Posted with permission from Phoenix New Times.
Sheriff Joe Arpaio has lost a bid for summary judgment in the U.S. Department of Justice’s lawsuit against him, which covers much of the same ground as the ACLU’s big racial profiling case, Melendres v. Arpaio.
In 2013, U.S. District Court Judge G. Murray Snow found Arpaio and the MCSO guilty of widespread racial profiling against Latinos and ordered a litany of reforms intended to prevent a recurrence of this civil rights disaster under Arpaio’s watch.
On Monday, Snow’s 2013 decision helped hand a win to the DOJ in U.S. v. Maricopa County on those portions of the suit dealing with the MCSO’s discriminatory policing.
However, federal Judge Roslyn O. Silver signaled in her ruling that these overlapping issues could still become part of the bench trial that she recently ordered to start August 10.
“The United States has again shown the Melendres findings satisfy the elements of its claim,” writes Silver in her 52-page decision, published Monday afternoon. “Summary judgment… will be granted. Again, this ruling only potentially entitles the United States to relief tailored to the findings in Melendres. Any additional and greater relief will be contingent on the United States proving additional… violations at trial.”
The DOJ lawsuit, which was brought in 2012, also addressed subjects that were not part of the ACLU claim, such as discrimination against Spanish-speakers in the county jail, and Arpaio’s practice of retaliating against critics and opponents, be they judges, prosecutors, politicians, or average citizens.
Arpaio’s attorneys sought summary judgment on these issues, but Silver found that there was enough evidence of the MCSO’s wrongdoing to proceed to trial, shooting the requests down one by one.
In her ruling, Silver eviscerates the defense’s lame logic, denying summary judgment on the abuse of power claims and observing that the threat of Arpaio’s running roughshod over the U.S. Constitution remains ever-present.
Silver writes, in part, that:
Arpaio does not contest that he and MCSO filed the lawsuits, submitted bar complaints, and performed the arrests the United States alleges. What Arpaio contests is the allegation that these actions were performed in retaliation for criticism he and his office received. In other words, that they were done with retaliatory animus. But the United States’ facts are sufficient to raise a reasonable inference that Arpaio’s actions were performed out of retaliatory animus. Arpaio’s conclusory denials do not defeat this evidence. Therefore, summary judgment will not be granted on these grounds.
Arpaio’s second argument—even if he at one time retaliated against critics in the manner alleged, there is insufficient proof the threat continues—is not persuasive. If the United States’ allegations of past retaliation are true, there is a genuine issue of material fact as to the ongoing effect of those actions. Arpaio remains Sheriff of Maricopa County and retains the power he allegedly misused to perform acts of retaliation. He has offered no facts showing any fear or chilling his actions may have caused has permanently ended or abated since his claimed cessation. Therefore, summary judgment on this issue will be denied.
ACLU senior counsel Dan Pochoda hailed Silver’s ruling as “a very strong opinion for the DOJ,” noting that the DOJ brought its lawsuit before there was a ruling in Melendres, and only after a lengthy investigation by the DOJ that resulted in a December 2011 a letter to Maricopa County Attorney Bill Montgomery, informing him of the DOJ’s findings concerning the MCSO’s civil rights violations.
“Ninety-nine times out of 100, when municipalities get that [sort of] letter from the DOJ, they settle before a lawsuit is even filed,” said Pochoda. “The DOJ had no choice… they couldn’t just back down because Arpaio said, ‘screw you.’”
You’ll recall that in 2010, the DOJ had to sue the MCSO just to secure the agency’s cooperation with the DOJ’s initial investigation.
At the time, the DOJ stated in a press release that, “MCSO’s refusal to cooperate with the investigation makes it an extreme outlier and the department is unaware of any other police department or sheriff’s office that has refused to cooperate in the last 30 years.”
Normally, police departments enter into consent decrees with the DOJ so as to avoid defending against costly civil rights lawsuits. But not Arpaio, who has no problem burning through money that doesn’t belong to him.
The latest numbers I have from the county show that the DOJ case has cost $4.9 million in legal billings to date. As with the $51 million projected to be spent on Melendres through the end of Fiscal Year 2016, this money comes directly out of the county’s general fund.
And that’s a low-ball estimate. Adding up everything Arpaio’s shenanigans have cost county taxpayers since he took office in 1993 results in a sum of around a quarter-billion dollars.
Last week, when Silver ordered that the bench trial in U.S. v. Maricopa County begin August 10, she estimated it would take 15 days.
Subsequently, the DOJ filed a notice with the court stating that the government “anticipates that more than 15 days will be needed to try this case,” and that it expected a trial on its claims.
But Pochoda believes the case will settle before going to trial.
“From the defendant’s perspective, to the extent they were considering some type of settlement, this would increase the urgency considerably,” he observed. “They have little to gain and a lot to lose.”
Moreover, Silver doesn’t buy Maricopa County’s argument that it has no power over a rogue officeholder such as Arpaio. Silver notes that the county Board of Supervisors could have taken a number of actions to rein in Arpaio.
In one passage, she writes:
Maricopa County’s argument centers on its purported inability to initiate any authorized action to affect Arpaio’s compliance with the law or a court order, given the sheriff’s statutory duties and electoral independence and the Board’s statutory obligation to fund his activities. But Maricopa County admits it has the ability and duty “to facilitate compliance of the Sheriff and other constitutional officers with judicial orders.”
And the United States identified numerous ways in which Maricopa County could, within its authority, exercise oversight and influence over Arpaio. For instance, Maricopa County could put the sheriff on a line-item budget and use its power to withhold approval for capital expenditures, salary increases and the like to encourage compliance with court orders.
Of course, in the past, some supervisors have tried to exercise oversight of Joe’s office. Those supervisors were retaliated against.
Which is why I’m hoping the DOJ will not be too quick to settle this lawsuit.
The DOJ must force the county to take measures to ensure an end to Arpaio’s illegal abuses of power under the color of law.
The now-stayed contempt proceedings in Snow’s court offer even more examples of Arpaio’s unconstitutional excesses.
Not only is Arpaio in contempt of the federal court, he has been ginning up bogus cases against a federal judge and his wife, in an attempt to intimidate and conflict a jurist sitting on his case.
If the DOJ gives short shrift to Arpaio’s past abuses, the department opens the door to more of the same, and betrays that part of its name dealing with “justice.”