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Case 2:07-cv-02513-GMS Document 1721 Filed 06/23/16 Page 1 of 7

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Robert J. Moossy, Jr.
Deputy Assistant Attorney General
Steven H. Rosenbaum (NY Bar No. 1901958)
Timothy D. Mygatt (DC Bar No. 1021564)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
Cynthia Coe (DC Bar No. 438792)
Maureen Johnston (WA Bar No. 50037)
U.S. Department of Justice, Civil Rights Division
Special Litigation Section
601 D St. NW, Suite 5200
Washington, D.C. 20004
Tel.: (202) 305-3239
Email: paul.killebrew@usdoj.gov

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Attorneys for the United States

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IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA

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

No. 2:07-cv-02513-GMS
UNITED STATES’ RESPONSE TO
DEFENDANT ARPAIO’S
POSITIONS REGARDING
INTERNAL INVESTIGATIONS

and

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United States of America
Plaintiff-Intervenor,

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v.
Joseph M. Arpaio, in his official capacity as
Sheriff of Maricopa County, AZ; et al.
Defendants.

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Pursuant to the Court’s Amended Order, ECF No. 1717, Plaintiff-Intervenor

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26 United States submits this response brief to Defendant Arpaio’s arguments submitted in

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27 the Joint Memorandum Re: Internal Investigations, ECF No. 1715. Defendant Arpaio
28 largely re-argues issues that the United States and Plaintiffs have previously briefed.

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1 The United States stands on its previous arguments and generally concurs in the
2 positions and arguments that Plaintiffs submit in their response brief today. See
3 Response, ECF No. 1720. The United States submits this separate response to:
4 (1) emphasize this Court’s ample authority to enter the remedies; and (2) explain that
5 additional expert testimony on which internal affairs investigations need to be reopened
6 would be duplicative and unnecessary.
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I.

DISCUSSION

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A. This Cour t has Ample Author ity Enter the Pr oposed Remedies.

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This Court should reject Defendant Arpaio’s misplaced federalism and due

10 process arguments regarding this Court’s power to remedy his deficient internal affairs
11 practices that are causing constitutional harm to the Plaintiff Class.
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Defendant Arpaio states his concern that this Court’s remedying his

13 constitutionally deficient internal affairs practices violates federalism and state comity,
14 while simultaneously agreeing to a remedial order vesting internal affairs authority in an
15 independent third party. Jt. Memo. Re: Internal Inv. at 9-11. As previously briefed, this
16 Court has the power initially to remedy federal constitutional violations, and
17 subsequently to modify these remedial orders based on changed circumstances, including
18 additional remedies for civil contempt to compel future compliance with its previous
19 orders. See U.S. Mem. Resp. to Findings of Fact at 1-3, ECF No. 1685. This Court has
20 already found that the MCSO’s internal affairs policies and practices are discriminatory
21 and cause harm to the Plaintiff Class. Findings of Fact ¶¶ 882-889, ECF No. 1677. This
22 discriminatory pattern of violations affecting a class of plaintiffs makes Defendant
23 Arpaio’s citations to non-pattern cases like Rizzo v. Goode, 423 U.S. 362 (1976),
24 unavailing. “The Supreme Court has repeatedly upheld the appropriateness of federal
25 injunctive relief to combat a ‘pattern’ of illicit law enforcement behavior.” LaDuke v.
26 Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985), amended, 796 F.2d 309 (9th Cir. 1986)
27 (collecting cases). Moreover, to the extent state comity counseled for first allowing
28 Defendant Arpaio latitude to attempt to remedy his constitutionally deficient operations,

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1 his and other MCSO officer’s contempt of this Court’s previous orders forced the
2 necessary intrusion into MCSO’s internal affairs operations. See also Findings of Fact
3 ¶¶ 218-222 (MCSO declining Court’s previous invitation to refer investigations to
4 outside authority and instead electing to handle such investigations on its own).
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This Court should also reject Defendant Arpaio’s misplaced due process

6 arguments. The proposed procedure for re-opening, and future, internal affairs
7 investigations and any resulting discipline is narrowly tailored to remedy Defendant
8 Arpaio’s constitutionally deficient practices and complies with federal Due Process.
9 Defendant Arpaio asserts that deputies have a property interest in their employment, and
10 thus purportedly are entitled to all state law procedural protections for internal affairs
11 investigations. Jt. Memo. Re: Internal Inv. at 11-14. As the United States has previously
12 briefed, deputies likely have a property interest in their continued employment that
13 implicates Due Process Clause protections. U.S. Mem. Resp. to Findings of Fact at 13.
14 This purported property interest, however, does not transform the Arizona state code of
15 procedural protections for police officers into federally required Due Process Clause
16 rights. See Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir.1994) (“[I]f state procedures
17 rise above the floor set by the due process clause, a state could fail to follow its own
18 procedures yet still provide sufficient process to survive constitutional scrutiny.” (quoting
19 Rogers v. Okin, 738 F.2d 1, 8 (1st Cir. 1984))), overruled on other grounds by Sandin v.
20 Conner, 515 U.S. 472, 483–84 (1995); accord James v. Rowlands, 606 F.3d 646, 657
21 (9th Cir. 2010); Power Rd.-Williams Field LLC v. Gilbert, 14 F. Supp. 3d 1304, 1312-13
22 (D. Ariz. 2014).
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As previously briefed, the Plaintiffs’ proposed process – where deputies will have

24 notice and an opportunity to be heard before any proposed discipline, and the opportunity
25 to appeal any discipline determination to the Maricopa County Law Enforcement Merit
26 Commission – provides adequate federal Due Process. See Jt. Memo. Re: Internal Inv. at
27 2-3; see also Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1405 (9th
28 Cir. 1989) (“Ordinarily, due process of law requires [notice and] an opportunity for some

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1 kind of hearing prior to the deprivation of a significant property interest.”) (internal
2 quotations omitted); accord Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
3 (1985). If state procedural requirements were to conflict with this process and with the
4 conducting of non-discriminatory, constitutionally adequate internal affairs
5 investigations, then these state requirements would stand as an impermissible impediment
6 to this Court’s vindication of the constitutional rights of the Plaintiff Class. See Jt.
7 Memo. Re: Internal Inv. at 2-3; U.S. Mem. Resp. to Findings of Fact at 12-14; see also,
8 e.g., Missouri v. Jenkins, 495 U.S. 33, 50-58 (1990) (finding if particular remedy is
9 required to vindicate constitutional rights, State law cannot prevent local government
10 from implementing remedy).
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This Court should therefore reject, for example, Defendant Arpaio’s suggestion

12 that the state procedural 180-day time limit to complete investigations trumps this Court’s
13 power to order the re-investigation of previous deficient investigations or to order
14 constitutionally adequate future investigations. Similarly, if the Maricopa County Law
15 Enforcement Merit Commission reverses any discipline on appeal for state law reasons
16 that conflict with this Court’s ordered remedial process, that non-federal process would
17 also stand as an impermissible impediment. In short, state procedural laws cannot trump
18 this federal Court’s orders remedying Defendant Arpaio’s federal Constitution violations.
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B. Exper t Testimony Would Be an Unnecessar ily Duplicative Waste of Time
and Resour ces.

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This Court already has explicitly assigned to the Monitor Team the authority and
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the responsibility to evaluate MCSO’s internal investigations and to determine which
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investigations are flawed and whether new investigations are warranted. Order at 19,
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ECF No. 795. Despite this, Defendant Arpaio states, without any explanation or
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supporting authority, that expert testimony is necessary to determine which previous
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internal affairs investigations were inadequate. See Jt. Memo. Re: Internal Inv. at 18 n.
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14. It is entirely unclear, however, what such expert testimony could accomplish that
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would not be duplicative of functions that this Court has already explicitly assigned to the
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11 Monitor or the independent investigator to be named by the Court. Moreover, allowing
22 the presentation of such expert testimony would invite Defendants to reopen debate about
33 the Court’s previous determinations as to how oversight of MCSO’s internal affairs
44 investigations will be handled. In addition, the Parties would have to spend significant

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5 time and resources seeking and presenting the proposed expert opinions. It therefore

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6 would be entirely appropriate, as well as far more efficient than Defendant Arpaio’s

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7 proposal, for either the Monitor (or the independent investigator) to identify which

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8 internal affairs investigations were inadequate and need to be redone. In the event that a

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9 Party disagrees with the Monitor’s or the independent investigator’s determination, the

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10 Party may file an objection with the Court and provide an explanation as to why they

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11 believe that the contested investigation was adequate or inadequate; the Court may then

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12 determine whether the challenged investigation was inadequate and needs to be re-

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14 opened. This Court should accordingly find that additional expert testimony is
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II.

CONCLUSION

For the foregoing reasons, this Court should reject Defendant Arpaio’s arguments that

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18 this Court lacks power to order the proposed remedies for his contempt and constitutional

19 violations, and find that expert testimony on which internal affairs investigations to
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Respectfully submitted,
Robert J. Moossy, Jr.
Deputy Assistant Attorney General
Civil Rights Division

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Steven H. Rosenbaum
Chief, Special Litigation Section

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Timothy D. Mygatt
Deputy Chief

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/s/ Matthew J. Donnelly
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
Cynthia Coe (DC Bar No. 438792)
Maureen Johnston (WA Bar No. 50037)
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Special Litigation Section
601 D St. NW
Washington, D.C. 20004
Tel. (202) 305-3239
paul.killebrew@usdoj.gov

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Dated: June 23, 2016

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Case 2:07-cv-02513-GMS Document 1721 Filed 06/23/16 Page 7 of 7

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CERTIFICATE OF SERVICE
I certify that on June 23, 2016, I filed the foregoing through the Court’s CM/ECF

2 system which will serve a true and correct copy of the filing on counsel of record.
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/s/ Matthew J. Donnelly
MATTHEW J. DONNELLY
Attorney for the United States

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