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Case 2:07-cv-02513-GMS Document 1608 Filed 01/13/16 Page 1 of 10

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M. Craig Murdy (011016) Craig.Murdy@lewisbrisbois.com
Dane A. Dodd (031084) Dane.Dodd@lewisbrisbois.com
LEWIS BRISBOIS BISGAARD & SMITH LLP
2929 North Central Avenue, Suite 1700
Phoenix, Arizona 85012-2761
Telephone: 602.385.1040
Facsimile: 602.385.1051
Firm email: azdocketing@lewisbrisbois.com
Attorneys for Brian Sands

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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

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vs.

No. 07-cv-02513-PHX-GMS

REPLY TO PLAITNIFFS’ RESPONSE
TO CHIEF SANDS’ NOV. 20
MEMORANDUM

Joseph M. Arpaio, in his individual and
office capacity as Sheriff of Maricopa
County, Arizona; et al.

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Defendants.

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Plaintiffs claim that Chief Sands willfully disobeyed the Court’s December 23,
2012 Preliminary Injunction Order (the “Order”). See Doc. 1589 at 4. Their argument is
not only unsupported by the evidence, it is contrary to it. A Chief of Enforcement who
wanted to violate the Court’s Order would not have directed the Lieutenant in charge of
the HSU to brief the HSU on the Order and prepare training for office-wide distribution
about it. He would not have had the Lieutenant who was developing training and briefing
meet with MCSO’s attorney to ensure that the Lieutenant understood Order. He also
would not have directed a briefing board to be developed to explain the Order after
allegations that it had been violated arose.

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1.

The evidence does not support finding Chief Sands willfully disobeyed the
Court’s Order.

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Whether Chief Sands willfully disobeyed the Court’s Order is not at issue in these

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proceedings except insofar as the Court determines it is necessary to refer Chief Sands to

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be prosecuted for criminal contempt.

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reasonable doubt that a contemnor knows of an order and willfully disobeys it. Falstaff

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

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

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

Criminal contempt requires proof beyond a

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The evidence does not show that Chief Sands deliberately or intentionally violated

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this Court’s Order. In fact, it shows the opposite. It shows he took affirmative steps to

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have the HSU deputies briefed on the Order, training about it to be developed, and a

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briefing board created to explain it. Meanwhile, he recognized hit was important and thus

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showed his enthusiasm for complying with the Order.

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1.1.

Chief Sands directed the HSU to be briefed on the Order.

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Tim Casey testified that Chief Sands was “enthusiastic” about complying with the

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Order. Contempt Hr’g Tr. (“Tr.”) 1813:16-19. In fact, Chief Sands never, “at any point in

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time,” expressed any reluctance to Casey to comply with the Court’s Order. Tr. 1813:8-

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15. Instead, Casey observed that Chief Sands “recognized the urgency [of] it” and that he

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felt “it was important that his people under Enforcement Support comply.” Tr. 1640:4-5.

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Chief Sands thus told Casey that he was going to tell Lt. Sousa he would be receiving an

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email from Casey about the Order, and that Lt. Sousa needed to “get it to the troops.” Tr.

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1649:24 to 1650:1. Chief Sands’s directive to get the Order to the troops was carried out

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by Sgt. Palmer, who, with Lt. Sousa’s knowledge, briefed the HSU about the Order. Tr.

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218:5-24; 1816:24 to 1817:12. He had Lt. Sousa “coordinate with Mr. Casey” on what the

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HSU needed to do to avoid violating it. Tr. 1966:2-7.

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1.2.

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Chief Sands directed training about the Order to be developed for
office-wide distribution.

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Chief Sands told Tim Casey that he wanted training about the Order to go out

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office-wide. Tr. 1650:12-25; 1813:5-7. He “came up [to Casey] and said: We need to

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send it to Patrol.” Tr. 1813:20 to 1814:1. Chief Sands then spoke to Lt. Sousa “about

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getting together with Mr. Casey to put together the training.” Id. at 329:3-6. On January

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24, 2012, Lt. Sousa cc’d Chief Sands on an email he sent to Tim Casey which showed that

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training scenarios had been developed and delivered to Casey. Ex. 2540.

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Plaintiffs argue that Chief Sands “willfully disobeyed [the Order] by failing to

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implement training about the order for MCSO personnel most likely to violate it.” Doc.

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1589 at 6. They fail to account for the fact that those most likely to violate the Order – the

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HSU – were already briefed on the Order, although is was done based on a mistaken

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understanding of the Order.

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however, is whether the evidence shows not only that Chief Sands knew that the training

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had not been developed, but that he actually intended for it not to be implemented.

Tr. 218:5-24; 1816:24 to 1817:12.

More importantly,

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Lt. Sousa testified that the training came to a halt as they waited for Tim Casey to

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review it. Tr. 786:24 to 787:2. To his knowledge, Casey never responded with his input

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on the scenarios. Tr. 787:3-5. He did not cc Chief Sands on any of the emails following

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up on the matter, and testified that Chief Sands would have no way of knowing of this

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roadblock unless someone went back to him and told him about it. Tr. 788:25 to 789:3;

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2777:14 to 2778:23. He has no memory of at any point in time going back to Chief Sands

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and saying: “Chief, we’re kind of stuck on these training scenarios. They’ve been sent to

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Mr. Casey and he’s never responded.” Tr. 787:23 to 788:2.

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documents in evidence indicate that he ever went back to Chief Sands. Tr. 788:3-6;

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2778:12 to 2779:3. Chief Sands also does not recall anyone ever coming to him to tell him

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there was a problem. 334:19-22. Lt. Sousa assumed Lt. Jakowinicz would pick up the ball

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and move it along when he transitioned into HSU. 788:7-10. He thought his March 27,

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2012 email was his way of letting Lt. Jakowinicz know, “Hey, this is unfinished business.

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Nor do the emails or

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Please pick it up and move it along.” Tr. 788:11-17.
Plaintiffs argue that Chief Sands had to monitor the training’s development to

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ensure it got done.

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deputies under his command, Tr. 322:11-13, Chief Sands had to be able to delegate and

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rely on others to come back to him if there was a problem.. Sgt. Palmer testified that

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someone at the level of Chief of Enforcement, like Chief Sands, would not be involved in

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the training or briefing of deputies. Tr. 233:24 to 234:18. Chief Sands testified that he

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would not normally be involved in the development of training, Tr. 326:4-15. He would

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normally only get involved if a need arose for him to solve a problem. Tr. 326:18-22.

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After delegating the development of training to Lt. Sousa, Chief Sands thought it would be

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completed or someone would come back to him.

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experiences with Lt. Sousa bolstered this belief. Lt. Sousa was excellent at following up

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on things – one of Chief Sands’s best division commanders. Tr. 333:19-25. The evidence

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thus fails to show that Chief Sands intended the training not to be completed, but rather

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that he reasonably expected it would be developed absent some notification there had been

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a problem.

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1.3.

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As the Chief of Enforcement with approximately eight hundred

Tr. 334:7-10; 334:16-18.

His

Chief Sands had HSU’s commanding Lieutenant coordinate with
MCSO’s attorney, Tim Casey, so that he would understand what the
Order required.

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Chief Sands had his own view of what the Order meant, but that does not mean that
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he is authorized to implement his own interpretation of the Order as the official position of
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the MCSO. He instead did what was within his power to have the Order implemented. He
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shared his view of the Order with Sheriff Arpaio. Tr. 1957. Sheriff Arpaio, however,
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disagreed with Chief Sands’s view of the Order. Tr. 1957:9-13. Sheriff Arpaio informed
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him that the MCSO would instead do “what the attorney said to do.” Tr. 261:16-17. Chief
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Sands thus had Lt. Sousa “coordinate with Mr. Casey” on what HSU needed to do to avoid
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violating the Order. Tr. 1966:2-7. Chief Sands also spoke to Lt. Sousa “about getting
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together with Mr. Casey to put together the training.” Tr. 329:3-6.
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Lt. Sousa coordinated extensively with Tim Casey about the meaning of the Order.

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He conferred with Casey for approximately 30 minutes on December 26, 2011, and for

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another one hour and six minutes on December 30, 2011. Ex. 2533. In addition to these

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meetings, Lt. Sousa often spoke to Tim Casey by phone. Tr. 785:3. It would also be

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reasonable to infer that he met with Casey before he testified in this case on July 26, 2012,

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and likely other times as well. Lt. Sousa also utilized Sgt. Palmer to aid in completing

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these tasks. He had Sgt. Palmer speak with Tim Casey about what the Order meant and

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draft training scenarios “based on . . . [his] conversations with Tim Casey.” Ex. 2540.

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Casey testified that he told Lt. Sousa and Sgt. Palmer that the Order meant that they

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had to “arrest or release,” or “AOR,” by which he meant that MCSO had to either arrest a

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person on state charges or release them. Tr. 1651:23 to 1652:1; 1647:12-19. Lt. Sousa,

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however, adamantly disagreed, testifying that “that explanation was never given to [him]”

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and that the first time he had ever heard that advice was when Mr. Casey testified about it

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in these proceedings. Tr. 2707:1-18.

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The evidence shows that after they met with Casey, neither Lt. Sousa nor Sgt.

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Palmer understood the Order to require them to arrest or release.

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understanding of the Order was that an MCSO deputy could contact ICE during a traffic

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stop so long as it was within the permissible scope of that stop, which he thought could

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continue for up to 20 minutes. Tr. 793:22 to 794:7; 2781-82; 2704:21 to 2705:5. He

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further thought that if ICE told MCSO that it wanted the individual, the detention was

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ICE’s at that point and MCSO was thus authorized to detain the person on ICE’s behalf.

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Id. This understanding is not one that Lt. Sousa concocted for purposes of this litigation,

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as it was memorialized in an email on June 7, 2012. See Ex. 2252. That email responds to

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a number of questions posed by a reporter. Therein, Lt. Sousa writes:

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Lt. Sousa’s

If an MCSO Deputy conducts a traffic stop and has reasonable suspicion
the person they are out with might be in this country illegally, they can
contact ICE/ERO’s LEAR section.

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Ex. 2252. In response to another question, he further explained:
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If a Deputy decides to call ICE, the phone call and process needs to be
completed within the course of the traffic stop. The courts have
consistently ruled 20 minutes is a reasonable amount of time for a traffic
stop. The time a Deputy takes to conclude a traffic stop can increase well
over 20 minutes if the deputy can articulate further investigation beyond the
original civil traffic violation . . .
Id. Sgt. Palmer shared Lt. Sousa’s understanding of the Order.
Sgt. Palmer’s scenarios, which he drafted based on the Order and his conversations
with Tim Casey, state that, during a traffic stop,

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[a] Deputy can simultaneously place a phone call to ICE to advise them of
his suspicion that the passenger may be an illegal alien in the U.S. If ICE
clearly instructs the Deputy to detain the passenger for subsequent turn over
to an ICE facility or officer, then the Deputy can make the physical
detainment of the passenger based on the directive from ICE.

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Ex. 2540. While Casey testified that he called Sgt. Palmer after reviewing the scenarios to

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let him know scenario 3 was incorrect, Tr. at 1790:9-10; 1792:5-12; 1794:8-11, Sgt.

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Palmer’s testimony disputes this. Instead, Sgt. Palmer testified that he “never received

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word back that those scenarios had been reviewed by any attorney.”

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(emphasis added). Lt. Sousa also testified that, to his knowledge, Casey never provided a

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response regarding his input on the training scenarios. Tr. 787:3-5.

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Tr. 245:4-10

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The emails do not indicate that Casey reviewed the scenerios. They show that Lt.

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Sousa sent the scenarios to Casey on January 24, 2012, and followed up on them on

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February 27. Casey responded that he had not reviewed the scenarios yet but that he

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would. Ex. 2540. On March 27, a month after his follow-up email to Casey, Lt. Sousa

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sent Sgt. Palmer and Lt. Jakowinicz an email indicating that Casey had at that time still not

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responded. Id.

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Tim Casey testified that he reviewed the scenarios and contacted Sgt. Palmer

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sometime after March 27 but before the end of the first quarter of the year (March 31). Tr.

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1792:5-12; 1794:8-11.

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communications with Sgt. Palmer during that timeframe. See Ex. 2533. Moreover, Casey

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testified that he never informed Lt. Sousa or anyone else that the training scenarios were
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The billing entries for those four days, however, reflect no

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incorrect, Tr. 1790:3-10; 1796:12-18; 1797:20 to 1798:10, despite Lt. Sousa’s asking him,

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“Give me a call once you have review the scenarios listed below,” a request he then

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followed up on. Ex. 2540. He did not follow up with Sgt. Palmer or do anything to find

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out if anyone else did not understand the Order. Tr. 1797:20 to 1798:10; 1792:13-20.

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Moreover, Lt. Jakowinicz and Sgt. Trowbridge also misunderstood the Order after meeting

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with Casey. Tr. 369:21 to 371:8; 1679:2-22; 460:15-19.

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The testimony of Lt. Sousa and Sgt. Palmer is supported by some of the documents

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and emails in evidence, which Casey’s testimony is not. In fact, the only written records

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from Tim Casey actually mirror Lt. Sousa and Sgt. Palmer’s understanding of the Order.

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See Defendants’ Response in Rebuttal to Plaintiffs’ Post Trial Brief at 17:2-11 (Aug. 16,

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2015) (Doc. 568) (citations omitted); Ex. 2514.

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reasonable inference that can be drawn from the evidence appears to be that Casey’s arrest

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or release advice was either not communicated or communicated in such a way that it left

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its recipients with a mistaken understanding.

Given the discrepancy, the most

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This misunderstanding about what the Order prohibited is important to causation. It

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begs the question of whether the specific failures Plaintiffs claim Chief Sands is

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responsible for would have made a difference. For example, implementing Sgt. Palmer’s

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training scenarios would not have kept the HSU from violating the Order, as the scenarios

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specifically contemplate MCSO being able to contact ICE during a valid traffic stop and

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detain a person not suspected of any state crime to turn over to ICE.

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1.4.

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Communicating his own view of the Order is not something Chief Sands
should be required to have done, as the Sheriff’s express disagreement
with that view would impose on Chief Sands an unreasonable obligation.

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Plaintiffs argue that Chief Sands “failed to ensure that HSU deputies were fully and
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adequately informed about the order.” Doc. 1589 at 4:17-19. They claim he failed in this
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regard by instructing Lt. Sousa not to violate the Court’s Order without giving that
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instruction “any substantive content.” Id. Their argument fails to consider, or even
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mention, evidence that Chief Sands did give his instruction substantive content by having
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Lt. Sousa “coordinate with Mr. Casey” about what HSU needed to do to avoid violating

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the Order. Tr. 1966:2-7. Nor do they mention Chief Sands’ testimony that he told Lt.

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Sousa to “get[] together with Mr. Casey to put together the training.” Id. at 329:3-6.

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Plaintiffs try to fault Chief Sands for directing his Lieutenants coordinate with Casey to

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have the Order explained to them instead of communicating his own view.

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Whether Chief Sands was required to have communicated his own view of the

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Order to MCSO’s deputies should take into consideration the fact that he expressed his

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view of the Order to Sheriff Arpaio and the Sheriff disagreed with it. Sheriff Arpaio

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defined the scope of Chief Sands’ power to act on behalf of the MCSO. An official can

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only be held in contempt for failing to do that which it is within their power to do. See In

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re Dual-Deck Video Cassette Record Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)

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

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failure to take all reasonable steps within the party’s power to comply.” (emphasis added)).

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Since Chief Sands did what was within his power to do, he should not be required to have

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done what he lacked the power to do.

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Even if it was within Chief Sands’s power to communicate his view of the Order,

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doing so in light of Sheriff Arpaio’s explicit disagreement with that view would likely

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jeopardize Chief Sands’s position of paid employment with the MCSO.

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Circuit’s holding in Institute of Cetacean Research v. Sea Shepherd Conversation Society

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suggests that it would be inequitable to hold Chief Sands in contempt under such

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circumstances. 774 F3d 935, 958 (9th Cir. 2014). In Institute of Cetacean Research,

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“there [was] no evidence that [Susan] Hartland took any action in response to the

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injunction that was not authorized the SSCS board.” Id. So she only did what she was

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authorized to do. “Hartland could only have complied with the injunction by resigning

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from her paid employment.” Id. Under those circumstances, the court held that “it would

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not be equitable to hold Hartland in contempt.” Id.

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The Ninth

Here, the case for Sands is even stronger than it was for Hartland in Institute of
Cetacean Research.

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Whereas Hartland was doing what she was authorized to do,
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Plaintiffs fault Chief Sands for not doing what he was told he was not authorized to do.

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Hartland likely had the discretion to choose not to exercise the authority she was granted.

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In contrast, Chief Sands could not have acted in contravention of the Sheriff’s expressed

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desires without being insubordinate. It would thus not be equitable to hold Chief Sands in

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contempt for failing to communicate his view of the Order to the deputies under his

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command.

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While advice of counsel is not a defense to contempt, a directive from one’s

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commanding officer to follow the advice of the organization’s counsel does define the

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scope of what steps would be reasonable for an intermediate officer to take to ensure the

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order is implemented. A step is not reasonable if it requires one to supplant his own view

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of a legal document for that of the organization’s attorney, especially when his

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commanding officer has expressly disagreed with his view.

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1.5.

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Chief Sands directed a briefing board on the Order be produced for
office-wide dissemination.

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In October of 2012, after Plaintiffs sent Tim Casey a letter alleging that the MCSO

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was violating the Order, Chief Sands directed a briefing board on the Order to be prepared

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for office-wide distribution. See Ex. 213 (Lt. Sousa to Lt. Jakowinicz: “I told Chief Sands

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I would forward this to you so you can write up a Readers Digest version of the judges

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order to be put out Office wide via Briefing Board.”). An Executive Chief that intended to

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violate the Order would not do such things. In fact, Don Vogel specifically looked for

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evidence of an intent to violate the Order when he was conducting his investigation, but he

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found none. Tr. 3400:15 to 1401:10.

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The evidence of the affirmative steps Chief Sands took to have this Court’s Order

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disseminated to the appropriate persons within the MCSO is inconsistent with a finding of

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willful disobedience.

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DATED January 13, 2016.

LEWIS BRISBOIS BISGAARD & SMITH LLP
By /s/
Dane A. Dodd
M. Craig Murdy
Dane A. Dodd

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CERTIFICATE OF SERVICE
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I hereby certify that on January 13, 2016, I electronically transmitted the foregoing
REPLY TO PLAITNIFFS’ RESPONSE TO CHIEF SANDS’ NOV. 20
MEMORANDUM to the Clerk’s office using the Court’s CM/ECF System, and thereby
served all counsel of record in this matter.
/s/

Dane Dodd

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