You are on page 1of 82

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 1 of 82

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Plaintiffs,

6
7
8

)
)
)
)
)
)
)
)
)
)
)

vs.
Joseph M. Arpaio, et al.,
Defendants.

Phoenix, Arizona
na
October 28, 2014
3:04 p.m.

OG

10

CV 07-2513-PHX-GMS
S

Manuel de Jesus Ortega


Melendres, et al.,

BO

.C
OM

11

EF

12
13

TH

14

REPORTER'S
OF PROCEEDINGS
RT 'S TRANSCRIPT
RTE
TR
TRAN

16

BEFORE THE HONORABLE G. MURRAY SNOW

OF

15

17

(Status Conference,
Pages 1-80, Sealed Proceedings Omitted)
C nference
ferenc

18

ND

19
20

IE

21

FR

22
2
23
24
25

Court Reporter:
Co

Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263

Proceedings taken by stenographic court reporter


Transcript prepared by computer-aided transcription

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 2 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

A P P E A R A N C E S

1
2

4
5

6
7

9
For the Defendants:

11

16
17
18

ND

19

OF

For Defendant Arpaio:


:

15

TH

13
14

20

IE

21

FR

22
2
23
24
25

Timothy J
J.
. Casey,
Case , Esq.
Casey
E
James L.
. Williams,
Williams
illiams Esq.
SCHMITT,
SMYTH,
ITT
TT, SCHNECK,
SCHNEC
NE
CASEY
EY & EVEN
EVEN,
, P.C.
1221
E.
Road
22 E
221
. Osborn
Osbo
Suite 105
Phoenix,
Phoenix Arizona 85014-5540
(602)
(602
602)
) 277-7000

EF

12

BO

Andre Segura, Esq.


AMERICAN CIVIL LIBERTIES
BERTIES
ERTIES UNION
UNI
125 Broad Street,
t, 18th
18t Floor
Fl
Flo
New York, New York 10004
1000
(212) 549-2676
76

10

Cecillia D. Wang, Esq.


AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California
a 94111
111
(415) 343-0775

.C
OM

For the Plaintiffs:

OG

Thomas P. Liddy, Esq.


Th
Senior
Litigation Counsel
S
MARICOPA COUNTY ATTORNEY'S OFFICE
Civil Services Division
222 N. Central Avenue
Suite 1100
Phoenix, Arizona 85004
(602) 506-8066

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 3 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

P R O C E E D I N G S

1
2
3

THE COURT:

Thank you.

THE CLERK:

This is civil case number 07-2513,

Melendres v. Arpaio, on for status conference.

.C
OM

Please be seated.

15:04:40

Counsel, please announce your appearances.


.

MS. WANG:

Good afternoon, Your Honor.

Cecillia Wang

and Andre Segura of the ACLU Immigrants Rights


for the
ghts
hts Project
Proje

plaintiff class.

11

MR. SEGURA:

12

MR. CASEY:

Good afternoon.

OG

THE COURT:

Your Honor,
nor, Tim
nor
Ti Casey.
Ca

Along with me from

my law firm is James Williams


County deputy
liams
ams and Maricopa
M

14

attorney Tom Liddy.

TH

13

15

Also with
Your
h us,
u
our Honor, from the MCSO is Chief Jerry

16

Sheridan.

17

right.

18

attorney
Christine
Stutz.
ey
y Chris
hris

19

Freeman.
eeman
ema .

20

15:04:52

Good afternoon.
noon.
noon

EF

10

BO

OF

Also
Sergeant Dave Tennyson.
so is Serge
S

15:05:05

Going from left to

Ser
me, Captain Steve Bailey.
r -- excuse
excus
u

Deputy county

Also from the MCSO is Chief Scott

I'd also like to have on the record that the Chairman


I
of the
th Maricopa County Board of Supervisors, Denny Barney, is

22

here, along with the county manager, Tom Manos, sitting to his
he

2
23

immediate right.

RI

21

15:05:31

24
25

At the counsel table, I don't want to be presumptuous,


but Doug Irish from the Maricopa County Attorney's Office is

15:05:48

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 4 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

here with his client, deputy county manager Sandi Wilson, and

her counsel, Kate Baker, in her law firm.


All right.

do this afternoon.

control.

I will reschedule.

it done this afternoon.

We have a lot to

I'm going to pretty much keep it under


r my

If we don't finish what we have to do this afternoon


fternoon
ernoon

15:06:08

But I would like to, if I possibly


ibly can,
c , get
can
g

really five separate matters.

There
are
e

BO

Let me tell you how I plan to proceed.


ceed.
ceed
.

8
9

Thank you.

.C
OM

THE COURT:

The first
t has to
t do
d -- the first

that I want to address has to do with


th
h -- I'll
I'll ask a question to

11

the plaintiffs, but then I want to get


the recovery of
ge into
in

12

recordings made by MCSO personnel


were not disclosed
onnel that
t

13

during the course of the underlying


nderlying lawsuit, and to the --

14

explore the extent to which we have


any disagreements about the
h

15

monitor's report.

15:06:25

TH

EF

OG

10

15:06:42

I will
have the monitor make a summary of his
ll probably
prob

OF

16
17

report in the
instance unless the plaintiffs have an
t e first i

18

objection
the disclosure of that report.
ion
n to t

ND
S

After we do -- or

19

handle
ndle
dle matter relating to the recovery of the recordings I will

20

into the report itself, the monitor's report.


then get i

21

four or
o five distinct categories, and I'll hear anything you

22

want to say about that from the MCSO.


wa

15:07:02

FR

IE

It has

2
23

After that, we will discuss the contact between the

24

monitor and the Maricopa County Administration.

After that,

25

we'll talk about Sheriff Arpaio's statements that he'd do the

15:07:22

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 5 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

Guadalupe operation all over again.

After that, I'm going to

close and seal this hearing and only parties will remain as we

will have some specific questions -- as I will have some

specific questions about ongoing matters that I think are

appropriately kept privileged.

15:07:41

Everybody clear how I intend to proceed?

MR. CASEY:

The defense is, Your Honor.


r.

THE COURT:

All right.

MS. WANG:

BO

Yes, Your Honor.

Ms. Wang, let me first a


ask, and you may
as

OG

THE COURT:

Ms. Wang?

10

.C
OM

11

have read my report yesterday, you


your response to
ou did
di file
fi

12

the monitor's report under seal.


eal.
eal

13

assume that they don't mind


it's
ind
d if it
t's public, I don't mind if the

14

monitor's report is public


public,
don't mind if your response is
ublic,
, I do
d

15

public, but because


you'd
your report under seal, I
se y
u'd
d filed
f
fi

16

wanted to give
opportunity to object.
e you t
the o

15:08:05

OF

TH

EF

Maricopa
County did not.
M
Maric

15:07:49

MS.
S WANG:
WA :
WANG

17

Your Honor, plaintiffs do not object to


Y

18

either the
monitor's report or the plaintiffs' response to it
h mon

19

being
ing part
rt of the public record.
As we noted in our notice that we filed at the time we
A

20

lodged our response under seal, we filed it under seal merely


lodge

22

in an abundance of caution, given the defendants' pending

2
23

objection.

24

response.

25

have just filed ourself publicly.

RI

21

15:08:17

I believe we filed it before defendants filed their


If they had filed theirs first, I probably would
So at this time I would ask

15:08:38

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 6 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

that the Court deem our response to be part of the public

record of the Court.


All right.

I will sign an order, then,

.C
OM

THE COURT:

unsealing your response, and I will file the Maricopa County


nty
y --

or I will file the monitor's report to me.


Mr. Casey.

MR. CASEY:

15:08:50

Your Honor, as to the monitor's


we
itor'
itor
's report,
repo

request that you allow us to submit to the Court withi


within
24
t

hours appropriate redactions, because there


in
here are
ar matters
m
ma

BO

there, particularly names, that need,


Title 38, to be
d, under Ti
T

11

excluded.

Well, I'm
m not sure that you haven't waived

any right to request that


t now
now.
.
MR. CASEY:

No
No.

Honor, with all due respect -Your H

15

THE COURT:
T:

what?
Guess
ss w

TH

14

I get to make the call,

Mr. Casey.

MR.
R CASEY:
CA
CASEY
:

17

Yes, Your Honor, but I'm allowed to make a

record.
.

I just
jus wanted to point out for the Court that in our

19

filing
ling we
e did not identify any names or enough information that

20

would be able to connect.

ND

18

IE

21

FR

22

THE COURT:

15:09:30

All right.

I'll give you 24 hours to

submit proposed redactions.


sub
su

2
23

MR. CASEY:

Okay.

24

THE COURT:

I'm not sure that I'll take them, but --

25

15:09:19

OF

16

15:09:06

EF

13

We understand -THE COURT:

12

OG

10

Thank you, Your Honor.

but I think that -- I respect the fact that you're trying to

15:09:36

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 7 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

protect an ongoing investigation, and certainly I want to do

that, too.
MR. CASEY:

Thank you, Your Honor.

THE COURT:

To the extent, I think, that you've

.C
OM

legitimately done that and the plaintiffs have no objection,


ection
io , we
w

will make that redaction.

I, however, am going to invite the monitor


nitor to

summarize his report, and if in the summary


y you are concerned
co

that he names any names that shouldn't be named


named,
better be
name
, you
y
on your feet pretty quickly.

11

All right.

OG

10

BO

13

addressing here today.

EF

give us a brief summary of your


and what we're
our report
rep

MONITOR WARSHAW:
HAW:
HAW

Yes.

15

The monitors
on April 30th that the
to
tor
were
re advised
a

TH

14

Good afternoon, Your Honor.

Phoenix Police
Department, in response to a burglary call at
e Departmen
Depar

17

the home of
Armendariz, found drugs and other
f Deputy
eputy Charlie
Ch

18

items that
appeared to be evidentiary in nature.
ha appe
app

19

that
at
t MCSO was dispatched to the scene, which ultimately led to

20

1st
a May 1
st search warrant.

We learned

ND

IE

FR
2
23
24
25

15:10:14

OF

16

22

15:10:00

Monitor Warshaw,
I please have you
shaw,
shaw
, could
ou

12

21

15:09:45

15:10:34

At that time, a variety of items were found, none the

least of these being hundreds of DVDs which captured traffic


le
stops made by Deputy Armendariz.
On May 2nd, Deputy Armendariz was interviewed as part
and parcel of a criminal statement, at which time he made

15:10:51

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 8 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

reference to other members of the Maricopa County Sheriff's

Office who had deposited items, videos and perhaps other items,

through a third person at his house, that's Armendariz's house.


e.

.C
OM

On the 4th of May, Armendariz had barricaded himself


self
lf

in his house.

On the 5th of
f May,
May
y,

he was booked on drug and other charges.

On the 7th
th of May,
May
y,

the Probation Department drew a warrant.

On May
ay 8th,
8th
th,
, during
dur

the execution of this warrant, which was done


from the
ne by units
i

Maricopa County Sheriff's Office, entry was made into


the
i

BO

He was taken to a hospital.

15:11:17

house, during which time they discovered


body of Deputy
vered the
he b

11

Armendariz.

12

from Chief Deputy Sheridan, who advised


me of this development.
adv

OG

10

15:11:33

EF

On the evening of May 8th


a phone call
8th
t I received
re

Our first concern


rn was the decision by the Maricopa

13

County Sheriff's Office


seize the investigation
ce to
o essentially
esse
essen

15

of the Armendariz de
death
d
h from
fro the Phoenix Police Department, as

16

Mr. Armendariz's
was clearly within the limits of the City
z's
s home
hom wa

17

of Phoenix.

18

the Maricopa
County Sheriff's Office from that point
ricopa
copa Co
C

19

thereafter.
ereafter
reafter.

15:11:53

OF

TH

14

ND

team kept in touch regularly with


The monitoring
Th
mo
moni

On May 14th, this Court held a hearing during which


O

20

team was ordered by the Court to assist the


the monitoring
th
m
mo

22

Maricopa County Sheriff's Office in the conduct of its


Ma

FR

IE

21

15:12:09

2
23

investigation.

24

committed in writing by the Court on May 15th.

25

Specific details as to what our mandate was was

But getting back to May 14th, during a lengthy meeting

15:12:28

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 9 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

in the afternoon, I, and other members of the monitoring team,

met with Chief Deputy Sheridan, then-Captain of Internal

Affairs Captain Kenneth Holmes, and Ms. Christine Stutz from

the Maricopa County Attorney's Office.

exchange at which time, or by its conclusion we had reached


ached
he an

investigative course of action.

.C
OM

That was a long

15:12:51

Late that afternoon we came to this Court


to
ourt to report
rep
ep

the Court on the status of our dialog with the Sheriff


Sheriff's
Sheri

Office, only to be interrupted by a phone


from
ne call fr
fro

BO

Chief Deputy Sheridan, who advised me that


in the day a
ha earlier
ea
ear

11

different course of action, one that was


contrary
s specifically
sp

12

to what we had mutually agreed


ed upon,
upon
pon, had
ha been hatched.

15:13:09

EF

OG

10

We were perplexed
at the Maricopa County
ed that present
pre

13

Sheriff's Office meeting


which
we were in attendance were
ting
ing in whic
hi

15

Ms. Stutz and Chief


and we learned eventually that
ef Sheridan,
heridan
ida

16

the decision that had


made taking the department in a
ha been
be

17

different d
direction
included their attendance as well.
rection
ection i

15:13:33

OF

TH

14

that at that meeting earlier in the


We
e learned
le

18

afternoon
ternoon
ernoon it was determined that Deputy Chief Trombi would

20

survey via e-mail to all personnel in the police


issue a s

21

department, this being contrary to what we earlier had decided.


depart
depar

22

There were many turning points in this investigation, but


Th

15:13:56

FR

IE

ND

19

2
23

unfortunately, the greatest turning point was right at the

24

outside when we believe that against our specific advice, the

25

Maricopa County Sheriff's Office compromised its ability to

15:14:22

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 10 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

determine if other members of the Maricopa County Sheriff's

Office had in fact engaged in videoing or audioing of traffic

stops.

.C
OM

10

In the report I filed with the Court and in subsequent


equent
ue
responses filed by the parties, specifically the defendants,
dants
nt ,

there have been numerous references to administrative


ive and
an

criminal investigations.

only one criminal investigation that we're aware of which


I
wh

shall discuss in a moment.

BO

In sum and substance,


, there has been

But from the


I would ask
e inception,
inceptio
inception

that the Court be made aware that it


thinking
t was the
he original
o

11

of the Maricopa County Sheriff's Office


that an attempt to
Offi
t
tha

12

determine the -- the process through


which Deputy Armendariz
throug wh

13

had came into possession of


licenses, passports, and assorted
f license

14

other identifications,
, that it
t was the MCSO's thinking that a

15

community satisfaction
survey
be undertaken, which we felt was
ct
cti
surve
urv

16

a ruse as a means
how all of these items came into
eans to determine
det

17

the possession
Deputy Armendariz.
s on
n of Dep
D

TH

OF

15:15:32

We wholly rejected that.

IE
ND
S

course of this investigation other


During the
Durin
t

19

information
to the attention of the MCSO and the
formation
ormation came
c

20

monitoring team, specifically information relevant to a former

21

deputy who had alleged that members of the Human Smuggling Unit
deput

22

had, quote, pocketed items from, quote, safe houses that had
ha

FR

15:15:05

EF

OG

10

18

15:14:42

2
23

been raided and taken them back to the HSU office.

24

the opening of a criminal investigation in which 46 personnel

25

were given their Miranda rights.

15:15:56

This led to

15:16:22

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 11 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

11

I'd like to at this time emphasize in our collective

judgment as a monitoring team, and we have hundreds of years of

experience, we have never seen, having viewed a good number of


f

the interviews that occurred as part and parcel of that

criminal inquiry, we had never seen a more deficient,

unprofessional set of aimless interviews, interviews


ws replete
replet

with extraordinary familiarities, informalities,


s, and apologetic
apol

treatment towards those who were being interviewed.


erviewed
rview .

our view, Your Honor, called into question


seriousness in which
ion serious
seriou

.C
OM

BO

This,
in
T

the Maricopa County Sheriff's Office


e had taken
ake the order of

11

this Court.

OG

10

15:17:05

EF

We learned that there


re were
ere no policies on the use of

12
13

videos.

14

done loosely.

15

cordialities between
and members of the MCSO, we would
ee our
een
ur team
te
tea

16

have to say that


with the MCSO as it pertains
hat our interaction
int

17

to this investigation
we felt they displayed a cavalier, if not
nv stigation
tigati

18

a contemptuous,
emptuous
mptuous attitude towards our assistance, and, by

We learned that the


of evidence was at best
he handling
handli

TH

And notwithstanding
the exchange of general
otwithstandi
twithstand
15:17:28

OF

ND
S

19

15:16:39

extension,
the order of this Court.
tension
ension,
, th
We were perplexed that they had removed Captain Holmes
W

20

Affairs.
from Internal
I

22

original commander of Internal Affairs with whom we had dealt.


or

Captain Kenneth Holmes had been the

FR

IE

21

15:17:50

2
23

We were led to believe that this had been done presumably

24

because of his leadership on this matter, but we were somewhat

25

puzzled by the fact that he was removed and promoted to a

15:18:14

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 12 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

chief's position.
We were equally puzzled that Chief Trombi, who was

instrumental in the dissemination of the e-mail that was

contrary to our directions, and who's been in front of this


is

court on another matter and has been NOI'd.

investigation for an administrative matter relevant


t to this

case was also --

object on Title 38, privacy matters.


THE COURT:

All right.

11

MONITOR WARSHAW:

12

THE COURT:

I'm
to
I'm going
oi

OG

10

15:18:33

Excuse me, Your Honor.

A notice of

BO

MR. CASEY:

.C
OM

12

15:18:48

We were
concerned -re concerne
concer

EF

I'm going
indicate that the
ng to just
j

record, to the extent that


contains any names there, will be
at it conta

14

stricken.

TH

13

MR. CASEY:
Y:

Yes.
es.

16

MONITOR
TOR WARSHAW:
WAR
WARSHAW

OF

15

Thank
you, Your Honor.
T

15:19:05

We were also concerned that the

department moved
the command of internal affairs the
oved
ve into
n

18

incumbent,
Captain
ent
nt,
, Capt
Cap
i Bailey, from his previous position as the

19

commander
mmander
mander of the Special Investigations Division, especially

20

considering that the Special Investigations Division was the


considerin

21

parent component that oversaw the Human Smuggling Unit, and


paren

22

these personnel assigned to the Human Smuggling Unit and their


th

2
23

activities would be the specific subject of the inquiry being

24

made by Internal Affairs.

25

interaction with MCSO there was a representative from the

15:19:27

RI

EN
D

17

At all times relevant to our


15:19:52

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 13 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

13

Maricopa County Attorney's Office present, and to the best of

our recollection, we can think of no time that there was any

concern that even approximated the kind that was articulated in

the defendants' response to us during the course and conduct


uct
t of

our interaction with the Maricopa County Sheriff's Office


ice
e to

date.

any of the points that have been raised in the defendants'


defendants

response to us.

.C
OM

BO

We cannot recall her objections or concerns regarding

Regarding the closeout of a criminal


iminal investigation
inve
nv

that was specifically referenced to the


possible taking of
th possib
possi

11

property, we are also perplexed that an official


closeout of a
o
off

12

criminal investigation is accomplished


through an internal
complis
complished

13

memorandum sent from an investigative


sergeant to a captain of
investigati
vestigati

14

police with no signatories


from anyone above that
tories
ories or approvals
a
ap

15

particular position
captain
of police.
on of capta
apt

TH

OF

Maricopa Co
County
Sheriff's
Office in the pursuit of the truth,
nty
ty Sheri
e

18

but as we have indicated on our report, that our best efforts

19

have
consistently met with resistance and displeasure.
ve
e been con
THE COURT:
T

21

You care to address any of that, Mr. Casey?

22

MR. CASEY:

I'm not sure where to begin, Your Honor.

THE COURT:

Well, I'll tell you how I'd like to focus

IE

20

FR

ND

17

25

15:21:01

We have
diligently to be of assistance to the
ave worked
wor

16

24

15:20:35

EF

OG

10

2
23

15:20:19

Thank you.

15:21:28

the proceeding.
MR. CASEY:

Please.

15:21:37

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 14 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

As I indicated, let's talk about the May

14th events first, and then we can move on to the report as a

whole.

Do you have anything to say with respect to the May


y

14th events?

You're talking specifically about


bout the
t

Sheridan-Trombi?

Well, I'm talking about


event.
t the whole
who

We had a proceeding here under seal.

BO

THE COURT:

8
9

15:21:47

MR. CASEY:

6
7

.C
OM

14

MR. CASEY:

Yes.

11

THE COURT:

That seal has


removed.
as since been
be

12

MR. CASEY:

Yes.

13

THE COURT:

You've
withdrawn any objection to the
ve
e withdra

15:21:59

EF

OG

10

removal of the seal.

And
hearing you came forward, and
An in
i that
th
tha

15

I commend you for it


it, you
came forward and said that you had
i
u ca
c

16

found that in -let me just state this Deputy


-- well,
wel , and
well
a

17

Armendariz was
principal
witness and had a lot of evidentiary
as
s a prin
r

18

matters
involved in the trial which resulted in the current
s involv

19

operation,
the current exec -- well, current injunctive order
eration,
eration
, th

20

which we're operating, and so his misconduct was alleged,


under whic

21

then you informed us that upon his -- the investigation of


and th
an
t

22

his apartment or his home after his decease, you uncovered a


hi

15:22:09

15:22:31

FR

IE

ND

OF

TH

14

2
23

number of self-recorded videos that he'd done in his

24

eyeglasses, and that you had been able to review a few of them,

25

and a few of them were what you called problematic --

15:22:54

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 15 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

15

MR. CASEY:

Yes, sir.

THE COURT:

-- meaning that they were in violation --

the videos showed stops in violation of department policy;

perhaps stops that were even illegal; perhaps stops that even
en

violated somebody's civil rights.

reviewed anything close to all the stops.

.C
OM

15:23:07

At that point you had


ad not
n

You did note that on occasion, the few


you'd
w stops you
u

reviewed there were supervisors -- you were able to identify


id

one in which one of the HSU supervisors was present


during the
prese
presen

10

stop, and so you had concerns that others administratively


may
admi
adm

11

have been aware of these problematic


matic stops
op and not taken

12

appropriate action.

15:23:25

EF

OG

BO

You indicated as
s well that in addition to the videos

13

there were narcotics, there wer


were
r a large number of driver's

15

licenses, credit cards,


identification
cards, other matters
ca
car
ide
iden

16

that -- that posed


real concerns, that you wanted to keep
posed some
s

17

track of that
h t investigation.
inves
investi

15:23:42

OF

TH

14

Sheridan, Chief Deputy Sheridan, avow


We
e had
ha Deputy
D

18

that
him if in fact it was possible that other
at
t -- I asked
ask

20

deputies were recording videos, and he indicated that it was

21

not in
no
i violation of department policy for deputies to record

22

their own videos; and, in fact, he had reason to believe that


th

15:24:06

FR

IE

ND

19

2
23

that may have been happening, that there were other deputies

24

recording videos.

25

other body mount videos that he was aware of that had been

He, I think, came forth at that time with


15:24:22

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 16 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

1
2

recording -- been used by I think he said Lake Patrol.


In the video that you showed us that -- one of the
videos you showed us that Deputy Armendariz took with his

eyeglasses, we saw that there was a dash-mount camera in the

vehicle, and so Chief Sheridan couldn't tell me how many


any

dash-mount cameras there could have been out there.


.

.C
OM

I did express my surprise at the time,


, because
becaus
plaintiffs had asked for the recordings, all
recordings
in
l the recor
c

the earlier action, and the sheriff had requested that the

BO

County fund all the vehicles and perhaps


chief,
rhaps -- deputy
d
de

11

perhaps he was unaware, and so he


of how many more
e was unaware
unaw
una

12

videos there may have been out


that should have been
ut ther
there th

13

disclosed to plaintiffs and


they may have disgorged.
d what th

TH

I think I acknowledge,
cknowledge
knowledge, and stop me if I say -- if I
missummarize anything.
hi
hing

I think
I acknowledge that although I
t
th

16

could use my coercive


power to make sure that we -- or to try
coerciv po

17

to recover from
any videos that they might have, that
rom
om deputies
deput
p

18

we needed
operate quietly, so that we weren't alerting
ded
d to op
o

IE
ND
S
19

deputies
puti
puties
that might have been taking records -- and I didn't

20

say there were any; I'm not saying now there were any -- so we

21

would not be alerting deputies who might have problematic

22

recordings that they should ditch their recordings because


re

FR

15:25:14

OF

15

2
23

they're being collected.

24

times; I've marked up the transcript if you want to see it.

25

15:24:58

EF

OG

10

14

15:24:41

16

15:25:38

I emphasized that I think a couple of

I then directed the sheriff, who was here, and Chief

15:25:56

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 17 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

17

Deputy Sheridan cooperate with the monitor and together to

formulate a plan in which they could quietly go forward, the

monitor approve the plan, they would quietly go forward and do


o

their best to quietly see if they could get in all the videos
deos
os

that may have been recorded by deputies without advertising


tising
in

that we were collecting them.

.C
OM

I then believe that a meeting was set for a few hours

later in which you were to discuss and come to a cour


course
of
u

operation.

BO

And then it's my understanding


chief and
ing that
tha the
t
th

the sheriff went back and directed Chief


who was not
hief Trombi,
Tromb
rom

11

here, and, thus, you couldn't disclose


anything that we
sclos to him
sclose
h

12

discussed here, they directed


to send out a memo
d Chief Trombi
Tro

13

to all of the people under


command, one of which was one of
er his comm

14

the people identified as


-a - in one of the problematic -- as the

15

supervisor in one of
problematic Armendariz videos and
o the
he pro
pr

16

informed them that we


going -- that you were going -- they
w were
we

17

were responsible
on ible
bl for
o collecting all the personal videos.

18

then, when
he the monitor came, you went through three hours, you

19

came
me
e up
u with a different plan.

20

the plan you came up with was not possible because of what had

21

already happened.
alread
alrea

22

when he realized that he'd already messed that up and the


wh

TH

OF

ND

IE

FR

15:26:33

EF

OG

10

15:26:54

And

Nobody told the monitor that


15:27:15

In fairness to Chief Sheridan, he called

2
23

monitor was back in my chambers.

24

that?

25

15:26:13

MR. CASEY:

Do you disagree with any of

There's -- Your Honor -- no is the short

15:27:33

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 18 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

answer.
THE COURT:

Well, let me ask you, then.

And we don't

have to spend a whole lot of time worrying about this if "no"

is the short answer.

probably seen what those remedies are.


MR. CASEY:

Yes.

THE COURT:

I made a note of them.

request a
They re
requ

BO

finding that MCSO committed numerous and


additional
d serious a
discovery violations that resulted in
failure to provide
n the
he fail
fai

11

plaintiffs with relevant evidence


e prior
pri
t trial, and that that
to

12

resulted in the destruction of much of that evidence.

13

of these discovered recordings


rdings
ings that are still in existence in

14

response to plaintiffs'
requests should be produced
fs
s' discovery
discove
discover

15

to them immediately,
that they should be awarded their
ly, and
ly
nd tha
th

16

attorneys' fees
es for that failure.

15:27:57

That all

15:28:14

OF

TH

EF

OG

10

Do
o you
ou have
v any dispute with any of the relief that

18

they request?
equest
quest?
?

19

17

ND

MR CASEY:
MR.

Honor.
Honor.

Yes, two -- a couple of points, Your

First of all -Fi


THE COURT:

Oh, by the way --

22

MR. CASEY:

Sure.

2
23

THE COURT:

-- before I forget --

24

MR. CASEY:

Yes, sir.

25

THE COURT:

-- in the ensuing -- in the end, the

IE

21

FR

20

15:27:47

The plaintiffs have asked for certain remedies;


you've
s; you
y
've
v

.C
OM

18

15:28:28

15:28:33

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 19 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

19

monitor and MCSO was not able to implement the plan that they

arrived at with the monitor, but they did do a survey; they did

get some -- some recordings in.

.C
OM

In addition, they found that virtually every

4
5

detective -- or every deputy and every sergeant had audio


dio
o

recording devices, and had during the period.

HSU, since 2008, had required recordings and had


ad still kept
ke

some of those recordings and they were there;


e; and there
ther were
th

other recordings that were found that have


been turned
ave since b

BO

They
y found
foun that
t
tha

over.

But it does seem to me, at least


east
as by
b my review of -- and

11

I realize that there's some problematic


stuff, there has been
blematic
lemat
s
stu

12

since from the beginning, because


date stamps on the -cause t
the d
MR. CASEY:

Yes,
, sir
sir.
.

14

THE COURT:

-films are not always accurate,


- on
n the
e f

TH

13

but it seems to me
likely that there was known to the
e quite
qu te lik
li

16

MCSO that they


recording these traffic stops, it looks to
y were reco

17

me based on
discovery
that plaintiffs have again provided
n the
he disco
s

18

that that
hat
at was squarely requested and that there was never

19

provided.
ovid .
ovided

ND

So I guess I invite you to address that question.

MR. CASEY:
M

21

I've gone through the discovery.

IE

20

FR

15:29:25

OF

15

Well, yeah, and I will be brief.

15:29:43

There is no doubt

that video existed at the time that discovery was outstanding.


th

2
23

It was broad enough in order to include videos.

24

through --

25

15:29:14

EF

OG

10

22

15:28:51

THE COURT:

And audios.

If you go

15:30:02

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 20 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MR. CASEY:

And audios.

I didn't mean to make a

distinction there.

In fact, when I reviewed the October,

November, and December of 2009 depositions -- which, in

fairness to these counsel, they weren't there, it was the

Steptoe & Johnson law firm -- was the first reference of them

first coming online was the testimony.

and that many of the officers had testified that


hadn't
at they had

even taken out of the packaging the videos.

the Court's hand gesturing, I have trouble


reconciling, quite
ble reconci
reconc

.C
OM

-- I see
So I'm -

BO

frankly, that with that testimony.

15:30:46

There's no question that


exists before the
t some
som video
vi
vide

11

discovery cutoff.

Based on our prelimi


preliminary review, and there
pre

13

are thousands of them, the


majority are after the
he vast maj

14

discovery cutoff date,


whatever
that is worth to the
, for whate
at

15

Court --

TH

THE COURT:
COURT:

15:31:01

Well, let me -- let me just tell you one


Wel

OF

16

EF

12

thing that causes


auses
us
m some -me

18

MR.
MR
R. CASEY:
C E

17

THE COURT:

ND

19

Yes, sir.
-- concern.

The monitors have provided me

with this.
this

21

manual dated February 2008, and it has in here directions that


manua

22

every traffic stop will be recorded.


ev

IE

20

FR

15:30:17

And that was


as in '09,
'09
9,

OG

10

20

It's the Maricopa County Sheriff's operational

15:31:08

And so it looks to me

2
23

like even though -- even though many of those are presumably

24

destroyed by now, there was, when these discovery requests were

25

issued, -- yeah, it's page 3 and 4, Use of Scorpion Micro

15:31:35

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 21 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

21

video cameras by the Human Smuggling Division.

HSU deputies

will record their traffic stops when practical.

to me like in addition to what you have -- have provided, and I

don't question that you've now provided everything you have


ve --

.C
OM

It just looks

MR. CASEY:

Yes, sir.

THE COURT:

-- there was a lot that was destroyed


estroyed that
th

15:31:54

would not have been destroyed if you would have


e responded

fairly to that request when it was issued.


MR. CASEY:

BO

I cannot conclude that right now, but I

can conclude that while we determined


ed
d the
he vast
vas majority of the

11

videos were recorded after the discovery


cutoff date -iscovery cu

OG

10

THE COURT:

The existing
sting videos.
v
video

13

MR. CASEY:

The existing
videos.
xisting v

EF

12

all I can say, the existing


videos.
xisting
isting vide
id

15

universe; I can't vow


way or the other.
v
one
e wa
w

TH

14

17

You can't avow now.

MR.
R CASEY:
CA
CASEY
:

Certainly, I cannot.

15:32:22

And I don't think

anyone can
can.
ca
.

18

That's all -- that's

I don't know if it's the

THE COURT
COURT:
:

OF

16

THE COURT:

ND

19

You can't avow that the best method has

been used to recover those videos against -- from officers that

21

have been self-recording.


may ha
ma
h

22

MR. CASEY:

IE

20

FR

15:32:09

15:32:35

I cannot, but I can, in answer to one of

2
23

your questions, say that the conversation as I understand it

24

between Chiefs Trombi and Sheridan occurred before the meeting

25

with the honorable Warshaw -- monitor Warshaw and his crew, and

15:32:47

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 22 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

there was clearly a snafu that occurred.


So, you know, the practice that was agreed upon did

2
3

not take place.


THE COURT:

4
5

.C
OM

22

It was more than agreed upon.

Let me
e read
re

my order from the hearing that occurred just prior -MR. CASEY:

It was your order, Your Honor.


.

THE COURT:

All right.

Well, I'm going


direct the
ng to direc

monitor to work with you on a plan that he can approve


that
appro

your best thinking about how you can, without


in any
ithout resulting
resu
res

BO

destruction of evidence, gather all the


and then
th recordings,
recor
record

11

based on what you find, and/or maybe beginning


before you can
beginn
gi

12

assess what you find, depending


your thoughts, you result
ing upo
upon yo

13

in an appropriate and thorough


orough
ough investigation.
inve
nve

15:33:21

EF

OG

10

So I ordered --

15

MR. CASEY:
Y:

You did.
did
di

16

THE COURT
COURT:
:

-- I ordered you to consult and get the

TH

14

OF

15:33:35

approval of
monitor
before you proceeded in a way that now
f the
he monit
n

18

we have
e no
n way of
f knowing if -- I'm not saying there is, but

19

certainly
rtainly it wasn't the best way, it wasn't the way that was

20

agreed on,
on to make sure that we would get all the recordings

21

may have done that may have been incriminating.


that officers
o

22

MR. CASEY:

It was not pursuant to your order.

FR

IE

ND

17

THE COURT:

All right.

2
23

15:33:07

15:33:50

Let me raise one other concern

24

I have, and it's a concern based on your response.

I'm going a

25

little bit afield, and I do want to give you the opportunity to

15:34:09

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 23 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

23

say what you want to say.


MR. CASEY:

Yes, sir.

THE COURT:

But I noticed language in your response

.C
OM

that concerns me which says that the MCSO has and will continue
ntinue
in

to resist the monitor's recommendation that MCSO ambush


h its
it own
ow

deputies in violation of their due process rights.


MR. CASEY:

Yes, sir.

THE COURT:

Let me just tell you that


hearing,
hat in
i that
th

BO

and again I found it today, Chief Deputy


y Sheridan assured me
that there was no policy that prevented
from recording
nted officers
offic
office

11

their own videos.

12

from recording their own videos,


is no way that an
eos, there
eos
th

13

administrative hearing can


an be held against an officer for

14

recording his own videos.


eos.
eos

OG

10

15:34:35

TH

EF

If there is no
prevents officers
o policy that
th

And so to
extent
that you have suggested in your
o the
t
exten
xte

15

15:34:53

response that you have


the
right to disregard my orders -ha
t

OF

16

15:34:21

17

No.

COURT:
THE
HE C
R

-- that were then filed on May 2015, and

18

MR.
R CASEY:
CA
CASEY
:

impose
whole bunch of procedural requirements that do not
pose a whol

20

come from my order, but come from an argument that has no

21

merit, that this sort of investigation amounts to an


merit

22

administrative process, I am very concerned that the MCSO is


adm
ad

15:35:10

FR

IE

ND

19

2
23

subverting my orders.

24

MR. CASEY:

And Your Honor, let me, for --

25

THE COURT:

And to the extent --

15:35:29

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 24 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MR. CASEY:

Yes.

THE COURT:

-- that you say you're going to continue

to do it, I don't like it.


MR. CASEY:

.C
OM

That is not, and I apologize to the Court


Court,
ur ,

because we have failed in our ability to write clearly


y and
nd

communicate effectively, because that is not what we would


wou
as

counsel nor would we ever have our client do.

business of disobeying intentionally or otherwise


erwis the
erwise
h Court's

order.

BO

We re not in the
We're

I apologize to you for that lack


clarity.
k of clarit
clari
THE COURT:

All right.

11

MR. CASEY:

I will tell you that


at when a monitor

OG

10

15:35:54

EF

suggests ambushing -- our word


rd -THE COURT:

Did he
use the word "ambush"?
e ever
ve us

14

MR. CASEY:

understand that the monitor's team


I understan
understa

TH

13

suggested that we cor


corner
people without due process notice in
c
er peo
pe

16

parking lots, coming out from behind whatever location to ask

17

them about videos.


ideos
de .

15:36:05

OF

15

COURT:
THE
HE C
R

That is a violation of Title 38.


T
Then how come Deputy Chief Sheridan

18

thought
ough that also would be the best plan?
ought

ND

19

15:35:35

12

24

MR. CASEY:
M

20

I can only share with you, after

consulting with human relations, HR people, that the law in


consul
consu

22

Arizona is such -Ar

FR

IE

21

15:36:22

2
23

THE COURT:

Well, let me talk --

24

MR. CASEY:

-- that we cannot.

25

THE COURT:

If HR people think that they can remand my

15:36:30

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 25 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

25

order on a meritless argument that this is -- this constitutes

an administrative hearing, then I want to see them, and I'm

going to issue an order to show cause why they shouldn't be

held in contempt.

MR. CASEY:

.C
OM

Your Honor, the only point that I think


h

we're trying to suggest to the Court is not a disobeyance


beyanc that
beyance
t
tha

is not even within the realm of what I understand


and or any
an of my

co-counsel.

is not -- that wouldn't do that.

BO

And we can say that sincerely to the Court.


Cour
Co

That

They're
suggesting that when
re suggesti
suggest

a suggestion is being made --

11

THE COURT:

So you tell me --

12

MR. CASEY:

Yes.

13

THE COURT:

-- Mr. Casey --

14

MR. CASEY:

Yes
Yes.

15

THE COURT:
T:

-- what
wha about a procedure that I think

TH

Deputy Chief Sheridan


Sherida in his own language in the report agreed

17

was the best


procedure, what about an Internal Affairs officer
s procedur
proced

18

talking
individually to deputies that they believe have been
g individ
indivi

15:37:07

IE
ND
S

OF

16

19

recording
their own videos, what about that invokes any sort of
cording the

20

administrative process under state law?


administra

21

Chief Deputy Sheridan indicated to me, there is no policy

22

against deputies recording their own traffic stops?


ag

FR

15:37:03

EF

OG

10

2
23

15:36:43

MR. CASEY:

Especially when, as

15:37:25

I'm going to have to defer to -- I'm going

24

to have to defer to HR counsel on that.

25

other than telling you --

I cannot tell you


15:37:45

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 26 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

Well, I'll tell you what:

26

I'm going to

order HR counsel to show cause why she or he should not be held

in contempt to the extent that they're asserting that that

constitutes an administrative process.

.C
OM

We can move on.

MR. CASEY:

Is there anything else, Your Honor?


r?

THE COURT:

You can -- you can say what you


ou want
wan to
t

say.

Are you saying that administrative -- or that counsel


couns

wants to address me now, Mr. Liddy?

10

If it would help the


Court,
Your
he Court
Cour
, yes,
y

Honor.

OG

MR. LIDDY:

BO

MS. STUTZ:

Your Honor --

12

THE COURT:

Please.

13

MS. STUTZ:

Certainly,
tainly
inly,
, Your
You Honor.

14

THE COURT:

understand
my concern, Ms. Stutz?
Do you
ou unde
nd

15

MS. STUTZ:
Z:

Yes,
es,
, I do, Your Honor, very much so, and I

TH

appreciate your
ur concern.
concern
conc

17

what I recall
at that particular meeting with the
a l happened
happe
happene

18

monitor
on t
that afternoon, if I may -r team o

OF

16

THE COURT:

ND

20

FR

22

MS. STUTZ:

Well, let me ask you:

Did you sit through


15:38:38

Your Honor, I did.

There was --

obviously, it was an attorney-client privileged conversation.


obv
ob

2
23

THE COURT:

You weren't asked about anything.

24

MS. STUTZ:

Yes, I was -- I was present at that

25

15:38:24

I would like to provide clarity to

previous meeting?
the previo

IE

21

15:38:17

EF

11

19

15:38:02

meeting, yes, sir.

15:38:50

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 27 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

(Off-the-record discussion between Ms. Stutz and

Mr. Liddy.)
MS. STUTZ:

Okay.

Your Honor, I was there for a

.C
OM

27

portion of the meeting, and apparently there was a meeting


g

that, excuse me, occurred prior to my coming into the meeting


meeting.
eting.
.

clarification, Mr. Casey.


MS. STUTZ:

8
9

Thank you for that


t

So Your Honor, to address


ess your concern,
c

BO

All right.

THE COURT:

which is that we would be advocating that


something was an
at somethin
somethi
administrative proceeding when in fact
act
ct it was not, it was my

11

understanding, Your Honor, having


obviously also at your
ng
g been
bee obvi
ob

12

under-seal hearing that day, that the


intention and purpose was
t
i

13

to identify whether other


r recordings
recording had been made, but there

14

was also a presumption


it appeared, that
on
n or supposition,
suppo
suppos

15

misconduct would be there


to the misconduct or
ere
e comparable
c
co

16

violations of civil righ


rights.

TH

ND
S

MS STUTZ:
MS.

2
23
24
25

Yes, Your Honor, and I don't -- and we're

disputing that there was no policy against recording.


not disput

IE

FR

22

Well, you heard Ms. -- you heard Deputy

Chief Sheridan
heridan say there was to policy against recording.

19

21

15:39:27

OF
THE
COURT:
H COURT
CO
:

17

20

15:39:10

EF

OG

10

18

15:38:58

THE COURT:

15:39:40

Has there been any administrative

proceeding begun against any of the deputies who turned in


pr
their recordings?
MS. STUTZ:
a recording --

Your Honor, with respect to simply making


15:39:51

THE COURT:

Yes.

MS. STUTZ:

-- if that's your --

THE COURT:

Yes.

MS. STUTZ:

No, Your Honor.

28

.C
OM

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 28 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

There has not been any


y

proceeding with respect to making --

15:39:58

THE COURT:

-- this court, correct?

MS. STUTZ:

That's correct.

THE COURT:

All right.

MS. STUTZ:

Your Honor, it --

10

THE COURT:

Thank you.

11

MS. STUTZ:

If I may explain,
Your Honor, what
xplain, though,
xplain
th
thou

OG

BO

the basis was.

Obviously, the
that had been brought
he videos
vide
t

13

forward with regard to Armendariz's


rmendariz
endariz'
's misconduct were, you know,

14

potential violations of the


very
he ver
r rights that were at issue in

15

the underlying litigation.


ti
tiga
ion
n.

TH

EF

12

17

THE COURT
COURT:
:

Certainly.
Cer

MS.
S STUTZ:
ST
STUTZ
:

And so Your Honor --

COURT:
THE
HE C
R

And that merits an administrative

ND
S

18
19

15:40:11

OF

16

15:39:59

investigation.
vestigation
MS. STUTZ:
M

20

Correct.

However, requiring someone to

undertake or turn over those particular videos, if in fact they


undert
under

22

revealed that level of misconduct, could also invoke those


re

FR

IE

21

15:40:17

2
23

protections, sir.

24

THE COURT:

I have the statute right here.

25

MS. STUTZ:

Yes, sir.

15:40:29

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 29 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

29

And it is only when, and I'm quoting from

the statute, you can tell me if I'm quoting a bad version,

because the federal government doesn't give us enough money to


o

update our state statutes.


MS. STUTZ:

And I don't have it in front of me,


e, Your

Honor, but I -THE COURT:

All right.

It says:

If an employer

interviews a law enforcement officer or probation


and
obation
batio officer
offi
f

the employer reasonably believes that the


could
he interview
intervi
intervie

10

result in dismissal, demotion, or suspension


uspension -- now, just

11

asking for recordings you made that


pursuant to policy
hat were pu

12

gives you no basis to have a reasonable


belief that the
reason

13

interview could result in


dismissal, demotion, or suspension,
n dismissal

14

does it?

BO

OG

EF

Well,
certainly the
Well
l, sir,
s

15:41:04

impression that
at --

OF

16

15:40:49

TH

MS. STUTZ:
Z:

15

17

THE
COURT:
H COURT
CO
:

The content -- if you've recorded --

MS.
MS
S. STUTZ:
S T

Correct.

18

THE COURT:

ND

19

-- something bad, the content might.

But

because you have done a recording does nothing to


that -- just
ju

21

that end.
e

IE

20

FR

22
2
23

15:40:41

.C
OM

MS. STUTZ:

15:41:13

Your Honor, we're in complete agreement

with that.

24

THE COURT:

All right.

25

MS. STUTZ:

Um-hum.

Let me ask you, Ms. Stutz -15:41:18

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 30 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

30

-- the plaintiffs filed a request for all

recordings.

Is it your posi -- and that was not responded to.

Is it your position that before seeking to collect those

recordings from every officer, every officer was entitled to


o

the protections of an administrative hearing in what is


s a

discovery process in federal litigation?

15:41:32

MS. STUTZ:

.C
OM

No, Your Honor, that is not


position.
ot my posit

And in fact, I had a specific discussion with


Warshaw on
th Chief
Ch
Wa

that very day which was the one that I would like to share what
I believe occurred during that meeting,
-ing,
ing
, sir -

15:41:47

OG

10

BO

THE COURT:

All right.

12

MS. STUTZ:

-- if you
ou woul
would so indulge me.

13

THE COURT:

Go ahead
ahead.
ead.
.

14

MS. STUTZ:

Your Honor,
You
Honor during that meeting I

TH

EF

11

specifically did dis


discuss
di
ss the
th issues about notices of

16

investigation,
possibility of misconduct being contained
, the possi
p

17

within the content


ontent
nt
of those very videos.

18

reason that
hat I expressed concern about the notice of

ND
S

OF

15

And it was for that

19

investigation
vestigation process.

20

in one of his other filings with this Court, Your Honor.

21

time -at that


th
tha

In fact, Chief Warshaw references that


And

22

THE COURT:

Which one?

FR

IE

15:41:53

2
23

MS. STUTZ:

I'm sorry?

24

THE COURT:

Which one?

25

MS. STUTZ:

That item, I believe, Your Honor, may

15:42:07

15:42:15

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 31 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

still be under seal, so I'm not sure whether you would

prefer -THE COURT:

Well, you can identify it for me later.

MS. STUTZ:

Okay.

THE COURT:

All right.

MS. STUTZ:

And so the particular approach


h that was
a

.C
OM

31

Yes, sir.

I will do so.

15:42:22

suggested and what has been advised by the monitor


today I
itor here
her t

have a different recollection of events.

that it's the position of the monitor team


eam that
tha I had never

BO

Chief
stated
hief Warshaw
Warsha
s

discussed those particular issues with


ith
th them or
o had any concerns

11

raised about the notice of investigation


stigation
tigation process.
p

12

I did discuss those concerns with them.


them
t
THE COURT:

13

And in fact

I thought
referring to concerns
hought
ught he
e was
w

related to other matters


ers raised in the report.

TH

14

MS. STUTZ:
Z:

15

Sir,
ir, my
m understanding of what he said was

in connection also with


the May 15 discussion and our approach
w

17

to take a d
different
direction.
fferent
ferent d

OF

16

COURT:
THE
HE C
R

ND
S

18
19

15:42:33

EF

OG

10

All right.

15:42:48

So you tell me what your

understanding
derstanding was.
MS. STUTZ:
M

20

Sir, at that time the approach that had

by the monitor team as I understood it was that


been suggested
s

22

they believed that we should surreptitiously approach deputies


th

FR

IE

21

15:42:59

2
23

and essentially demand their recordings and require them to

24

turn those over without notice.

25

I believe that because potential misconduct could exist, in

And under those circumstances


15:43:14

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 32 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

32

fact because of the very concerns that everyone has expressed

here about the conduct by those other potential deputies, that

that could result in disciplinary action.

concerned about how --

.C
OM

THE COURT:

And so I was

Do you have any reasonable belief that


h

that particular question will result in administrative


tive action?
action

Just getting the recording --

MS. STUTZ:

That was the position that was be


being

advocated by the monitor team.

BO

So if that's
hat's
hat
s not a reasonable

belief, then that's -- that's perfectly


to me, Your
ctly acceptable
accep
accept

11

Honor.

12

was that I didn't -- I didn't


so.
t believe
belie
s

13

Your Honor.

14

enforcement officers' Bill of Ri


Rights should be taken very
R

15

seriously.

EF

Obviously, the position that was


by myself
s articulated
ar
I didn't believe so,

TH

But that being


case, I also think that the law
ing
g the cas

THE COURT
COURT:
:

MS.
MS
S. STUTZ:
S T

Well, if you didn't believe so, then the


Wel

Sir, I believe that the possibility exists

ND

that
could happen.
at
t that cou
THE COURT:
T

20

Possibility, but that's not what the

statute says.
statut
statu

It says a reasonable belief that it will result

22

in discipline.

And asking an officer for the recordings that

IE

21

FR

15:43:53

law enfor -- then


statute doesn't apply, does it?
th
t
the

18
19

15:43:38

OF

17

OG

10

16

15:43:26

2
23

he made that he's allowed to make does not give rise to a

24

reasonable belief that it's going to result in discipline of

25

the officer, does it?

15:44:00

15:44:15

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 33 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MS. STUTZ:

33

Your Honor -- Your Honor, my personal

belief in a situation would not constitute what is or isn't a

reasonable belief.

.C
OM

That being said, Your Honor --

THE COURT:

No, a legal --

MS. STUTZ:

-- I think that the --

THE COURT:

-- a legal opinion.

MS. STUTZ:

The coercive power that was


as being

15:44:26

suggested to be used was that there should be an eleme


element
of
e

surprise, that those deputies should be shocked


shocke by
b what was

BO

going to happen, and that they should


attacked
ld
d be essentially
essen
sse

11

in the parking lot.

12

the defense of those law enforcement


officers' rights -orcemen of
orcement

OG

10

EF

And I did not


ot believe
believ that in the -- in

THE COURT:

All right.
right
ight.
.

14

MS. STUTZ:

-they should be attacked in such a


- that
hat the
th

TH

13

15

way.

17

I've
I
'v got you.

MS.
S STUTZ:
ST
STUTZ
:

Yes, sir.

COURT:
THE
HE C
R

Anything else, Mr. Casey?

18

MR CASEY:
MR.

ND

19

15:44:47

THE COURT
COURT:
:

OF

16

15:44:35

No, Your Honor.

Thank you, Ms. Stutz.

With -- at the sound

sounding like a broken record, I wanted to -- I


of -- risking
risk

21

want to
t assure you that the comment that you quoted that

22

elicited very strong response from you is never and will never,
el

15:44:55

FR

IE

20

2
23

by the legal team or our clients at our advise under any

24

circumstances, ever be used to try to thwart, undermine, or

25

undercut your orders.

15:45:19

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 34 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

All right.

MR. CASEY:

We will -- okay.

THE COURT:

Now, how would you like to respond to

plaintiffs' request?

To plaintiffs' request, there's no


o -- I

think we need briefing.

something --

I'm not sure, there's no doubt that


a

THE COURT:

All right.

MR. CASEY:

Yeah.

I'll give you briefin


briefing.
brief

Well, and I --- I want -- I mean,

all I have is their thing saying we ought to be


b getting some

11

sort of sanctions.

12

for.

OG

10

EF

Is it for filing their response?


respon ?
response
That's
fine.
t's
s fine
fin
.

That's fine.

14

MR. CASEY:

know,
You know
kn
, so that's what I think --

15

THE COURT:
T:

let's -- listen -But let


le

16

MR. CASEY:
CASEY:

-- need to do.

THE
COURT:
H COURT
CO
:

-- is there any dispute that to the extent

17

you have
recordings that are responsive to their
ve existing
exist
existi

19

original
discovery requests that you turn those over now?
igin
iginal
disc

ND

18

MR. CASEY:
M

They have been turned over.

21

THE COURT:

All right.

22

MR. CASEY:

They just weren't turned over in

IE

20

FR

15:45:42

OF

TH

THE COURT:

15:45:52

Do you have any question --

litigation.
THE COURT:

24
25

15:45:33

I don't even know what


wha the fees would be

13

2
23

15:45:22

MR. CASEY:

BO

Thank you.

.C
OM

34

that?

Ms. Wang, do you have any question about


15:45:59

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 35 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MS. WANG:

I do, Your Honor.

35

My understanding is that

the universe of records that have been uncovered through the

investigation of Deputy Armendariz's death and other related

matters has not all been turned over.

defendants were continuing to withhold some of those documents


ocuments
uments

from the plaintiffs as being privileged under A.R.S.


S. 38
38-1101
01

and 1104.

MS. WANG:

All right.

If that's not the case,


like to
ase, then I'd
ase
I

follow up with Mr. Casey just to ensure


-- that we have
sure
ur that -

11

everything.

12

log that indicates there are documents


outstanding that have
docume

13

not been disclosed.

14

MR. CASEY:

Your
You Honor --

15

THE COURT:
T:

All right.
rig
ri

TH

EF

I believe they've given


some form of privilege
iven us som
s

You will follow that up.

To

MR.
R CASEY:
CA
CASEY
:

Yes.

COURT:
THE
HE C
R

-- extent that there are responsive

ND

documents
that you have not provided, you'll provide them?
cuments
uments tha
MR. CASEY:
M

Yes, and I --

21

THE COURT:

And the rest of the matters can be subject

IE

20

FR

22
2
23

15:46:41

18

15:46:28

OF

the --

17

19

OG

10

16

15:46:13

THE COURT:

I thought that the

BO

.C
OM

to briefing.

15:46:46

Ms. Wang, I invite you to initiate the briefing

at your convenience.

24

MS. WANG:

25

THE COURT:

Thank you, Your Honor.


All right.

Do we need to do anything else

15:46:55

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 36 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

about this first issue?

MR. CASEY:

No.

No, Your Honor.

THE COURT:

All right.

Second issue.

As it pertains
s

.C
OM

36

to the report, the other aspects of the report, the report


t is

divided into essentially five subcategories, and each one


e has

initial observation, preliminary findings, and recommendations.


ommendation

Just let me say -- let me point out a couple of


f things.
things
Chief Warshaw came to me and said that it was
their
w

BO

8
9

15:47:14

understanding that the only criminal investigation


vestigatio that
vestigation
resulted from the Armendariz matter had just been
closed.
b

11

told me that when he received the


Dave Tennyson and
e memo from
fr

12

then subsequently received a follow-up


memo from
follow

13

Captain Bailey.

EF

OG

10

And that memo,


o, I looked
looke at it, says, quote:

TH

14

He

The

15

following memorandum
summary of the Maricopa
dum is
s a written
w
wr

16

County Sheriff's
Human Smuggling Division criminal
f's
s Office
Off

17

inquiry.

18

you had
d ongoing
ongoin -- undergoing, had now been closed.

19

deputy
what Monitor Warshaw told me about the substance and
puty -- wha

20

quality of that investigation concerned me considerably.

21

directed him to write me a report so you could be allowed to


direct
direc

22

respond and we could initiate this process.


re

OF

15:47:34

15:47:51

It was
I
wa my concern that the only criminal inquiry that

So I

15:48:09

FR

IE

ND

And what

2
23

In the middle of writing the report, Chief Warshaw

24

told me that you had subsequently informed him of additional

25

things that he previously had not realized or been aware of or

15:48:22

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 37 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

37

noticed of, and he asked me if I wanted him to revise the

report.

forever.

County Sheriff's Office can know where we believe they're

inadequate, and if they want to update the investigation


ion we
w can
ca

deal with it then.

filed the report; that's why I gave it to you.

No, we will be revising the report

.C
OM

Let's just get the report down so that the Maricopa

So that is what I told him; that


at is why
y he
h

BO

response, that much of it has purchase and gives me


m great
concern, and to the extent that the ongoing or
order requires us
o

11

to monitor supervision of deputies,


us to monitor
ies
es, it requires
re
requ

12

Internal Affairs processes and


us to monitor those
nd requires
requ

13

processes, I think much of what is said needs to be considered,

14

but I do want to hear


responses to it.
r your resp

15

it one by one and we


talk about what we don't need to talk
w not
ot tal
ta

16

about.

I suggest we take
15:49:15

First,
the document stuff was the suicide
i st
t, after
t

17

ND
S

investigation,
igation
gation,
, and the monitor's report, I think, in terms of

19

the
was nothing but complimentary.
e suicide investigation,
i

20

said -- I forget the officer's name, I'm sorry.

It

Kim Seagraves?

MR. CASEY:

Seagraves.

22

THE COURT:

Lieutenant Kim Seagraves said that she had

IE

21

FR

15:48:54

OF

TH

EF

OG

10

18

15:48:39

I still think, by the way, even after


your
ter reading
readi

8
9

And I said:

2
23

done an exemplary investigation.

24

recommended is she apparently was removed from the

25

investigation before it could be complete into the suicide

15:49:32

The only thing the monitor

15:49:44

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 38 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

investigation, and the monitor recommended that Lieutenant

Seagraves be allowed to finish the suicide investigation.


Is there anything you want to say about that?

MR. CASEY:

.C
OM

38

Your Honor, I'm going to introduce you


ou

formally on the record to Captain Steve Bailey, the head


ad -- he

took over from Ken Holmes.

Standards Bureau, formerly known as Internal Affairs,


ffairs,
ffairs
, to

address that.

He is the head of the Professiona


Professional

BO

CAPTAIN BAILEY:

Good afternoon,
Honor.
n, Your Hon
Ho

In

reference to Kim Seagraves, I didn't


t order
orde her
he to stop; I

11

merely sent her back to her original


where she could
ginal
inal division,
divisi
divi

12

continue to type and finish the remaind


remainder of that
rem

13

investigation.
THE COURT:

All right.
right

15

of the suicide investigation?


ve
vest
gation
tio

TH

14

CAPTAIN
AIN BAILEY:
BAI
BAILEY

OF
THE
COURT:
H COURT
CO
:

17

15:50:14

EF

OG

10

16

15:49:59

Yes.

It is.

So she'll finish the remainder


15:50:26

It's completed now, sir.

I gather that there was some

things relating
to the search of Armendariz's computer and
relatin t

19

maybe
blood chemistry and some other things that were
ybe his blo

20

relatively minor?

EN
D

18

15:50:37

CAPTAIN BAILEY:

21

Yes, Your Honor.

His toxicology has

not been returned by the medical examiner's office at this


no

2
23

time.

RI

22

24
25

THE COURT:
toxicology report?

All right.

So you still have the


15:50:45

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 39 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

CAPTAIN BAILEY:

THE COURT:

Okay.

She'll finish that part of the

report?

CAPTAIN BAILEY:

THE COURT:

analysis.

Mr. Casey?

Yes, Your Honor.

All right.

The evidence collection


on

Do you have anything you want to say on that,


that,
Mr. -- or Captain Bailey?

Is it Captain Bailey or Commander Bailey


Bailey?
Baile
?

CAPTAIN BAILEY:
THE COURT:

11

CAPTAIN BAILEY:

12

MR. CASEY:

Captain Bailey
y --

Okay.

OG

10

BO

EF

Your -- Your Honor,


as an initial matter,
H
Honor

we had some deficiencies,


unquestionably, in the collection of
, unquestio

14

evidence.

15

to explain what happened


we recognized there were some
app ed after
appe
af
aft

16

initial collection
ction issues.
i
issue

OF

TH

With that, I can


the -- allow Captain Bailey
an allow
allo
all

THE
H COURT:
CO
COURT
:

When District II originally

responded,
sponded,
sponded
, it was clear to us shortly afterwards that they had

20

of missteps in the collection of evidence from


made a number
num

21

Deputy Armendariz's home.


Deput

22

Investigations detectives to reconcile all those pieces of


Inv
In

IE

ND

19

FR

15:51:13

All right.

CAPTAIN
BAILEY:
CAPTA
APTA

18

15:51:00

-- Your
r Honor.
Hon .
Honor

13

17

15:50:49

Yes.

.C
OM

39

15:51:24

I ordered -- or requested Special

2
23

evidence.

The 618 items eventually turned into 1657 items as a

24

part of that reconciliation, and when I realized the missteps,

25

I ordered an administrative inquiry be done in my unit.

15:51:47

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 40 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

District II was explaining that they felt it was PSB

was responsible for the miscommunication, I felt like it was

District II, so I ordered an administrative investigation to

occur, which has now been given an IN number.


THE COURT:

CAPTAIN BAILEY:

THE COURT:

All right.

THE COURT:

14

MONITOR WARSHAW:
HAW:
HAW

15

THE COURT:
T:

16

MONITOR
WARSHAW:
TOR WARSHAW
WAR

Yes.
es.
es

-- informed
forme of that.

TH

Yes.

OF

were you informed of that?


When
n we
w

15:52:14

I'm not full -- I'm not fully

certain, but
u I --

COURT:
THE
HE C
R

But you have been informed.

18

MONITOR WARSHAW:
MONI

ND

19

-- within the approximate time in

which it was accomplished.

IE

FR

15:52:10

EF

13

22

Chief Warshaw,
saying yes,
arshaw, you're
arshaw
yo
you

you've been -MONITOR WARSHAW:

21

I believe so.

Okay.

12

20

BO

THE COURT:

10

17

Have you informed


rmed the monitor
mo

OG

CAPTAIN BAILEY:

15:52:04

Yes, sir.

of that?

11

So it's ongoing.

.C
OM

40

THE COURT:

15:52:22

All right.

So you're able to consult with

Captain Bailey on that.


Cap
Ca

2
23

MONITOR WARSHAW:

Yes.

24

THE COURT:

25

Videos and reviews.

All right.

Thank you.
15:52:29

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 41 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

41

MR. CASEY:

Your Honor, the -- the video review has

been an enormous undertaking.

We also have here present in the room a non-sworn peace

officer, Jennifer Johnson, who has created a spreadsheet

hopefully of enormous value that I believe has been shared


ared
ed with
it

the monitor, but let's -- we have Captain Bailey just


-ust -

.C
OM

We can give you data about that.

THE COURT:

You know, I don't want to deprive yo


you
o of

the opportunity to say what you want to say.


y.
.

I will
l say I

was -- although I think the monitor's criticisms


deserve
riticisms d

BO

consideration, because you have preserved


served all the videos and

11

the monitor doesn't say otherwise,


seems
to me that we're
e, it seem
ee

12

going to be able to eval -- we'll


time to evaluate whether
we'
we
'll
l have
h

13

or not your criteria exists


whether or not they were
sts
s and whe

14

appropriate by looking
reviews.
ng
g at the
t
r
re

15

concerned about this,


we're
hi
his
we'
're spending a great deal of time on

16

it --

So I'm not particularly


15:53:23

MR.
R CASEY:
CA
CASEY
:

Okay.

COURT:
THE
HE C
R

-- because -- I am concerned to the

18

15:53:08

OF

TH

EF

OG

10

17

15:52:49

extent,
however, let me tell you, I'm concerned to the extent
tent
ent, howev

20

that you are not continuing to review those videos, and to the

21

extent that you have closed out any investigations, criminal,


exten

22

administrative, or otherwise, that may rely on the review of


adm
ad

15:53:33

FR

IE

ND

19

2
23

those videos.

I am not satisfied, and I'm not saying you

24

haven't done this, but I don't know that you've reviewed those

25

videos to determine whether other officers, supervisors, and

15:53:53

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 42 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

others were present during problematic behaviors, and whether

in fact if they were, they've been identified and

investigations, whether criminal or administrative, are

ongoing.

.C
OM

That's what concerns me.


MR. CASEY:

42

Yes, Your Honor.

It is a legitimate
mate
e

concern, and it is also shared with -- or by the MCSO.


CSO.
CSO

In

fact, on Friday when you -- we had something in


n camera

delivered to you, without getting into specifics,


I
cifics
ifics, because
beca
e

don't want to waive what we believe is subject to privacy under

BO

Title 38, is we have identified -- now,


now
ow,
, when I say "we," my

11

client has identified.

12

been shown to me that are clearly


problematic and there are
early p
probl

13

other MCSO personnel that


and in the judgment of
t are in
i there,
th

14

counsel or others, not


t only does
doe there appear to be a violation

15

of office policy, bu
but it als
also appears to me as an outside
al

16

lawyer, for what


to perhaps extend beyond just an
hat it's
it' worth,
wo

17

office violation.
l tion
io .

OG

10

EF

TH

OF

shoulder,
oulder
uld , is that on Friday we submitted to the Court and

20

identified some investigations of other people that were

21

present in those, because we're determining what you knew, when


presen
prese

22

you knew it, what you saw, all those things, because there were
yo

FR

15:54:49

and I'm going to look over my


My understanding,
un
und

19

2
23

15:54:30

I've also
been -- some have
o -- it's
s b

IE
ND
S

18

15:54:10

15:55:05

violations of office policy.

24

And so at least --

25

THE COURT:

Let me just say --

15:55:17

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 43 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MR. CASEY:

-- administratively it has gone in that

direction.

Is that a correct --

THE COURT:

Yeah.

.C
OM

43

Let me just say one thing.

I was
as

concerned, and I think I can raise -- if you have concerns


erns
n that
ha

I've encroached -- encroaching, you can tell me before


fore I say
a

this.
MR. CASEY:

Yes, sir.

THE COURT:

But I was concerned


looked at your
d when I lo
l

BO

in camera submission that it dealt with,


with, from
rom what I could

11

tell, only administrative investigations.


tigations
igations.
.

OG

10

MR. CASEY:

No.

13

THE COURT:

And those
administrative
investigations
hose admi
dmi

have a clock that's running


that's tolled when there's criminal
unning that
tha

15

investigations.

16

the video, as well as


that pertain to the property in
a matters
ma

17

Armendariz's house
house,
ho
, could give rise very easily and should be

18

the subject
bject
ect of active criminal investigations.

TH

14

15:55:54

OF

seems to me that matters pertaining to


And it
An
t seem
see

happening?
Is that
t

ND

19

CAPTAIN BAILEY:
C

20

I'm not sure I understand the

15:56:14

THE COURT:

All right.

FR

IE

question, Your Honor.


questi
quest

22

MR. CASEY:

Well, Your Honor, let me -- let me address

2
23

15:55:40

EF

12

21

15:55:29

24

one thing so -- I'm going to ask Christine Stutz to address it.

25

Let me point out one thing without naming something.

Beyond

15:56:23

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 44 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

administrative issues we as counsel, not the MCSO, have

identified and then alerted our client without waiving any

privilege, a concern on one of those stops that it's a

violation of your order from December of 2011.

.C
OM

44

THE COURT:

Yes, I'm aware of that and I'll discuss


iscuss
cu
--

MR. CASEY:

Yeah.

THE COURT:

-- it with you later.

MR. CASEY:

But as to whether or not


ot --

Can you answer the criminal?

BO

I believe so, Your Honor.


Honor

OG

MS. STUTZ:

10

15:56:39

If I understood

the question correctly, your question


whether the items of
estion
stion is
s wh

12

misconduct that are identified


in-camera review as the
ed in the
t
i

13

subject of administrative
also have been
e inquiry should
s

14

identified as criminal
l --

TH

EF

11

15:56:47

THE COURT:
T:

Yes.
es.

16

MS. STUTZ:
STUTZ:

-- misconduct?

OF

15

15:56:59

To my knowledge, Your

Honor, no, there's


here
er 's no
n potential criminal misconduct with regard

18

to those
items.
se items

ND
S

17

THE COURT:

19

Well, it certainly seems to me possible

that there could be criminal misconduct both from the items

21

seized, or at least in the possession of Sergeant Armendariz,


seized
seize

22

and if I don't miss out, Sergeant Armendariz claimed -- and


an

15:57:08

FR

IE

20

2
23

again, I'm not accepting his claim at face value any more than

24

I'm accepting Cisco Perez's claim at face value.

25

MS. STUTZ:

Yes, sir.

15:57:27

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 45 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

45

But he claimed that that was a result --

those materials were not his alone, but they were collected by

the entire HSU.

allegation -- maybe garbage, maybe true -- I think you need


ed to
t

continue investigating where those items came from, and


d even
ev

finding the people and asking them who took their credit cards?
card
a

Who took their driver's licenses?

plates?

investigation ought to be open.

.C
OM

So I think
a criminal
th

BO

And that is criminal behavior.

And one of the reasons why I was disa


disappointed with the
dis
closure of the Perez criminal investigation
is you were just
nvestigation
vestigati

12

dealing with what Perez said,


you knew that
, even though
thou

13

Armendariz said the same thing


hing and
nd he had hundreds of licenses

14

and credit cards and license


that had to come from
licens plates
pl
pla

15

somewhere.

TH

MS. STUTZ:
STUTZ:

Yes,
Yes Your Honor.

15:58:15

Certainly understood.

I believe
we identified in the response that was
elieve
lieve what
wh

filed, Your Honor,


to -- the public response, did indicate that
Ho

IE
ND
S

18

That's
s my
m concern.
concer
nce

OF

17

with
th
h regard to
t the overall Armendariz investigation, there is

20

still the possibility that items of evidence for which we have

21

been able to identify the source of why that information is


not be
no
b

22

in the possession of the MCSO has the potential to still have

FR

19

2
23

ongoing administrative or criminal outcome for those items.

24

There's a --

25

15:57:58

EF

11

16

15:57:44

Who took their


eir license

OG

10

When you have Cisco Perez making a similar

THE COURT:

Well, let me tell you my concern about

15:58:30

15:58:45

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 46 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

46

that, Ms. Stutz, and I appreciate it, and we can talk about it

more when we're under seal.


MS. STUTZ:

Yes, sir.

THE COURT:

But my concern about that is -- and I

re -- that's why I requested:

administrative investigations?

.C
OM

MS. STUTZ:

Yes, sir.

THE COURT:

I do not want all those


e potential
potenti

BO

administrative investigations to be tolled


led by time
im because you
haven't initiated a criminal investigation
would toll it
igatio that
igation
th
tha

11

when you should have initiated a criminal investigation


that
i

12

would toll your ability to subsequently


bring an administrative
ubseque
ubsequently

13

investigation.

Do you understand
stand what
at I'm saying?

15

MS. STUTZ:
Z:

TH

14

I do
understand that, Your Honor, and -o un
u

and I think that


to that, Your Honor, those items
hat with
wit respect
re

17

of evidence
we have yet to ascertain why they were in
e for
or which
whi

18

the possession
ssession
ession of
f Deputy Armendariz or otherwise, those items

IE
ND
S
19

we could not be running a statute of limitations in either

20

direction --

FR

15:59:17

OF

16

22

15:59:05

EF

OG

10

21

15:58:54

Is there a time limit on


n

THE COURT:

15:59:34

All right.

If you're satisfied that

that's true -th

2
23

MS. STUTZ:

Yes, and --

24

THE COURT:

-- and if you can satisfy me that that's

25

true, I'm all right with it.

15:59:40

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 47 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MS. STUTZ:

Yes, sir.

THE COURT:

All right.

MS. STUTZ:

I would be happy to do so and answer any

further questions you have.

THE COURT:

Thank you.

Anything else you want to say on that?

MR. CASEY:

15:59:44

All right.

.C
OM

No, other than it has -- at least

administratively, Your Honor, it has gone off


of
ff in a number
n
num

directions to find out --

BO

THE COURT:

Yeah.

11

MR. CASEY:

-- that -- that very


ry issue.

12

THE COURT:

Well, we
the administrative
e can discuss
d
discu

investigations, but I was


s a little -MR. CASEY:

Concerned about the criminal.

15

THE COURT:
T:

Yeah,
I am concerned about some of the
Yeah
h, and
a

TH

14

17

MR.
R CASEY:
CA
CASEY
:

Yes, sir.

COURT:
THE
HE C
R

All right.

We're moving on to personal

18

history
-- personnel history.
stor and again
story
a

ND

19

MR. CASEY:
M

Yes, sir.

21

THE COURT:

It seemed to me like even though they

IE

20

FR

22
2
23

16:00:00

administrative;
talk
about that later.
e; we can
c
t

OF

16

15:59:53

EF

OG

10

13

47

16:00:08

didn't explicitly say it, the monitor's report was quite


di
complimentary of the work done by Sergeant Fax in this respect.

24

MR. CASEY:

It was.

25

THE COURT:

But I got to say the conclusions that

16:00:17

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 48 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

48

Sergeant Fax came up with were a little disturbing about the

number and nature of complaints that were registered against

Armendariz, and the relative lack of department action to take


e

action on his behalf, or related to him --

MR. CASEY:

Yeah.

THE COURT:

-- for years.

MR. CASEY:

Yes, sir.

.C
OM

16:00:35

Your Honor, two


o things in

response to that.

shared by many, and what proverbially -- what is


often called
s o
red flags existed for this officer.

16:00:58

OG

10

There's no doubt that your


is
our
ur assessment
assess
assessme

BO

I will tell you that there


-ere are -

12

What's the number, 221?


221

13

221 is an investigation
currently ongoing to find out
tigation
gatio cu

EF

11

in those that were in the chain of command that those -- how

15

did this person with


miss the identification
it these
ith
hese
se issues
i

16

process that should have been inherent in the supervision at

17

the time even


v n before
befor the Court supplemented that level of

18

supervision
with your -- with your order?
ision
ion wi

It's
It
It'
's troubling to my client, and administratively they

ND

19

investigating it right now.


are invest

21

we've heard what you said about your concern about perhaps
it we
it,
w

22

not focusing enough on the criminal end or potential.


no

IE

20

FR

16:01:15

OF

TH

14

If anything else comes out of

16:01:33

This

2
23

transcript obviously will be ordered and shared with everybody

24

on the defense side.

25

recognition shared by my clients and that they are -- currently

But I can tell you that that is a


16:01:52

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 49 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

have a dedicated investigation to try to determine:

that happen?

Have you informed the monitor of these

administrative investigations?
MR. CASEY:

How did

.C
OM

THE COURT:

49

I'm going to look over my -- my shoulder,


houlder
ulder,
,

but my -- my understanding is every investigation that is


i

ongoing has been informed multiple times to the


e monitor.
monito .
monitor
THE COURT:

Chief Warshaw?

MONITOR WARSHAW:

BO

16:02:05

Yes, that's correct.


correct

THE COURT:

All right.

Thank
ank you.
yo .
you

11

All right.

Then we raise
se the
th HSU
HS administrative

OG

10

investigation and the HSU criminal


investigation.
iminal inve

13

raised my major concern about


that.
out that

EF

12

16:02:16

I've already

MR. CASEY:

sir.
Yes sir
Yes,
s
.

15

THE COURT:
T:

It
seems to me that you have -- when
t seem
see

TH

14

you're only looking


Cisco Perez allegations and you're
ooking at the
t

17

dealing with
t that
th
i isolation, and you're completely ignoring
in

18

the similar
allegations made by Armendariz, not saying that
milar
lar all
al

19

either
ther
her one
ne of them are true, but they're both saying the same

20

thing, and there was some evidence both under Perez and under
thing,

21

Armendariz that lots of things have been seized, I'm a little


Armend
Armen

22

concerned that there was a myopic approach on the Cisco Perez


co

16:02:40

FR

IE

ND

OF

16

16:02:25

2
23
24
25

thing.
I've also gotta say I read the four questions that
Sergeant Tennyson was asking in his criminal investigation

16:02:55

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 50 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

50

before he was coached by the monitor to add 33 or 34 more.

I've seen videotapes of what Sergeant Tennyson did.

not a criminal investigation.

even think you have to graduate from high school to know that
at

that, nobody is going to confess or give you any information


mation
ti
o
of

any value if you only ask four questions.

Those are my concerns.

MR. CASEY:

.C
OM

Those four questions, I don't

response from me is on behalf of my clients


are
ents your concerns
c
noted, the emphasis is noted, and with
that
ith
th the
th representation
re
rep

11

it will be thoroughly evaluated by my client,


the command
clien
li

12

structure, with defense counsel.


sel.
sel

to say on that?

Okay.
y.

CAPTAIN BAILEY:
BA
BAI
Y:

15

Captain Bailey, anything you wanted

TH

THE COURT:

13

Your
Honor, the four questions
Y
Yo

weren't the only


we were going to ask.
nly questions
que
questio

17

to provide a set
questions that would start the
se of
f baseline
b

18

interview.
iew
w.

19

take
interview in the direction that it went if he asked
ke
e the
t
inte

20

appropriate interview questions you would ask in a criminal


the approp

21

investigation.
invest
inves

OF

16

2
23

16:03:42

We were asked

What Sergeant Tennyson informed me of is he would


Wh

ND

IE

FR

22

16:03:29

EF

OG

10

14

16:03:13

Your Honor, I think the


e appropriate
appropr
appropria

BO

That is

THE COURT:

16:03:55

Do you have something you wanted to say to

that, Chief Warshaw?

24

MONITOR WARSHAW:

25

THE COURT:

No, Your Honor.

I was wondering if you were turning around

16:04:04

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 51 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

looking at me.

MONITOR WARSHAW:

THE COURT:

No.

I've seen -- I've seen some videotapes,

Actually, I shouldn't lie.

.C
OM

51

though.

of -- of an investigation, and it did not seem to me to


o be -CAPTAIN BAILEY:

THE COURT:

CAPTAIN BAILEY:

Can I answer that, Your Honor?


Honor

You can.

Sergeant Tennyson was concer


concerned
that
c

BO

if he was asking administrative questions


of a criminal
ns inside o
investigation that it would violate the
deputy's 38-1101
th deputy
deput

11

privileges.

You know,
not been very happy with
w, I have
ha
n

EF

THE COURT:

12

16:04:25

OG

10

Ms. Stutz.

I think she knows


very happy with her.
ows I'm
I'm
m not
n

14

if -- in at least that
Ms. Stutz.
t one respect,
respe
resp

15

if the sergeant has


questions
he can ask Ms. Stutz.
as q
estion
tio

16

Ms. Stutz has questions


questions, I'd suggest, Ms. Stutz, that you raise
questi

17

it with me under
and we can resolve those things.
nder
de seal,
seal
e

But

But if -- but
And if

it sure seems to me that the items put forth in


But
ut i

18

the
e report
report, or
o in the response to the report that you had

20

concerns about, could well have been legitimate questions for a

21

criminal investigation.
crimin
crimi

IE

ND

19

FR

CAPTAIN BAILEY:

legitimate we asked, Your Honor.

24

questions, to be clear.
THE COURT:

16:04:58

And those that we thought were

2
23

25

16:04:41

OF

TH

13

22

16:04:12

I've seen one videotape


ape

All right.

We did ask all of those

Well, it didn't seem that way

16:05:09

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 52 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

from -- and again, I only saw one.

CAPTAIN BAILEY:

THE COURT:

improved, for sure.

With the exception of two, I'm sorry.


It can be

.C
OM

-- some of the others.

Chief, did you have anything you wanted to say


ay on

5
that?

MONITOR WARSHAW:

We concur.

THE COURT:

All right.

MR. CASEY:

Your Honor, let me say one t


thing, because
th

BO

you mentioned displeasure with Ms. Stutz


tutz and
nd I --

OG

10

No.

THE COURT:

12

I apologize, Ms. Stutz.


utz.
utz

That was unfair.


fair.
fair

It's
I 's obvious I was not happy
It

with your determination in that one respect, but I'm not trying

14

to impugn your integrity


otherwise.
rity
ity or othe
th

TH

13

MR. CASEY:
Y:

15

And I j
just wanted to point out, Your

Honor, working,
obviously, with all the people at that table, I
g, obviousl
obvi

17

know that i
it is just
s one lawyer's perspective telling you, and

18

you can
n count it for whatever you wish, but I will tell you --

THE COURT:

Let me just say --

20

MR. CASEY:
M

Yes, sir.

21

THE COURT:

-- you don't have to tell me that -- you

IE

ND

19

FR

16:05:36

OF

16

22

16:05:23

EF

11

16:05:16

52

16:05:51

know, I've had very positive interaction with Mr. Liddy; I


kn

2
23

think he's trying to implement this order.

Despite my

24

disapproval of Ms. Stutz' legal advice, the monitor tells me

25

that she has been very cooperative and very facilitative, and I

16:06:05

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 53 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

53

want you to know, Ms. Stutz, that he's told me that.

still disturbs me when I think that an erroneous legal advice

is interfering with my order.

And so that's why I've grilled you today, Ms. Stutz;


utz
z; I

4
5

But it

.C
OM

hope I won't have to do it again in the future.

16:06:18

Mr. Casey, for what it's worth, I do not believe tha


that

you would misrepresent anything to me, and I do


that
o believe
believ t

the -- I mean, I am not satisfied with some of what's


w
what
' happened
's

in the Maricopa County Sheriff's Office.


.

BO

But I -- and we'll

talk about this in a minute -- I have


ve seen real
rea efforts there,
re

11

too, in terms of training.

OG

10

16:06:35

And we
to talk about that.
we're
re going
oi

EF

There are efforts that


are being made.
hat I recognize
r
recog

12
13

I'm not saying you're trying


undermine everything at every
ying
ng to und

14

step.

15

appearance, and to
the exten
extent
they do, they need to be
o t
xte

16

corrected and rectified


rectified.
rectif

OF

TH

But I will say


certain
things certainly give that
y that certa
rt

MR.
R CASEY:
CA
CASEY
:

17

And Your Honor, fair.

16:06:52

And I -- and I

understand
because that appearance, not that you need Tim
tand
an bec

19

Casey's
imprimatur on legitimacy, that's a real appearance
sey's imprim
sey

20

that's
that
that'
's there.
the

21

a mistake in how we characterized that about assisting


we made
ma
mad

22

or resisting, but our job as counsel is to give the best advice

But what I'm sharing with you is that, you know,

16:07:10

FR

IE

ND

18

2
23

that we can and to comply with the letter and the spirit.

And

24

I can only represent to you that that is what we're doing with

25

our client and I was -- I'm pleased that you recognize there

16:07:29

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 54 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

54

are some positive developments.

identified.

them and let everyone know, particularly my clients understand


d

the importance of it --

.C
OM

All right.

Are we ready to move on to the


th

MR. CASEY:

Yes, Your Honor.

THE COURT:

All right.

the monitor and the Maricopa County Administration.


inistratio
inistration

I'm going to call


Chief Freeman
c

THE COURT:

Well, and
just tell you, I don't
nd let me j

intend to spend a whole lot


t of time
ime on this.
MR. CASEY:

Sure.
Sure
Sur
.

15

THE COURT:
T:

I'll
tell you why.
'll
l te
t

TH

14

Chief Deputy Sheridan

will remember,
suspect Ms. Wang will remember as well,
, and I sus

17

that when I had


hearing with the parties about the
ad the h

18

injunctive
order before I entered it, long before there was
tive
ve ord

19

even
en
n a monitor
monito
onito in this action, I asked Chief Deputy Sheridan, I

20

think we ought to use body cams, or we ought to at least use

21

ability to use body cams because they're cheaper.


the ab
th
a

22

while we want -- while I recognize that this order is going to


wh

ND

IE

FR

16:08:11

OF

16

16:08:27

And

2
23

require a lot of money, I don't want it to require any more

24

money than it has to require.

25

16:07:58

up, please, because he'll have specific


information for you.
pecif
i
inf

12
13

Yes, sir.

OG

MR. CASEY:

10
11

Next item is contact


contac between

EF

16:07:48

next item?

BO

Having a hearing like this is valuable to identify

THE COURT:

There are problems that you've

And you consulted with the chief and you responded:

16:08:43

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 55 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

55

The chief says that body cams are worth what you pay for them.

They're cheaper because they're garbage.

object.

cams, but if you're both saying you need dash cams even though
hough
ugh

they're more expensive, I'll put dash cams in the order.


r.

The plaintiffs didn't

.C
OM

I said, Well, I would like to leave it open for body

Then when I did my order appointing the monitor,


onitor, I
onitor

told everybody in the order that I checked with


h all the
th monitor
m

candidates and all the monitor candidates said


are
aid body cams
ca

the way to go, so I said I'm still open to changing


this to
changi
changin

BO

body cams and by the way, because a thought ha


had occurred to me
h

11

in the meantime, that as any good


politician would, the
od
d politicia
politic

12

Sheriff's Office might be inflating


flating the cost of what this order

13

actually takes in order to get bett


better
funding, I indicated in
ett

14

that order that if Maricopa


Administration had any
aricopa
ricopa County
Coun
ou

15

suggestions or concerns
how we could more effectively
nc
nce
s about
abo
abou

16

implement this
s order to be cost effective, they could consult

17

the monitor
that.
r about
bo
t
tha

16:09:18

16:09:38

OF

TH

EF

OG

10

to see, frankly, that after that happened,


I am glad
g

18

you
determined that body cams work and they'll save Maricopa
u determine

20

of money.
County a lot
l

21

submission saying, you know, we're going to take this


read your
y

22

much overtime.
mu

2
23

dealing in bad faith, Captain Freeman, but that's all smoke and

24

mirrors.

RI

19

25

16:09:01

I've read your order.

I mean, I've

16:09:57

You know, I'm sorry, I'm -- I'm sure you're not

I've talked to my monitor and my monitor talks about

16:10:10

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 56 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

56

the requirement that everybody have the reports done by the end

of shift.

every law enforcement officer's obligation.

that you're requiring in your reports are not things required


ired
ed

by my order.

Maricopa County Administration wants to consult with


th my monitor
monit
nit

about whether or not this is really a cost from


m the order,
order then

I'm going to allow them to consult with my monitor.


monit .
monitor

believe me, it is not in my interest to undercut y


your ability

That's just a standard requirement.

.C
OM

Some of the things


gs

To the extent
ent
t that
at

BO

And
A

to comply with my order.

And I don't
t care
ar if Maricopa County

11

supervisors want to give you $500


0 million.
million

12

going to be doing it if you're


it comes from my order
re saying
sayi
i

13

and my monitor thinks otherwise.


herwise
rwise.

16:10:42

But you're not

EF

OG

10

Do you understand
stand what
at I'm saying?

15

MR. CASEY:
Y:

Yes,
and -- yes, Your Honor, I do.
es, an
a

16

THE COURT
COURT:
:

All right, so doesn't mean he's right.

And we'll be
b more than
tha willing to talk -- talk with you about
t

18

things.
.

17

MR CASEY:
MR.

Your Honor --

THE COURT:
T

And the decision is not mine.

ND

19
20

I don't

21

intend to make this a budgetary proceeding.


inten

22

want you, Chairman Barney, I want you, Ms. Wilson, to know that
wa

IE

16:10:58

OF

TH

14

FR

16:10:24

We already had that dispute.

It's built into

16:11:09

But I want -- I

2
23

if you want to, you have absolute access to my monitor to get

24

his take on what it really will take to comply with this

25

orders.

16:11:26

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 57 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

57

I don't want to shut you out of that, too, Ms. Wang.

1
2

If you think we're cutting you too much, you can make your beef

known, too.

Maricopa County complies with my order.

clear to Chief Warshaw and to Sheriff Arpaio.

meantime, we can do it as inexpensively as possible.


e.

.C
OM

I would agree
Your
e wholeheartedly,
wholehea
wholehear

that?

All right.

Ms. Wang?
MS. WANG:

16:11:51

Anything else to be said on

EF

THE COURT:

OG

Honor: as inexpensively as possible.

13

Your Honor
Honor,
did have a few observations
onor,
, I d

about the defendants' response


on this point that I wanted to
respon

15

make.

16

necessary expenses
with the Court's order should be
enses to
t comply
co

17

undertaken and
for by the County.
nd
d paid
d f

18

agree that
ha if there are expenses that are -- that make it

TH

14

16:12:00

And second, we also

IE
ND
S

OF

First, I agree
the Court that all reasonably
gr
gree
with
th t

19

possible
ssib
ssible
for MCSO to comply with the best practices in the law

20

enforcement profession, those are not items that should be


enforcemen

21

counted as complying with the Court's order.


counte
count

16:12:24

There are a couple things I do want to observe,

22

FR

16:11:37

CAPTAIN FREEMAN:

11
12

But in the
e

BO

about that?

9
10

I've always made that


ha

Captain Freeman, do you have anything you want


to say
wan t

7
8

But I will promise you, I'll make sure that

2
23

though.

One is that I have personally observed, and I've heard

24

reports in the media, that MCSO command staff have made

25

comments to the effect that this Court's order gives the agency

16:12:40

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 58 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

58

all the resources it has long wished for in order to modernize.

And I took some of those statements to imply that in fact, the

efforts to comply with the Court's order were not out of a

desire to comply with the Constitution and were not

acknowledging the Court's finding that this agency violated


lated
te the
th

Fourth Amendment and Fourteenth Amendment rights of


f the

plaintiff class.

.C
OM

So to the extent that statements like


have been
ike that ha

BO

8
9

made, I would just observe that those -- we believ


believe as
belie
plaintiffs are inappropriate, and there
her should
here
shoul be a recognition

11

that these are not just matters of having resources to live up

12

to the best practices of law enforcemen


enforcement in this country, but
enforc

13

also to redress the constitutional


titutional
tutional violations that MCSO

14

committed.

TH

A couple of
o details
ail I wanted to note.

15

16:13:20

EF

OG

10

I did look at

the spreadsheet
expenses that -- that the defendant
et of expen
e

17

submitted.

18

appointment
tment
ment of the
h community liaison officer, Hector Martinez.

16:13:37

OF

16

IE
ND
S

that there was $109,479 attributed to the


I noted t

19

We had object
objected
to the appointment of that individual, and our
bject

20

understanding was that the Court had relieved MCSO of that


understand

21

responsibility, so I was puzzled by that expense.


respon
respo

16:13:57

A couple of other things that I wanted to note is that

22

FR

16:13:06

2
23

there are some expenses, significant expenses undertaken by

24

MCSO that don't appear to have been pre-approved by the

25

monitor.

And a couple of the ones I would note is that MCSO

16:14:17

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 59 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

59

hired the Randy Means law firm in order to draft the training

curriculum that's required in the Court's order.

both parties in this case have spent countless hours, along

with members of the monitor team, rewriting and reworking that


ha

curriculum.

removed as a trainer because of a conflict of interest,


rest,
rest
, as he

is now serving as an expert witness for MCSO in


n a pending case

brought by the United States Department of Justice.


Justi .
Justice

.C
OM

Counsel for

16:14:41

BO

And at the end of the day, Mr. Means himself


elf
f was

A similar expense that MCSO's undertaken was prior to

the appointment of the monitor, Chief


ef
f Warshaw,
Warshaw MCSO purchased

11

some IT systems in order to implement


provisions of the
lement
ement various
vario
ar

12

Court's order, including an application


called IA Pro in order
applica

13

to deal with the early identification


system and E-Ticket
dentificati
ntificati

14

system.

TH

I don't know,
based
kn
kno
ase on the monitor's first quarterly

15

16:14:59

EF

OG

10

report -- actually
the first two quarters of the
ually covering
cover
c

17

compliance period
-eriod
ri
- whether at the end of the day those will

18

turn out
expenses.
ut to
o be wise
i

19

systems
stem are adequate.
stems
a

20

there to be
b oversight and for the monitor to continue to look

21

expenses and to decide whether they are, number 1,


at those
th
tho

22

properly attributable to the Court's -- compliance with the


pr

We don't know yet whether those

And so I do think it's appropriate for


16:15:37

FR

IE

ND

OF

16

16:15:22

2
23

Court's order; and number two, whether they are in fact

24

allowing the agency to comply with the Court's orders.

25

THE COURT:

Thank you, Ms. Wang.

16:15:57

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 60 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

I don't take it you want me to act on anything you've

just said.

It just seems to me like you've expressed your

position and I've understood it, I believe.


MS. WANG:

Yes, Your Honor.

.C
OM

60

We're not requesting


g any
an

action at this time.

16:16:09

THE COURT:

All right.

I thank you.

With that being said, since you're here,


Barney,
I
re,
re
, Mr.
Mr. Bar
ar

want you to know that I do not make any judgments


case
dgment if
dgments
f this
t

about what is necessary or even wise for


successful and
r the succe
succ

BO

good operation of the MCSO.

They may
ay make
mak all
al kinds of

11

meritorious requests for budgetary


funding.
ary
ry funding
fundin

16:16:24

OG

10

What I am requiring is what


wha is required by my order to

EF

12

make sure that this agency


constitutional standards.
cy meets
meet co

14

can fund them however


r you
yo want
want, that's not my concern, except

15

that I'm not going


in disputes about whether or
g to
t get
t involved
i
in

16

not you will fund wh


is required by this order.
what i

17

order it yo
you will f
fund it.
fun

OF

CHAIRMAN
CHAIR
HAIR N BARNEY:

And if I

Is that clear?
Very clear, Your Honor.

Thank you.

We'll
ll continue
continu
ntinu to work with the monitor and the Sheriff's

20

Department in that regard.

ND

19

THE COURT:

IE

21

FR

16:16:41

18

22

You

TH

13

16:16:56

Would you repeat that again for the court

reporter.
re
CHAIRMAN BARNEY:

2
23

I'm very clear, Your Honor, I thank

24

you.

We will continue to work closely with the Sheriff's

25

Department and the monitor in fully implementing the order.

16:17:07

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 61 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

CHAIRMAN BARNEY:

MR. CASEY:

Thank you.

Thank you very much.

So it's clear on the record, that was

.C
OM

All right.

Chairman Denny Barney.


THE COURT:

All right.

Anything more we need to


o say
y

about the contact between Maricopa County Administration


ration and
n

the monitor?
MR. CASEY:

No, Your Honor.

THE COURT:

All right.

BO

Let's talk
then, about
talk,
, then

OG

Sheriff Arpaio's comments that have been attrib


attributed
to him.
ttr
The press says what he said.
said

11

13

wants.

14

policy maker for the Maricopa


County Sheriff's Office.
Maricop Co
C

15

the Maricopa County


ty Sheriff's
eriff
iff' Office has spent much money in

16

implementing a training
program that ex -- and by the way,
train

17

Maricopa Co
County
Sheriffs
know this, I think you know this, I
nty
ty Sheri
e

18

spot checked.
hecked
cked.
.

19

to two sessio
sessions
in which one of them, Chief Deputy Sheridan was
essio

20

in taking the training himself.

21

I want
an you to know that.

22

sessions.
se

I think
16:17:47

OF

TH

But there isn't any


he is the chief
y doubt that
t

I want to the train -- the trainers and I went

ND

IE

FR
25

Sheriff
Arpaio can say what he
Sher

EF

concern, I've said it before.


.

24

16:17:27

You can understand my


Yo

12

2
23

16:17:15

10

61

And I appreciate that, Chief,

16:18:11

But they were pretty good training

They were not cheap; they were accurate and they

were well done.


I also had attended some community meetings where
we're trying to reach out -- and I attended the Guadalupe

16:18:25

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 62 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

community meeting -- we're trying to reach out or trying to

have the sheriff's office reach out and repair relations with

the community against whom he's committed the constitutional

violations.

Captain Hastings, was it?

.C
OM

62

And Chief Sheridan also was there as well as

16:18:42

MR. CASEY:

Hawthorne.

THE COURT:

Hawthorne, Captain Hawthorne


rne and some
som
m

others.

When they do that,


then
when
at,
at
, and
a
t
the

you have the sheriff saying, "I would do


again,"
o it all
al over
o
ov

BO

That was helpful.

when I found that constitutional violation


or -- on three
olation
latio three
th
thr

11

or four different grounds, even assuming he still had 287(g)

12

authority, I think he's completely


what the Maricopa
letely undoing
undo

13

County Sheriff's Office is spending a great deal of time

14

building.

TH

And so I ju
just wanted
to give parties an opportunity to
j
wante
ant

15

express their view about


whether or not you're in compliance
a

17

when despite
-it - and
d I have no reason to question the training

18

compliance
ance
nce to date.
t

19

have,
ve
e, but
t you also have the sheriff saying, "I would do it all

20

over again"
again in a very public way.

21

comments, Mr. Casey.


commen
comme

When you have training compliance like you

ND

IE

FR

16:19:11

OF

16

22

16:18:55

EF

OG

10

MR. CASEY:

So I'm anxious to hear your

16:19:31

Your Honor, the short answer is the

2
23

sheriff's comments that are protected, as you have indicated

24

before by the First Amendment, even though he's the

25

policy maker, should not, under any circumstances, be

16:19:44

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 63 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

63

considered by this Court, or by the monitoring team, in making

recommendations about whether or not there is compliance.

the argument is simple.

factual matter; it either exists or it doesn't exist.


THE COURT:

Compliance under your order is a pure


e

.C
OM

And

I think that I could abide that, but


t I'm
m

still not sure that it gives me much comfort when the chief

policy making officer of the Maricopa County Sheriff's


heriff'
heriff
's Office
Of

says he'd do it all over again.


MR. CASEY:

Okay.

What kind of training


is that?
traini

BO

Well, let me
e give you
ou an anal --

what comes to my mind.

11

order to lace my shoes.

12

doesn't matter how they're laced,


they're
laced.
aced, they
aced
t
'

13

compliant.

14

an order; I may say I would never


neve wear these shoes again; I may
nev

15

even say I prefer sli


slip-ons,
s
-ons
ns,
, it's immaterial, because if in fact

16

you connect a public statement


that we've all said is First
sta

17

Amendment p
protected
to finding somehow that there's compliance
otected
tected t

18

when there's
compliance -here
r 's factual
f t

16:20:20

EF

It doesn't
n't matter
matte who laced them,
I'm factually

TH

16:20:39

OF
THE COURT:

So there's no good faith obligation that

accompanies my order?
accompanie

21

MR. CASEY:

22

I'm saying is this:


I'

FR

I'm under an

I may tell you


don't
ou I don
do
't
t like the fact that I'm under

IE
ND
S
20

I'm wearing lace shoes


shoes.
hoe

OG

10

19

16:20:03

16:20:54

That -- that's not what I'm saying.

What

If you require, if you require speech to

2
23

be acceptable to the Court in addition to factual compliance,

24

you're now chilling speech.

25

good faith, doesn't that -- isn't that represented by the fact

And the whole point is if there is


16:21:14

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 64 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

64

that we have the training implemented that was found acceptable

by the Court?

have an EIS system that's up?

that's actually going to help us police ourselves --

That we have supervision that's there?

That we're going to have a BIO

.C
OM

THE COURT:

That we

Bottom line, though, if you were a Latino

in Maricopa County and the sheriff of Maricopa County


nty said
sa
he

would do it all over again, would you feel like


e you had

adequate protection for your constitution -deprivation


of
- the depri
p

your constitutional rights?

I don't think it
the answer to
it's
's -- well,
we
wel

OG

MR. CASEY:

10

BO

your question is the full context


as I
t of the
e quote,
qu

12

understand, was relayed by the


to Mr. Warshaw, and he
he sheriff
sher

13

asked Mr. Warshaw to relate


ate
e to you
ou what he meant.
THE COURT:

-Well Wel
-

15

MR. CASEY:
Y:

I assum
assume
that was done to explain what the
ssu

TH

14

OF
THE
COURT:
H COURT
CO
:

You know, let me tell you that the context

ND
S

was apparently
parently
arently -- and the reporter, I've got the report here,
says
ys it
i was in
i response to his request about the Guadalupe town

20

meeting
meeting.

21

to him was that he only meant if he had 287(g) authority


said t

22

again.
ag

FR

IE

19

2
23
24
25

16:22:03

context was.

17
18

16:21:47

EF

11

16

16:21:33

What the monitor passed on to me that the sheriff

16:22:18

Well, if he read my order -And by the way, Chief Deputy, you took the training.

Has Sheriff Arpaio taken the training?


CHIEF DEPUTY SHERIDAN:

No, Your Honor.

16:22:37

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 65 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

All right.

65

Well, I think you better take

the training before you're in compliance.

would do it all over again.

he would -- he only meant if he had 287(g) authority, but if


f

you read my order, it would still be unconstitutional under


de two
tw

or three different grounds.

that he understands I'm a nice guy, but he thinks


nks I lack a

sense of humor.

.C
OM

And then he told my monitor that

I try to be
guy, and I try
e a nice
nic gu
g

to have a sense of humor.

But I don't
it's very funny
n't
t think i

11

when we're talking about the Constitution,


stitution, or about my -- about
stitution

12

the injunctive orders that I have specified.


s
speci

16:23:04

EF

OG

10

MR. CASEY:

No.

14

THE COURT:

would ask you, if nothing else,


And so I wo
w

TH

13

that you have this


s portion
p tion
po
on of
o the transcript transcribed, and

16

because Sheriff
chose not to attend I'd ask you to
ff Arpaio
Arpa
c

17

review it with
personally.
w th
h him pe

16:23:16

OF

15

MR.
CASEY:
MR
R. C
E

18

Your Honor, I can avow to you that that

will
ll
l happen.
happen

20

to shut up if I've gone too much, but the point is you asked if

21

requires.
good faith
f

22

spoken word.
sp

IE

ND

19

FR

16:22:50

And finally, he told my monitor

BO

I understand that.

What he said was he

But I -- again, please, your courtroom, tell me


16:23:31

Good faith exists in the deed, not in the

And I respectfully submit to you that if you

2
23

condition a formal imprimatur of approval by this Court on

24

compliance on whether or not you agree with an elected

25

official's public speech --

16:23:50

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 66 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

THE COURT:

That is not at all what I'm conditioning

MR. CASEY:

Well, that's what --

THE COURT:

I'm conditioning it on what he is saying


ying
ng

.C
OM

it on.

as the chief policy maker of Maricopa County.


MR. CASEY:

16:23:59

Then what I would respectfully


-y submit
subm
-

okay.

I would respectfully
if
y submit that
th

that is the case, then there ought to be some


by these
me evidence
eviden

good, honorable people, by these folks, by these f


folks, that

BO

I understand that.

66

will come in and tell the Court:

11

was saying this.

12

cause and effect.

13

the infancy of this whole


e matter.
matte .
matter

14

going to be compliant or
o not
no compliant.
co
com

15

to a day that items


ms 4, 7, 72
7 were not compliant, it's not

16

appropriate to
that it's due to Joe Arpaio's comment;
o believe
belie
t

17

it's not appropriate


ap ropriate
opriat to guess or speculate.

18

some evidence
vidence
dence showing a causal link --

And look at the


on it.
e effect o

EF

And if in fact we come

MR. CASEY:
M

I apologize, Your Honor.

22

come forward, all this.


co

16:24:30

There ought to be

You need to move closer to the microphone.

away.
away.

I get carried

16:24:48

There ought to be a causal link that the monitor that we

FR

IE

There's no

THE COURT:

21

results in action.

25

say on that point?

24

16:24:14

The issue is whether we're

TH

OF

20

Joe Arpaio

Right now,
, right now we're in the baby --

ND

19

2
23

You
ou
u know what?
wha
wh

OG

10

THE COURT:

And ultimately good faith, I believe,

All right.

Anything else you wanted to


16:25:00

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 67 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

MR. CASEY:

67

I'm trying to read a note real quick, Your

Honor.

point is this on good faith.

chief deputy have directed that everyone in their office,

orally and in writing, especially after the early hearings


rings
gs we
e

had, comply with your order.

you because of the strong feelings, the strong position t


the

Court had that it was mentioned in the monitor's


quarterly
tor's
tor
's quart
a

report and we respect that assessment.

.C
OM

Sheriff Arpaio himself and his

BO

We're
We re not
ot interested in

technical compliance; it is factual,


faith compliance.
, good fait
fai

traveling down.

There will be hiccups


hiccups;
hicc
; some we wish didn't

13

exist.

14

happen.

15

crossing the T's.

16

done or it's not


not.
.

EF

12

But I will tell you


wants to see that
u that
tha everyone
ev

TH

It is not gamesmanship;
amesmanship
mesmanship it's not dotting the I's and
And it's either

whatever
says, because the sheriff is going to disagree
er
r he
e say
sa

19

about
out
ut certain
rtain findings.

20

or not we have actual compliance, Your Honor, ought to


whether o

21

on its own -rest o

That's his constitutional right.

But

22

THE COURT:

All right.

FR

IE

ND

18

MR. CASEY:

-- and if there's good faith, there ought

25

16:26:02

OF

It means
I
ans we get it done.

And
irrelevant, whoever is the elected official,
n it
it's irr
i

17

24

16:25:39

And we understand that this is a new road that we're

11

2
23

16:25:18

And I wanted to reiterate


erate that
a to

OG

10

You know, the final -- yeah, the final -- the final

16:26:15

to be a causal link.
THE COURT:

I've got your message, I think.

16:26:25

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 68 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

68

MR. CASEY:

Yes, sir.

THE COURT:

Do you have anything else you want to say?

MR. CASEY:

No, sir.

THE COURT:

All right.

.C
OM

I'm going to hear from

Ms. Wang, and then I see that Chief Warshaw would want like
ik to

make a comment.

Ms. Wang?

MS. WANG:

Your Honor, the sheriff, as the head


ad of the
e law
l

BO

Thank you, Your Honor.

enforcement agency, does not have a First


Amendment privilege
st Amendmen
Amendme

10

to make public statements and statements


his rank and file
ments to hi
h

11

that countermand this Court's orders


ders and
d the
th good faith efforts

12

of others in MCSO to comply with this


Court's
orders.
th
C

13

law makes that clear.

EF

OG

16:26:45

The case

Under the Spallone


United States case in the
pallone
allone versus
vers
er

TH

14

Supreme Court, Stone


on versus
one
ersus
sus City and County of San Francisco in

16

the Ninth Circuit,


versus Arizona Department of
cuit, Hook
cuit
H

17

Corrections
Circuit, and a Sixth Circuit case most
s in
n the Ninth
Ni

18

on point
because
it addressed specifically the issue of
nt becau
ecau

19

expressive
conduct that countermanded a court's injunction,
pressive co

20

quote:
quote:

21

other legitimate objectives of government.


to accomplish
ac
acc

22

First Amendment does not confer the right to persuade others to


Fi

2
23

violate the law.

24

Brittain in the Sixth Circuit.

16:27:05

OF

15

The right to speak is not absolute and may be regulated


Th

E
RI
25

16:26:29

16:27:23

The

And that's a quote from Kasper versus

Your Honor, all these cases teach that it is relevant,

16:27:43

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 69 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

69

in considering whether any conduct of an agency that's under a

court's injunction, has a record of past violations of the

Court's orders.

with all due respect to Mr. Casey, was not merely expressing
ing
g

disagreement, but was saying "I would do it all over again,"


again
in,"

you look at the record of what's happened before and


nd I think

it's worth taking a moment to go through all of


instances
f the insta

in which the sheriff or other command staff at MCSO ha


have

violated this Court's orders.

.C
OM

And with the sheriff's latest statement which,


h,

BO

OG

First there was the spoliation


evidence during the
tion of
o evi
ev

10

litigation of this case resulting


sanctions
ng
g in the
e Court
Co

12

orders.

Second, as the Court


urt noted in its trial findings of

13

fact and conclusions of law,


violated the Court's summary
law
aw,
, MCSO
MC
MCS

15

judgment order and


preliminary
injunction.
d pr
p
limina
min

TH

14

16:28:36

Third,
statement made after the Court made
d, in a video
vid

OF

16

its findings
fact,
the sheriff said, I will abide by the
ng of fact
c

18

Court's
decision, but he blamed all of the findings on the
s decisi

19

federal
government, which was contrary to the specific findings
deral
era gover

20

Court that MCSO engaged in intentional discrimination.


of the Cou

ND

17

IE

FR

22

16:28:21

EF

11

21

16:28:04

16:28:55

Fourth, in August of 2013, the sheriff sent out a

fund-raising letter which was reported in the media in this


fu

2
23

city, where he said again, I will abide by the Court's order,

24

but the rest of the statements were all defiant.

25

Ultimately, the Court wants me to have a federal monitor in my

He said,
16:29:16

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 70 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

70

office looking over my shoulder making sure everything I do is

politically correct.

stand for it.

found about the source of all of the constitutional violations,


tions
on ,

the Sheriff's Office would continue to enforce the immigration


migration
ration

laws.

.C
OM

And he insinuates that despite what this Court

Fifth, days after this Court issued its


ts remedial
injunction and supplemental permanent injunction
October of
nction
ction in Oc

2013, the sheriff was quoted in the press


ss saying,
saying Some people

BO

want more community outreach, as he was


out doing a
wa standing
stand
standi

11

saturation patrol.

OG

10

Well, I just
t started it.
it

Sixth, we all know very well,


well, after having been in
we
this court on other status
that at the
us conferences,
conferen

14

preoperation briefing
October saturation patrol
g before
befor that
th
tha

15

days after the Court's


supplemental
permanent injunction, Chief
ur
urt
suppl
upp

16

Deputy Sheridan
that were very derogatory of
an made statements
sta

17

this Court's power


and
po
an its orders, and Sheriff Arpaio expressly

18

endorsed
ed
d those
hose statements.
t

IE
ND
S

Seventh, after the October saturation patrol, Sheriff


Seve

to the media that he was not concerned about


Arpaio stated
sta

21

being in violation of the Court's order, and that, quote,

22

No one is going to take my authority under the Constitution,

FR

20

2
23
24
25

16:30:06

OF

TH

13

19

16:29:48

EF

12

16:29:33

I was elected by the people and won't

16:30:26

end quote.
Eighth, we had Chief Deputy Sheridan's op-ed in the
Arizona Republic in January which again was very derogatory of

16:30:41

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 71 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

71

the Court's orders.


Ninth, in March, in an unofficial community meeting,

Chief Trombi made again statements that mischaracterized the

Court's findings of fact, and summarized the Court's finding


ing
g as

being based on the fact that the ACLU prevailed because


e we

showed only that people with Hispanic surnames were


e held 14
4

seconds longer than people without; and also, that the Court
Co

found that the MCSO had violated the constitutional


rights of
tutio
tutional
ri

the plaintiff class only because two MCSO


SO deputies
deputie

.C
OM

BO

10

unconstitutionally used race as one factor


factor,
both false
facto
, bo
b

11

statements and mischaracterizations


ons of
o the
th Court's orders.

OG

16:31:18

Tenth, it was reported


ted in the media that in March of

EF

12

2014 the sheriff sent out


fund-raising
letter.
t a fund
fun
-ra
ra

14

two days after another


conference that addressed the
r status
stat
c
co

15

Arpaio and Sheridan


an comments
mments
ent before the October saturation

16

patrol, and the


for a corrective statement.
he requirement
requ
requirem

17

that fund-raising
letter in March of 2014 the sheriff stated
r ising
si
l
let

18

that, and
quote, There have been rampant unfounded charges of
nd I quo
qu

19

racism
profiling in my office.
cism
ism and
nd racial
ra

20

racially profile.
don't raci
don't

21

We re just doing our job.


We're

22

illegal aliens under the federal program.


il

OF

ND

IE

FR
24
25

This was just

TH

13

2
23

16:31:00

16:31:37

In

He also said, We

I don't care what everybody says.

16:32:00

We have the authority to arrest


Again, the letter

mischaracterized this Court's findings.


Eleventh, MCSO and the defendants continue to insist
on the appointment of Hector Martinez as the community liaison

16:32:14

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 72 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

officer under this Court's orders, even though he had been

involved in the circulation of racist anti-Mexican and

anti-Latino e-mails among MCSO deputies on agency e-mail.

.C
OM

72

And we've learned today that Hector Martinez, despite


spite
it

being relieved of the responsibility for being a community


unity
ty

liaison officer under this Court's order, is still list


listed
ed a
as

the community liaison officer of the MCSO on MCSO's


website
CSO's
CSO
s websi

today.

BO

Twelfth, the sheriff has continued


blame the
nued to bla
bl

federal government for the Court's findings.


findings

11

sent a well publicized letter publicized


ublicized
blicized by his own press

12

office to the Attorney General


United
States again
al of the
t
U

13

blaming the federal government


rnment
ment for
or its liability in this case

14

and demanding payment from the


government.
e federal
f

For example, he

TH

Thirteenth,
this will circle back to the first
th, and thi
th
th

15

subject we addressed
today in the status conference, we see in
dressed tod

17

the information
contained
in the monitor's report on the
a ion
on conta
n

18

Armendariz
ariz
ri and related investigations, and I would submit in

19

the
defendants' response to this Court, literal contempt for
e defendant

20

monitor as an arm of this Court and for the Court's orders.


the monito

ND

IE

FR

16:33:10

OF

16

22

16:32:52

EF

OG

10

21

16:32:36

16:33:33

Based on that record, Your Honor, and under the case

law that I've cited, I think that it is time to issue remedies


la

2
23

to prevent the countermanding of MCSO's other compliance

24

efforts and the corrosive effect of statements of the sheriff

25

and other command staff that are derogatory toward the Court's

16:34:01

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 73 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

73

orders and dismissive of the power of the federal judiciary to

correct constitutional violations.

.C
OM

As the Court noted, the sheriff made his most recent

comments in response to a question about the Guadalupe raid,


id, or

saturation patrol, in 2008.

This Court made specific findings


ndings

about that 2008 operation.

In Your Honor's trial order at page


pa

53, you found that the MCSO considered race as one factor among

others in selecting Guadalupe as the site for


large-scale
or a large
g

saturation patrol.

BO

And that is what the


referring
e sheriff was
w

to when he said recently that he would


all over again.
uld
ld do it a

OG

10

16:34:20

16:34:43

Your Honor, I think that


have a list of
t plaintiffs
plainti
plaintiff

11

remedies that we would urge the Court


to adopt at this point to
Cou
t

13

address the repeated statements


tements
ments and other conduct of the MCSO

14

that undermine the Court's


urt's
urt
s orders.
order
de

15

some of those options


are,
io
ions
are
e, we
w see exactly why the sheriff's

16

comments are not merely


expressing disagreement and not
mer

17

privileged First
expression.
irst
rs Amendment
Amen
m

And in thinking about what


16:35:05

OF

TH

EF

12

first option that I think needs to be addressed


The
he f

18

is,
Court noted, other personnel in MCSO, with counsel
, as the
he Co

20

parties and members of the monitor team, have spent an


for the pa

21

enormous amount of time and energy in making a training program


enormo
enorm

22

to implement this Court's provisions in supplemental permanent

16:35:29

FR

IE

ND

19

2
23

injunction.

24

sheriff saying that he would do it all over again.

25

That training is undermined and countermanded by a

And when you think about what the remedy should be,

16:35:50

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 74 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

74

additional training to say, Don't listen, MCSO rank and file,

to your sheriff, to the head of your agency, we need to do what

we're training you to do now -THE COURT:

MS. WANG:

THE COURT:

Let me ask you, Ms. Wang -Yes.

16:36:09

I would ask you to consider, Sheriff


Sheri

Arpaio is an elected official.

what he wants to say, doesn't he, to get elected?


ected?
ected

THE COURT:

10

Um-hum.

But that assistant


that if I let him
tant mean t

OG

MS. WANG:

He's got to be allowed to say

BO

.C
OM

say what he wants to say, that there


aren't
here aren
en't corresponding

12

sanctions.
MS. WANG:

13

EF

11

That's
right,
Your Honor.
s right
righ
, Y

I don't

believe -- plaintiffs are n


asking at this time that the
not as
a

15

Court enjoin the sheriff


from saying anything -sh
she
ff fro
fr

TH

14

THE COURT:
COURT:

16:36:40

All right.

OF

16

16:36:26

MS. WANG:
M
WA :
WANG

17

COURT:
THE
HE C
R

And in fact, he has a broad range and a

18

-- but there should be consequences.

presumptively
esumptively broad range of being able to say whatever he

20

wants.
wants.

21

provisions of my order as the chief policy maker of Maricopa


provis
provi

22

County that I have the authority to do anything, isn't it?


Co

ND

19

16:36:48

FR

IE

It is only to the extent that he frustrates the

2
23
24
25

MS. WANG:

That's right, Your Honor, and that is our

THE COURT:

So do you have sanctions that you -- not

position.
16:36:59

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 75 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

sanctions, but do you have an appropriate response by this

Court that you think is indicated?


Yes, Your Honor.

We believe that

.C
OM

MS. WANG:

3
4

additional new training and new policy guidance needs to be

issued in order to keep --

do, ignore their sheriff?

position that the sheriff and other command


mand staff had put the
Court into in order to -THE COURT:

11
12

OG

10

Essentially, Your Honor,


, that's
tha 's the
that
th

BO

MS. WANG:

8
9

Well, what do you want me to train them


e to

I will order
today,
and I think I've
r today
tod
, an

already ordered it, that Sheriff


-riff Arpaio
Ar
Is the training done?
done
one?
?

14

MR. CASEY:

No.
No

15

THE COURT:
T:

I'll
order that Sheriff Arpaio, I think
'll
l or
o

TH

13

he's already required


require to take the training and he hasn't taken

17

it yet, I'll
that
today as a result.
l order
or
th
then, you know, MCSO, again, we've recognized that
And
nd t

18

they've
ey'
ey
've
v made significant efforts, but they're not close to

20

being in compliance yet.

21

hasn't
hasn
hasn'
't even begun.

IE

ND

19

FR

16:37:37

OF

16

22

16:37:28

EF

16:37:15

THE COURT:

75

So their three-year compliance period

16:37:59

I would ask you, I would invite you to file a brief

2
23

whenever you file it appropriate, you feel like the sheriff is

24

undermining the training required by the order and in his

25

directions to his department.

But I would invite you when you

16:38:17

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 76 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

76

do that to consider carefully, very carefully, the actions you

wish this Court to take.

Sheriff Arpaio from being able to say what he wants to say as a

candidate.

on his department and the effect on the community which


-h -

against which he has engaged in discriminatory conduct.


duct.
duct
.

.C
OM

But I do have to be careful about that effect both


ot

THE COURT:

Yes, Your Honor.

So I'd invite you to give that some


so

thoughtful consideration.

Yes, Your Honor,


, we
w will
will.
.

OG

MS. WANG:

10

16:38:45

MS. WANG:

BO

I do not wish to in any way prevent

And one thing I

will mention before sitting down is that w


we do believe that it

12

is time, in light of the litany


conduct that I just
any of cond

13

outlined, for the Court to issue


issu an order that specifies that

14

if MCSO command staff,


, including
includin the sheriff, make statements

15

to MCSO personnel,
that, number one, express an
, or
o publicly,
public
bli

16

intent or a desire
any order of the Court, or to
esire to
t disobey
di

17

countermand
MCSO's
with any order of this Court,
d MCSO
CS 's compliance
co

18

other than
pursuing
legal relief such as their pending appeal,
ha purs
pur
i

19

that
will be consequences attached to those statements.
at
t there wi

16:39:23

ND

OF

TH

EF

11

16:38:56

Again, plaintiffs do not ask the Court to prevent the


A

20

sheriff from saying anything he wishes.


sherif
sheri

22

Court has noted, the sheriff's words as the chief of the law
Co

But fact is, as the

FR

IE

21

16:39:45

2
23

enforcement agency will have an impact and in fact are orders

24

to the rank and file.

25

And with all due respect to Mr. Casey, the sheriff's

16:40:05

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 77 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

77

most recent comment, like those that preceded it, were not

merely disagreeing with the Court's orders; it was a statement

of a desired action.

and we will submit briefing on this as well.

THE COURT:

Chief Warshaw, do you have something you wanted to


o

say?
MONITOR WARSHAW:

16:40:27

Thank you.

Very briefly, Your


ur Honor.
Ho
Honor
.

BO

All right.

.C
OM

And we ask the Court to keep that in mind


nd

As the

Court is aware, I am not an attorney, so


I'm
in a position
o I'
I
m not i
to comment on First Amendment issues.
s.
.

11

aware, I have been a monitor for 15 or 16 years, and we do

12

bring hundreds of years of police


olice experience.
e
exper
I respectfully disagree
with what Mr. Casey said,
sagre wi
though I'm certainly not in a position
to contest his First
p
po

15

Amendment argument
on behalf
t o
hal of his client.

16

our experience
e that the utterances of chief executives of

17

police agencies,
en ies
es, and
n in this case we've had other executives of

18

the agency
here before
this Court regarding their comments, has
ency
ncy her
b

But it has been

16:41:01

IE
ND
S

OF

TH

14

19

a chilling imp
impact on the reform process in any police agency.

20

And while I don't disagree with what Mr. Casey's saying about

21

at the
th end of the day it's the deed that counts, I think

22

certainly in the presence of Chairman Barney, Mr. Manos,


ce

FR

16:40:34

EF

13

But
Bu as the Court is also

OG

10

2
23

Ms. Wilson, who do not want this project to go on in

24

perpetuity, attitudes as expressed by executives of police

25

agencies are the final determining factors as to whether or not

16:41:23

16:41:43

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 78 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

78

these projects come to a close after three years or after seven

years.

Reform does not come easily.

Mr. Casey indicated were perhaps not artful in their response


onse
e

to us feeds a certain resistance factor that already exists


xists
st

within the ranks of the department, and I think it would be


e

very good for the welfare of this project, but most importantly
impor

for the welfare of this community if we can be prudent


in these
prude

kinds of comments or else our job, and ultimately the job of

These organizations are very, very difficult to move.

.C
OM

Even the comments that -- that

BO

those who are committed to making these


reforms, becomes that
hes reform
hese
refor

11

much more difficult.

OG

10

THE COURT:

Mr. Casey.
ey.
ey

13

MR. CASEY:

Yes,
, Your Honor.
Hono
ono

14

THE COURT:

I'm
to require it be brief, because
I
'm going t

I do want to finish
I still had some stuff that I
sh today,
day
y, and
a

16

want to talk to you about


abou under seal.

OF

15

MR.
R CASEY:
CA
CASEY
:

17

Yes, sir.

the words
"undermine," "frustrate the order,"
rds
ds from plaintiffs
l

19

"minimize
inimize
nimize the order"; I've heard from the monitor "attitude."

20

And I respect these individuals, but the fact of the


A

21

matter is there needs to be a burden of proof to make a causal


matte

22

link.
li

16:42:36

Your Honor, briefly, I've heard

18

RI

16:42:25

May I briefly reply?

TH

EF

12

2
23

16:42:05

16:42:52

This is not about attitude; this is about compliance.


What we're also hearing being suggested by the ACLU is

24

for the first time in its history it is against the First

25

Amendment of anyone -- excuse me, it's in favor of the First

16:43:12

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 79 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

Amendment except for my client.

restraint.

Court may disagree with.

of not politicizing this.

into this.

It's advocating a prior

A penalty for speech it disagrees with and the

.C
OM

The Court has done an exceptional job


ob
That interjects the politics back
ack
k

16:43:28

So I guess there needs to be a burden of proof in

showing a link between whatever comments, if the


he Court

disagrees with them, doesn't like them, the plaintiffs


don't,
plaintif

and somehow a noncompliance issue.

BO

It's
s not about
abou attitude.

Attitude helps, but not the sheriff's


s attitude.
attitud
attitude
THE COURT:

11

OG

10

79

Well, I appreciate
what
you say.
preciate
recia
w
wha

16:43:44

It's

clear that what we're talking


g about here
her mostly is a status,

13

the status of how the Maricopa


Sheriff is doing under
ricopa
copa County
Coun
oun

14

the monitor.

EF

12

TH

He's issued
first of many reports.
sued his
h
f
fi

I expect that
there
t
th
her will be extremely positive change

15

as a result of
f this meeting.
meet

17

Internal Affairs,
Investigations, from Administration, but
f airs
ir , from
f
fro

18

I expect
Sheriff Arpaio.
ct it
t from
fr

19

come,
me
e, I will take it into account when I am determining whether

20

this agency is in compliance, because I can't ignore


or not thi

21

things that he says when they are as direct and provocative as


thing

22

they are.
th

I expect it not only from

And to the extent it doesn't

ND

OF

16

16:43:59

FR

IE

16:44:27

2
23

Now, I'm not going to make that determination now.

24

will allow Ms. Wang to file whatever motion she wants.

25

sheriff is allowed to say whatever he wants.

The

But to the extent

16:44:48

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 80 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

80

as the chief administrative officer and policy maker of the

Maricopa County Sheriff's Office he suggests that there should

not be complete compliance with this order and that he's not

willing to comply, I'm willing to take that into account in

making a determination whether the MCSO is in compliance


nce with

my order.

comes that I have to make that determination, he


aware
he'll
ll be aw
w

and he can make his choices.

sheriff.

.C
OM

And I'm just advising him now so that when


hen the
th time
tim

BO

He can continue
ue to be the
th

But if he violates my orders, he'll


to do it
he ll continue
cont
on

under the sanction of this Court.

And I'
I'm not
no talking simply

11

about what he says; I'm talking about what


ha he does more than

12

what he says.

OG

10

EF

But that also factors


in.
factor in

willingness to stay, I have some


som questions for you about the

15

material that you su


submitted
s
mitted
ted to me under seal and so this

16

hearing is now
w going to be closed to the public.

17

may remain,
may remain, and the Court security
, my
y monitors
monito
i

18

staff may
remain.
ay rema

19

OF

TH

14

16:45:38

The parties

Everyone else must leave.

ND

(The
(
The courtroom is cleared.)
THE COURT:
T

21

MR. BENDOR:

22

MS. WANG:

IE

20

FR

16:45:22

With that being said,


said
aid,
, and
nd I do appreciate your

13

Sir, who are you?

16:47:26

I'm with the ACLU of Arizona, Your Honor.

Your Honor, this is Josh Bendor.

He's a

2
23

new attorney with the ACLU of Arizona and is not yet admitted

24

to the bar but has joined our plaintiffs' team.

25

16:45:03

MR. CASEY:

No objection.

16:47:43

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 81 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

(Page 81, line 1, through page 118, line 23, are

1
2

omitted and sealed by order the Court.)

.C
OM

3
4
5

6
7

BO

8
9

OG

10
11

EF

12
13

TH

14

17
18

ND

19

16

OF

15

20

IE

21

FR

22
2
23
24
25

81

Case 2:07-cv-02513-GMS Document 776 Filed 11/03/14 Page 82 of 82


CV07-2513, Melendres v. Arpaio, 10/28/14 Status Conf.

119

1
C E R T I F I C A T E

.C
OM

3
4
5

I, GARY MOLL, do hereby certify that I am duly


dul

appointed and qualified to act as Official Court Reporter


for
Repor
p

the United States District Court for the


e District of Arizona.

BO

I FURTHER CERTIFY that the foregoing pages constitute

OG

10

a full, true, and accurate transcript


script
cript of
f all
al of that portion of

12

the proceedings contained herein,


in the above-entitled
rein, had
rein
h
i

13

cause on the date specified


ied
d therein,
therein and that said transcript

14

was prepared under my


y direction and control.

TH

EF

11

16

DATED
Arizona, this 3rd day of November,
A ED
D at Phoenix,
P
Pho

17
2014.

ND

19

18

OF

15

20

IE

21

FR

22
2
23
24
25

s/Gary Moll