with the Monitor on this investigation.

From the start, the investigation was poorly planned and executed. Rather than taking the

targeted and more invasive approach we suggested, MCSO initiated an ill-conceived survey

process designed to capture the existence of audio and video recording devices in use by MCSO

personnel, as well as any saved recordings. Internal Affairs, currently Professional Standards

Bureau (PSB), received hundreds

of

CDs and DVDs

of

motor vehicle stops, contacts and

interactions with residents and individuals in Maricopa County, including from the Armendariz

residence and the Human Smuggling Unit (HSU).

In the midst

of

the Armendariz investigation, a tern1inated deputy, Cisco Perez, alleged during an

unemployment hearing that it was common for HSU members to retrieve items from raids and

safe houses and retain them for personal or MCSO use. These statements seemed to corroborate

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the activity which led to the finding

o

many seized personal items at the Armendariz home. This

revelation derailed the in-progress administrative investigation, and prompted a criminal

investigation into the activities o current and former HSU members.

EXECUTIVE SUMMARY

A voluntary, self-survey instrnment was hastily designed and deployed in response to the

requirements o the Court Order. This self-survey instrnment was not provided careful

developmental attention and as a result was designed in what the Monitoring Team considers to

be a flawed manner. The instrnment failed to adequately and completely address the needs as

expressed in the Court Order to obtain specific information. Additionally, the instrnment was

designed

as

a voluntary instrnment that also led to delayed responses, incomplete responses,

and no response at all from members o the MCSO. As a result o the use o this instrnment, data

received has been inconsistent and incomplete and remains so to this date.

MCSO failed to recognize the complexities o the Armendariz suicide investigation from its

initiation. The pursuit

o

this investigation by the MCSO has uncovered severe deficiencies in

several areas

o

MCSO operations. Flaws have been identified in critical areas such as

investigatory training and intenogation techniques. Poor interrogation skills were observed

during the administrative and criminal interviews conducted in response

to

allegations made by

Deputy Cisco Perez, who had been terminated. The lack o a properly prepared investigative

plan prior to initiating the interview process highlighted the lack

o

training and established

protocols for investigators assigned to the Professional Standards Bureau.

Also revealed were weaknesses in the evidence collection and cataloging mechanisms employed

by the department. As a result, witnesses were subject to secondary interviews and the

cataloging o evidence has remained in constant turmoil. This turmoil has caused extensive

investigatory delays in attempts to conelate multiple items

o

seized evidence with individuals,

property and audio and/or video recordings.

Video reviews have been conducted without a standardized review process and are subject

to

personal views and bias. This lack o standardized process has exacerbated problems with the

cataloging

o

evidence that was seized from the Armendariz residence, as well as the

documentation

o

the individual reviews themselves.

The established chronology o the MCSO tenure o Deputy Armendariz highlighted problems in

the performance review and appraisal process for MCSO personnel. Lacking were supervisor

reviews that included developmental programs and documentation, and the follow through with

progressive discipline. His career has provided insight into institutional problems with the

receipt and logging

o

citizen complaints, the initiation and investigation

o

internal

investigations, and the cataloging o PSB proceedings. Also o concern is the lack o a viable

and consistently utilized disciplinary system department wide.

I SELF-SURVEYS

1

INITI L OBSERV TIONS

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Following the court hearing o May 14, 2014, Monitoring Team members Chief Martinez, Ms.

Ramirez and I met with Chief Deputy Sheridan, Captain Holmes and Ms. Christine Stutz from

the Maricopa County Attorney s Office (MCAO)

to

develop an investigative strategy that would

incorporate the coercive powers

o

Internal Affairs to ascertain information regarding deputies

personal use, capture, and cataloging o audio and video recordings. Chief Deputy Sheridan

initially advocated for a softer approach. I expressed my strong opinion that MCSO should use a

more elevated approach. After MCAO attorney Christine Stutz supported my position, Chief

Deputy Sheridan then announced that it was always his position to employ the Internal Affairs

methodology. During the course o this meeting Sheriff Arpaio made an appearance, but offered

no substantive contribution prior to his departure approximately 1 minutes later. As all o us

departed the meeting, it was my belief that the attendees were in clear agreement o the future

process that would be undertaken.

At approximately 5: 15PM, while returning to your chambers, I received a phone call from Chief

Deputy Sheridan. He notified me that without his knowledge, Deputy Chief Trombi distributed

an email in direct conflict with the decisions

o

our collective group. This email follows.

From:

David

Trombi

- SHERIFFX

Date: JV ay 14, 2014 at 15:41:22 }.;JST

To: Bill VanAusdal - SHERIFFX ,

SHERIFFX

, Dante Proto

, Dmdd Toporek

,

Donald

Rosenberger

, Fred ivlcCann

F }.;fcCann@}.;JCSO.maricopa.gov>, George Hawthorne

, Jmnes Schoeninger

J [email protected]>, Joe Rodriquez

J

[email protected]>, John D'Amico

, John Kleinheinz (Capt)

J Kleinheinz@}.;JCSO.Nfaricopa.gov>, Joseph Sousa

J

[email protected]>, Ken Booker

, Kristina Henderson

K Henderson@}.;JCSO.maricopa.gov>, Larry Kratzer

, iVlaLinda Johanning

, }.;farkley Johnson

, Paul Ellis

, Peter Nfetzler

,

Randy

Brice

, Todd Hoggatt

T [email protected]>, William Hindman

W

[email protected]>, Brian Jakowinicz

Dan Whelan -

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

SHERIFFX

Cc: Jerry Sheridan - SHERIFFX J [email protected]>, Ken Holmes (A)

- SHERIFFX K [email protected]>, Lany Farnsworth - SHERIFFX

,

Edward

Lopez

SHERIFFX

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Subject: Past Video Recordings

Several ·weeks back we collected information fi·om your districts/divisions regarding how many

video cameras (dash and body) were being utilized

in

your normal patrol fimctions. A general

list was compiled by district/division outlining how many, personal or issued and what is done

with the video when obtained. I

am

now directing all district /division commanders

to immediately ascertain where these past videos are or what has been done with them.

J'vfore

importantly, I need to have ALL these videos gathered and sent to Internal Affairs ASAP Attn:

Sgt. iV ike Reese. Please note;* ALL VIDEO

JS TO E

PRESERVED. Simply gather it and send

as directed.

f

video is currently in Property and Evidence, please note that on a spreadsheet

along ·with the name

of

he deputy. Ensure we go back as far as possible to gather all video. It is

imperative that we are as thorough as possible in this endeavor. f ou have questions please call

me directly.

At approximately 6:00pm that evening, Chief Martinez spoke with Chief Deputy Sheridan by

phone, reaffim1ing the retention

o

video data requirements as directed by your Order.

t

is

during this conversation that Deputy Chief Sheridan described another early afternoon meeting

that had occurred at MCSO and included Sheriff Arpaio, Chief Deputy Sheridan, Attorney Tom

Liddy, Attorney Tim Casey, and Attorney Christine Stutz. Chief Deputy Sheridan stated that

towards the end o the meeting, Deputy Chief Trombi was summoned into the meeting and was

directed

to

pursue the course o action outlined in his email.

Chief Martinez attempted to ascertain why Chief Deputy Sheridan would allow our meeting to

continue for two and a half hours, identifying a preferred investigative strategy, when MCSO

executive staff with counsel present had already made and communicated a contrary decision to

subordinate personnel. Chief Deputy Sheridan appeared dumbfounded and could not recall that

Deputy Chief Trombi had been directed to pursue this course

o

action in a meeting in which

Chief Deputy Sheridan was present. I note that Attorney Christine Stutz was present in both

meetings as well, and did not volunteer that an alternative course o action had already been

instituted.

·

At approximately 7:00pm that evening, Chief Martinez, Ms. Ramirez and I met with Chief

Deputy Sheridan. The Chief Deputy incredul01 1Sly had no recollection

o

Deputy Chief Trombi

being advised to take the course o action he had taken. Chief Deputy Sheridan attributed his

mental lapse to fatigue, stress and distractions. He would later write in a letter

to

me dated May

14, 2014, The fact that Chief Trombi had been directed earlier to make contact with the

Division Commanders never occurred to me. Whether it was from mental fatigue, confusion

from many options presented throughout the day I simply do not know why I did not recall.

Deputy Chief Trombi was then summoned into the meeting in order to assess what responses and

actions he had received from recipients

o

his email. More specifically, had the recipients

forwarded the directive to their subordinates

as

provided or did they alter the direction in any

way?

In

an attempt to obtain this infomrntion, Deputy Chief Trombi entered and left the meeting

on several occasions. At one point he indicated that some recipients had seen his email, while

others had not.

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During this meeting, I requested that Captain Holmes, the then commanding officer of Internal

Affairs (who has since been promoted to Deputy Chief), come into the meeting, to assess the

viability of resurrecting the originally agreed upon Internal Affairs approach with the Trombi

email directive as a possible parallel approach. Captain Holmes reluctantly supported the Internal

Affairs investigative approach.

During our meeting, we discussed the prospects of there being additional MCSO personnel who,

like Armendariz, had kept recordings. Deputy Chief Trombi stated that he did not believe other

MCSO deputies would do what Armendariz had done and that any deputies that may be in

possession of videos would come forward with their files. This was illustrative of the MCSO's

preconceived notion that appears to pern1eate through this entire investigation - that Charlie

Armendariz was a rogue employee and no other MCSO employees would engage in the same

types

of

activity.

We left MCSO at approximately 9:30 PM, somewhat dismayed at the events which had

unfolded. We reaffirmed the contents

of

your Order and advised Chief Deputy Sheridan that he

could expect continued follow up in the morning ofMay 15 2014.

On May 15 2014, an email was forwarded to all MCSO deputies requesting a response to the

requirements of the May 15

Court Order issued by Judge Snow in response to the arrest and

subsequent suicide

of

MCSO Deputy Ramon Charlie Ramirez-Armendariz. This email

contained a self-reporting survey. The target date for return

of

these surveys was May 21, 2014,

but by that date only 466 surveys had been returned. t was anticipated that the remaining 266

surveys would be returned no later than June 14, 2014.

The self-reporting survey as created was a flawed instrument that, although intended to retrieve

the desired infonnation as ordered by the Court, would ultimately return incomplete and

inconsistent data, and would cause frustration and lead to the need for further inquiries.

As of September 26, 2014, 1408 self-reporting surveys have been received. A total

of

521

individuals have reported access to audio/video recording devices. A total of 100 individuals

reported the use of 142 recording devices from 2007 to the present.·

f

these, 77 devices are

county owned, and 67 are personally owned devices. Currently 991 Posse members have

responded to the survey. The initial slow response from the posse was troubling, but not

unexpected given the voluntary nature

of

the survey instrument. As a result of the flawed

methodology utilized to gain insight into the use of recording devices, the investigatory element

of surprise was lost. t is our belief the methodology failed to produce an accurate accounting of

recording devices that were in use throughout the period in question, as well as the total number

of

actual recordings. The survey period covers any recording devices used for traffic stops from

2007 until present.

The survey failed to capture not only the Manufacturer of the device, but the type of recording

device (i.e.: audio, video, and audio/video). This has hampered the cataloging of reported

devices, and the number of devices inventoried has fluctuated upward, almost weekly.

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To date 121 CDs have been turned in with the survey. MCSO command, believing this inquiry

to be a fishing expedition , has hesitated to initiate a full investigation until each

CD is

reviewed individually and an assessment made

as

to whether any criminal or departmental

violations have occurred. Capt. Holmes, then the Commanding Officer

o

PSB, believed that

only after a violation had been found and documented, should an interview be conducted. As o

this writing, MCSO has received

121

CDs. These CDs contain 2146 videos and all have been

reviewed. Further lieutenant reviews were required

o

30 videos, and these have been completed.

Additionally, there were

14

videos in which the only language spoken was Spanish.

t

is

unknown i these Spanish only videos are included in this number. MCSO has never provided

the Monitoring Team with specific information regarding any o these incidents, the deputies

involved or the types

o

infractions being investigated.

On July

9

2014, Capt. Bailey, who replaced Captain Holmes as commander o PSB, requested

clarification from the Monitoring Team regarding the self-reporting memorandums on traffic

stop audio/video. His request follows:

To

the kfonitor Team,

Regarding the Self-Reporting memorandums on traffic stop audio/video, we are seeking

clarification.

s

we read the Court Order,·

(a)

identify all of its officers, volunteers, and employees both current

and

former

·who

used or

had access to any kind of recording device during trcif.fic stops fi·om2007 forward,· (b) identify

specifically what kinds ofdevices each officer/volunteer/employee

used (e.g. audio, video, dashcam, eyeglass cam, body mount camera, etc.),· when

those devices were acquired;

and

·whether the devices were issued by the JV CSO,

provided

by the officer/volunteer/employee him or herself,

or

hmv the devices

were otherwise acquired or came into use,·

We believe the task at hand is to identifj;, regarding traffic stops, "kinds of devices, when

acquired, and whether they were k CSO issued or personally owned. We would like clarification

that this is indeed the only information we

need

to provide per the Court Order.

Through conversations with 1\lfajor Peters it is the understanding ofmy staff that the kfonitors

are requesting us

to

specifically identify every recording device from 2007

to

current, including

make, model, serial number,

and

i applicable eve1y vehicle number associated to a deputy who

recorded a traffic stop. The Order does not appear to require this level ofspecificity.

s

we have advised you, ·we have found that historically there was no consistency and/or record

keeping for recording devices,· therefore, we are not in a position to readily identify such

specific information as what has been requested by

J\ lajor

Peters (make model

and

serial number

or vehicle information) other than what we have already provided. I believe that our spreadsheet

for the self-reporting memorandums has captured the information that was required by the JV ay

15 Order by identifj;ing who used or had access to the recording devices, the kinds of devices

that were used

and

whether they were personally owned or issued by k CSO. A majority

of

memorandums list specifically ·what kinds

of

devices people

had

access

to

or whether they were

used for trcif.fic stops but not the specific make, model and serial number of each device. s

age 6 of 4


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such, these memorandums would potentially be considered deficient requiring fi1rther

investigative effort that is not specifically required by the Order. It seems the purpose of the

Order was

to

ascertain the types of devices being used (or able to be accessed) during traffic

stops from 2007

to

present- the additional requirement ofmake, model and serial number does

not appear to be directly relevant

to

this purpose.

Also, with respect to the analysis

of

he data that was requested by the J\;fonitor team, i we were

to

count eve1J1 device, as requested, we would run into an accounting issue due

to

specific

devices being counted multiples times

i

issued or used by multiple personnel from 2007

to

present. We are happy to run the analysis

~ w i t

this caveat, we just vvanted to be sure that is what

you were requesting (that we run it

off

ofthe total number ofdevices identified even if hat might

mean that a device has been counted twice).

Major Peters also requested we specifically identifY each unit/work assignment where personnel

were assigned.

We

have included this information in the current Reformatted Self-Reporting

Survey results spreadsheet.

Please advise whether you believe that identifYing the kind

of

device (as indicated by the "(e.g.

audio, video, dashcam, eyeglass cam, bodymount camera, etc.)

of

the J\;fay 15 Order) with

whatever level ofspecificity was used by the responding person (some indicated just the type of

device, some identified the devices by name, etc.) is insufficient

for

Compliance with paragraphs

(a) and (b), and state whether it is your position that failure to identifY the make, model and

serial number constitutes a deficient response requiring fitrther investigative effort. Once we

have your clarification, we will determine how

to

proceed.

Sincerely,

Captain Steve Bailey

J\ laricopa

County

Sherijf

Office

Commander, Professional Standards Bureau

Clearly MCSO continues to resist seeking specific recording device information

Commander Girvin provided the following advice and direction:

Captain Bailey,

s

I understand it, the topic of capturing make, model, and serial number

for

recording devices

came zp

in

conversation during our last site visit when your spreadsheets were being

discussed J\ lajor Peters asked i

J\ JCSO

was capturing this information, and when he was

informed that it was not being captured, he suggested that it should be, particularly for devices

acquired by J\ JCSO. Jllfost agencies are able to provide this type

of

nformation for property they

acquire. He also suggested that, at a minimum, J\ JCSO would need to capture this information

movingforwardfor any newly acquired devices.

age 7

o

4


29/61


I'd like

to clariJY

a few issues you raise.

You Wrote,

Through conversations with ~ a j o r Peters it is the understanding ofmy

staff

that the

1Vlonitors are request ing us

to

specifically identifY eve1;1 recording device

fiwn 2 7 to

current,

including make, model, serial number, and

if

applicable every vehicle number associated

to

a

deputy who recorded a traffic stop.

(Emphasis added.) As mentioned above,

1vfajor

Peters suggested that you capture the specific device information. The vehicle information is

actually required under section (c) of the order, which states: (c) identiJY each patrol car that

may have had such a device mounted

in

it

and

the current location of that device and/or patrol

car; Keep

in

mind that the standard

in

the Order

is

used or had access to during a traffic

stop. A recording need not have taken place.

You

wrote,

Also,

with respect

to

the analysis of the data that was requested by the 1vfonitor

team, ifvve were

to

count eve1y device, as requested, we would run into

an

accounting issue due

to

specific devices being counted multiples times

if

issued or used by multiple personnel

fiwn

2 7 to

present. This statement appears

to

contradict itself Please consider Whether you are

counting eve1y device, or you are counting some devices more than once. Your concern appears

to

derive

fiwn

the flawed survey instrument used

in

this process. IdentifYing each device with as

much specificity as possible would eliminate this concern. This

is

also why we emphasized

identifYing which organizational components

had

multiple agency-owned cameras assigned to

it. For example,

if 2

officers working in a unit with

O

agency owned cameras assigned

to

it

claimed access

to

cameras, you could reasonably conclude that these

2

officers were referring

to

these same

1

cameras.

You

would not count the cameras

2

times.

In answer

to

your question, Please advise whether you believe that identiJYing the 'kind'

of

device (as indicated by the

'(e.g.

audio, video, dashcam, eyeglass

cam,

bodymount camera, etc.)'

of the }lfay 15 Order) with

wh tever level

of specificity was

used by

the responding

person

(some indicated just the type

of

device, some identified the devices by name, etc.)

is

insufficient for Compliance with paragraphs

(a)

and

(b),

and state whether it

is

your position

that failure

to

identifY the make, model and serial number constitutes a deficient response

requiring fi1rther investigative effort. (Emphasis added.) The standard cannot be with

whatever level of specificity was used by the responding person .

If

an objective reviewer can

determine 'that a response is deficient, that response is not acceptable simply because

i t

was

submitted as such.

t a minimum, the agency must capture type of device (dashcam, eyeglass

cam,

bodymount,

digital voice recorder, pocket cassette recorder, etc.) and its recording capability (video, audio,

or both). Any other information that

is

readily available

(make,

model, serial number) should be

noted. Please note that simply identiJYing a manufacturer is insufficient, particularly

if

that

manufacturer produces multiple types

of

devices.

Regards,

John

Commander (Ret.) John

M

Girvin

age o 4


30/61


Deputy jl ;Jonitor

n

addition to the CDs received as a result

of

the self-reporting survey the HSU also turned in 3

binders

of

CDs from their Unit. There are 2203 reported videos on these CDs and MCSO repmis

that all have been reviewed.

Of

those 48 videos were identified for further review by a

lieutenant for potential MCSO policy violations and/or state law violations.

2 PREL JvIINARY FINDINGS

MCSO

to date has not created a plan to address individuals who have not responded to the

survey nor to address those individuals whose surveys have been deemed insufficient. The bulk

of the missing surveys are from the volunteer Posse members. This lack

of

response appears to

be a result

of

the inadequate manner in which MCSO administers and oversees the program.

Anecdotal information leads the Monitoring Team to believe that

if

Posse members were to

respond to MCSO as requested the number

of

surveys would dramatically increase but not

necessarily the number

of

recordings. Posse members have been observed in recordings

presently.

3. RECOJVlivIENDATIONS

MCSO

should be directed to continue to pursue the collection

of

the self-reporting surveys in

spite

of

the flaws with the instrument.

All recordings received with the surveys should be reviewed for policy and/or criminal

violations.

At

this time MCSO claims that this has occurred. Discipline

if

appropriate after the

conclusion

of

the reviews should be dispensed as well. Given MCSO s video collection

methodology the Monitoring Team questions whether anyone would have submitted a recording

of

a bad citizen interaction and the validity

of

any outcomes reported.

During September 2014 the Monitoring Team reviewed a non-scientific sample of the HSU

videos. During these reviews no conduct similar to that observed in the Armendariz video

reviews was noted. Persons stopped were both males and females of various races/ethnicity.

Almost without exception the drivers were asked for their licenses and insurance and were told

the reason for the stop. In many cases records checks were not completed on the drivers and

little

if

any conversation took place with any passengers.

With the number of reviews conducted it was difficult to tell

if

there were any patterns other

than a significant number

of

stops for minor violations with few records checks and almost no

citations. t was not possible to determine from the video segments reviewed

if

deputies were

focusing on some particular types

of

violators or violations. The Monitoring Team expects to

conduct additional reviews once specific inforn1ation is received from MCSO on those identified

as problematic in their review.

During September 2014 the Monitoring Team also reviewed a non-scientific sample

of

the self

reporting videos. Some of the videos were only seconds long others clearly did not contain the

entire contact and still others would not play at all. n the videos that could be reviewed no

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conduct similar to that seen in the Armendariz videos was observed. The Monitoring Team

expects to conduct additional reviews once specific information is received from MCSO on those

identified

as

problematic in their reviews.

The Posse program should receive direct attention and modification, should Posses continue

to

have access to recording equipment. Although the use o citizen volunteers is a generally

accepted and welcomed practice in community policing, there needs

to

be a well-defined

structure governed by policies and procedures, in o

melendres # 795 | d.ariz. 2-07-cv-02513 795 order w report attached

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