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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres,


et al.,
Plaintiffs,

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vs.

Joseph M. Arpaio, et al.,


Defendants.

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Court Reporter:

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FR

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Phoenix, Arizona
November 20, 2015
9:01 a.m.

(Evidentiary Hearing Day 21, Pages 4581-4820)

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No. CV 07-2513-PHX-GMS

BEFORE THE HONORABLE G. MURRAY SNOW

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

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Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 1 of 240

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

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A P P E A R A N C E S

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For the Plaintiffs:


American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Cecillia D. Wang, Esq.
39 Drumm Street
San Francisco, California 94111
American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Andre Segura, Esq.
125 Broad Street, 18th Floor
New York, New York 10004

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American Civil Liberties Union of Arizona


By: Daniel J. Pochoda, Esq.
P.O. Box 17148
Phoenix, Arizona 85011

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Covington & Burling, LLP


By: Stanley Young, Esq.
By: Michelle L. Morin, Esq.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065

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University of California Irvine School of Law


Immigrants' Rights Clinic
By: Anne Lai, Esq.
401 E. Peltrason Drive, Suite 3500
Irvine, California 92697

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For the Defendant Joseph M. Arpaio and Maricopa County


Sheriff's Office:
Jones, Skelton & Hochuli, PLC
By: A. Melvin McDonald, Jr., Esq.
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
Phoenix, Arizona 85012

IEN

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For the Defendant Maricopa County:


Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
Phoenix, Arizona 85254

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A P P E A R A N C E S

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For the Intervenor United States of America:


U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530

U.S. Department of Justice - Civil Rights Division


By: Cynthia Coe, Esq.
By: Maureen Johnston, Esq.
601 D. Street NW, #5011
Washington, D.C. 20004

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For Executive Chief Brian Sands:


Lewis, Brisbois, Bisgaard & Smith, LLP
By: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
Phoenix, Arizona 85012
For Lieutenant Joseph Sousa:
David Eisenberg, PLC
By: David Eisenberg, Esq.
2702 N. 3rd Street, Suite 4003
Phoenix, Arizona 85004
Also present:
Sheriff Joseph M. Arpaio
Executive Chief Brian Sands
Chief Deputy Gerard Sheridan
Lieutenant Joseph Sousa

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I N D E X

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Witness:

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E X H I B I T S

No.

Description

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M I S C E L L A N E O U S

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Argument

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By
By
By
By
By
By
By
By
By

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Mr.
Ms.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Ms.

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Young
Wang
Killebrew
Masterson
Murdy
Walker
Masterson
Young
Wang

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Admitted

(None)

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Page

(None)

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P R O C E E D I N G S

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This is civil case number 07-2513,

MS. WANG:

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Good morning, Your Honor.

Cecillia Wang

THE COURT:

Good morning.

MR. YOUNG:

Good morning, Your Honor.

Stanley Young

THE COURT:

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Good morning.

MR. POCHODA:

Good morning.

Dan Pochoda from the ACLU

of Arizona for plaintiffs.

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THE COURT:

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MS. LAI:

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Good morning.

09:02:11

Your Honor, Anne Lai for plaintiffs.

THE COURT:

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Good morning.

MR. KILLEBREW:

Good morning, Your Honor.

Paul

Killebrew, Cynthia Coe, and Maureen Johnston for the United

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States.

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THE COURT:

09:02:20

Good morning.

MR. MASTERSON:

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Good morning, Judge.

John Masterson

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and Joe Popolizio for Sheriff Arpaio and the alleged

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contemnors, and we have Holly McGee with us.

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09:02:03

and Michelle Morin, Covington & Burling, for plaintiffs.

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09:01:51

and Andre Segura of the ACLU for plaintiffs.

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THE CLERK:

Counsel, please announce your appearances.

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Please be seated.

Melendres, et al., v. Arpaio, et al., on for oral argument.

THE COURT:

THE COURT:

Good morning.

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MR. WALKER:

Good morning, Your Honor.

on behalf of Maricopa County.

THE COURT:

Mel McDonald

THE COURT:

Good morning.

MR. MURDY:

Good morning, Your Honor.

09:02:40

Craig Murdy on

behalf of retired Executive Chief Brian Sands.


THE COURT:

Good morning.

MR. EISENBERG:

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Good morning, Your Honor.

making a special appearance for Sheriff Joe Arpaio.

Good morning.

MR. McDONALD:

Richard Walker

Good morning, Your Honor.

David

Eisenberg, specially appearing on behalf of Lieutenant Sousa.


THE COURT:

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Good morning.

Is that everybody?

I just want to take care of a few matters before we

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get started and make sure I understand things.

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had a telephonic conference in which I invited the parties, for

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the most part, if they could answer any of the questions that

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I'd filed on Wednesday today, that would be appreciated, but I

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authorized you to file any answers in writing up to two weeks

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after today, post-oral argument.

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the record.

I'm just going to put that on

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conversation, asked me to identify any excerpts in the record

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that I was considering, or was aware that I was considering, so

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the parties could address them.

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and position papers filed by the parties that went up -- that

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09:03:11

Mr. Murdy, in that argument, or in the course of the

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Yesterday we

DS

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09:02:54

I identified several pleadings


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preceded the preliminary injunction motion, and Ms. Iafrate's

representation sometime later pertaining to Chief MacIntyre's

duties with respect to the receipt of correspondence from

Mr. Casey.

them out there so you'll know.

controversial.

I've thought of a few more.

I just want to put

I don't think they'll be

Starting with the May hearings, Chief Deputy Sheridan,

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Chief Trombi, and others, including your predecessors,

Mr. Casey and Ms. Iafrate, made representations to the Court

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about various materials they'd found.

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well.

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on those things and where they came from that I won't have to

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refer back to statements made, for example, by Chief Deputy

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Sheridan in which he indicated these things, or Chief Trombi or

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you or Mr. Casey.

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those statements, and so if you want to address them and you

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have concerns with them, please let me know.

You've done that as

09:04:22

I think that there's probably enough hearing testimony

But I may well be interested in referring to

09:04:48

You also made representations to me, Mr. Masterson,

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about the 50 hard drives in the custody -- that are currently

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in the custody of the marshal.

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hard drives were the hard drives provided by Dennis Montgomery

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to the MCSO.

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DS

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You indicated that those

09:05:09

I'm not sure that we've ever had -- as I thought

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about it last night, I'm not sure that we've ever had

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affirmative testimony that establishes that, and that's

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probably because you had made the affirmative representation to

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09:04:09

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me, and that would be another one that I would be looking at.
I did read this morning -- I've had several things

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filed.

executive Chief Sands' sort of summary, assuming that you were

using that in lieu of spending time today, Mr. Murdy.

also, Chief MacIntyre has filed a request that he be released

from any consideration of criminal prosecutions.

And

Arpaio's deposition testimony, noting that it is consistent

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with his trial testimony.

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that he relied on his subordinates to implement the preliminary

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injunction and in his deposition testimony he indicates which

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subordinates, apparently, he relied on.

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you have a position about whether or not I can consider

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deposition testimony, but I raise it for your consideration.

For example, his trial testimony

I don't know whether

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Sheriff Arpaio's hearing testimony.

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something similar in his hearing testimony; I'm not sure if

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that specific factual specification was made.

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of some interest to me when I'm considering findings of fact

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and conclusions of law, so I just raise it for your attention

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that at least that deposition testimony purports to say that he

09:06:26

I remember him saying

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DS

And it might be

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was relying on Chief Deputy Sheridan and Executive Chief Sands

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to implement the terms of the preliminary injunction order.

FR

09:06:05

I'm not sure that specifications were not made in

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09:05:45

In those motions they cite to, for example, Chief

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I read, for example, at least briefly reviewed,

Those are the only other things for the parties that I

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could think of overnight that may be avowals that have been

made in the course of hearings, but as I say, there may be

others.

attention before I issue any findings of fact and conclusions

of law, in case you have any comment to make on them.

If there are others, I will raise them to your

With respect to your 801(d)(2) motion for

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reconsideration, Mr. Masterson, I do share, to some extent,

sympathy with the plaintiffs when they point out that you

didn't really object to any specific evidence, and I understand

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that.

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an argument that a confidential informant is not necessarily in

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an agency relationship with a law enforcement agency.

I do think that you have a point, however, when you make

09:07:47

I think that in some cases this is not -- let me just

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be clear.

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confidential informant, it's more like they were paying

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Mr. Montgomery for his services, although there was the aspect

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that they were also paying him for access to records that he

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was purporting to them he had illegally obtained.

I think that in some cases this isn't a traditional

09:08:08

Actually, what I was thinking about, though, is I

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don't think it was error to admit any testimony that I can

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think of because, A, there may -- it depends on his statement

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whether or not he was in an agency relationship or making a

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statement that was in the course of his agency relationship.

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But if he wasn't, I'm not necessarily going to take what

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Mr. Montgomery says for truth of the matter asserted on any

FR

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event -- in any event.

But he was involved in conversations with the other

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representatives of MCSO, and so I'm either going to consider --

if it gets down to me parsing those audiotapes that I think is

what you're talking about, I will determine whether or not it's

a statement made by Mr. Montgomery, and if it is a statement

made by Mr. Montgomery, whether that statement can be

considered in an -- made in any sort of an agency relationship

with MCSO.

And if it's not, I'm going to consider whether or

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not I'm going to consider the statement for the truth of the

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matter asserted, which I think is, you know, may well not be

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the case but it still, I think, overcomes the hearsay

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exception.

09:09:19

So I guess that's how I'll approach those audiotapes

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when I listen to them.

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there's any portion that, for some reason, doesn't qualify for

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a hearsay exception and is substantive, I don't know that I

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want to parse through and say that with respect to every

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statement that I don't think is relevant.

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the plaintiffs, if I think a statement is relevant to my

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findings of fact, but as I review it, because I've admitted

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these tapes in evidence, if I think there's some basis for your

If I think, when I listen to them, that

DS

IEN

09:09:32

But in fairness to

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motion for reconsideration, I will alert the parties so that

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the plaintiffs can address whether or not I should

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substantively consider it, or consider it not for the truth of

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the matter assert -- for the truth of the matter asserted even

if I find that there is no agency relationship established.


Is that -- everybody understand that?

Maricopa County -- oh, Mr. Masterson.

MR. MASTERSON:

Just one thing, Judge.

I think it

will apply to more than the audiotapes, because there are a

number of e-mails that have statements made -THE COURT:

Well --

MR. MASTERSON:

THE COURT:

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-- by Mr. Montgomery.

-- I may or may not do that, but, again,

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I'm not going to get bogged down in any of that stuff.

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going to look at it all, and if there's something that's

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important, I may raise it, but I've admitted those exhibits.

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We didn't have this discussion -- I mean, we did have a little

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bit of this discussion towards the end of the last day of

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evidence, but I just can't imagine that there's anything in

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those tapes that either isn't made in an agency relationship or

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that I'm going to consider for the truth of the matter

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asserted.

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exception and it could be either damaging to the plaintiffs or

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damaging to you if I were to consider it, I'll raise it with

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you.

I'm

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MR. MASTERSON:

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MR. YOUNG:

FR

09:10:43

09:11:02

But if there's something that falls into that

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09:10:36

09:11:16

Thank you, Judge.

Your Honor, it would be our view that

there really has not been preservation of any alleged error in

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what this motion concerns, and it's unfair to us to have such a

motion be considered to preserve any error because if there

were an objection to a document or a recording that's already

been admitted, or a statement that's already been admitted, we

should have the chance to address that objection and -THE COURT:

Didn't I just say I would give you that

object -- give you that chance if I thought there was anything

that merited my raising it with you?

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MR. YOUNG:

Yes, Your Honor.

THE COURT:

All right.

MR. YOUNG:

Thank you.

THE COURT:

All right.

09:12:01

As I was reviewing things that

we need to tidy up and close up, you've already -- I've already

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given you matters that remain under seal that I think maybe

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should go out from seal, and I know the court reporter

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indicated to me last night that some of you had asked for

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copies of those particular transcripts, so I'll expect that

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within two weeks, if there's anything that you think still

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needs to be under seal, you'll let me know that and let me know

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why.

09:12:32

we had an exchange about whether or not any highlighting on a

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particular exhibit -- which I don't know was ever admitted into

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evidence, but may have been -- was the result of the original

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clients, or whether or not the monitor might have highlighted

FR

09:12:17

Also, Mr. Masterson, I remember a couple of weeks ago

IEN

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DS

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information for you, because that was the exhibit I'd given to

you of papers that the monitor had given to me.

And I thought you were going to identify for me the

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documents that you wanted to know where the highlighting came

from, and maybe that isn't where we left it, but that's where I

thought we left it and it's left hanging, so I don't have an

answer for you.

fact, he highlighted anything.

what highlighting it is that you would be interested.

Because I'm glad to ask the monitor if, in

If you can tell me what it is,

So in order just to tie that up, let's raise that

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and -- and if you have -- if you want to know that, you need --

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as far as I recall, and I may be wrong about this, but I

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thought you were going to tell me what documents you were

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interested in, and I don't think you've done that yet.


But if you do -- I may be wrong.

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If I am, if you'll

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still tell me the documents, I'll tell you I will consult with

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the monitor and see if he highlighted any of that before he

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transmitted it to me, and if so, what he highlighted, and I'll

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let all parties know.

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THE COURT:

I will do that, Judge.

09:13:38

09:13:51

Okay.

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County, we have the objection from the plaintiffs; I don't

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think I need to decide on that today.

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plaintiffs objected to noticing the summary.

FR

09:13:21

We have the motion for judicial notice from the

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MR. MASTERSON:

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09:13:03

I did note that the


They would rather

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that I notice the invoices, and so maybe the County just wants

to provide the paid -- I don't know, do you have some sort of

paid receipt that you give the monitor when you pay him those

amounts?

MR. WALKER:

Your Honor, I really don't know the

answer to your question, but I can check on that, see if we

can --

THE COURT:

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09:14:24

It doesn't seem to me that there's a huge

dispute about the substance of the payment, and I can't imagine

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there would be.

If the monitor has been paid, he's been paid

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in connection with this litigation, as far as I'm aware, by

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Maricopa County, and I just don't know if the amounts actually

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paid are subject to dispute, but if you can give me those

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actual payment amounts, that will be good.

And I do note that the other thing that you asked me

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to judicially notice was my own payment order for costs

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involved in the trial of this case.

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look at what it was, but I am certainly going to judicially

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notice my own orders to the extent that the County can

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demonstrate they actually complied and paid those amounts.

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I suppose that plaintiffs are in as good a position to tell us

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whether they were paid those amounts as anybody, so I'm not

And

09:15:04

going to have a whole lot of dispute about that.

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MR. WALKER:

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THE COURT:

FR

09:14:49

And I haven't gone back to

DS

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09:14:36

Thank you, Your Honor.


Is there anything else that any of the

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parties know that's outstanding before we begin?


MS. WANG:

Yes, Your Honor.

We have two matters along

these lines.

protective order relating to the Touhy subpoena to the federal

government that plaintiffs served.

number 1468.

stipulation so that we can get the materials from the federal

government.

MS. WANG:

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1468?

1468.

MR. WALKER:

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MR. MURDY:

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MS. WANG:

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09:15:47

Anybody object to my signature on document

MR. MASTERSON:

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No objection.

No objection, Your Honor.

No, Your Honor.

Thank you, Your Honor.

admission of certain deposition testimony of Rollie Seebert in

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lieu of his live testimony at trial, so we're still waiting for

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your order on that.

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THE COURT:

DS

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That's docket number 1469.

09:16:10

If you stipulated to it, the stipulation

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is granted and I'll consider the testimony.

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MS. WANG:

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THE COURT:

Anything else?

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All right.

I am hoping, and I assume you gathered

FR

09:15:55

The second issue is that the parties stipulated to the

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09:15:32

Doc what?

THE COURT:

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That's document -- docket

So we would request the Court's signature on that

THE COURT:

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The first is that the parties had agreed to a

Thank you, Your Honor.

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that, since I have to pull together all the facts and relevant

facts from the hearing and the exhibits from approximately 20,

if not 21, days of hearing testimony and the exhibits

submitted, that you'll sort of outline your case.

assigned two hours and 45 minutes per side.

going.

We're going to get

rebuttal?

MS. WANG:

We would like to, Your Honor, and we'll --

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we'll gauge that as we go along.

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would like to reserve.

Any time that's remaining, we

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plaintiffs have split up the addressing of the topics.

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Mr. Young will address the preliminary injunction and the

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pattern of recalcitrance, including the Seattle investigation.

09:17:02

I will address, with the Court's permission, the

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pretrial discovery violations, the May 14, 2014 events, and

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matters concerning Internal Affairs.

We will take approximately two hours and 20 minutes,

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and Mr. Killebrew for the United States will take about 25

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minutes for his summation.

IEN

DS

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THE COURT:

09:17:20

All right.

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So who's going to going to begin?

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MR. YOUNG:

I will, Your Honor.

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THE COURT:

All right.

FR

09:16:50

And Your Honor, just to let you know in advance,

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09:16:38

Are the plaintiffs going to reserve any time for

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I've

You'll notice that I'm going

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4597

to sit and stand throughout.

MR. YOUNG:

Your Honor.

effort.

It will help me stay awake.

I'll try to assist you in that regard,

Or at least I'll try not to impair you in that

Your Honor, we don't have Mr. Klein today, so I'm not

5
6

going to actually show you or play for you video and audio;

you've seen that in the hearings that we've had.

I do want to say as to the injunction, that what's at

8
9

issue here is the fact that the current leaders of the MCSO

10

violated the Constitution, violated the Court's orders, and

11

then used the agency itself to try to insulate those leaders

12

from the consequences of those violations.

14

not its leaders, and it should be pursuing the enemies of

15

public safety, and not the enemies of the sheriff.

16

Unfortunately, Sheriff Arpaio, Chief Sheridan, Chief Sands, and

17

Lieutenant Sousa, and others working with them, decided to

18

ignore the preliminary injunction order of this Court for the

19

sake of the sheriff's political position.

DS

They wanted the sheriff to be able to continue to tell

the public that he was enforcing all of the immigration laws,

22

and that was for his political benefit, particularly in the

IEN

21

23
24

FR

25

09:18:09

The Sheriff's Office should be protecting the public,

13

20

09:17:51

09:18:28

09:18:46

election year of 2012.


They did stage an internal investigation -- a

violation of this Court's orders -- and found that no one in

09:19:06

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the department had violated any policies of the agency, and

that no one should be subject to discipline, notwithstanding

the rather valiant efforts of Mr. Vogel both to have the MCSO

have an internal -- an independent decision maker, and also to

subject the sheriff to that investigation.

09:19:26

Then after this Court's trial findings in 2013 -- and

6
7

in particular, after its decision to appoint a monitor in

October 2013 -- the sheriff continued to search for ways to

undermine this Court and its rulings.

We saw the video of the

10

sheriff reacting on the issue of public interaction; we saw

11

Chief Sheridan call this Court's orders ludicrous and crap.


But more ominously, we ended up with the Seattle

12
13

investigation, with an investigation of enemies of the sheriff,

14

including Mary Rose Wilcox, Eric Holder, Lanny Breuer, and

15

unfortunately, this Court.

09:20:11

The sheriff's attorneys have argued, or implied, that

16
17

somehow the sheriff should be able to rely on shady characters,

18

even criminals, and that may be the case.

19

Sheriff Arpaio and Chief Sheridan enthusiastically became shady

20

and unsavory people themselves, fully aware that what they were

21

trying to do would be illegal, and that they -- or that they

22

would rely on what they thought was illegal activity by

24

FR

25

However, here

DS

IEN
23

09:19:46

09:20:30

Mr. Montgomery.
All this activity shows contempt, intentional

contempt, intentional violation of this Court's orders, and

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4599

intentional efforts to conceal and escape the consequences of

those violations.

sacrifices that rank and file MCSO employees make every day,

and the risks that they take to their lives and safety every

day.

reform to the internal investigations process and other

operations, to make sure that the MCSO does not commit these

violations again.

That activity is not worthy of the

It requires a thorough reform of the agency, further

So I'm going to go through in a little bit of detail,

9
10

Your Honor, both the preliminary injunction issue and the

11

Seattle investigation issue, and other manifestations of the

12

agency's defiance of this Court's orders.

14

and Chief Sheridan have admitted.

15

and the OSC, and the injunction order.

16

all of those things as fact.

That's the motion to vacate


71 and 72, they admit

18

should be liable for civil contempt -- this is Arpaio and

19

Sheridan, because they've already admitted it -- and the issue

20

here is what the remedy should be.

DS

09:22:17

We have clear notification by Mr. Casey to

IEN

Chief Sands, Lieutenant Sousa, Chief Sheridan, and Sheriff

23

Arpaio, as well as Chief MacIntyre, on December 23 in

24

Exhibit 187.

25

turn anyone over to the federal government.

FR

09:21:55

So we're not really dealing here with whether they

17

22

09:21:33

I'd note various exhibits, 71, 67, which the sheriff

13

21

09:21:12

Immediately, Mr. Casey told them:

You cannot

That's at 1642 and

09:22:40

1639 of the transcript.

2
3
4

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THE COURT:

Wait a minute.

MR. YOUNG:

1642, 1639.

Give me those again.

Those are pages of the

transcript.

5
6

THE COURT:

Okay.

MR. YOUNG:

Then there's an immediate conversation on

09:22:54

the evening of December 23rd reported by Mr. Casey in his

e-mail, Exhibit 2534, where he says that Arpaio is conflicted,

and Sands and MacIntyre relatively pleased.

Mr. Casey's time records, which is 2523, Exhibit 2523,

10
11

show more conferences: on December 26 with Arpaio, Sands,

12

MacIntyre, and Sousa; on December 28 with Sands; on December 30

13

with Sands and Sousa.

14

preliminary injunction --

15
16

All of these discussions are about the

THE COURT:

Are the time records 2523 or 2533?

MR. YOUNG:

The bills are 2533, Exhibit 2533.

09:23:36

And

17

Mr. Casey testifies about this at transcript pages 1654 to

18

1655.

Despite this knowledge, the top people at the MCSO

19

never sent out a notification to all personnel within the

21

department to let them know that the activity that the Court

22

enjoined had been enjoined.

IEN

DS

20

09:23:57

Casey discusses doing this with

23

Chief Sands, according to transcript page 1653, but Chief Sands

24

says that Sheriff Arpaio says, No, let's not tell everybody,

25

let's just keep it to HSU, and Sands goes along with that

FR

09:23:13

09:24:22

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instruction.

2
3

THE COURT:

Now, is this Casey's testimony?

MR. YOUNG:

Actually, what I just mentioned is Chief

Sands' testimony, and I don't have a page number for that right

now.

6
7

09:24:36

THE COURT:

All right.

MR. YOUNG:

Then there's a further discussion on

January 3, 2012, between Mr. Casey and Sheriff Arpaio.

is, again, according to Mr. Casey's time record, page

10

This

MELC210542 of Exhibit 2533.

09:24:53

In Exhibit 2535, Mr. Casey describes that

11
12

conversation, and he says:

13

he wanted a notice of appeal filed on the injunction."

14

this shows Mr. Casey's view, according to what Sheriff Arpaio

15

told him, that the MCSO was not detaining people based solely

16

on immigration status.

17

belief is -- according to the sheriff -- that the injunction is

18

relatively harmless to MCSO field operations.

19

is completely untrue.

20

injunction.

21

testified, he's admitted, that he was well aware that the

22

injunction was there.

09:25:16

And that's why Mr. Casey says that his

That, of course,

Sheriff Arpaio never forgot about the

At all times after December 23, 2011, he's

09:25:38

Other MCSO people also were aware because they started

24

the process of designing training scenarios in order to

25

implement the injunction.

FR

And

DS

IEN
23

"The sheriff called last night and

That's Exhibit 2536 and Exhibit 189.

09:25:57

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And at least a couple of the scenarios there, you know, were --

yes, Mr. Casey testified accurate.

that were not.

But there were a couple

They never finished that process, however, and that's

4
5

another problem within the MCSO.

Mr. Casey testified that he

told Sergeant Palmer that there were problems with the

scenarios, and he expected that those problems would be fixed.

And they never were fixed.

implement those training scenarios.

There never was a further effort to

Chief Sheridan also knew about the injunction.

10

We

11

have a number of e-mails on which he's listed.

12

with Mr. Casey which I'll go into a little bit more later in

13

more detail when I speak specifically as to them.

He has meetings

15

Exhibit 156, showing that he knew training was needed.

16

that it had not been approved.

17

on that meeting.

18

supposed to be implementing the injunction, they know it, but

19

they fail to do it.

He knew

So here we have people within the HSU who are

DS

Now, Sheriff Arpaio knew that he could not detain

people based on unlawful presence.

22

Mr. Casey told him, he knew it because Chief MacIntyre told

IEN

09:27:06

Lieutenant Jakowinicz is also

21

09:27:30

He knew that because

23

him, he knew it because Chief Sands told him in the case of the

24

conversation about that drop house activity, and he knew

25

because Sergeant Palmer told him when they had their argument

FR

09:26:44

We have Lieutenant Sousa's March 27, 2012 e-mail,

14

20

09:26:17

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about these people that the sheriff wanted Palmer to hold.


THE COURT:

2
3

It's pretty clear that Palmer

misunderstood the injunction, isn't it?

4
5

MR. YOUNG:

That is true.

THE COURT:

Palmer told him he couldn't hold them to

photograph them, but he told -- but in order to do what he

thought was complying with the injunction, he shipped them

right off to Border Patrol.


MR. YOUNG:

That is true.

But the key fact is that

10

they discussed the injunction specifically, and they discussed

11

specifically the injunction's prohibition on detaining people.

12

The fact that Palmer got it wrong as to the full contours of

13

that doesn't detract from the fact that the sheriff was in an

14

argument with one of his subordinates about not being able to

15

keep people because of the injunction.

16
17

THE COURT:

I get that, but what does it really show?

MR. YOUNG:

It shows that the sheriff knew about the

injunction and he knew that there were restrictions on his

19

ability to hold people.

DS

THE COURT:

I think as you've said -- and maybe I'm

wrong; we'll let Mr. Masterson tell me, or Mr. Popolizio.

22

don't know that I heard the sheriff say a lot of times that he

IEN

21

really wasn't sure about the injunction.

24

is:

25

implement.

FR

23

09:28:14

09:28:35

18

20

09:28:02

09:28:47

I think his defense

I delegated this to my subordinates and/or Mr. Casey to


09:29:06

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Isn't that what he said?

MR. WANG:

2
3
4

Well, he --

THE COURT:

Or does he also say:

I didn't know.

MR. YOUNG:

He alleges that, but the problem is that

the sheriff sets the policy for the department.

delegate that.

people to the Border Patrol.

his subordinates to follow through on what I'm about to

discuss, which is his effort to continue to be able to say that

10

So he doesn't

He's the one who orders Jakowinicz to take

He's the one who orders all of

he was enforcing all of the immigration laws.

12

where he says, right after the injunction is issued, despite

13

his knowledge of it, that he will continue to enforce all

14

immigration laws.

15

with Jorge Ramos, says he's still detaining undocumented

16

aliens.

Exhibit 202B, a video, one of his interviews

quote, "adamant about the fact that his office will continue to

19

enforce both state and federal illegal immigration laws as long

20

as the laws are on the books."

DS

18

Exhibit 2829A, another video; in Exhibit 196A, at the


Republican National Convention in August 2012.

24

THE COURT:

Which one was that?

25

MR. YOUNG:

Exhibit 196A.

FR

09:30:14

He says that on video in Exhibit 2828A; he says it in

IEN
23

09:29:54

In Exhibit 77, in the last paragraph he says he is,

17

22

09:29:33

We have numerous press releases, Exhibits 75, 76,

11

21

09:29:13

09:30:34

He tells Fox News he will enforce all laws, state and

1
2

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Argument - Young, 11/20/15 Evidentiary Hearing
4605

federal, with respect to immigration.

Then in June 2012, the sheriff had a series of media

3
4

appearances after ICE started to refuse to take people that the

MCSO was bringing to them based solely on unlawful presence.

He announced that he would come up with a work-around that

would involve precisely the backup plan that he later announced

in his news releases.

I would direct Your Honor to Exhibits -- and these are

9
10

videos -- 199A, where he says he will continue to enforce the

11

laws, and objects to letting people go as in amnesty, which he

12

doesn't approve; Exhibit 198B, nothing will change.

13

keep doing what he's been doing for the last four to five

14

years; Exhibit 197A, he addresses specifically the issue of

15

what to do when he has people with no state charges, and he

16

asked:

17

sad, and he will find a work-around and come up with his own

18

ideas for dealing with people where there are no state charges,

19

but where he believes that the person is in the country

20

unlawfully.

And he says, That's

09:32:08

violation of the court order, where he views this as just a

23

political matter.

24

Court's orders; it's a political imperative that causes him to

25

do that.

FR

09:31:46

It's those ideas that then lead him to a further

IEN

22

Do we let them back on the street?

09:31:19

He will

DS

21

09:31:00

It's not a matter of complying with the

09:32:25

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And you see this in his interview with Neil Cavuto on

1
2

June 25, 2012 -- that's Exhibit 200A -- where Mr. Cavuto

actually asks him:

in jail because of what you're doing to keep detaining people

when you don't have state charges?

to that is:

shows that he is willing to violate an order of the Court in

order to keep doing what he wanted, which was to have people

vote for him and donate to his campaign.

Well, do you think you're going to end up

And the sheriff's response

Well, I don't want amnesty.

I have a plan.

That

And we see this in an April 13, 2012 interview,

10
11

Exhibit 201B, where he says:

12

he's doing.

He gets the big bucks because people like what

13

he's doing.

And he sends out press releases because he wants

14

to know -- he wants everyone to know what he is doing.

16

heard Mr. Casey testify that he heard of what he detected to be

17

violations of the injunction, and he and Mr. Liddy had a

18

conversation with Chief Sands about that issue.

Sheriff Arpaio's trial testimony on that issue.

21

transcript pages 1851 to 1854.

22

directly:

IEN

DS

20

FR

That's at

09:33:50

Mr. Casey told the sheriff

You cannot hold people for federal authorities.

That's page 1854, lines 16 through 20 of the transcript.

24
25

09:33:31

And then he says he also spoke to Sheriff Arpaio about

19

23

09:33:05

Yes, he's popular because of what

Now, during that same summer, during the trial we

15

09:32:43

sheriff:

And this is what Mr. Casey says:

He said he told the

Do you understand, Sheriff, that you cannot -- and he

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4607

says it's almost the same conversation he had later on in the

fall of 2012 -- do you understand that there is no

transportation whatsoever to the federal authorities, that you

cannot hold?

understand that.

Arpaio.

And then he says the sheriff said, quote:

I do

So it's clear what Mr. Casey told Sheriff

Then in 2012, shortly before the election, we have the

7
8

backup plan.

to federal authorities that Mr. Casey and others had told the

That's precisely the kind of turning people over

10

sheriff you cannot do.

11

Well, there's no state crime, but as directed by the sheriff,

12

two suspects were taken to the Border Patrol.

13

going to enforce all the immigration laws.

Exhibit 51, a press release, says that,

And they're

15

that describes precisely that incident that's treated in the

16

press release, which is Exhibit 51.

18

employer raid at Nu Look Revinyling.

19

which is the press release.

20

is a political statement about opening up employment

21

opportunities for those who are in the country legally.

That's at Exhibit 78,

DS

He talks in what he acknowledges

09:35:33

IEN

Exhibit 79 is the shift summary for that operation,

23

showing the lack of evidence for state charges on the second

24

page.

FR

09:35:12

Then on September 20, 2012, there's another -- it's an

17

25

09:34:52

Exhibit 56, on the ninth page is the incident report

14

22

09:34:32

Another press release, Exhibit 52, dated September 27,

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4608

2012, relating to United Construction, talks about ICE refusing

to arrest two illegal aliens, and Arpaio, quote, refusing to

allow them to be released into the streets and ordering

deputies to transport them to the Border Patrol, end quote.


Exhibit 81 is the shift summary for that raid.

It

shows at the first -- bottom of the first page and top of the

second two particular people who were in the country illegally,

but whom ICE refused to take, and the sheriff violated the

injunction in order to transport them to the Border Patrol.

Exhibit 82 is an October 9, 2012 news release about an

10
11

incident -- about a traffic stop performed by Deputy Armendariz

12

where this same thing took place.

09:36:28

Exhibit 83 is the incident report on that incident.

13
14

It shows at the bottom of the third page that Deputy Armendariz

15

found no criminal charges as to Mr. Soto Gonzalez, and then

16

they took him to the Border Patrol, nonetheless.

17

precisely the activity that Lieutenant Jakowinicz testified the

18

sheriff ordered him and others at HSU to perform.

09:36:53

This is

Exhibit 84 is another employer raid, October 12, 2012.

19

Six people were turned over to ICE for deportation, and that

21

they were detained despite the lack of evidence for state

22

charges, as indicated in Exhibit 85.

IEN

DS

20

23

09:37:19

So in January 2013, shown in Exhibit 180, the sheriff

24

said:

25

enforce state and federal immigration laws.

FR

09:36:11

Until the laws are changed, my deputies will continue to


That's despite the

09:37:43

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4609

clear prohibition of the injunction.

In paragraph 36,

Exhibit 67, that's the injunction, which says local law

enforcement agencies such as the MCSO may not enforce civil

federal immigration law.

There are more employment raids that are depicted in

5
6

Exhibits 80, 81, 86, and 89.

the fact that the sheriff knows that the Ninth Circuit affirmed

the injunction in September 2012.


THE COURT:

All of this is happening despite

That's at transcript 2539.

Wait a minute, please.

All right.

10

MR. YOUNG:

11

09:38:36

So, you know, there's a legal process.

We

12

have judges who make decisions who tell people that they should

13

obey the law.

14

don't like decisions can go to the appellate courts and try to

15

get the decisions overturned.

We have appellate processes where people who

They tried that in this case; they failed.

16

09:38:52

They knew

17

what the law was; the sheriff knew what the law was; he,

18

nonetheless, went ahead and continued to violate it.

So then we get to October 2012, and as to some of

19

those press releases, we, the plaintiffs, send the Sheriff's

21

Office, through Mr. Casey, a letter, raising some concerns

22

about this issue.

IEN

DS

20

23

What happened there -- and this involves both Sheriff

24

Arpaio and Chief Sands -- is that Sheriff Arpaio comes to them

25

and says:

FR

09:38:04

This is probably a violation of the injunction.

09:39:07

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That's at transcript pages 1687 and 1802.

it's probably a violation.

transcript -- according to Mr. Casey, the sheriff initially

said:

transcript 1692.

Mr. Casey and Chief Sands tell the sheriff that his actions are

violating the injunction.

I refer later -- page 1691 of the

I'm the sheriff and I make the decisions.


They had a heated discussion.

THE COURT:

Mr. Casey says that

That's

Then both

What do I do about the fact that

Chief Sands doesn't seem to be able to remember any of this?


MR. YOUNG:

10

Well, I don't think that's quite accurate.

11

There are certain things where he says he doesn't remember; on

12

the other hand, there are plenty of other instances where he

13

does actually remember.

14

to Mr. Popolizio's questions at pages 16 -- actually, sorry --

15

1969 to 1971, and 1974 to 1977, Chief Sands actually answers

16

quite a number of questions.

17

Mr. Casey's testimony.

18

have any disagreement with Mr. Casey's testimony.


THE COURT:

19

And Mr. Casey's testimony, he didn't

That's true, he didn't.

It's kind of a

When he was testifying himself, though, he seemed to have a

22

mighty poor memory of things.

IEN

DS

21

09:41:01

Well, Your Honor can take that into

24

account in connection with credibility findings.

25

an issue that's relevant to the summary judgment motion, which

FR

09:40:35

And he also listened to all of

generalized statement, but he didn't have any disagreement.

MR. YOUNG:

09:40:10

And if I can point to certain answers

20

23

09:39:49

That's also
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is part of Your Honor's list of questions the other day.

And

what I would ask is that we be allowed to respond in writing.

I know Mr. Sands filed something else this morning; I haven't

read that yet.

But the issue with the summary judgment motion, let me

5
6

say I think the motion should be denied.

considered by the Court in light of the evidence that was

admitted, but there's evidence that has been admitted that we

think is highly relevant to the motion that's not in the motion

The issues can be

10

papers.

11

evidence came in afterward.

12

the motion papers that's not in the evidence.

We haven't had a chance to brief that because the

There is material referred to in

14

the parties have a chance, we certainly should have a chance,

15

to brief that issue further.

16

THE COURT:

09:42:09

Brief what issue?

Do you want me to deny

17

the motion and allow you to file a responsive brief to the

18

brief Mr. Sands filed this morning?


MR. YOUNG:

19

Yes, that would be appropriate.

I'm

prepared to argue the motion, and there are some new things on

21

the Sands motion that result from the evidence that has come in

22

since the motion papers were filed that I can argue if you'd

IEN

DS

20

09:42:20

like to hear argument on that issue.

24

THE COURT:

You can decide how to spend your time.

25

MR. YOUNG:

All right.

FR

09:41:49

My request would be that the motion be denied and that

13

23

09:41:31

Well, why don't I -- why don't

09:42:36

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I do that after we go through the injunction --

2
3

THE COURT:

All right.

MR. YOUNG:

-- and the Seattle investigation.

So what happens in October, according to Mr. Casey --

4
5

and the sheriff does not contradict any of this -- is that they

had a heated discussion.

Mr. Casey:

again.

All right.

In the end, Sheriff Arpaio tells

That's a mistake.

It won't happen

I'm not going to violate the injunction further.

Then they go ahead and send a letter that Mr. Casey

9
10

says he thinks it's likely going to lose if it ever comes up in

11

court, but he has enough that he thinks he can send the letter.

12

And that's at page 1806 about what the sheriff tells Mr. Casey,

13

and 1802 as to what Mr. Casey then did.

09:43:11

But the key here -- and this goes to the bona fideness

14
15

or non-bona fideness of that letter -- Mr. Casey tells Sheriff

16

Arpaio he's likely going to lose if that issue ever comes up.

17

That's at transcript 1802, 1691 to 1694, and 1847 to 1849.


That discussion indicates willfulness.

18

20

injunction; there's an extensive discussion of the injunction;

21

and you have the lawyer for the sheriff telling the sheriff --

22

and Chief Sands -- that the activity that they're engaging in

IEN

DS

willfulness because it's knowledge of violation of the

23

violates the injunction.

24

assessment, according to Mr. Casey.

25

violations continued.

09:43:36

It's

19

FR

09:42:51

09:44:05

And Chief Sands agrees with that


Despite that fact, those
09:44:25

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4613

On March 14, 2013, Exhibit 88 shows that seven people

1
2

were turned over to ICE despite a lack of evidence for state

charges.

That's explicit in that Exhibit 88.

Exhibit 182, dated May 18, 2013, four people were

4
5

turned over to ICE without smuggling charges.

in bragging about this, cites his oath to enforce all the laws

seriously.

The motivation for this?

8
9

year.

And the sheriff,

Again, 2012 is an election

Mr. Casey says that he was told by Chief Sands that this

10

was directed toward helping the sheriff politically, to

11

generate publicity.

12

says that the purpose of his press releases is to generate

13

publicity so the people like what he's doing.

14

as to Casey's testimony on that motivation.

09:45:12

The sheriff himself, in some of the video,

Transcript 1699,

And Sheriff Arpaio himself says this in August 2012 in

15

Exhibit 196D, his interview at the Republican convention.

17

says he's got seven and a half million dollars in campaign

18

contributions because people like what he is doing.

19

did was intentionally and calculatedly decide to violate the

20

Court's injunctions, notwithstanding his lawyer's advice, in

21

order to help his reelection.

DS

16

Now, I mentioned various individuals.

IEN

22

09:45:29

He

So what he

09:45:58

There are

23

people who are not alleged contemnors who contributed to the

24

violation that occurred here, and this shows a need for

25

thorough reform in the entire agency.

FR

09:44:47

We have various e-mails

09:46:14

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4614

involving Chief Trombi, Lieutenant Jakowinicz, Lieutenant

Trowbridge, Sergeant Palmer.

Mr. Vogel, who investigated this issue, discusses all

3
4

these people at Exhibit 2219, pages 209, 858 to 861; that's his

report.

So a whole department failed to take adequate steps.

Specifically as to Lieutenant Sousa, he knew about the

6
7

order.

says that, Well, Casey didn't actually say "arrest or release."

But the order itself, which Lieutenant Sousa did get, is quite

He knew about Casey's advice.

Now, there's a -- he

10

clear.

11

anything that HSU was doing.

12

that there was the need for training, he didn't see it through.

And it's undisputed that Lieutenant Sousa never changed


Despite the fact that he knew

14

Jakowinicz took over that role, and Lieutenant Jakowinicz

15

didn't put any training in effect, either.

16

specifically see to it that people were trained so that the

17

injunction was complied with.

But he did not

09:47:32

And I'm going to -- he testified to an interaction

18

with Mr. Casey, and I'm going to reserve that.

20

some -- I want to discuss the advice of counsel issue when I

21

get to the end of this injunction discussion.

DS

19

I do have

IEN

So Chief Sands knew about the injunction.

09:47:52

He handled

23

it, according to his own testimony, he does remember that.

24

That's at transcript 1965.

25

but never publicized the injunction to the whole department.

FR

09:47:08

Now, he left at some point in 2012 and Lieutenant

13

22

09:46:42

He was in charge of the operations,


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4615

He heard Casey's advice during the trial.

and 1678 of the transcript.

3
4
5

This is at page 1676

THE COURT:

Is this Sands?

MR. YOUNG:

Yes.

THE COURT:

And he's acknowledging that he heard what

Casey said to him about evidence that the injunction was still

being violated during trial?

MR. YOUNG:

He didn't disagree with what Mr. Casey

testified to.

10
11
12

THE COURT:

All right.

MR. YOUNG:

And he actually does say that he had some

So, for example -- and I'll try to come up with a page

14

citation -- he did testify that he had some memory of those

15

events in October 2012.

16

transcript -- this relates to Exhibits 2512 and 2514, the

17

correspondence between Mr. Casey and Mr. Sands and others -- he

18

does recall those events, or at least something relating to

19

those events surrounding the letter that Mr. Segura, counsel

20

for plaintiffs, sent.

DS

For example, at page 1959 of the

is his own admission at transcript 1965 to 1967 -- other than

24

telling Sousa to obey the order.

FR

09:49:40

really, to implement the injunction, other than telling -- this

23

25

09:49:13

So despite his knowledge, he also did not do anything,

IEN

22

09:48:46

recall of the events surrounding Mr. Segura's letter.

13

21

09:48:32

Chief Sheridan's basic defense is that he was busy

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4616

with other things, but he doesn't deny -- but his testimony is

not credible.

was copied on and take this into account.

denied even talking to Mr. Casey about the Melendres case prior

to the trial in July-August 2012.

953.

The Court should look at all the e-mails that he

But that's not true.

Chief Sheridan

That's at transcript 950 and

Mr. Casey's time entries show

that he talked to Chief Sheridan on December 6, 2011,

transcript 1628; March 23, 2012, page 210556 of Exhibit 2533;

10

Mr. Casey talked to Chief Sheridan on April 3rd, 2012.

11

transcript page 1675.

That's

13

that they talked with Chief Sheridan about the preliminary

14

injunction shortly after it came out.

15

the same thing.

Mr. Vogel's report says

That's Exhibit 2219 at page 209857.

Exhibit 187, for example, about the injunction; Exhibit 2511

18

about the Ninth Circuit's affirmance of the injunction -- those

19

are not isolated things.

20

wasn't paying attention to the case, and therefore he didn't

21

open the e-mails.

22

MacIntyre -- about the injunction.

IEN

DS

17

FR

25

09:51:14

So these e-mails that Chief Sheridan received --

16

24

09:50:53

Both Chief MacIntyre and Chief Sands have testified

12

23

09:50:24

Chief Sheridan can't say, well, he

09:51:37

He was talking to people -- Casey, Sands,


So he knew that it was

happening, it had happened.


So I would point, as to Chief Sheridan, to Mr. Vogel's

conclusions that Chief Sheridan violated department policy and

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4617

ought to be disciplined.

Exhibit 2219, says, Chief Sheridan was actually subject to a

potential 40-hour suspension because of his misbehavior with

respect to the injunction.

process that Ms. Wang will talk about, that was clearly

defective and is in need of further reform, that prevented him

from suffering that consequence.

And it was only Chief Olson, in a

So advice of counsel.

8
9

As page 209925 of Mr. Vogel's report,

never any affirmative advice.

It's undisputed that there was

If you look at page 2498 to

10

2499, the sheriff admits that no lawyer ever affirmatively told

11

him that he could hold the people that he was holding and turn

12

them over to the federal authorities.


He's asked:

13

acquiescence.

15

affirmatively told you, Yes, you can do this.

17

I'm asking whether any lawyer actually

The sheriff's answer is:

At page 2500, lines 16 to 2501, line 8, the sheriff is

asked:

21

complies with the injunction?


Answer:

IEN

FR

25

Did Casey tell you, Yes, you can do that, and it

DS

20

24

Well, I don't recall any

That's not legal advice.

19

23

09:53:04

lawyer, but if I do recall, other agencies were doing it.

18

22

09:52:42

I'm not asking about silence or

14

16

09:52:19

I don't recall him either way.

09:53:21

I recall him

not having a problem with it.


Again, 2548, lines 12 through 25, Arpaio tes --

Sheriff Arpaio testified not recalling Mr. Casey saying that

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4618

the sheriff could do that.

In fact, the sheriff never even heard of Mr. Casey's

2
3

letter back to plaintiffs' counsel until September 2015.

That's at transcript pages 2502 to 2503.

to any affirmative advice, either.

No one else testifies

09:54:04

So we have a -- we have no advice here.

THE COURT:

What about Sousa's testimony that he asked

Casey something about if the stop -- if we call ICE during the

course of the stop it becomes ICE's stop?


MR. YOUNG:

10

Well, I'm glad you asked that question,

11

Your Honor.

12

actually said was:

13

and Mr. Casey didn't contradict me.

14

is also in what Sheriff Arpaio alleges, that they said:

15

is what I wanted -- construe the injunction to mean, and then

16

nobody ever told me anything wrong.

What Mr. Sousa actually -- what Lieutenant Sousa

I told Mr. Casey my view of the injunction


And some version of that

That's if you believe what they say.

17

This

what they say, under the case law, that does not suffice to

19

create an advice of counsel defense.

DS

I would refer Your Honor to the Ninth Circuit criminal

jury instruction 5.9, which refers to a requirement that there

22

be full disclosure of all material facts to the attorney; that

IEN

21

23

the person claiming the advice of counsel defense must have

24

received the attorney's advice as to the specific course of

25

conduct that was followed, and then reasonably relied on that

FR

09:54:46

If you believe

18

20

09:54:28

09:55:02

09:55:21

advice.

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4619

THE COURT:

Sheriff said -- I can't remember whether

Sands confirmed this or not.

told Sands to only tell the HSU because that's what the

attorney told me to do.

10

09:55:43

whether or not he limited his advice in that way?


MR. YOUNG:

8
9

Was there ever any question put to Mr. Casey as to

6
7

Sheriff said, as I recall:

I think Mr. Casey said that he told them

that everybody should be notified of the injunction.

I may be

able to tell you the page on that at some point.

09:55:56

But the jury instruction is affirmed in various Ninth

11
12

Circuit cases.

U.S. versus Bush, 626 F.3d 527:

The person

13

claiming the defense needs to present evidence that he fully

14

advised the attorney of his plan, received advice regarding

15

that plan from the attorney, and followed that exact advice in

16

good faith.

Now, even if you believe what Sheriff Arpaio and

17
18

Lieutenant Sousa said, which I don't think you should, but if

19

you did, they don't satisfy that requirement.

20

seek advice about the specific course of action before taking

21

that action.

22

them -- talked to Mr. Casey afterward, and that Casey didn't

IEN

DS

They did not

09:56:34

Sheriff Arpaio says, in fact, that he talked to

23

express objection, which is contrary to what Mr. Casey said.

24

But even if you assume what Sheriff Arpaio says is true, he

25

doesn't satisfy the requirements of the case law.

FR

09:56:17

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4620

And it's undisputed -- well -- yeah, it is undisputed

1
2

that Sheriff Arpaio didn't tell Mr. Casey all the facts, which

is another necessary element.

he was not detaining anyone -- transcript 1642 to 43 -- and he

told Mr. Casey that the October 2012 events were a mistake that

would not be repeated, transcript 1694.

opposite of what Mr. Casey was advising him.


THE COURT:

8
9

The sheriff told Mr. Casey that

So he did exactly the

Let me ask you this:

That's --

Isn't Mr. Casey a

bit gullible by now?

10
11

MR. YOUNG:

I'm sorry, Your Honor, a bit --

THE COURT:

If I understand the chronology, Casey has

09:57:41

12

at some point reviewed Palmer's flawed scenarios; he's gotten

13

back and told Palmer that they're flawed scenarios.

14

hears testimony, including testimony from Sheriff Arpaio, that

15

he still asserts the right to detain persons even if he has no

16

state charge, and he tells us, I think, that he pulled Sheriff

17

Arpaio aside after that and said:

18

And Sheriff Arpaio said:

19

it any more.

can't be doing this.

22

sheriff.

IEN

21

23
24

FR

25

Okay.

Then Casey

I'm not doing it.

And Sheriff Arpaio says:

And then he says:

09:57:59

You can't be doing this.

I won't do

Then he gets the October instance and he said:

DS

20

09:57:17

You

09:58:17

I'm the

Well, this was just a mistake.

Does Mr. Casey bear any responsibility to see that

this -- that something a little broader happens here?


MR. YOUNG:

Your Honor, we don't have a position on

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4621

Mr. Casey at this point.

2
3

THE COURT:

Does it impair his credibility at all?

MR. YOUNG:

I don't think it impairs his credibility,

in part because the sheriff didn't -- doesn't contradict

anything that Mr. Casey says.

THE COURT:

And I will -- I will --

I remember.

where he doesn't contradict him.

I'll take them, though.


MR. YOUNG:

Sure.

I remember the testimony

If you have the page cites,

So at transcript 2543 to 2544,

10

Sheriff Arpaio does not deny telling Mr. Casey that he would

11

release people without state charges.

12

2542 of the transcript as well, that's because the sheriff

13

believed that President Obama was going to let people go,

14

anyway, so there was no reason to detain them.


THE COURT:

15

incident?

17

the preliminary injunction.

Yes, that was earlier on.

And then at

2555 through 2556 of the transcript, the sheriff does not deny

20

telling Mr. Casey that he would follow Mr. Casey's advice.

point out that Mr. Casey actually represented to the

23

Ninth Circuit Court of Appeals that the Sheriff's Office was

24

not detaining people based on unlawful presence.

FR

25

09:59:45

Now, as far as Mr. Casey's credibility is concerned, I

IEN

22

DS

19

21

09:59:29

As I recall that one, that was when I first entered

MR. YOUNG:

18

09:59:09

And actually go back to

Well, yeah, but was that after the October

16

09:58:52

THE COURT:

Well, he represented that to this Court

10:00:05

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4622

even before the preliminary injunction, didn't he?


MR. YOUNG:

2
3

trying to decide --

THE COURT:

He did.

And it seems to me that if you're

Let me really be clear about that.

He

represented to this Court in writing that the Sheriff's Office

had no authority, and, in fact, had not been attempting in any

way to enforce federal civil immigration law since 2009.

That's what he represented to this Court before the preliminary

injunction.

I guess I'll say this to you, Mr. Masterson:

10

Is there

11

any way that you can detain someone, if you don't have state

12

charges, under any legal authority, if you are not asserting

13

some sort of right under federal civil immigration law?

MR. YOUNG:

15

I think that the sheriff was asserting in

16

trying to enforce federal civil immigration law.

17

he explicitly said in all of his press releases and video

18

appearances.

19

Well, I'm not going to enforce federal civil immigration law,

20

he thought he was going to lose votes and stop getting as much

21

campaign contributions as he was.

22

that and say that, and in order to be able to say that, that's

FR

25

10:00:52

That's what

I think the sheriff believed that if he said,

DS

IEN
24

10:00:30

Go ahead, Mr. Young.

14

23

10:00:15

10:01:08

So it was his interest to do

what he did.
As to Mr. Casey, I do think that you should believe

Mr. Casey's testimony.

Number one, he resigned from

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4623

representing the sheriff in November 2014 before this contempt

proceeding ever arose.

because of the sheriff's resistance to following the Court's

orders.

He said that his reason lay in part

He then, in testimony before this Court, scrupulously

5
6

followed his duties and refused to testify against his client

until compelled to do so.

attorney-client privilege back in April, he would never have

done that.

10

that.

If the sheriff had not waived the

I think that you need to give some credence to

10:02:02

Now, as to the October conversation, Mr. Casey says he

11
12

didn't ever see the press releases beforehand.

13

But he does not deny -- the sheriff does not deny that.

14

doesn't contradict Mr. Casey's testimony that Mr. Casey did not

15

read those press releases.

16

the defiance of the Court's orders I think is clear and

17

warrants serious remedy.

That's at 1691.

That's at 2553 to 2554.

He

So that --

19

sheriff not tell Casey all the facts, he misled Mr. Casey as to

20

the facts.

21

maybe, assuming you believe what they say.

22

advice.

IEN

DS

Plus they didn't get advice.

They got silence,

10:02:50

Silence is not

What they say they did was they told Mr. Casey their

23

views and then didn't get objection back.

24

counsel.

FR

10:02:24

On the advice of counsel defense, so not only did the

18

25

10:01:40

That's not advice of

And I would refer the Court to United States versus

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4624

Cheek at 3 F.3d 1057.

It's a Seventh Circuit case where the

Court notes that:

defendant sought confirmation from attorneys of his own view --

this is a tax case -- rather than independent legal advice.

There's no advice of counsel defense where

So simply telling your attorney what your view is and

5
6

then not getting advice back, and relying simply on

acquiescence, or silence, assuming you believe what chief --

what Lieutenant Sousa and Sheriff Arpaio say, that's not advice

of counsel.

So the history of resistance to the order is also

10
11

relevant in this regard.

12

investigation.

13

don't want to take undue amounts of time, but I think Your

14

Honor will recall not only the other elements of resistance to

15

the Court's orders -- like Chief Trombi's statement in March

16

2014 and the other statements that the Court has already

17

addressed in other orders -- but the fact that immediately upon

18

hearing from Mr. Montgomery and Mr. Blixseth that he could get

19

access to IRS information and tax information of this Court,

20

and upon knowing, as we heard Mr. Zullo ask Mr. Montgomery,

21

that he could use that information to destroy a person, he set

22

out to get that information.

I'm conscious of the passage of time here and I

10:04:20

10:04:44

And I want to read to you a segment of Mr. Zullo's

24

testimony.

25

answers.

FR

10:03:54

We spent a lot of time on the Seattle

DS

IEN
23

10:03:36

This was a part of one of Mr. Zullo's very long

It's at page 4403 to 4404.

And this is Mr. Zullo

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describing his discussion with Mr. Montgomery at the very

outset.

He says -- and I'm starting at line 23, at page

3
4

4403 -- "And I'm, like:

Okay, so you've got this Judge Snow in

your database.

showed me symbols on the side of this, and he says:

going to see these.

they are.

for banking.

He says:

Yeah, but there's more.

And he

You're

When it says this, I don't remember what

Let's use 'I' for IRS.

IRS.

And he said:

This is

"I" -- that is, Mr. Zullo -- "asked him, I go:

10

10:05:26

Are

11

you telling me that in your database, these 425 hard drives,

12

you have Judge Snow, a federal judge's private, private

13

information?

14

That's what the man told me.

15

over a year."

17
18
19

10:06:13

And if --

Well, wasn't that --

MR. YOUNG:

-- you look at the e-mails --

THE COURT:

-- wasn't that testimony more in the

context of they were pursuing financial information generally?


MR. YOUNG:

That was -- it was pursuing information

23

relevant issue here is that it -- certainly, in Sheriff

24

Arpaio's mind, it was specific to the Court.

FR

25

10:06:19

relating to the banking information, but the -- I think the

IEN

22

That's what we were pursuing for

THE COURT:

DS

21

Yeah, harvested by the government.

That was Mr. Zullo's testimony.

16

20

And he goes:

10:05:43

If you look at Exhibit 2074B, the sheriff records what

10:06:37

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he hears from Mr. Zullo and Detective Mackiewicz with respect

to both Your Honor and Mary Rose Wilcox.

determining whether Mr. Montgomery was implanting information

about enemies of the sheriff.

Mr. Zullo talks about

That's at page 4514 at line 2.

So Mr. Zullo and Detective Mackiewicz are quite

10:07:05

conscious about enemies of the sheriff and trying to find out

whether Mr. Montgomery can get them access to that kind of

information.

And Sheriff Arpaio records that in 2074B.

THE COURT:

Yeah, wasn't that more convincing, though,

10

in conjunction with the information he was receiving at the

11

same time from Mr. Montgomery that I was authorizing some sort

12

of wiretap, or that his phones were being wiretapped?


MR. YOUNG:

13

Yes, it's all -- it's all of a piece, Your

14

Honor.

15

some sort, banking and tax information would be, in the

16

sheriff's view, relevant to that issue.

And, in fact, if there is a suspicion of conspiracy of

THE COURT:

17

10:07:26

10:07:45

And it may be, and I'll consider it.

But

there isn't any evidence, is there, that Mr. Montgomery ever

19

supposedly provided the sheriff with any of my financial

20

information.

21

MR. YOUNG:

23

10:08:03

No, it was all fake, Your Honor.

It was

all made up, and --

IEN

22

DS

18

THE COURT:

Yeah, but there isn't even any information

that he provided him with fake financial information that

25

pertained to me.

FR

24

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MR. YOUNG:

1
2

There's no document that shows that.

The

key, I think, is the effort that was undergone here.

And I would direct -- and again, Mr. Zullo testified

3
4

that he had other more legitimate motivations for talking to

Mr. Montgomery, and we don't need to dispute that.

I think what's at issue is what Sheriff Arpaio did and

6
7

what Chief Sheridan did with the information that Mr. Zullo was

giving them.

January and February 2015, where there's some e-mails

10

And I would direct Your Honor's attention to

specifically talking about Judge Snow information.

12

January 2015 he is keeping the sheriff informed about what he

13

was doing with Mr. Montgomery.

14

wanting to discuss the issue with the sheriff.

15

Exhibit twenty zero -- I'm sorry.


THE COURT:

16

MR. YOUNG:

21

10:09:19

Are you giving me page numbers, or are you

I'm trying to let you know which I'm doing

THE COURT:

All right.

So 2390 is what?

MR. YOUNG:

2390 is a transcript page citation in

23

THE COURT:

All right.

24

MR. YOUNG:

That's an exhibit.

25

THE COURT:

All right.

FR

10:09:27

which Mr. Zullo testifies that he kept the sheriff informed.

IEN

22

We have

when I do it.

DS

20

Exhibit 2971 shows that he's

giving me exhibit numbers?

18
19

10:08:53

At 2390 of the transcript, Mr. Zullo testified that in

11

17

10:08:33

And 2971 is?

Thank you.

10:09:40

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Argument - Young, 11/20/15 Evidentiary Hearing
4628

MR. YOUNG:

Exhibit 2090, two zero nine zero, it's an

e-mail about Judge Snow.

And Mr. Zullo and Mr. Montgomery are

talking about data that would not be relevant any more if the

contempt issue were resolved.

should take a look at what Sheriff Arpaio said about what that

information was.

And I think that Your Honor

At Exhibit 2273, also in February, there's an e-mail

7
8

that specifically talks about Judge Snow info.

will recall that there was a recorded conversation where

10

Mr. Montgomery and Mr. Zullo talked about Mr. Montgomery

11

looking for doing Snow stuff.

But what the sheriff says is key.

12
13

And Your Honor

The sheriff

"Question:

In that early February 2015 time frame, in

15

fact you may have talked to Mr. Zullo about Judge Snow in

16

connection with the banking investigation, because Mr. Zullo

17

was trying to track down information about that matter, is that

18

correct?

"Answer:

19

Correct.

Could be."

23

transcript, the sheriff testified that he knew that

24

Mr. Montgomery and Mr. Zullo were working on Judge Snow

25

information insofar as he was the, quote-unquote, victim of the

FR

10:10:52

Then at page 2406, line 24 to 2407, line 19 of the

IEN

22

"Answer:

15:03:11

You're talking about the bank investigation?

"Question:

DS

21

10:10:19

testified at transcript page 2403 as follows.

14

20

10:09:56

10:11:15

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Argument - Young, 11/20/15 Evidentiary Hearing
4629

banking investigation.

So I think it's pretty clear that what the sheriff was

2
3

going after and was seeking was information about Your Honor.

He talks about 150,000 people, but he admits that the only

people in Maricopa County that he can remember is himself, his

wife, and Your Honor.

And if you look at his pairing of Your Honor with Mary

7
8

Rose Wilcox, whom he admits had been an opponent of his, on

Exhibit 2074B, it's clear that he was targeting Your Honor, and

10

that whole time, that more than a year of investigation, more

11

than 250 -- at least $250,000, according to Chief Sheridan, was

12

spent, at least in part, on investigating the Court.

14

it.

15

asked at page 647, lines 4 through 14 of the transcript.

Your Honor will recall that in April Sheriff Arpaio was

Question:

16

Mr. Lemons' article -- "says that what Montgomery was actually

18

doing was investigating me?

19

article says?"

23
24

FR

25

Do you see that that's what the

DS

And Sheriff Arpaio answered:

"It's not true."

10:12:46

Well, it was true, and all the documents that have

come out since then, all the testimony that's come out since

IEN

22

10:12:28

Did you ever see the article -- this is

17

21

10:12:05

And then, to top it all off, they've been lying about

13

20

10:11:39

then, has demonstrated that.


And he was asked further at that same page of the

transcript:

"Are you aware that I've" -- and this is Your

10:13:03

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Argument - Young, 11/20/15 Evidentiary Hearing
4630

Honor -- "ever been investigated by anyone?


"Answer:

You investigated?

"Question:

Yes."

The answer is:

"Question:

"Answer:

"No.

No."

Any of my activities?

10:13:18

No."

And again at page 648 to 649, the sheriff is asked

7
8

about what Mr. Mackiewicz, Mr. Anglin, and Mr. Zullo were

doing, did it involve any investigation of the Justice

10

Department or of the Court, and the sheriff's answer is:

11

not of you."

12

exhibits, Your Honor will see that that's false.

"No,

If you look at Exhibit 2072 and other similar

Now, Chief Sheridan, and to some extent Sheriff

13
14

Arpaio, say, well, they ordered their subordinates not to

15

investigate the Court.

16

true.

17

about the January 2, 2014 meeting, they both actually told

18

Sheriff Arpaio, No, this conspiracy document that we can see in

19

2072, that's hogwash, according to Mr. Casey.

21

23

10:14:22

But the sheriff believed -- and he testified himself

about this, Mr. Casey testified about it -- that it merited


further investigation.

And that's what they continued to do.

24

We saw in September 2014 another exhibit -- this is

25

one of the exhibits that we looked at -- where the time line

FR

10:14:01

If you listen to what Mr. Casey and Captain Bailey said

Captain Bailey told the sheriff, No, that's nothing.

IEN

22

That's actually -- that's actually not

DS

20

10:13:37

10:14:48

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Argument - Young, 11/20/15 Evidentiary Hearing
4631

involving this alleged conspiracy was passed between

Mr. Montgomery and Mr. Zullo.

September, nine months after that meeting.

They were still looking at it in

The other thing about Chief Sheridan's testimony is

4
5

that he says that he ordered that the Court not be investigated

after seeing the time line materials.

at a meeting in November 2013 or January 2014, it's not quite

clear.

And that would be either

And he says -- this is at transcript pages 1460 to

9
10

1465 -- that Mr. Montgomery came up with a time line showing

11

the wiretap numbers after the MCSO threatened to cut off

12

payment to Mr. Montgomery.

13

coming to Mr. Montgomery.

This is an effort to keep payment

15

didn't even start to pay Montgomery until later.

16

time line document that Chief Sheridan was talking about was

17

faxed to the sheriff on November 5, 2013, that's Exhibit 2074A.

And the

10:15:45

So in fact, what happened was that the MCSO started

18

paying Mr. Montgomery after he gave the MCSO, Chief Sheridan,

20

Sheriff Arpaio, this information about this alleged conspiracy

21

involving the Department of Justice and the litigation and Your

22

Honor.

IEN

DS

19

10:16:10

So in addition, the allegation that Sheriff Arpaio

24

makes about regarding the Court only as a victim of the

25

financial identity theft is also incorrect.

FR

10:15:24

That's wrong, because Exhibit 2085 shows that the MCSO

14

23

10:15:07

The sheriff admits

10:16:32

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Argument - Young, 11/20/15 Evidentiary Hearing
4632

that he never thought about telling the Court about the fact

that he alleges he thought the Court was a victim.

transcript 2445.

of the Court as being the judge presiding over the case and not

as an ordinary victim of a crime.

That's at

He says at that page that he thought in terms

10:16:57

Exhibit 2900A shows that the MCSO did interview other

6
7

people who supposedly were the victims of this identity theft.

But for the Court, they did not do that, and the sheriff didn't

do it.

He says he never thought about approaching the Court

10

with this information.

This is information, and it's actually

11

Exhibit 2981A, where Mr. Zullo, on his own initiative, asks

12

Mr. Montgomery:

13

Mr. Montgomery responds about how you could use this

14

information to destroy a person.

What can you do with this information?

And

So when you look at all of that information -- and

15

there's a lot that I haven't mentioned today, but I think Your

17

Honor has it in the record -- you can see the continuation of a

18

pattern of defying the Court's orders, trying to cover it up,

19

trying to get away with it, trying to conceal the efforts they

20

made to undermine the Court.

which exonerated everybody, despite the violations that have

24

been admitted of the preliminary injunction.

FR

10:18:06

It certainly warrants a thoroughgoing reform to the IA process,

23

25

10:17:41

That warrants very serious further injunctive relief.

IEN

22

DS

16

21

10:17:22

With that, Your Honor, I'll turn it over to Ms. Wang.

10:18:24

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Argument - Wang, 11/20/15 Evidentiary Hearing
4633

THE COURT:

Ms. Wang, I'm going to let you go for about 15 minutes

2
3

All right.

and then we're going to take a morning break, okay?


MS. WANG:

All right.

No problem.

Your Honor, I'll be addressing three topics today:

5
6

first, the pretrial discovery violations that are one of the

three grounds for civil contempt; second, the events of May 14,

2014, which are a second ground of civil contempt; and finally,

the deficiencies in MCSO's internal accountability systems that

10

we went over in voluminous testimony over the past 20 days.

11

Those three topics together fit together to show a

12

picture of an agency that has repeatedly and systemically

13

violated its discovery obligations in this litigation, that has

14

flouted court orders designed to address those violations, and

15

that is rife with a complete lack of internal accountability,

16

and as Mr. Young has already said, in which senior commanders,

17

going up to the very top of the chain of command, have violated

18

orders and tried to get away with it.

10:19:18

10:19:42

I'll start with the pretrial discovery violations.

19

The pretrial discovery violations -- specifically, the failure

21

to disclose video recordings of traffic stops -- has been

22

admitted by the sheriff and by the chief deputy.

IEN

DS

20

10:20:00

The testimony

23

establishes that those violations were systemic, and that all

24

of the efforts undertaken by the agency as a whole were

25

calculated in a way that was sure to violate their obligations.

FR

10:18:58

10:20:20

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Argument - Wang, 11/20/15 Evidentiary Hearing
4634

THE COURT:

Let me ask you, Ms. Wang, there is the

original preservation letter, and then there was a preservation

of Public Records Access Act request.

sent out initially by predecessor counsel.

Do you recall the dates when you started issuing the

5
6

Those two things were

discovery requests that were cited in the order to show cause?


MS. WANG:

I do not know that, Your Honor, off the top

of my head, but we'd be happy to send that to you.

they're also in our motion for the order to show cause.


THE COURT:

10

MS. WANG:

11

I think

Okay.

10:20:53

But we can provide that.

Your Honor, I would point especially to Tim Casey's

12
13

testimony that during the pretrial depositions in this case,

14

when certain HSU deputies mentioned the fact that they had

15

video recording devices, he specifically inquired of his

16

client:

17

the plaintiffs' discovery request?

18

was not true, as we now know.

10:21:07

Are there video recordings that would be responsive to


And he was told no.

That

In addition, Your Honor, Lieutenant Sousa testified

19

that the way that the agency and senior commanders, including

21

Chief Sands, decided to carry out their obligations under the

22

discovery requests was designed to leave things out.

IEN

DS

20

23

10:21:23

First of all, the agency decided to bypass the legal

24

liaison unit early on, and after that, when Lieutenant Sousa

25

was tasked with finding documents and preserving documents, he

FR

10:20:40

10:21:44

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Argument - Wang, 11/20/15 Evidentiary Hearing
4635

admitted that documents were -- those efforts were not logged

consistently.

That's at page 664.

Secondly, Your Honor, the document preservation

3
4

notice, as it was sent out to HSU, was extremely limited and

did not capture all of plaintiffs' requests.

Exhibit 216, Lieutenant Sousa's e-mail to HSU and other

Enforcement Support personnel, and is also -THE COURT:

8
9
10

That is

Tell me if I've got this right:

10:22:04

That

actually went out about a year and a half after the


preservation --

MS. WANG:

11

10:22:20

I believe that's right, Your Honor.

And

12

Lieutenant Sousa also acknowledged that by the time he realized

13

there was a document preservation request, the spoliation of

14

the stat sheets had already been discovered.

That exhibit, Your Honor, I would simply point to, but

15
16

I'll quickly note that it only covered e-mails, and it only

17

covered e-mails relating to operations.

18

not have required deputies to save relevant e-mails of the sort

19

that we saw at trial, only because the County's backup happened

20

to capture some of them, and we simply do not know what was

21

destroyed and not recovered.

DS

It, therefore, would

23

his own files and asked his sergeants for their files.

24

Individual deputies' documents were not searched.

FR

25

10:22:51

Lieutenant Sousa also testified that he only searched

IEN

22

10:22:31

Lieutenant Sousa testified he was not given the

10:23:09

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Argument - Wang, 11/20/15 Evidentiary Hearing
4636

resources to adequately comply with plaintiffs' discovery

requests and the defendants' obligations, and that it also

affected his ability to command HSU, that he was tasked with

all of this.

Finally, Your Honor -- well, I'd note two other

5
6

things.

they were not even asked to look for documents or videos before

trial.

Sheriff Arpaio was not asked to turn over his personal

10

Both Sheriff Arpaio and Chief Trombi also testified

That's at pages 607 to 08, and 100.

immigration file before trial.

And as we know,

That was at page 617.

10:23:47

Your Honor, before I turn to May 14th, I will finally

11
12

note on the subject of discovery that this failure to produce

13

the videos of traffic stops was part of a larger pattern that

14

had serious consequences for plaintiffs' ability to try the

15

case.

10:24:07

Even during and throughout these contempt proceedings,

16

and after this Court issued an order on February 12th, 2015,

18

ordering the production of documents in response to plaintiffs'

19

motions, key witnesses were not even asked to search their

20

documents, and as a result, plaintiffs had to depose multiple

21

witnesses multiple times, and including Lieutenant Jakowinicz,

22

who had to be deposed three times.

IEN

DS

17

23

10:24:27

There was no indication that these key witnesses'

24

computers that were used during relevant time periods were ever

25

searched.

FR

10:23:27

Lieutenant Sousa noted that at page 705, and

10:24:46

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Argument - Wang, 11/20/15 Evidentiary Hearing
4637

Sergeant Palmer at 200 to 201.

And Your Honor, Mr. Segura has handed me a note that

2
3

our first set of requests for production was served on February

25th, 2009.

to show cause, docket number 843.

And that is mentioned in our motion for an order

Your Honor, when the discovery violations -- that is,

6
7

the failure to produce the videos -- was discovered, we get to

the events of May 14, 2014.


THE COURT:

MS. WANG:

10

THE COURT:

11

Before we do that --

Yes, sir.

February 25th, 2009, any testimony from Lieutenant Sousa about

13

whether or not he was ever asked about complying with those

14

discovery requests?
MS. WANG:

15

Your Honor, I do not know as to whether he

16

testified as to the specific first set of requests for

17

production.

THE COURT:

18

Does his testimony that you've cited here

MS. WANG:

I believe that's right, Your Honor, but I

can provide a specific cite.

22

THE COURT:

IEN

21

23

MS. WANG:

10:25:54

All right.
Your Honor, the events of May 14 show that

24

even after the Court issued specific orders to try to redress

25

the discovery violations, this agency, and specifically

FR

10:25:37

just say that he was never asked to look for documents?

DS

20

10:25:23

If the discovery order was first served on

12

19

10:25:07

10:26:09

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Argument - Wang, 11/20/15 Evidentiary Hearing
4638

Chief Deputy Sheridan, flouted those orders the very same day

they issued and then lied to the court-appointed monitor, an

arm of the Court, about it.

sequence of events.

The record is very clear as to the

The monitor sets out the sequence of events in his

5
6

memorandum, docket number 795, which is in the record.

believe it's Exhibit 125.

general time line is corroborated by Chief Sheridan's

testimony.

THE COURT:

11
12

And that is corroborated, the

MS. WANG:

14
15

Let me ask, was there any response -- I

Yes, Your Honor.

THE COURT:

Did they contest that in the response?

MS. WANG:

I don't believe so, Your Honor, not the

10:26:56

time line.

THE COURT:

17

MS. WANG:

18

All right.

Thank you.

Your Honor, it's undisputed that after

parties left court on May 14, 2014, Sheriff Arpaio, Chief

20

Deputy Sheridan, and others met in Sheriff Arpaio's office at

21

MCSO headquarters and discussed what to do in response to the

22

order.

IEN

DS

19

10:27:08

It is undisputed and admitted that during that meeting

23

Chief Deputy Sheridan directed Chief Trombi to send out an

24

e-mail blast to dozens of commanders, and that it is also

25

undisputed that that happened without the monitor's approval.

FR

10:26:47

mean, the defendants did file a response.

13

16

Notably, Sheriff Arpaio was also present --

10

10:26:29

10:27:27

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Argument - Wang, 11/20/15 Evidentiary Hearing
4639

Notably, Sheriff Arpaio was present during that

1
2

meeting.

He participated in the decision to have Chief Trombi

send out that e-mail, and all the while he testified he had not

forgotten about this Court's order.

According to Chief Deputy Sheridan's own testimony, he

5
6

then proceeded to a meeting with the Monitor Team, a meeting

that took place over the course of more than two hours, in

which, as Chief Deputy Sheridan testified, he disputed

vigorously with the Monitor Team about the appropriate way to

10

carry out the Court's order that the video recordings be

11

gathered quietly.

13

compromise was reached that involved a relatively quiet method.

14

Throughout that two-plus hour meeting, Chief Deputy Sheridan

15

never disclosed that he had already ordered Chief Trombi to

16

send out an e-mail blast, something that was entirely contrary

17

to the approach that was disputed and then agreed upon with the

18

monitor.

to inform either the monitor or the Court that he had actually

21

directed Chief Trombi back in February of 2014 to begin looking

22

into the agency's use of video recording devices.

IEN

DS

20

10:28:37

That was

Exhibit 151, indicating --

24

FR

10:28:21

Notably, Your Honor, Chief Deputy Sheridan also failed

19

25

10:28:03

In the end, according to Chief Deputy Sheridan, a

12

23

10:27:44

video?

THE COURT:

All recording devices, not just audio and


10:28:57

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Argument - Wang, 11/20/15 Evidentiary Hearing
4640

MS. WANG:

That's right, Your Honor.

According to the

testimony during the hearing, this effort was undertaken in

response to a question about an Arizona state-issued grant for

such devices.

THE COURT:

5
6

MS. WANG:

Yes, Your Honor, as long as they related to

the traffic stops.

THE COURT:

MS. WANG:

10

Traffic stops?

That's right.

12

testimony at 867 to 68 that that would have been useful

13

information for the monitor to have as they discussed how to

14

gather the video recordings.

Upon leaving that two-plus hour meeting with the

15
16

monitor, Your Honor, Chief Sheridan talked to Christine Stutz

17

and Chief Trombi, and the two of them reminded Chief Sheridan

18

that he had already ordered Chief Trombi to send out the e-mail

19

blast.

DS

Chief Sheridan then spoke to Chief Martinez of the

Monitor Team by telephone, and then to Chief Warshaw, the court

22

monitor.

IEN

21

only violated the Court's order, but then lied about it to the

24

court-appointed monitor.

FR

10:29:28

10:29:46

This is when, Your Honor, Chief Deputy Sheridan not

23

25

10:29:16

Your Honor, Chief Deputy Sheridan admitted in his

11

20

10:29:06

broad enough to encompass audio recordings?

7
8

Were your original discovery requests

He first told Chief Warshaw over the telephone that

10:30:05

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Argument - Wang, 11/20/15 Evidentiary Hearing
4641

Chief Trombi had sent the e-mail without Chief Sheridan's

knowledge.

reminded by Chief Trombi that he, Sheridan, was the one who had

issued that order.

Again, he had just immediately prior to this been

Later that night, in response to the monitor's

5
6

request, Chief Sheridan wrote a letter, knowing it would go to

Your Honor -- that's Exhibit 39 -- saying that he did not know

who directed Chief Trombi to send the e-mail.

had just been reminded that afternoon by Trombi that it was he

10

And again, he

himself who had done that.

12

Deputy Sheridan, in testifying about these events, stuck to his

13

story that even though he had told both -- he had been told by

14

both Trombi and Stutz that he was the one who gave the order,

15

that night he still wrote to the monitor that he did not know

16

who issued the order.

10:31:01

Sheridan wrote in that letter, Exhibit 39, that Chief

17

Trombi had told him that it was a collective decision to send

19

the letter, or to send -- to issue the order, the e-mail blast,

20

and Trombi refuted that in his testimony at page 114 of the

21

transcript, testifying that Chief Sheridan's letter was not

22

accurate in that respect.

IEN

DS

18

10:31:14

Now, in sum, Your Honor, Chief Deputy Sheridan

24

testified that he took these actions because of fatigue and

25

because he suffered from a migraine headache that day.

FR

10:30:41

On the stand, Your Honor, during the hearing, Chief

11

23

10:30:21

10:31:31

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Argument - Wang, 11/20/15 Evidentiary Hearing
4642

Plaintiffs submit that is simply not credible.

Even assuming

that his order to Trombi had somehow slipped his mind during

the two-plus hour meeting with the monitor, the subsequent

events, his telephone call with Chief Warshaw and then his

letter to Chief Warshaw contained deliberate lies.

10:31:52

On the stand, Your Honor, Chief Deputy Sheridan, even

6
7

though he had admitted liability on the May 14 ground for

contempt prior to the hearing, tried to waffle, saying that he

only assumed that he was the one to give Trombi the order,

10

contrary to his other testimony and to his admission of

11

liability.

And he testified on the stand during this hearing,

12
13

incredibly, that when he told Chief Warshaw that Trombi had

14

sent the e-mail without his knowledge, what he meant to say was

15

that he didn't realize Trombi had already sent the e-mail, and

16

he added:

17

credible, Your Honor.

Dave doesn't do anything fast.

That is simply not

about what happened on May 14.

20

stand, that if a subordinate of his engaged in the same

21

conduct, he would not take any action.

22

And he maintains to the day of his testimony that the e-mail

IEN

DS

19

He testified that -- on the

10:32:48

That is at page 885.

23

blast was the best way to quietly gather the videos.

24

page 843.

FR

10:32:28

Worst of all, Chief Deputy Sheridan is unrepentant

18

25

10:32:11

That's at

The way that the May 14 order of this Court was

10:33:08

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carried out, in violation of the directive to seek the

monitor's pre-approval, and to do so quietly, had consequences,

Your Honor.

the "goat rope."

were issued and then rescinded that called attention to the

fact that the agency was seeking the video recordings, and

heightened the fact that people could use the time to destroy

video recordings, contrary to what all the parties discussed

with the Court in court on May 14.

Lieutenant Sousa testified as to what he called

As a result of the sequence of events, orders

And Lieutenant Sousa noted that the best way, in his

10
11

opinion as a lieutenant and a law enforcement officer, to

12

gather the videos, would have been to send out investigators to

13

seize them, exactly the approach recommended by Chief Warshaw.

14

Ultimately, Lieutenant Sousa, and many other exhibits

15

and testimony in the record, indicate that the effort to gather

16

as many recordings as possible was stymied by what happened on

17

May 14.

18

Trombi testified to that at pages 57 to 58 and 82.

Lieutenant Sousa testified to that at page 697.

21

seeking those video recordings: Exhibits 36 and 42; Sheridan's

22

testimony at 874 that he was angry that the e-mails sent by

IEN

DS

that demonstrate the great difficulty that the agency had in

FR

25

10:34:08

Chief

20

24

10:33:46

And, Your Honor, I would point to a number of exhibits

19

23

10:33:27

10:34:32

Trombi weren't getting responses quickly enough.


He also testified that as of his testimony on April

24th, 2015, the agency still did not have 100 percent response

10:34:56

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to the e-mails.

And in that sense, a response simply meant a

memorandum being turned in to detail video recordings.

Exhibits 43, 44, 154, 165, 169, 176, Palmer's

testimony at 196 and 197, and Exhibit 2050, all are relevant to

show the impact that the approach had on the gathering of the

videos.

THE COURT:

MS. WANG:

THE COURT:

Is now a good time for break?

Sure.

All right.

We will be back in 15 minutes.

(Recess taken.)

10

THE COURT:

11

MS. WANG:

12

10:35:38

You may resume.

Thank you, Your Honor.

I took the

13

opportunity during the break to find the answer to Your Honor's

14

questions about Lieutenant Sousa's testimony.

15

there's testimony establishing when he was asked to search for

16

documents.

17

preserve.

I don't believe

10:55:46

It's implied that it was after he was asked to

The testimony is at page 662 of the transcript.

I'd also note, Your Honor, that Exhibit 216 is dated

18

December 8th, 2009, which is more than nine months after

20

plaintiffs' first set of requests for production was served,

21

and Lieutenant Sousa testified at page 667 to 68 that that was

22

his first preservation notice to HSU personnel.

IEN

DS

19

23

THE COURT:

24

MS. WANG:

25

Your Honor, I'll turn now to the subject matter of

FR

10:35:26

10:56:11

Thank you.
Thank you, Your Honor.
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MCSO's internal accountability practices and policies.

The

record evidence shows that MCSO's IA systems are designed in

numerous and systemic ways to excuse and to exonerate

misconduct, and that there has been an ongoing lack of

accountability for MCSO personnel's misconduct that violated

the rights of the plaintiff class.

One overarching and key example I would point to is

7
8

that a policy decision was made at MCSO to count multiple

violations of MCSO policies as only one violation for purposes

10

of the MCSO discipline matrix, so long as the violations were

11

categorized as related to this Melendres litigation.

13

Exhibit 2010, at MELC288485, and in the testimony of

14

Captain Bailey at 3272 to 73, and Lieutenant Seagraves at

15

page 2135.

10:57:42

The obvious consequence of that policy decision, Your

16
17

Honor, is that misconduct relating to this litigation, or

18

categorized as being related to this litigation by MCSO, is

19

minimized in terms of the discipline that is meted out.

DS

I'll start, Your Honor, with Mr. Vogel's

investigations in the 14-542 and 543 cases.

22

already mentioned them, so I'll just do this briefly.

IEN

21

23

10:58:05

Mr. Young has

It is clear that those internal investigations carried

24

out by Mr. Vogel were stymied by a lack of documents submitted

25

to him and by the reversal of all the preliminary findings of

FR

10:57:18

That is demonstrated in, among other places,

12

20

10:56:57

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sustained except for Chief Trombi's.

The final outcomes in the

542 and 543 cases were infected with the consideration of

improper influence, and symptomatic of larger problems with

MCSO's predetermination hearing and grievance processes.

In the 542 case, Your Honor, only some of the people

5
6

in Charley Armendariz's chain of command were charged with

policy violations, even though the supervision failures

encompassed periods when he was assigned to other divisions.

That is in Bailey's testimony at 3193 to 3194.

In the end, only Chief Trombi was held accountable for

10
11

supervision failures with Armendariz, despite preliminary

12

findings to the contrary for other principals.

14

while under investigation.

15

1433 that he promoted Trombi despite the pendency of that very

16

serious internal investigation because Trombi had been doing an

17

excellent job as deputy chief.

Chief Deputy Sheridan testified at

potentially dangerous.

20

had called Sergeant Trowbridge to ensure that Armendariz would

21

not have access to a firearm, but then Chief Trombi cleared him

22

as being fit for duty and returned his weapon to him for

IEN

FR

At one point, Armendariz's physician

DS

19

25

10:59:26

Indeed, Trombi's violations were egregious and

18

24

10:59:06

Moreover, Chief Trombi was promoted to executive chief

13

23

10:58:45

regular patrol duty.

10:59:45

That's Trowbridge at 443.

Trombi merely talked to Armendariz in response to

numerous sergeants' memoranda raising concerns with the high

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volume of civilian complaints, and we saw the results.

Others were culpable but were not disciplined.

While

Lieutenant Sousa was in command of HSU, Trombi received --

reviewed only two recordings of Armendariz's traffic stops

despite knowing --

THE COURT:

MS. WANG:

Trombi or Sousa?

-- that there were --

They reviewed it together, Your Honor.

8
9

11:00:24

Despite

knowing there had been years of a high volume of civilian

10

complaints, and they otherwise did not review any of the

11

video recordings of Armendariz's traffic stops.

Sergeants were aware of the civilian complaints over a

12
13

long period of time.

14

Sousa and Jakowinicz.

15

HSU that Armendariz had a lot of complaints, and indeed,

16

Lieutenant Sousa stated that when he was notified Armendariz

17

was joining HSU, he was already aware of problems with this

18

deputy.

Trowbridge raised problems with both

Jakowinicz was told when he started at

transferred out of HSU rather than addressing the problems as

21

supervisors and commanders and making sure the chain of command

22

addressed the problems, and yet, none of them were held to

IEN

DS

20

24

FR

25

11:00:53

Their response was merely to try to get Armendariz

19

23

11:00:34

11:01:09

account in the 542 case.


What's more troubling, Your Honor, is that there was

testimony from Chief Trombi that he did not take action against

11:01:23

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Deputy Armendariz in terms of an IA referral, because most IA

investigations lead to unfounded findings.

testimony at page 78.

received no training on when to refer an employee to Internal

Affairs.

That's his

And Trombi, then a deputy chief, had

That's at page 142.

Lieutenant Bailey acknowledged that as PSB commander,

6
7

with his bird's eye perch looking at the allegations about

Charley Armendariz over numerous IA cases during his tenure,

noted that the volume of complaints and the nature of

10

complaints against Armendariz warranted initiating IA cases

11

against him, but in many cases no IA case was initiated.

12

That's Bailey at 3198.

14

one person, was held accountable for the preliminary injunction

15

violations, despite preliminary findings that did sustain

16

policy violations against some of the principals.

overturned by Chief Olson in his name clearing hearing based on

19

an argument that he had other matters on his plate.

20

Plaintiffs -- and we would submit that he improperly pressured

21

his subordinate, Chief Olson, who was sitting in judgment on

22

him during the name clearing hearing, highlighting that he was

IEN

DS

18

FR

25

11:02:26

Chief Deputy Sheridan had his sustained finding

17

24

11:02:07

Similarly, Your Honor, in the 543 case, no one, not

13

23

11:01:47

11:02:47

putting a great weight on Chief Olson's shoulders.


Regardless of that, Your Honor, it is a significant

problem that a chief deputy can evade responsibility for

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violations of the command responsibility, policies, in this

circumstance, based on an excuse that he was busy with other

things.

And finally, Your Honor, the only other thing I'll

4
5

mention about 543 in the short time I have is that it was known

around the MCSO rumor mill that no one was held responsible for

violations of this Court's preliminary injunction.

Sousa's testimony at 2693.

that people will not be held to account, even for violating a

10

That was

And that reinforced the message

federal court's orders.

11:03:42

Your Honor, other cases that MCSO categorized as

11
12

Armendariz spin-off investigations demonstrate a similar

13

systemic lack of accountability for serious misconduct and

14

failures in the IA process.

15

Exhibit 2943, which is now in evidence in redacted form, is a

16

spreadsheet that purports to summarize all of those cases.

17

There is a pattern of minor discipline or no discipline being

18

meted out for recurring rights violations.

The overview spreadsheet,

11:04:02

There are numerous cases that involved a lieutenant at

19

MCSO reviewing video recordings and noting Miranda violations,

21

a lack of probable cause to justify traffic stops, or deputies

22

failing to identify the reason for the stop, a lack of

IEN

DS

20

23

consequences through the pattern of minor or no discipline, and

24

that lack of consequences, Your Honor, communicates a message

25

throughout the agency that violations of people's rights are

FR

11:03:20

11:04:23

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not taken seriously.

In partial answer to one of the Court's questions,

2
3

which we will address more in writing over the next two weeks,

I would note that it is impossible for plaintiffs to ascertain

whether we had complete IA files or whether we had final files

because documents were produced piecemeal, with mentions of the

same IA number across different discontiguous Bates ranges.

There were duplicate files, there were partially overlapping

duplicate files.

10

But even from that limited record certain

patterns emerge, and I'll briefly summarize them now.

12

cases involving the handling of property belonging to people

13

who were stopped or detained by MCSO, including members of the

14

plaintiff class.

15

with the seizure and handling of property from civilians.

16

Chief Deputy Sheridan summed it up by saying there were so many

17

IA cases on the mishandling of property that he could not keep

18

them straight.

19

addressed adequately with MCSO's internal investigations.

There were recurring and systematic problems

That's at 1203.

DS

HSU, it was clear, kept property as trophies or

souvenirs, but repeatedly claimed they were for training

22

purposes.

IEN

11:05:38

Those matters were not

21

11:05:57

Defendants ended up acknowledging on the stand,

23

including Sergeant Tennyson and Chief Deputy Sheridan, that in

24

fact, not all of the IDs and other property that were

25

mishandled were used for training purposes.

FR

11:05:20

First, Your Honor, we had a lot of testimony about IA

11

20

11:05:01

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I'd note also that other items were also allegedly

1
2

taken for training purposes, including laptops.

There was one

day, according to Exhibit 169, and as noted in Bailey's

testimony at 3230, that two HSU personnel took out two laptop

computers under the diversion program, allegedly for training.

Yet even now, the PSB investigations appear to accept

as a given the proposition that IDs and other property,

including religious items, things that Chief Deputy Sheridan

refers to as trinkets, were used for training purposes.

10

is implausible on its face and it demonstrates deficient

11

supervision.

This

13

cases noted in Exhibit 2943, all note that IDs were taken for

14

training purposes.

15

implausible that an MCSO deputy or supervisor would have in

16

their possession 1,459 IDs, 65 IDs, 46 IDs, religious shrines,

17

things of that nature, for training.


THE COURT:

18

21

MS. WANG:

23

Which of the four in 2943 are designated

I'm sorry, I don't have it noted, but it's

THE COURT:

11:07:46

MS. WANG:

All right.
Your Honor, there was also an issue that

24

came up in the testimony about the use of the 14-221 case as a

25

dumping ground for misconduct by persons other than Deputy

FR

11:07:28

in the Comments section.

IEN

22

And Your Honor, I submit it is simply

for training?

DS

20

11:07:05

Exhibit 69, Sheridan's testimony at 1468, and four

12

19

11:06:44

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Armendariz.

Now, that case started out as the death

investigation of Armendariz.

Armendariz's wrongdoing over a course of his career at MCSO,

despite the fact that he was dead.

Then it grew to encompass

And then there was testimony from Chief Sheridan that,

5
6

in fact, they used the 221 case in order to attribute any

property or evidence that they could not tie to a deputy other

than Armendariz into an IA case, and that's Sheridan's

testimony at 1549 to 50, and 1601 to 02.

Sheridan acknowledged that despite the fact that they

10
11

kept the 14-221 case open, there was no point in investigating

12

Armendariz, because he was dead.

13

testified that the 221 case was not for the purpose of imposing

14

discipline on anyone.

16

questions, that the 221 case was still open as of the last day

17

of his testimony.

18

as a closed case, and Lieutenant Seagraves testified that it

19

was a closed case.

Your Honor, there were also Internal Affairs cases

that purported to address the theft of items that were more

22

valuable than the so-called trinkets and ID cards and license

IEN

21

23

plates.

24

investigation, 14-295.

25

subject of inconsistent testimony, but it was essentially about

FR

11:08:57

But I would note that Exhibit 2943 shows it

DS

20

11:08:39

And Lieutenant Seagraves

Sheridan finally testified, in response to the Court's

15

11:08:15

11:09:16

There was significant testimony about the criminal IA


The exact scope of that case was the
11:09:45

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Cisco Perez's allegations of pocketing by HSU.

It is clear

from the record that investigation was never taken seriously.


Sheridan and the PSB investigators, Tennyson and

3
4

Bailey, all worked on the assumption that there was no theft,

and went so far as to say that they felt sorry for the suspects

in that criminal IA case.

Sheridan decided to initiate the criminal case rather

7
8

than an administrative case.

normal rule that the PSB commander is the one who determines

10

This was an exception to the

whether to go criminal or administrative.


THE COURT:

11
12

Please stop there.

That's Bailey's --

Do you have citation

MS. WANG:

Yes.

I believe it's at different places,

14

but it's addressed at 1186, I believe, and there may be other

15

citations as well, Your Honor.


THE COURT:

16

MS. WANG:

21

THE COURT:
MS. WANG:

Bailey, I believe, testified he initiated

Okay.

11:10:48

But Sheridan's testimony, Your Honor, is

very specific, and is telling as well.

IEN

22

Bailey indicated -- Bailey

it in conjunction or in consultation with Sheridan.

DS

20

All right.

11:10:38

testified that he initiated it.

18
19

In a moment of candor,

23

Your Honor, on the stand, Chief Sheridan testified that he only

24

initiated the criminal investigation because he knew that

25

plaintiffs' counsel would criticize him if MCSO did not do

FR

11:10:22

where Sheridan said he initiated it?

13

17

11:10:06

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something.

That's at page 1186.

He subsequently tried to change his testimony and

2
3

rehabilitate what he had said, at 1442 and 1444 on

cross-examination by Mr. Masterson, trying to explain himself.

When asked whether the initiation of the criminal case -- and

I'd note, Your Honor, that when I asked him whether the

initiation of the criminal case would potentially interfere

with the ability to bring an administrative case, the chief

deputy's demeanor and his defensiveness demonstrate a lack of

10

credibility.

11:11:41

Your Honor, throughout that investigation Sergeant

11
12

Tennyson, who was the investigator, felt that there was no

13

basis even to question the deputies in the criminal

14

investigation because, he said, there was no probable cause to

15

believe they had committed a crime, betraying both a bias going

16

into the investigation and a fundamental misunderstanding of

17

basic criminal law.

By the way, that cite is page 2913.

dissented, and said that she felt that Perez's allegations were

20

serious, and that it should have been a priority investigation.

21

That's at 2099.

DS

19

11:12:17

IEN

Tennyson's closeout memo to Chief Sheridan,

23

Exhibit 1001, has been the subject of much testimony.

24

demonstrated that the case was never taken seriously, and that

25

Tennyson relied primarily on the categorical denials of HSU

FR

11:11:57

Notably, Lieutenant Seagraves, his supervisor,

18

22

11:11:22

It

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4655

personnel that they never pocketed items.

Tennyson's memo does not indicate that he looked at

2
3

any departmental reports or other documentation of HSU

activities other than the one that Sergeant Palmer came forward

with to demonstrate that one television set had been obtained

through a civil forfeiture proceeding.


THE COURT:

7
8

Wasn't 14-295 closed

by Exhibit 2006?

MS. WANG:

9
10

I want to stop you.

Yes, Your Honor.

That was a separate

memorandum that he wrote to Captain Bailey.


THE COURT:

11

MS. WANG:

12

THE COURT:

13

11:13:05

All right.

Both of --

If I recall correctly -- and

14

Mr. Masterson, if I recall incorrectly, I want to hear what you

15

have to say on this -- but my recollection is that 14-295 was

16

closed out by 2006, but there never was a criminal

17

investigation opened with respect to the Armendariz property

18

found in the -- pursuant to the Armendariz investigation.

19

all that happened was that Exhibit 1000 incorporated the

20

findings from Exhibit 2006, the Cisco Perez allegation, and

21

then Chief Deputy Sheridan signed off on Exhibit 1000 and it

22

went back for administrative purposes.

FR

25

11:13:13

That

DS

IEN
23
24

11:12:50

11:13:37

So aren't you crossing things up a little bit there,

Ms. Wang?
MS. WANG:

Yes, Your Honor.

I may have missed --

11:13:54

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you're right.

closeout memo, I think you're right is not quite accurate.


THE COURT:

MS. WANG:

Okay.

All right.

THE COURT:

5
6

I think referring to Exhibit 1001 as the

So 2006 was the closeout for 14-295; 1001

was a closeout for something that had never been opened.


MS. WANG:

That's right, Your Honor.

And was

addressed to Chief Deputy Sheridan, skipping two links, at

least two links in the chain of command.

Your Honor, Sergeant Tennyson testified that the

10
11

suspects in the criminal case, 14-295, appeared to know the

12

questions in advance of his interviews, and some of them even

13

texted him to ask what was going on.

14

that to determine whether his investigation had been

15

compromised, and whether suspects were colluding to coordinate

16

their statements.

He never followed up on

11:14:39

That's at page 2815.

18

implicated by Perez's allegations, or other allegations of

19

theft, were limited to a few bad apples.

20

well.

21

that confirmation bias infected the entire investigation.

That's at 2815 as

DS

And the documents and the testimony demonstrate that

11:14:56

IEN

Tennyson never answered the question about how

23

identification documents ended up at Armendariz's house, even

24

though it was clear that Armendariz had not been involved in

25

their seizure.

FR

11:14:22

Tennyson felt from the outset that any problems

17

22

11:14:03

Tennyson only attempted to identify the owners

11:15:13

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of a few of the IDs that were handed to him, and he did not

successfully locate the owner of a single one.

He also noted that many of the owners had been

3
4

deported, and the evidence showed that he did not bother even

to attempt to reach the owners of IDs who were not local to the

Maricopa County area because they had been deported.

Tennyson at 2891 and 2944.

That's

Tennyson further was aware, as Your Honor just

8
9

mentioned, that cell phones, credit cards, and firearms were

10

found in Armendariz's house, but did nothing to investigate

11

those items.

12

not review, again, any departmental reports other than the

13

single one Palmer came forward with to look into seizures of

14

high-value items.

That's Tennyson at 3137 to 38.

That's 3108 to 09.

monitor's criticisms of the Tennyson investigation outlined in

17

Exhibit 1001, including the criticism of -- including criticism

18

of the decision not to refer for criminal prosecution.

19

Sheridan did not follow-up with any of those criticisms, and

20

neither did Bailey.

DS

16

11:16:29

the record -- the record shows, that there were numerous

23

allegations and evidence indicating a problem with not just

24

mishandling of property, but potentially theft of cash and

25

valuable items, but those matters were not addressed adequately

FR

11:16:06

Now, what happened, as Your Honor has alluded to and

IEN

22

11:15:47

And Tennyson did

Chief Sheridan and Captain Bailey disagreed with the

15

21

11:15:29

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through the Internal Affairs system.

Tennyson testified that Cisco Perez was the only

2
3

person who accused HSU of thefts.

that's at 2905.

allegations were the only indication of theft that he knew of.

But then he acknowledged under questioning that there were many

other indications of possible thefts by HSU personnel.

this is at 3200 to 3203.

Your Honor.

Bailey also initially testified that Perez's

THE COURT:

10

MS. WANG:

11

Bailey also initially --

And

I'll briefly go through them you,

This is Bailey?

11:17:28

This is Bailey, Your Honor.

In the IA case 15-21, it was discovered that an

12
13

evidence envelope indicated that $260 had been seized by a

14

Mr. Mier during a traffic stop.

15

member.

16

got only a written reprimand, and Officer Montoya, who we will

17

cover in more detail, received a not sustained finding.

18

14-570 case -- and by the way, that's Exhibit 2010, I believe.

I note he is a plaintiff class

In that case there was an investigation.

Deputy Cosme

11:17:46

In the

In the 14-570 case, Exhibit 2017, another stop

19

involving a plaintiff class member, Mr. Atondo, this was a case

21

where chief -- Deputy Armendariz counted out some cash the

22

driver had.

IEN

DS

20

The driver announced he had $1100.

11:18:10

Armendariz

23

announced, No, you have 900, and counted the cash out of view

24

of the camera.

25

investigation memo, was not investigated.

FR

11:17:10

That issue, though it came up in the


11:18:31

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Argument - Wang, 11/20/15 Evidentiary Hearing
4659

There was an allegation by Amber Marie Murphy that

1
2

Armendariz stole $300 from her during a traffic stop.

case at all was initiated based on that complaint by a

civilian.

for Sousa's policy violation.

receive a finding of sustained on that count, but it was

overturned in the predetermination hearing process.

It was only mentioned in the 542 case as a ground


Notably, he did initially

11:18:53

There were credit cards, drugs, weapons, and IDs found

8
9

No IA

in Armendariz's home.

Those matter were not investigated.

And

10

there were purses found in the Enforcement Support building

11

where HSU used to work, and Tennyson never bothered to try to

12

locate the owners of those purses.

Your Honor, there's an overall pattern of deficiencies

13
14

in IA practices and policies that I'll try to cover very

15

briefly and just mention citations to the record to support

16

that.

17

and needed resources, leading to a system that permits

18

manipulation and cases falling through the cracks, and there

19

are IA investigation techniques that also are skewed to

20

exculpate those charged with wrongdoing.

11:19:51

First, Your Honor, there's an issue with the

allocation of internal investigations between PSB and the

IEN

22
23

division where the employee charged works.

24

unguided discretion of commanders to determine whether civilian

25

complaints result in PSB investigations or stay on the division

FR

11:19:29

There was a lack of necessary IA policies, procedures,

DS

21

11:19:11

It is up to the

11:20:09

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Argument - Wang, 11/20/15 Evidentiary Hearing
4660

side where the employee is based.

That's Bailey at 3151 to 52.

PSB does not generally get involved substantively in

2
3

division-side investigations unless requested by the division,

and does not check on any cases except to run reports on how

long the investigations have been pending.

3158 to 59.

That's Bailey at

11:20:32

PSB does no testing to determine if division

7
8

commanders are properly categorizing civilian complaints.

Bailey, 3177.

There is no guidance to cabin division commanders from

10
11

deciding to label a case as minor in order to keep it on the

12

division side.

13

only reviews findings in cases involving major discipline.

14

the whole, the IA system is improperly skewed toward excusing

15

and shielding those charged at the expense of addressing

16

wrongdoing.

This is consequential, Your Honor, because PSB


On

18

minor discipline, there's no check on improper categorizing of

19

cases as minor, Bailey at 3184.

And Your Honor, the GH-2 policy on internal

DS

11:21:19

investigations, Exhibit 2888, demonstrates that complaints of a

22

minor nature do not require an in-depth investigation, and are

IEN

21

23

usually completed by a personal visit or a phone call by a

24

supervisor.

25

unguided discretion that lends itself to abuse by division

FR

11:21:05

Because there's no PSB oversight in cases involving

17

20

11:20:48

That is condoned by the written policy.

There's
11:21:38

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Argument - Wang, 11/20/15 Evidentiary Hearing
4661

supervisors and commanders.

There's no uniformity or accountability for

2
3

division-side IA investigations.

And even in cases involving

major discipline, which are ostensibly reviewed by PSB, the

systems are inadequate for meaningful oversight.

11:21:54

There are three commanders of PSB responsible for

6
7

reviewing all files of the division side, hundreds of cases a

year, Bailey 3184.

Different divisions and districts could have different

9
10

interpretations about how to conduct internal investigations,

11

Bailey 3166.

12

page 5 indicates that if a complainant does not sign the

13

complaint form, what to do.

14

investigate, but he does not know whether a division-side

15

investigator would read the policy the same way.

16

3179.

For example, GH-2 -- again, Exhibit 2881 -- at

Bailey testified PSB would still

That's at

18

assignment of staff on the division side for internal

19

investigations.

20

is up to the unbridled discretion of the division commander.

21

There is no policy covering -- that's Bailey, 3182.

And that, again,

DS

There is no PSB involvement.

11:22:47

IEN

There is no policy covering conflicts of interest in Internal

23

Affairs investigations.

24

to 45, Bailey testified about it at 3159 to 60, and in fact,

25

said that he does not even know whether there is such a policy.

FR

11:22:33

There's no policy guidance on the criteria for

17

22

11:22:11

Sheridan testified about that at 1543

11:23:07

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Argument - Wang, 11/20/15 Evidentiary Hearing
4662

It's also addressed in the PSB-related policies.

The consequence, Your Honor, is that even the captain,

2
3

the commander of PSB, does not know how MCSO could prevent a

commander from covering up policy violations in his or her

division by interfering with a division-side internal

investigation if no one brings it up to PSB's attention.

That's Bailey at 3161 to 2.

Your Honor, there were inadequate policies and

8
9

11:23:29

practices, meaning that civilian complaints are not adequately

10

addressed.

There's no testing done to determine whether

11

sergeants pull IA numbers for every civilian complaint.

12

Bailey, 3155 to 56.

GH-2, at page 3, does not clearly specify that

13
14

civilian complaints channelled through a third party should be

15

investigated, even if the first party is contacted and declines

16

to participate, for example, because of fear of retaliation.

17

That's Bailey at 3174.

investigations, are covered in a half a page of GH-2.

And MCSO

20

decisions not to refer personnel for criminal prosecution are

21

not documented with MCAO, Seagraves 2092.

DS

19

11:24:23

IEN

In addition to inadequately addressing civilian

23

complaints, Your Honor, MCSO does not adequately address

24

internal complaints and the potential for retaliation against

25

whistle-blower personnel.

FR

11:24:04

All of the policies, Your Honor, on criminal IA

18

22

11:23:47

GH-2, at page 13, requires that

11:24:44

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Argument - Wang, 11/20/15 Evidentiary Hearing
4663

internal complainants be given a Garrity warning.

Bailey

admits that this could cause intimidation of the complainant,

at 3184 to 6.

GH-2 also does not indicate, at pages 22 to 24, what

4
5

to do when there are indications of retaliation against an

internal complainant, and Bailey acknowledged that at 3179.


The internal complaint cases that are part of the

7
8

record, the Ruben Garcia case that came in -THE COURT:

9
10

You know what?

I need to have you stop

for a minute.

MS. WANG:

11

THE COURT:

12

11:25:22

Sure.

I need to take a note.

(Pause in proceedings.)

13

THE COURT:

14

MS. WANG:

15

All right.

Go ahead.

Your Honor, the two internal complaint

16

cases that are in the record, the Ruben Garcia case and the

17

Lawhorn case, show a larger pattern of an IA process that does

18

not adequately address race discrimination, even when the

19

claims are made by MCSO employees.

The case involving the detention sergeant, 14-114,

DS

20

which is Exhibit 2037, and is testified to by Chief Olson at

22

3580 to 89, involves a case where a supervisor in the detention

IEN

21

23

division made a series of nine anti-Mexican and anti-gay

24

remarks over a long period of time to a deputy under his

25

command.

FR

11:25:06

That violation, Your Honor, was categorized as rude

11:25:46

11:26:03

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4664

or insulting language under category II of the discipline

matrix rather than discrimination under category VI.

Olson defended that categorization decision at 3588, and the

principal, Sergeant Lawhorn, got only a written reprimand.

minimum for category VI, which would have been the appropriate

category, would have been a 40-hour suspension without pay.

Chief

The

In the Ruben Garcia case, Your Honor, there were

7
8

indications of retaliation against Deputy Garcia when he came

forward to allege that his fellow deputies discriminated on the

10

basis of race against him and against victims of crimes.

11

indications of retaliation were not followed up on at all in

12

the investigation.

13

was Garcia's responsibility to address race discrimination by

14

his fellow deputies.

Those

16

deputy, was not even named as a principal in the case.

17

Sheridan at 1521 to 22.

18

fault with Morrison's interview, even though he conceded that

19

Morrison signaled to the principal that he had already

20

concluded that the stop was lawful.

That's

DS

And Chief Sheridan resisted finding

11:27:50

case, which is Exhibit 2521, demonstrates that indications of

23

previous racial allegations of racial profiling against Deputy

24

Coogan, the person who made the stop of Deputy Garcia, were not

25

followed up on.

FR

11:27:31

The review of the entire 12-11 file, the Ruben Garcia

IEN

22

11:27:12

Indeed, Chief Sheridan testified that it

The deputy who made the stop of Garcia, a reserve

15

21

11:26:51

And even Chief Sheridan acknowledges that they

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Argument - Wang, 11/20/15 Evidentiary Hearing
4665

should have been, at page 1529.

Among Armendariz spin-off cases, Your Honor, repeated

2
3

Miranda violations were not taken seriously.

shows eight IA cases categorized by MCSO and the spreadsheet as

involving Miranda violations.

finding, and that deputy received only coaching as discipline.

And that was in the 15 -- excuse me, 14-580 case, Exhibit 2519.

Only one resulted in a sustained

wrote in that file that a Miranda violation is more of a

10

procedural violation than a violation of rights and policy.

11

Sheridan testified on the stand, contradicting his

12

earlier deposition testimony, that that was entirely

13

appropriate for Chief Lopez to write in an IA file.

14

1223 to 26.

There was also evidence, Your Honor, in the record

18

that there is no serious discipline for stops and searches that

19

appeared to MCSO lieutenants reviewing videos not to have had a

20

legal basis.

21

reasonable suspicion.

DS

This is traffic stops without probable cause or

11:29:38

IEN

Exhibit 2943 indicates 13 cases, by my count, of

23

either a stop or search without legal justification, or where a

24

deputy failed to call out or identify the reason for the stop.

25

Not one of those cases involved discipline more serious than a

FR

11:29:14

violations.

17

22

11:28:56

That's at

Exhibits 2029, 2063, both also involve alleged Miranda

15
16

11:28:34

Notably, Chief Lopez, who assigned the discipline,

8
9

Exhibit 2943

11:29:53

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Argument - Wang, 11/20/15 Evidentiary Hearing
4666

written reprimand.

I'd point Your Honor to Exhibit 2017, which is case

2
3

14-570, again, the stop of Mr. Atondo where two lieutenants,

based on the video review, found that there was no probable

cause to justify detention of more than an hour pending a K-9

search of a vehicle.

In that case, Sergeant Trowbridge and Deputy

7
8

Armendariz had decided to make that call for a K-9 search

together, and he received a finding of unfounded.

Your Honor, there's a serious problem of leading

10
11

questions designed to exculpate throughout these IA files.

12

don't have time to go over all of them.

13

your attention to Exhibits 2010, 2029, 2063, 2772, 2104, and

14

2521.

15

numbers in those voluminous files.

11:30:29

I will simply call

We can provide in writing, Your Honor, specific Bates

11:31:01

I do want to take the time, however, to read one of

16

them, because it is so egregious and relates to Officer Montoya

18

on the issue of thefts by HSU.

19

case about the missing $260.

20

investigator.

21

briefly from the transcript of that interview.

22

in Exhibit 2010.

IEN

DS

17

This is Exhibit 2010, the 15-21

Sergeant Tennyson was the

He interviewed Officer Montoya, and I will read

Sergeant Tennyson said to Officer Montoya:

24

"These guys think the world of you.

FR

11:31:21

It's MELC288322

23

25

11:30:12

I don't know that

you know all of them, but several of them said that you were

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Argument - Wang, 11/20/15 Evidentiary Hearing
4667

the engine, I guess, that kind of drove HSU, kept everything in

order, and you did a hell of a job.


"Answer:

"Question:

4
5

I should have interviewed you last 'cause

all this stuff may not have even been necessary.


"Answer:

Okay."

Sergeant Tennyson is:

"I'll be honest with you, between you and I and the

9
10

rest of the guys you all were done injustice and I don't

11

think that -- I think that whole unit was kind of slapped

12

together with good intentions but I don't think there were the

13

tools and the training and just the resources for you guys to

14

do what you do.

Thank you.

"Question:

16

11:32:21

I mean you guys arrested a lot of people.

17

You've done some -- a lot of good.

18

that said you, on your own, would go on your own time..."

19

et cetera, et cetera.

There were several in there

DS

The entire transcript, Your Honor, of this interview,

is Sergeant Tennyson asking supposed questions of that nature,

22

and Officer Montoya saying, "Thank you," "Yes," and, "Uh-huh."

IEN

21

23
24

FR

25

11:32:07

You did a hell of a job.

"Answer:

15

20

11:31:55

Skipping to the next page, Your Honor, the question by

7
8

Thank you.

11:32:34

That is not a proper IA interview.


Your Honor, there was a failure to interview relevant

witnesses and improper weighting of the MCSO employees'

11:32:58

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Argument - Wang, 11/20/15 Evidentiary Hearing
4668

statements against others.

I'd point to Exhibit 2784.

The case of the Dial-a-Ride driver who -- Mr. Abreu, a

2
3

case in which Sergeant Bocchino did not even interview the

passengers in the car, the deputy there was exonerated.

There was a lot of testimony about a lack of adequate

5
6

resources for Internal Affairs investigations, and I'll simply

give you the record cites, Your Honor, because I don't have

time.

testified there were inadequate resources to cover the cases.

10

He couldn't even do his own training or discuss investigative

11

methods with subordinates, 3148 to 49.

12

training for those -- even the commanders of PSB.

Sheridan, 1408 and 37 -- sorry, 3147 to 48.

Bailey

And there was no

14

Affairs investigations even when they're brought to their

15

attention.

16

of PSB, refused to acknowledge the pattern of improper

17

techniques on the stand.

18

criticisms about the lack of investigative plans, Bailey 3168;

19

about the use of improper leading questions, 3253 and 4039.

The chief deputy and Captain Bailey, the commander

DS

Bailey disagreed with the monitor's criticism about

Sergeant Tennyson stopping an interview when the subject began

22

to vent about HSU being used for political purposes by the

IEN

11:34:04

They disagreed with the monitor's

21

23

sheriff, at 3254.

24

inappropriate apologetic tone of PSB investigators at 39 --

25

excuse me, 3249 to 50.

FR

11:33:44

Commanders do not address problems with Internal

13

20

11:33:23

11:34:26

And he also did not address the

11:34:46

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Argument - Wang, 11/20/15 Evidentiary Hearing
4669

There were rampant problems, Your Honor, with the

1
2

predetermination hearing and name clearing system.

I'd ask permission, since we're going to be addressing Your

Honor's questions about the exhibits on Internal Affairs, to

submit that in writing over the next two weeks.

Montoya was never disciplined, and we do plan to address Your

Honor's question in writing.

there's limited time and we need time for Mr. Killebrew.


THE COURT:

MS. WANG:

10

Your Honor,

Officer

I prefer to wrap up, since

All right.

Okay.

There's improper executive command

11

influence, Your Honor, over Internal Affairs.

12

Sheridan has a lead role in IA functions.

13

supervises the PSB commander and signs off on all IA

14

investigations done by PSB.

He directly

demonstrated a lack of credibility and candor to this Court,

17

who has demonstrated resistance to the Court's orders, and who

18

has demonstrated in his testimony a lack of concern about

19

systemic problems in IA investigations, demonstrates the need

20

for fundamental change in MCSO's internal accountability

21

systems.

DS

16

23

particular instance in which Chief Sheridan tried to -- and

24

did -- exert improper control over outcomes in IA cases.

25

Palmer testified that Sheridan assured him that an HSU deputy

FR

11:35:35

11:35:51

Recall that Sergeant Palmer testified about a

IEN

22

11:35:18

Chief Deputy

Your Honor, in short, having someone who has

15

11:35:02

11:36:08

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Argument - Wang, 11/20/15 Evidentiary Hearing
4670

who was charged with falsifying a tip to MCSO's immigration

hotline and was referred for investigation by an MCAO

prosecutor had nothing to worry about in a pending IA case

because the 120-day clock was about to run out.

at 215 to 216.

That's Palmer

11:36:29

Your Honor, we heard testimony about the conflict of

6
7

interest in Sheridan's assignment of Captain Bailey to command

PSB, even though he knew Bailey was the current commander over

HSU, and that HSU was at the center of what was beginning to be

10

an influx of IA cases.

That's addressed, Your Honor, at page

11

958, 1421, Bailey at 3144, Sheridan at 1540 to 41, Bailey at

12

3144.

13

entwined with the sheriff and the chief deputy for the division

14

to function independently impartially, as it should.

And the bottom line, Your Honor, is that PSB is too

Finally, Your Honor, I will try to very briefly go

15
16

through the issue of the 1459 IDs, because I think it is a

17

particularly egregious example, showing that the leadership of

18

the Internal Affairs process at MCSO cannot be trusted to hold

19

others to account.

20

monitor about an ongoing IA investigation.

there were ongoing problems with the confiscation and

23

mishandling of ID documents.

24

Briefing Board, Exhibit 2065, in April of 2015 as a result.

FR

25

11:37:52

Defendants were aware over the past two years that

IEN

22

11:37:29

To the contrary, they actually misled the

DS

21

11:36:53

They even put out a

So when it came to light on July 8th of 2015 that

11:38:09

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Argument - Wang, 11/20/15 Evidentiary Hearing
4671

Sergeant Knapp had 1459 IDs that he claimed he was using for

training purposes, and had attempted to put them in the

destruction bin at the Property and Evidence Unit, Sheridan and

Bailey both testified they were well aware that the monitor

would be interested in knowing about those IDs, they were well

aware that the Court had issued a discovery order on February

12th of 2015 regarding such documents, and that they had an

independent duty of candor to the monitor, and that disputes

under the Court's order in November of 2014 about the

10

disclosure of information to the monitor should be taken up

11

with the Court.

13

suspended for now an investigation into Knapp's custody of the

14

IDs.

15

July 17, 2015, they held a meeting about the IDs in preparation

16

for a monitor's site visit the following week.

17

20th, Captain Bailey answered a direct question by Chief Kiyler

18

of the Monitor Team:

They chose not to tell the monitor about the IDs.

On

11:39:16

And on July

"No."

The question, according to Bailey, was whether there

19

were any pending cases involving IDs.

21

testified forthrightly that she believed that Bailey's answer

22

was not accurate.

IEN

DS

20

Lieutenant Seagraves

11:39:40

And defendants attempt to argue that there

23

were several reasons they did not need to answer that question

24

otherwise.

FR

11:38:54

And yet what happened was that Chief Sheridan

12

25

11:38:31

The first appears to be that they believe, or argue,

11:39:59

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Argument - Wang, 11/20/15 Evidentiary Hearing
4672

that IDs did not fall within the four corners of the Court's

February 12th, 2015 order.

regardless of the order requiring production to the plaintiffs,

Sheridan and Bailey knew there was an independent obligation of

candor with the monitor.

But it was undisputed, again, that

11:40:17

Defendants also appear to argue, Your Honor, that the

6
7

monitor's question did not call for disclosure because of the

way it was phrased.

best knowingly parsed words to avoid disclosure when they knew

10

This is not credible, and defendants at

that the monitor was interested in knowing about the IDs.

The suspension, supposed suspension of the Internal

11
12

Affairs investigation was either manipulative in order to avoid

13

disclosure, or the entire story is not credible.

14

Sheridan simultaneously testified that he wanted to, quote,

15

have the right story, end quote, and get the facts.

16

best way to do that would have been to continue the

17

investigation, as he acknowledged.

Chief

But the

11:40:57

That's at 1349 and 1367.

Chief Sheridan's testimony about the suspension order

18

also changed over time.

20

ordered Bailey to suspend the investigation.

21

77, where we went over his depositions and his interview with

22

the Monitor Team.

IEN

DS

19

At first he testified that he simply

That's at 1376 to

11:41:15

But for the first time, during his testimony

23

on September 25th, 2015, he testified that he only meant that

24

Captain Bailey should suspend looking into the provenance of

25

the individual IDs.

FR

11:40:35

That's at 1364 to 65.

11:41:40

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Argument - Wang, 11/20/15 Evidentiary Hearing
4673

In the meantime, Your Honor, he had already told the

1
2

monitor, as he acknowledged during his testimony, that the

investigation had always been open.

that is simply not credible.

That's at 1373.

Again,

Sheridan also was not truthful when he stated to the

5
6

press on July 30th, 2015, that no one had ever required

disclosure of those identifications.

reason that Sheridan and Bailey could not simply have told the

monitor that they discovered the 1459 IDs and were looking into

10

it.

In short, there's no good

11:42:17

Sheridan acknowledged on the stand that the reason he

11
12

did not do so was that he believed the Monitor Team is

13

alarmist, and that he was scared they would overreact and

14

create a huge problem and he would have another Charley

15

Armendariz situation on his hands.

That's at 1367.

intentionally misleading the monitor, and that he did not take

18

the Armendariz spin-off investigation seriously, and wanted to

19

avoid another situation where a large number of potential

20

misconduct cases would be fully investigated.

DS

17

continuing throughout the end of his testimony -- repeatedly

23

said of the Knapp IDs:

24

big deal.

25

testified he would do it all over again the same way, 1516 to

FR

11:42:48

He also, Your Honor, in the end -- in the end, and

IEN

22

11:42:30

This shows two things, Your Honor: that Sheridan was

16

21

11:41:54

I don't understand why this is such a

That's at 1326 and 1516 to 17.

He's unrepentant and


11:43:08

OF
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17.

And it is undisputed that about 500 of the IDs belonged to

members of the plaintiff class, and that Sheridan knew the fact

as of July 17, 2015.

That's Sheridan's testimony at 1511.

Finally, Your Honor, in closing -- and I hope I

4
5

haven't taken too much time away from Mr. Killebrew -- I want

to address defendants' apparent reliance on the advice of

counsel about the Knapp IDs.

Your Honor, there can be no valid advice of counsel

8
9

defense here, because Sheridan selectively presented

10

information to Ms. Iafrate, and sought endorsement by counsel

11

of his theory, in order to avoid disclosure.

12

Sheridan 1353, and Bailey at 3867.

11:43:50

That's at

He specifically had formulated on his own the notion

13
14

that because Knapp had pulled the IDs out of the destruction

15

bin over a period of years, that there might be a reason not to

16

disclose the IDs to the monitor, and he gave counsel that

17

theory to try to endorse it.

11:44:13

It was not reasonable, Your Honor, in any event, for

18

Captain Bailey to take what Ms. Iafrate did as legitimate

20

advice of counsel.

21

him as of July 17th that she had not yet done the research into

22

the Court's orders.

IEN

DS

19

According to his testimony, she informed

11:44:29

But nonetheless, she instructed him not to

23

disclose the IDs in the meantime; and she also, according to

24

Bailey -- according to Bailey, he did not ask her what to do if

25

he were asked point-blank a question requiring disclosure.

FR

11:43:30

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Even after the July 20th meeting, Your Honor, Chief

1
2

Sheridan testified that Ms. Iafrate had not done the legal

research

THE COURT:

4
5

--

Wait a minute.

So you're saying can't

invoke advice of counsel because she told him not to disclose?


MS. WANG:

No, Your Honor.

The reason -- the factual

findings that we would submit are justified by the record are

that Chief Sheridan formulated a theory as to why he could

avoid disclosure of the IDs and gave that to counsel for

10

endorsement.

11

not reasonable to rely on advice of counsel.

That's part of the reason, Your Honor, why it was

13

Bailey, what happened was, on July 17th, Ms. Iafrate told him:

14

I will do research.

15

the meantime.

Do not disclose these identifications in

11:45:49

And then during the meeting with the monitor,

16

according to Captain Bailey, what happened was Chief Kiyler

18

asked him the question, according to him:

19

pending IA cases about IDs?

20

he looked over at Ms. Iafrate and she shook her head and

21

audibly said the word no, and then he said no.

22

it's not reasonable to rely on that.

IEN

DS

17

Are there any

And he said no.

Because, he said,

11:46:06

Your Honor,

Bailey testified further

23

that he never received any substantive legal advice from

24

Ms. Iafrate either before or after July 20th.

FR

11:45:32

The other reason, Your Honor, is that according to

12

25

11:45:14

And the other testimony on this point, Your Honor,

11:46:23

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suggests that the testimony is simply not credible.

inconsistent testimony between Sheridan, Bailey, and Seagraves

about the facts.

meeting, later that week of the monitor site visit, Bailey

approached him and told him he was concerned because it had

come to light through Lieutenant Swingle's statements to the

monitor that there were these 1459 IDs.

Sheridan testified that after the July 20th

testimony, because he was concerned that this would make it

10

look as though he had lied to the monitor.

11

testimony on that point is at 1359 to 61.

12

denied that that ever happened, at 3875.

Sheridan's

Bailey, Your Honor,

14

Captain Bailey and Ms. Iafrate met prior to July 20th and ran

15

through various possible questions and answers together in

16

advance of the July 20th meeting.

17

at page 1360.

11:47:22

That's Sheridan's testimony

Bailey denies that that happened at all, and again

18

testified simply that Michele Iafrate told him she was looking

20

into the issue, and then said the word "no" when he looked at

21

her during the meeting on July 20th.

DS

19

11:47:38

IEN

Your Honor, the entire incident with the Knapp IDs

23

demonstrates that Chief Deputy Sheridan decided at the outset

24

that he did not wish to disclose the identifications to the

25

monitor, and carried that out, and sought the endorsement of

FR

11:47:01

And Chief Deputy Sheridan said that he understood that

13

22

11:46:43

Bailey approached Sheridan, according to Sheridan's

8
9

There was

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4677

counsel of a theory as to why the IDs should not be disclosed.


Their theories, and their explanations about why the

2
3

IDs and the question asked by Chief Kiyler did not fit within

the four corners of the Court's orders, is simply not credible.

They knew that the monitor wanted to know about IDs, and they

answered a question about the IDs "no" when they knew that was

false.

that Bailey's response was not accurate.

And Lieutenant Seagraves acknowledged that, testifying

That's at page 2171.

Your Honor, in conclusion -- and I hope you'll give

9
10

Mr. Killebrew some extra time because I think I've gone over --

11

what the Knapp --

THE COURT:

12

MS. WANG:

13

I won't.

Okay.

15

problems going to the very top of this agency with

16

accountability.

17

improvements such as the EIPro, IAPro, and BlueTeam systems as

18

a solution.

19

acknowledged, that without a change in the attitudes of

20

supervisors and commanders, there can be no meaningful change

21

in accountability at this agency.

11:48:51

Defendants have touted technological

DS

But defendants acknowledged, Chief Deputy Sheridan

11:49:12

That's Sheridan at 1542.

IEN

Tellingly, the testimony shows that, in fact, the

23

culture of the agency has not changed.

24

particular again to Chief Deputy Sheridan's testimony that

25

MCSO's culture of accountability required Deputy Garcia, a

FR

11:48:39

The Knapp ID incident shows that there are serious

14

22

11:48:21

And I point in

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whistle-blower, a Latino deputy, to be the one responsible for

addressing racial profiling by his fellow deputies, implying

not the Internal Affairs system.

Your Honor, after the Court issues its findings of

4
5

fact, plaintiffs will plan to submit requests for additional

injunctive relief and other remedies to reform this very

serious and complete lack of internal accountability in the

system.

9
10

THE COURT:

Mr. Killebrew.

MR. YOUNG:

Actually, Your Honor, if I may, just -- we

11

did not argue the Sands motion for summary judgment.

12

an item on your order the other day.

13

talked a little bit about this.

14

think this is consistent with the conference call yesterday --

15

that our further argument on the Sands laches merger motion be

16

submitted in writing.

18

That was

Mr. Murdy and I have

We would propose -- and I

you?

THE COURT:

I think you've already responded, haven't

MR. YOUNG:

Well, I have actually additional response

DS

20

which we didn't -- I did not go over, and I'm hoping that we

22

could submit that in writing.

IEN

21

23

THE COURT:

11:50:17

11:50:31

And then there's going to be a whole

24

nother round of briefing?

25

you say it now, or I'm going to rule on the motion.

FR

11:50:03

Is that acceptable to Your Honor?

17

19

11:49:47

That's not acceptable.

So either
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4679

MR. YOUNG:

All right.

Well, if Your Honor will

permit me, I'll be brief.

Mr. Sands this morning, which I'm going to move to strike,

actually, since it is not authorized.

evidence that Mr. Sands says is relevant to this issue.

think that defeats the prejudice element of the laches defense

by itself.

It's chock full of

limitations, we believe the analogous statute is actually the

10

federal criminal contempt limitation statute, which under

11

18 U.S.C., Section 401 and Section 3282, is five years.

13

will not borrow from state law when a rule somewhere else in

14

federal law clearly provides a closer analogy.

15

case, the contempt criminal statute under federal law is a

16

closer analogy, and that should be the governing statute.

And in this

11:51:38

The other --

17
18
19

THE COURT:

What is the citation, again?

MR. YOUNG:

Well, the five-year criminal contempt

statute is -- it's the residual federal statute of limitations,

21

18 U.S.C., Section 3282, and that would be the -- what covers

22

the criminal contempt statute, which is 18 U.S.C., Section 401.

IEN

DS

20

23

THE COURT:

And your case?

24

MR. YOUNG:

And the case is the Jarrow case, which is

FR

11:51:14

The Jarrow case, 304 F.3d at 836, says that the court

12

25

11:50:58

With respect to the issue of the analogous statute of

8
9

We got a 22-page brief from

cited in the briefs --

11:51:51

11:52:11

1
2

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THE COURT:

That will be fine if it's in the briefs.

MR. YOUNG:

Yeah, 304 F.3d at 836.

Another issue, and the Jarrow case says this as well,

3
4

is that a party with unclean hands may not assert laches.

the testimony with respect to Mr. Casey's October 18, 2012

letter establishes unclean hands.

discussed it, that they thought that argument would not

succeed, but they sent it anyway.

And

They knew, because they

That shows unclean hands.

They knew that -- at least Mr. Casey knew, and he was

9
10

the attorney for these parties, and this is the Court's

11

questions that elicited this at page 1861 of the transcript --

12

that there was no documentation for any alleged direction by

13

the federal agencies.

That's not stated in the letter.

15

Sheridan have admitted to the contempt.

16

contend that the content of that letter, which was sent to

17

plaintiffs, is any reason to exonerate them from the contempt

18

theory.

19

either.

20

that letter was something that was not stated in the letter and

21

constitutes unclean lands.

22

various other cases on unclean hands in the context of laches.

11:53:10

And that's something that wasn't stated in the letter,

The lack of merit and the lack of legal validity of

DS

IEN

They don't even

11:53:32

And there's Jarrow and there are

Finally, with respect to the merger issue, I would

24

note that the issues are different.

25

been talking about with respect to the injunction includes --

FR

11:52:54

The other thing is that Sheriff Arpaio and Chief

14

23

11:52:27

And clearly, what we've


11:53:53

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and we spent a lot of time on this -- knowledge of the order.

Notice of the order.

party has to have notice of the order.

In order to be liable for contempt, a

The Court's 2013 judgments and the trial that happened

4
5

in 2012 didn't relate to that element at all.

Notice of the

order that issued in 2011 on December 23rd, that was never at

issue in the trial in 2012, so there's no merger, there's no

res judicata, for that reason and for the other reasons that

are stated.

In addition, we just got yesterday, and I'm trying to

10
11

address all these things, a joinder, or a supposed joinder, an

12

attempted joinder, by the other alleged contemnors in

13

Chief Sands' motion.

14

Chief Sheridan should not be allowed to do that.

15

admitted civil contempt and they should not be allowed to join.

We think that Sheriff Arpaio and

They've

laches does not affect the availability of prospective

18

injunctive relief.

19

going to be affected by, and should not be precluded by, any

20

finding of laches, which we don't believe is warranted, but I

21

thought I should note that as well.

IEN

DS

17

23

11:54:47

So any injunctive relief is simply not

THE COURT:

Thank you.

MR. YOUNG:

I would move to strike the brief that was

24

filed this morning by Chief Sands.

25

full of substance.

FR

11:54:29

In any case -- and Jarrow and other cases say this --

16

22

11:54:10

It's not authorized.

I haven't read it all yet.

11:55:10

It is

And if it's not

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4682

stricken, we would ask for leave to respond to it.


THE COURT:

Well, I'm tempted to strike it.

to hear from Chief Sands' attorney first.

it, I'll allow you to respond.

5
6
7

minutes.

10

THE COURT:

Mr. Killebrew, by my count you have 26

11:55:44

Okay.

Do you want to take a lunch break, or do

you want to do it now?

11:56:01

MR. KILLEBREW:

11
12

Thank you, Your Honor.

THE COURT:

If I don't strike

MR. YOUNG:

MR. KILLEBREW:

I'm going

I'm fine taking a lunch break first,

whatever Your Honor would prefer.


THE COURT:

13

Yeah, let's take a lunch break.

MR. KILLEBREW:

14

THE COURT:

15

I don't see any reason that we can't be

16

back here at 1 o'clock.

17

MR. KILLEBREW:
THE COURT:

18

Thank you, sir.

Works for me.

But I am going to tell the parties that in

addition, in our effort to clean things up, Kathleen has made a

20

master exhibit list.

21

subsequently reintroduced as A's and other things, there's some

22

confusion.

IEN

DS

19

23

Because we had some exhibits that were

11:56:21

She's going to make a copy of that list as to what she

24

believes is reconciled to the actual exhibits.

25

give a copy to all parties so all parties can review it and

FR

11:56:07

She's going to
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4683

make sure that we are correct, and that if changes are

necessary, changes be made.

any changes, to submit those changes on the same deadline I've

given you for everything else, which is two weeks from today.

We'll hear you after lunch, Mr. Killebrew.

26 minutes.

You'll get

Thank you, Your Honor.

(Lunch taken.)

THE COURT:

Thank you.

Please be seated.

You ready, Mr. Killebrew?

10

MR. KILLEBREW:

11

THE COURT:

12

13:04:12

I am, Your Honor.

The clock is running.

MR. KILLEBREW:

13

Thank you, sir.

Before I get into -- I want to talk about two things

14
15

today.

16

questions from the order filed the other night, and then to

17

talk about remedies in this case.

Number one is to address a couple of the Court's

13:04:23

First, on the Court's questions, on question number 5,

18

part of that question involved whether or not there was a tally

20

of people who were detained during worksite raid operations on

21

immigration violations.

22

those operations in our litigation and we believe such a tally

IEN

DS

19

13:04:37

We conducted significant discovery on

23

does exist.

24

disclosing things to the plaintiffs, but we could either file a

25

protective order to turn those over, or I believe that they are

FR

11:56:56

Let's be back at 1 o'clock, please.

MR. KILLEBREW:

And I'm going to ask, if you have

We have privacy act concerns that prevent us from

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in the possession of the Sheriff's Office.


THE COURT:

No, thanks.

All I'm really looking for

with my questions is evidence that's been admitted in this

lawsuit.

MR. KILLEBREW:

THE COURT:

I see.

13:05:08

If it hasn't been admitted, then I think

that I would be willing to consider stipulations, but it's only

if everybody stipulates to it.


MR. KILLEBREW:

THE COURT:

10

Okay.

So the other part of question 5 that I'll

11

be interested in is, what do -- is there anything I can do

12

about -- is there any evidence in this action that would allow

13

me to determine that there are such damages?

I think I have already Lieutenant Jakowinicz's

14
15

testimony, or something, I suppose.

16

about the extent and types of damages that may have been

17

suffered by the nature of the violations that I would invite

18

you to address, and I would invite the defendants to address

19

it, too.

20

it's going to be based on evidence that's in this record.


MR. KILLEBREW:

13:05:57

Yes, Your Honor.

23

number 13.

24

contract, about the time limitation on administrative

25

investigations, and whether those are tolled.

FR

13:05:37

The other question we wanted to address was question

IEN

22

There's also question

But when you do that, unless you stipulate otherwise,

DS

21

13:05:17

This was whether there was any statute, rule,

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We would direct the Court to Arizona Revised Statutes,

1
2

Section 38-1110.

being 120 days and 180 days because the statute has actually

been amended.

actually 38-1105, set the time limit at 120 business days.

current version of the statute, which I think only become

effective this year, is 180 calendar days.

math on those, those are pretty similar amounts of time, but

that is the -- that is why there's a discrepancy in the record

10

There's been testimony about the time limit

The prior version of the statute, which was

The

So if you do the

about those amounts.


THE COURT:

11

13:06:58

Thank you.

MR. KILLEBREW:

12

Also, just for the Court's -- just so

13

you know, under that statute it's not a hard statute of

14

limitations.

15

discipline, but it's on -- the burden is on the employee to

16

show that the agency did not complete the investigation in good

17

faith within 180 days.

18

days, but it was in good faith, then there's no issue on

19

appeal.

21

THE COURT:

MR. KILLEBREW:
THE COURT:

24

MR. KILLEBREW:

FR

So if they were -- they went over 180

Is the measure the good faith or lack of

23

25

13:07:13

13:07:30

faith of the agency?

IEN

22

It actually -- it's a defense in an appeal of

DS

20

13:06:36

Yes, that's my understanding.

I'll look at it.

Thank you.

So now, to get into a bit of a

discussion on remedies, one year ago, actually, exactly to the

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day, this Court issued docket entry 795.

And in that order, on

page 17, the Court said that when it was making assessments --

meaning the monitor's assessments of Internal Affairs

investigations -- cases like the present one -- meaning the IA

cases we've heard about in this contempt proceeding -- which

provide the MCSO with both significant allegations of

departmental misconduct and significant motivation to obfuscate

the truth, to avoid embarrassment, public exposure, should the

allegations prove true, in whole or in part, provide the

10

monitor with a unique opportunity to assess MCSO's willingness

11

to implement an appropriate investigation, and make appropriate

12

determinations in cases in which it might have a significant

13

impulse to do otherwise.

assess MCSO's ability to hold its personnel accountable, but

16

unfortunately, we haven't seen a willingness to implement an

17

appropriate investigation or make appropriate determinations.

18

Instead, MCSO has shown a readiness to minimize misconduct that

19

was committed by its deputies; it's shown a readiness to tailor

20

misconduct investigations to reach a preconceived conclusion;

21

it has not only ignored, but actually created conflicts of

22

interest, and that's actually up and down the chain of command;

IEN

DS

15

23

and it's shirked its responsibility to hold deputies

24

accountable when they violated the law or policy.

FR

13:08:24

In this contempt hearing we have had an opportunity to

14

25

13:08:05

The Court may recall that shortly after you issued the

13:08:37

13:08:56

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findings of fact and conclusions of law after the trial in this

case, the United States filed a statement of interest.

actually the next docket entry on the docket.

statement of interest we invited the Court to consider consent

decrees that the United States had entered in others cases as

it was considering remedy.

It was

And in that

In a similar vein, and because the Court has invited

7
8

argument on remedy, we wanted to use our time to talk about

appropriate remedies for the failures of Internal Affairs

10

investigations that we saw in this case.


THE COURT:

11

that, but I am going to -- it is my intent, after I issue

13

findings of fact and conclusions of law, to allow argument

14

concerning remedies at that time.

15

MR. KILLEBREW:

Okay.

Thank you, Your Honor.

17

remedies, because I think it is -- it may be appropriate for

18

the Court to consider what sort of remedies may be necessary as

19

it crafts findings of fact.

DS

THE COURT:

Okay.

MR. KILLEBREW:

So I'm with the Civil Rights Division

23

enforcing, as well as the supplemental permanent injunction in

24

this case.

25

ones where we found a pattern or practice of constitutional

FR

13:10:13

in DOJ, and we currently have 13 consent decrees that we're

IEN

22

13:09:59

I would like to go ahead and sketch out a few

16

21

13:09:48

I'm not going to prevent you from doing

12

20

13:09:33

And in nearly all of those cases -- those are all


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4688

violations by a law enforcement agency, and in nearly all of

them there were failures of internal accountability.

go hand in hand.

The two

Contemporary law enforcement typically views

4
5

accountability in a law enforcement agency as having four

components -- there's policy, training, supervision, and

discipline -- and the consent decrees in our cases typically

address all four of those areas.

After the trial in this case, the Court found failures

9
10

in policy, training, and supervision, and entered remedies on

11

those areas.

12

has systemically failed to address misconduct by its deputies.

13

Those failures contributed not only to the constitutional

14

violations that you already found at trial, but also to harms

15

that have only come to light as a result of these contempt

16

proceedings.

Now the Court has heard ample evidence that MCSO

we've heard about as falling into two broad categories:

19

There's evidence that Internal Affairs investigations have been

20

biased, meaning that the agency has not conducted impartial

21

searches for truth; and second, there's evidence that the

22

Internal Affairs investigations were simply not carried out

IEN

DS

18

23

competently, so basic investigative protocols were not

24

followed.

FR

13:10:55

13:11:16

We are thinking of the accountability failures that

17

25

13:10:40

And these are obviously related.

An agency may not

13:11:32

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carry out competent investigations because it has a certain

view about how those should come out, but the remedies may be

distinct.

investigations are thorough; other remedies to ensure that

investigations are impartial.

There may be some remedies to address ensuring that

13:12:08

Now, the United States works with local jurisdictions

6
7

and policing experts around the country to develop remedies to

these sorts of problems, and that's what I want to discuss, but

before going there, I just want to say that these -- we have

10

never seen facts like these.

This is an extreme case.

11

13:12:27

That's one reason we have

12

made a request to put on expert testimony.

13

assist the trier-of-fact to ensure that the remedies that the

14

Court issues here are -THE COURT:

15
16

We think it would

What would you anticipate the expert

testimony would be on?

MR. KILLEBREW:

17

What I would anticipate is that the

expert would review the findings of fact from the Court, and

19

with a view towards how other policing agencies have handled

20

these sorts of issues, provide the Court with guidance on

21

different structures that need to be put in place.

DS

18

THE COURT:

IEN

22

13:12:56

And so you'd anticipate sort of a

23

disclosure, and then defense doing their disclosure expert, and

24

then final revisions and rebuttal testimony, and then experts

25

testifying?

FR

13:12:41

13:13:17

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MR. KILLEBREW:

I'm not sure that all of those

protections for -- due process protections for the defendants

are necessary in this case, but it does make sense to me that

if the defense wants to have an expert as well, that that's

only fair, and I would be -- we would be willing to work on a

compressed time line to do that.


THE COURT:

All right.

MR. KILLEBREW:

So I'm just going to go through some

aspects of consent decrees that have been entered in our cases

10

that may provide the Court some indication of remedies that may

11

be appropriate here.

13:13:47

In the big picture on impartiality, this was an issue

12
13

that came up in our case with the Cleveland Division of Police,

14

United States versus City of Cleveland, and what we asked for

15

there was that the Internal Affairs Bureau was going to be

16

headed by a civilian, someone who had no experience, previous

17

experience with the law enforcement agency.

13:14:08

And the reason for that is that internal

18

investigations are important to instill community confidence

20

that the agency is holding its own officers accountable.

21

civilian can uniquely serve that role because they have no dog

22

in the fight over the agency's history or any particular

IEN

DS

19

23

individual within the agency; they don't have that sort of

24

background.

25

consent decree.

FR

13:13:30

And a

13:14:25

That's also a requirement in our New Orleans


13:14:45

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In addition, there should obviously be rules that

1
2

anyone who is involved in investigating an allegation of

misconduct should not have had any -- or reviewing an

investigation of an allegation of misconduct, should not have

had any role in that misconduct, either -THE COURT:

6
7

MR. KILLEBREW:

I don't think so.

I think that one

flows directly from the evidence.


THE COURT:

10
11

Do I need to have a trier-of-fact to make

that determination?

8
9

13:14:59

As the trier-of-fact, can I make that

determination?

MR. KILLEBREW:

12

I believe so.

I believe so.

I also think that -- we have also required other

13
14

agencies to prohibit certain officers from serving in Internal

15

Affairs, so those who have a certain history of misconduct,

16

untruthfulness, that sort of thing.

THE COURT:

18

It's a little problematic here, though,

isn't it?

For example, what if I find that the sheriff has

20

repeatedly lied to the Court?

21

Maricopa County.

22

remove him from that office, or to limit -- I guess I -- I

IEN

DS

19

He's the elected officer of

13:15:35

I don't have any authority, I don't think, to

can't remove him from office.

24

MR. KILLEBREW:

25

THE COURT:

FR

13:15:22

And then also, to ensure neutrality --

17

23

13:15:09

Um-hum.

I can't remove him from oversight and

13:15:52

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4692

responsibility of the Internal Affairs Division.

I suppose I

could require that if he is -- if he does not implement a

remedy that's acceptable either to the monitor or a civilian

employee that the matter is raised to the Court for decision as

long as it involves a member of the plaintiff class.

13:16:10

Is that what you're saying?

MR. KILLEBREW:

That would be one possibility.

Transparency would be promoted if those decisions were in

writing, and they were presented in that -- all decisions up

10

the chain of command reviewing an Internal Affairs

11

investigation, those decisions should be in writing, at least

12

to the extent that they either modify or overrule a decision

13

made below them.

13:16:22

And that way, they'd at least be reviewable.

Another possibility is the creation of entirely new

14
15

bodies.

16

could be responsible for having, for example, an office of an

17

inspector general, something that was required by our consent

18

decree with the Cleveland -- with the City of Cleveland.

19

office of the inspector general hires a team.

20

with law enforcement experience and civil rights experience.

21

It's not somebody who is a former or current employee of the

22

police agency.

24

FR

25

THE COURT:

13:16:43

The

That's people

DS

IEN
23

The County is a party in this case, and the County

13:17:01

What kind of authority do they have over

the Sheriff's Office?


MR. KILLEBREW:

They have the authority to conduct

13:17:13

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4693

investigation and publish reports.


THE COURT:

And so they can publish reports.

MR. KILLEBREW:

THE COURT:

It's transparency.

All right.

What does that do for members

of the plaintiff class who may be suffering because of

nonresponsiveness in the police agency that's ongoing that

affects or involves their rights?

MR. KILLEBREW:

13:17:26

I think there it would be sensible to

establish some sort of civilian investigative agency that just

10

deals with civilian complaints, so that those complaints are

11

not investigated by the Sheriff's Office, but instead

12

investigated by an independent entity.

13

something that we've required in our consent decrees with

14

Cleveland and Albuquerque --

15

THE COURT:

And again, that's

Let me just ask you, Mr. Killebrew.

Those

16

were consent decrees.

17

going to get a consent decree in this case.

18

have to tailor any orders I have to a rather delicate inquiry

19

where I respect the rights and the prerogatives of a duly

20

elected sheriff, and offset that against the constitutional

21

rights of the plaintiffs' class, so I make sure that I protect

22

their rights first, but without infringing on the sheriff's

So I'm going to

13:18:20

prerogatives, right?

24

MR. KILLEBREW:

25

THE COURT:

FR

13:18:01

I don't have any basis to believe I'm

DS

IEN
23

13:17:46

Yes.

And so to the extent that I have consent

13:18:36

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Argument - Killebrew, 11/20/15 Evidentiary Hearing
4694

decrees, they may be interesting and informative, but I'm

really going to have to have -- I'm really going to have to

base anything I do in the constitutional authority that I have

to protect the rights of the members of the plaintiffs' class,

correct?

13:18:49

MR. KILLEBREW:

Well, let me just -- there is a -- a

consent decree can go beyond what a judge could rule at the

close of trial, and that's established in Local 95

International Association of Firefighters versus City of

10

Cleveland, 478 U.S. 501.

But, Horne versus Flores, 129 S.Ct. 2579 from 2009,

11
12

13:19:03

which I think arose out of litigation in this district -THE COURT:

13

Do you want to give me that cite again?

MR. KILLEBREW:

14

Sure.

129 S.Ct. 2579 from 2009, makes

15

it clear that even consent decrees, especially public reform

16

litigation consent decrees, must maintain a strong association

17

with the underlying facts and with the underlying allegations.

So while I agree that the consent decrees are slightly

18

different, and anything that this Court does has to be

20

supported by a factual record, the consent decrees themselves

21

may still be persuasive and, you know, just because we have the

22

ability to go beyond the constitutional standard does not mean

IEN

DS

19

23
24

FR

25

13:19:30

13:19:48

all of our consent decrees do that.


I'll try to finish briefly here.

A feature that we

would encourage the Court to think about is redundancy.

When

13:20:10

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4695

you have an accountability system that has a single point of

failure, which I believe that the Maricopa County Sheriff's

Office system does have that, that's sort of asking for

trouble.

there are other actors who have overlapping responsibilities,

you have additional opportunities for issues to come to light,

and again, additional opportunities for transparency.

name clearing hearings.

I believe these are essentially

10

Loudermill hearings.

11

Education, 470 U.S. 532 from 1985.

12

employees have a due process right to essentially a

13

pre-termination hearing, since they have a property interest in

14

their ongoing employment.

So Loudermill versus Cleveland Board of

16

a predetermination hearing, but what's happening here is that

17

they are being gamed out, so that people are not presenting

18

evidence to the investigator and waiting to present it at the

19

predetermination hearing.

DS

THE COURT:

So if I determine that that is in fact the

case, doesn't that relate to individuals in charge as opposed

22

to policies in place?

IEN

21

23

MR. KILLEBREW:

13:21:07

13:21:21

I think the policy could require that

24

any new evidence presented at a predetermination hearing would

25

mean that the hearing is suspended; the evidence is sent back

FR

13:20:49

It establishes that public

We believe that that's essentially what's intended by

15

20

13:20:28

I wanted to address quickly the predetermination and

8
9

If you create some redundancies in the system so that

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Argument - Killebrew, 11/20/15 Evidentiary Hearing
4696

to the investigator for a determination of how that new

evidence fits into all the other facts.


THE COURT:

Let me ask you this:

If I determine that

the investigations that have already taken place are

constitutionally inadequate, what should I do?


MR. KILLEBREW:

13:21:53

I think that's the -- that is a tough

question.

And especially if it was constitutional violations, they should

be held accountable in this court.


THE COURT:

10
11

Ultimately, officers should be held accountable.

So do you have any practical suggestions

as to how I do that?

MR. KILLEBREW:

12

This might be an excellent area for an

13

expert, but also it's something that we can consider and see if

14

there's anything we can propose to the Court.

15

this is a unique case.

16

solution.

Like I said,

I think it's going to require a unique

18

consent decrees.

19

decrees into the record, if that would be helpful to the Court.


THE COURT:

23

Well, you can file them, but I'm not going

MR. KILLEBREW:

Sure.

I wouldn't view them as

evidence; I would view them as persuasive legal authorities --

24

THE COURT:

25

MR. KILLEBREW:

FR

13:22:41

to admit them as an exhibit.

IEN

22

I would be happy to file these consent

DS

21

13:22:26

So I would just direct the Court again, we have

17

20

13:22:13

All right.
-- the court orders in others cases.

13:22:51

But just to run through some other things covered by

1
2

this, so I don't take up all the rebuttal time, we would -THE COURT:

3
4

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Argument - Killebrew, 11/20/15 Evidentiary Hearing
4697

minutes.

You're getting close.

MR. KILLEBREW:

THE COURT:

I will close.

There's a number of provisions in

those about the thoroughness investigation -- of investigations

and the thoroughness of supervisory review of investigations

10

that I think would be appropriate here.

12

that should be required, not only for people investigating

13

misconduct, but for people reviewing investigations of

14

misconduct.

15

understanding about what it is to do those investigations, and

16

what the expectations are for their quality.

All of those people have to have a common

13:23:26

Obviously, promotion should take disciplinary history

17
18

into account, and PSB should have sufficient resources to carry

19

out this work.

20

sufficient resources, and MCSO should be required to ensure

21

that they do.

DS

We've had evidence that they don't have

13:23:46

IEN

So just to close out, I just want to say that a bad

23

Internal Affairs investigation, like we've seen here, it sends

24

a message to the officers within the -- to the deputies within

25

this Sheriff's Office that they will be protected when anyone

FR

13:23:13

There's also provisions about the amount of training

11

22

13:23:00

Six minutes.

MR. KILLEBREW:

Okay.

You have five

13:24:05

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Argument - Killebrew, 11/20/15 Evidentiary Hearing
4698

comes after them, whether it be this Court, the monitor, the

plaintiff class, the plaintiff-intervenors.

wrong call is made in an Internal Affairs investigation, it

actually changes the standards for that agency, because now a

new set of misconduct is called okay.

But also, when the

We believe that that fosters a culture of lawlessness

6
7

within a law enforcement agency.

which items may be pocketed from civilians, in which money may

go missing, in which 1500 IDs may end up in a garbage bag, in

10

which drugs can be found in a deputy's car, and going back to

11

trial, in which inappropriate e-mails may circulate and in

12

which widespread discrimination takes place.

It's the kind of culture in

13:24:44

We think this disserves the community but it also

13
14

disserves law enforcement; not only the officers, the deputies

15

who serve in the Sheriff's Office, but also other law

16

enforcement agencies that are at pains to prove to their

17

communities that they're not like this.

13:25:00

I do believe that these facts are extreme and that we

18

have quite a task in front of us.

I want to thank the Court

20

for permitting the United States to intervene in this case, to

21

be part of, hopefully, a solution, and I want to thank you for

22

hearing our argument today.

IEN

DS

19

23

THE COURT:

24

You have four minutes for rebuttal left.

25

Mr. Masterson, how are you going to divide up your

FR

13:24:23

All right.

13:25:13

Thank you.

13:25:28

time?

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4699

MR. MASTERSON:

Well, I've spoken with Mr. Walker and

Mr. Murdy, and I am informed that they will require

approximately a half hour each.


THE COURT:

Okay.

keeping track of time.

it, I'll give it to you.

If they've got time left and you want

MR. MASTERSON:

THE COURT:

10

I do.

Okay.

I'll make sure you get your full

I will say, Mr. Masterson, for whatever help it will

13

be to you and any other parties, that it was very helpful to me

14

to the extent that plaintiffs were able to cite to exhibits and

15

page numbers.

16

as well.

17

fast like Ms. Wang did, you want to omit those things, that's

18

okay, too.

I don't have many page numbers for

DS

THE COURT:

13:26:39

Okay.

MR. MASTERSON:

Mr. Young led off by stating that MCSO

23

violated the Constitution.

24

United States of America, just told you that MCSO has a culture

25

of lawlessness and widespread discrimination.

FR

13:26:18

And I realize that maybe if you're going to go really

you, Judge, but I do have exhibits.

IEN

22

If you can do that, that will be helpful to me

MR. MASTERSON:

19

21

13:26:01

time is what I'm saying.

12

20

13:25:48

Do you understand what I'm saying?

11

If you want to cede them time, I'm

Mr. Killebrew, representing the

What both

13:27:21

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4700

counsel failed to mention was that the United States

Government, through ICE, during its 287(g) training of MCSO

deputies, trained MCSO deputies to use race as a factor in

enforcing federal immigration laws.

MCSO and its deputies reasonably relied upon that

5
6

training given by the United States Government and, in fact, on

occasion did use race as a factor in enforcing federal

immigration law.

In the underlying lawsuit here, Melendres versus

9
10

Arpaio, this Court ruled that the use of race as a factor is

11

unconstitutional, and it clearly is; and that the use of race

12

as even one factor for law enforcement purposes amounts to

13

racial profiling.

15

that trained MCSO to specifically do what this Court has ruled

16

unconstitutional, seems to have been buried throughout the

17

course of this litigation.


THE COURT:

18

20

MR. MASTERSON:

DS

contempt hearing, Mr. Masterson?

THE COURT:

13:29:02

Tell me why.

MR. MASTERSON:

IEN

It is, Judge.

It's important here because in this

23

contempt proceeding we're talking about the failure to follow

24

this Court's order.

25

THE COURT:

FR

13:28:46

Well, is it really at issue in the

19

22

13:28:20

This fact, that it was the United States Government

14

21

13:27:59

That's the bottom line here, orders.


It is.

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4701

MR. MASTERSON:

So I think it's important to note --

we've had all sorts of discussions about state of mind and

intent.

with someone or some organization who intentionally set out to

violate the United States Constitution; we're not here with

someone or an organization that set out to racial profile.

Rather, we're here with an organization which reasonably relied

upon training provided by the United States Government.

training was wrong.

I think it's important to note that we're not here

That

That training resulted in a determination

10

by this Court of unconstitutional actions by MCSO, and that

11

determination, in part, led to this Court's preliminary

12

injunction.

THE COURT:

13
14

All right.

MR. MASTERSON:
THE COURT:

16

There were other

That is correct.

as it pertained to racial profiling other than -- other than

18

what I -- I also found to be inaccurate information and

19

unconstitutional information --

DS

That is accurate.

-- provided by the United States

23

MR. MASTERSON:

24

So let's move to the preliminary injunction, and let's

FR

25

13:30:34

Government.

IEN

22

MR. MASTERSON:
THE COURT:

13:30:20

And there were other determinations even

17

21

13:30:09

determinations that I made, correct?

15

20

13:29:38

That is accurate.

first discuss Sheriff Arpaio.

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4702

Sheriff Arpaio's the head of MCSO.

The Court's recognized that.

He's the chief

policy maker.

The Court's

recognized that he has final decision-making authority over all

of the actions and policies of MCSO.

Sheriff Arpaio, both in writing and in this court,

5
6

admitted that he bears responsibility to have seen that

reasonable steps were taken to ensure that MCSO complied with

this Court's preliminary injunction.

admission today; he accepts that responsibility.

And he stands by that

Now, the testimony is also clear, and it's

10
11

uncontested, and the Court's even referenced it on a couple of

12

occasions today, that Sheriff Arpaio delegated the actual duty

13

of compliance to subordinates.

14

that as the elected leader, he can do that; he's entitled to

15

delegate authority vested in him to subordinates, but that

16

doesn't let him off the hook.

17

responsibility for, in this case, compliance with the Court's

18

preliminary injunction.
THE COURT:

19

I think one of the things I said that I

14th, in the May 14th hearing.

22

consider that?

IEN

DS

21

FR

25

13:32:01

Ultimately, he bears the

probably ought to mention to you, I said that to him on May

24

13:31:38

And this Court's recognized

20

23

13:31:11

13:32:18

Are you going to object if I

Do I even need to consider it, because you're

conceding it?
MR. MASTERSON:

Well, I'm conceding it, Judge, and I

think you also said it again in the February 12, 2015 order.

13:32:31

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4703

So the sheriff accepts the responsibility for the

1
2

violation that did occur of the Court's preliminary injunction.

But what we have to discuss now is intention, willfulness.

The objective intent, as shown by the evidence in this

4
5

case, is that rather than ignore this Court's preliminary

injunction, rather than defy this Court's preliminary

injunction, MCSO was trying to comply with the Court's

preliminary injunction.

Exhibit 187.

THE COURT:

10

admitted.

Yes, sir.

May we publish these at --

THE COURT:

14

You may.

MR. MASTERSON:

15

THE COURT:

16

-- the same time?

In Exhibit 187, Mr. Casey, on December

18

23, 2011, is providing information about the Court's

19

preliminary injunction.

20

that he said here, and I'm going to come back to this exhibit a

21

little later as well.

DS

And I want to note a couple of things

13:34:19

IEN

In paragraph 5, on page 1 of 2, Mr. Casey notes that:

23

"The Court is enjoining the MCSO 'from detaining any person

24

based solely on knowledge, without more, that the person is in

25

the country without unlawful authority.'"

FR

13:33:49

You may.

MR. MASTERSON:

17

22

13:33:35

Judge, the exhibits I'm going to refer to are all

12
13

And I first want to refer the Court to

That's the Casey e-mail?

MR. MASTERSON:

11

13:33:04

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4704

Now, that's a poorly crafted sentence in itself, but

1
2

since we've all been together for a very long time I think we

know what he meant to say.

this letter, and apparently in the first contact he had, or

first communication he had with MCSO after the December 23,

2011 order.

But he didn't say it very well in

What I want to refer the Court to next -- and again, I

7
8

told you we're going to be coming back to this exhibit -- is

Exhibit 2537.

Exhibit 2537 -- and I'm looking at the first

10

page of the exhibit -- the e-mail of January 11, 2012, from

11

Lieutenant Sousa to Sergeant Brett Palmer.

13

is quite clear:

14

of scenarios (right way and wrong way) based on Judge Snows

15

order to MCSO and your conversations with Tim Casey.

16

have Tim review what you write up and have Chief Sands sign off

17

on it.

18

reference putting something out in E-Learning."

"Per our phone conversation write up a couple

I will

13:36:13

Once all that is done we will get with training

After Tim Casey's December 23, 2011 communication to

19

MCSO about the preliminary injunction, the very first thing you

21

see coming from Lieutenant Sousa to Sergeant Palmer is an

22

attempt to comply with this Court's order; is an attempt to

IEN

DS

20

23

craft training to train deputies to comply with this Court's

24

order.

FR

13:35:48

And what Lieutenant Sousa is telling Sergeant Palmer

12

25

13:35:09

Now, the e-mail references Judge Snow's order, and it

13:36:37

13:37:01

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4705

quotes from Exhibit 187 the language that Tim Casey provided

that "The Court is enjoining the MCSO 'from detaining any

person based solely on knowledge, without more, that the person

is in the country without unlawful authority.'"

Again, a mistake, but I'm not really harping on that

5
6

mistake.

to Sergeant Palmer.

But the language was passed on from Lieutenant Sousa

It could not be more clear, by Exhibit 2537, that MCSO

8
9

is not ignoring the Court's order; MCSO is not defying this

10

Court's preliminary injunction.

11

comply; they're trying to craft training.

Rather, they're trying to

13

done -- and again, we're talking about putting together the

14

training scenarios -- Mr. Casey is supposed to review --

15

according to Lieutenant Sousa -- and then Chief Sands will sign

16

off on it and off it goes to E-Learning.

17

So what happens next?

THE COURT:

23
24

FR

25

You know, is this a chronology?

MR. MASTERSON:
THE COURT:

IEN

22

Well, what happens next is we

Are we

going to go through in chronological order some exhibits?

DS

21

13:38:24

turn to Exhibit 2538.

19
20

13:38:02

Now, what Exhibit 2537 then says is once all that is

12

18

13:37:33

13:38:41

Yes, we are.

I don't know if you're ready to answer

this, and if you're not, I won't ask any questions about it.
Yesterday in our phone call I raised some issues that

concerned me concerning the chronology prior to the oral

13:38:57

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4706

argument on the preliminary injunction order.

me, as I go back and look and recall, that the substance of the

argument --

And did you have a chance to review that?

MR. MASTERSON:

THE COURT:

6
7

Your questions?

Or the order?

Yeah, the actual order, my questions, and

MR. MASTERSON:

I reviewed the order; I did not have a

chance to review the questions and response.


THE COURT:

10

Okay.

Well, I will spare you the

11

questions, but I will tell you, if it makes any difference, so

12

you have a chance to respond, it appears to me as I review all

13

that that what -- there really wasn't a question at the

14

preliminary injunction stage whether the MCSO had the ability

15

to detain people that they weren't going to charge for state

16

law violations, because they had acknowledged that they had no

17

authority under federal law to enforce civil immigration law.

18

They'd already made that acknowledgment.

13:39:28

13:39:45

And really, what oral argument was about was whether,

19

pursuant to the state human smuggling act -- which was still

21

valid and enforceable at the time, and I didn't make any

22

decision that it wasn't -- but the question was:

IEN

DS

20

13:40:06

Pursuant to

23

the state human smuggling act, was it enough to detain somebody

24

for an investigation under that human smuggling act to know

25

simply -- or to have a reasonable suspicion or a knowledge that

FR

13:39:12

the response by the MCSO?

8
9

And it seems to

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4707

someone was in the country without authorization?

really what was at issue in the preliminary injunction.

a foregone conclusion that there was no authority for the MCSO

simply to detain people.

It was

And so that puts a little bit of a different shade on

5
6

That was

it for me.

Do you understand --

MR. MASTERSON:

THE COURT:

I do.

-- what I'm saying?

MR. MASTERSON:

I do.

And Judge, we are going to go

10

back and within the couple weeks that you've suggested, we'll

11

be responding to questions, and that's going to be one of the

12

questions we will respond to.

13

THE COURT:

All right.

you can respond, those press releases that are coming out that

15

indicate we're still enforcing all the immigration laws, those

16

cause me some concern because -- and again, I'll just tell you

17

from my view, and I'll invite your response -- looks to me like

18

from Exhibit -- is it 2533, Casey's bills?

19

met with Sheriff Arpaio the day before he filed that indication

20

that MCSO acknowledges that it has not been enforcing and did

21

not enforce federal immigration law, and that it had already

22

trained its deputies, including the HSU, concerning what it

13:41:03

Looks to me like he

DS

IEN

13:40:51

And just so you're aware and

14

23

meant to have the 287(g) authority revoked, and that Ninth

24

Circuit case I cite and ask them to address, which was a March

25

2011 case, they say they've trained the HSU on that as well.

FR

13:40:40

13:41:28

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And so we might talk a lot about the constitution --

1
2

the separate constitutional violations that occurred here in

different -- you know, was somebody who was eventually charged

nevertheless overly detained?

All those other issues.

But it doesn't seem to me that there can be any

5
6

question that the MCSO has volunteered from the get-go, as a

matter of policy, after -- it appears, perhaps -- consultation

with Sheriff Arpaio, that they got no authority to detain

anyone, if they don't have a state charge for them, and turn

10

them over to ICE.

13:42:34

I don't know if you have any response to that.

11

MR. MASTERSON:

12

Well, one response is I think they can

13

still enforce, and I think the Court has recognized that they

14

can enforce federal criminal law -THE COURT:

15

THE COURT:

17
cause.

DS

THE COURT:

-- under certain situations.

Absolutely.

And I don't -- did I hear any testimony

that anybody that was detained, for whom they had no state

22

charges, they charged with federal offenses?

IEN

21

23

MR. MASTERSON:

13:42:53

No, sir, and that's not what I'm

24

getting at.

25

release, for example, or you could listen to a statement made

FR

13:42:46

-- but they clearly have to have probable

MR. MASTERSON:

19
20

Yes, but they --

MR. MASTERSON:

16

18

13:42:13

What I'm getting at is you could read a press


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4709

by the sheriff where he may say:

federal immigration law.

I will continue to enforce

Heaven forbid that I sound like Bill Clinton and try

3
4

to tell you, "It depends on what the meaning of the word 'is'

is," but --

THE COURT:

Doesn't it sound a little bit like --

MR. MASTERSON:

THE COURT:

It does.

-- our former president?

MR. MASTERSON:

9
10

13:43:25

It does.

But he can enforce certain

federal criminal immigration law.


THE COURT:

11

All right.

MR. MASTERSON:

12

13:43:32

I take your point.

So let's go back to Exhibit 2538.

What we have here is Sergeant Palmer has prepared some

13
14

training scenarios.

15

the paragraph under Training Directives on page 2 of this

16

e-mail, Sergeant Palmer recognizes that:

17

Deputies and the Supervisors understand the scope to which they

18

are empowered to act in these scenarios, as limits have

19

recently been set by Judge Murray Snow in a Federal court

20

case."

Court's order; we don't see the MCSO defying the Court's order;

23

we see recognition of the Court's order and, again, an attempt

24

to comply.

25

to comply with the court order and not ignore the court order.

FR

13:44:26

Here again, Judge, we don't see the MCSO ignoring the

IEN

22

13:44:03

"It is important the

DS

21

And I think it's important to note that in

Now, what we have is then clear evidence of efforts


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4710

Now, up at the top of page 2 you have Lieutenant Sousa

1
2

writing an e-mail to Mr. Casey:

"Hi Tim.

Give me a call once

you have reviewed the scenarios listed below.

copy you on all these emails so attorney client privilege ..."

et cetera, et cetera -- "... until we get a final training

product out to the troops."

I am going to

Again, this is lieutenant's effort.

13:45:22

Lieutenant

Sousa's goal here is to get training -- and in fact,

Sergeant Palmer's goal -- to get training out, recognizing your

10

specific order and get training to the troops.

11

contacting Tim Casey on January 24, 2012, so that Tim Casey can

12

review the scenarios prepared by Sergeant Palmer.


And this takes us to Exhibit 2540.

13

And he's

13:45:38

And 2540 follows

14

the "Hi, Tim, give me a call" e-mail, and on February 27, so

15

we're a little over a month later, Lieutenant Sousa's again

16

contacting Mr. Casey:

17

the scenarios listed below?"

18

THE COURT:

13:46:15

"Did you ever get a chance to look at

Did anybody ever tell?

I can't tell.

mean, in the testimony, I think plaintiffs are right, I

20

reviewed it again just the other day, Lieutenant Sousa says

21

that he read my whole order and he came to the conclusion that

22

the HSU didn't have to do anything different to comply.

IEN

DS

19

23
24

FR

25

13:46:30

I think that was his testimony, and I don't mean to

misstate it.

If I've misstated it, you can correct me.

MR. MASTERSON:

Well, no.

13:46:54

THE COURT:

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2

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4711

And I think that it was Casey's testimony

that Sheriff Arpaio told him the same thing.

Is Lieutenant Sousa entitled to a benefit of the

3
4

doubt, and Sergeant Palmer, maybe, entitled to a benefit of the

doubt, that Sheriff Arpaio may not be entitled to, in light of

what we have from testimony from Chief Sands, from Chief

MacIntyre, from Casey himself, about the extent to which they

discussed the scope and the meaning of the orders with Sheriff

Arpaio?

MR. MASTERSON:

10

Well, I think clearly,

11

Lieutenant Sousa and Sergeant Palmer are both entitled to a

12

benefit of the doubt, and are both, frankly, not to be held

13

responsible for fully understanding what it is the Court's

14

order said.

THE COURT:

15

Yeah, I'm -- I think that might be true.

It's odd to me, I gotta tell you, that Lieutenant Sousa issues

17

e-mails that later seem to suggest that he understands it, and

18

understands it correctly, the J.J. Hensley e-mail; and then he

19

issues an e-mail later on saying, Well, he's only ordering us

20

to do something we haven't -- we don't do a whole year later,

21

indicating either deception, possibly, or forgetfulness, or a

22

misunderstanding from the get-go.

IEN

DS

16

23
24

FR

25

MR. MASTERSON:

13:47:21

13:47:38

13:47:58

13:48:22

I certainly don't think it shows

deception, and I don't even think it shows forgetfulness.


THE COURT:

But the J.J. Hensley e-mail, which is a

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4712

correct e-mail, was of, like, June, wasn't it?


MR. MASTERSON:

THE COURT:

Yes, sir.

And then it's the following October when

we have all the allegations that the preliminary injunction's

being violated, and apparently Chief Sands acknowledges that

they're being violated, and so he calls Lieutenant Sousa and he

says:

Lieutenant Sousa sends the same summary you just showed me from

187 back to Jakowinicz and he says, Here's what it is.

10

MR. MASTERSON:
THE COURT:

12

He does.

I think it's consistent -- and, Judge,

fortunately, I'm coming right up to this part.


THE COURT:

I'm sorry.

Would you rather I let you go

MR. MASTERSON:

I always appreciate that, but let

me -- let me move up, and I think I will get to your -- I'll

20

get to your question very quickly here.

21

certainly an inference that can be drawn as to why this might

22

have happened.

IEN

DS

19

23

THE COURT:

24

MR. MASTERSON:

FR

13:49:24

in peace instead of asking my questions?

18

25

13:49:12

How is the October e-mail consistent with

MR. MASTERSON:

16
17

We're

the June e-mail?

14
15

And

not violating it, anyway, or something like that, right?

11

13

Let's get training out on this again.

13:48:53

And I think it's

13:49:39

All right.
Tim Casey's response at Exhibit 2540

is that he has not reviewed the scenarios prepared by

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4713

Sergeant Palmer and forwarded by Lieutenant Sousa, and

unfortunately, things come to an end there.

further.

THE COURT:

4
5

It never goes

Right, as far as we know by memos.

But

Casey says he called Palmer, right?


MR. MASTERSON:

He did.

13:50:21

He says he called.

I think it's clear from what we have seen that

7
8

Lieutenant Sousa, Sergeant Palmer, and MCSO, is trying to

comply with your order.

They're attempting to develop training

10

scenarios to comply with your order.

11

clear that they did not comply with your order.


THE COURT:

12

It's also, unfortunately,


Again --

There isn't any question, I mean, even

13

Palmer says from the -- right after the get-go they're having

14

these training operations where they're still pulling people

15

into Enforcement Support, questioning them for several hours,

16

and then if they don't have the charge they call ICE.

17

you said, in that one instance where he had a confrontation

18

with Sheriff Arpaio he called ICE, and then he called -- so

19

they're still doing the same operations, right?


MR. MASTERSON:

DS

20

They're still -- well, some of the

22

taken, with respect to people who are being detained without

IEN

operations they are conducting, admittedly, by the actions

23

state criminal charges or state federal charges, they're

24

violating the Court's order.

25

THE COURT:

Yeah.

13:50:56

And like

21

FR

13:50:38

And they're also violating the

13:51:12

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4714

Court's order to the extent that they're just holding people

without probable cause even of a state crime, right, or of

sufficient suspicion.

some point, under the Constitution they don't have the right to

hold them for any time if they don't have reasonable suspicion

as to that person being engaged in a state crime.


MR. MASTERSON:

7
8

THE COURT:

No, if they have -- we're in the Terry

Right.

MR. MASTERSON:

10

If they have that reasonable

THE COURT:

Right.

But if they don't have that

reasonable suspicion, they can't detain them.


MR. MASTERSON:

14

THE COURT:

15

You're correct.

And if they detain them wrongfully, and

16

then develop reasonable suspicion and probable cause and charge

17

them, they've still had their constitutional rights violated,

18

haven't they?

MR. MASTERSON:

19

21

13:52:16

But what we see through the exhibits

and e-mails from Lieutenant Sousa, Sergeant Palmer, and

23

Mr. Casey, is anything but willful noncompliance; anything but

24

attempts to thwart this Court's orders.

25

Arpaio -- well, both Sheriff Arpaio and Chief Sheridan have

FR

13:52:06

I believe they have.

Okay.

MR. MASTERSON:

IEN

22

THE COURT:

DS

20

13:51:58

suspicion, certainly they can stop/detain/question.

12
13

13:51:48

stop situation.

11

Even if they end up charging them at

And again, Sheriff


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4715

admitted and taken responsibility for that failure.

You've heard all the testimony about whether Chief

2
3

Sheridan was involved in the preliminary injunction at this

point, and I'm not going to rehash that because he clearly has

accepted the responsibility, and so has the sheriff.

stops there.

The buck

We've heard the phrase "The buck stops here."

7
8

Truman, I think, had it on his desk.

there, and there, and they admitted that.

They admitted that

to the Court and they stand by that today.

11

not intentional and was not willful.

12

to occur, follow-up that needed to occur, did not occur.

But again, it was

Communication that needed

When Mr. Casey forwards this e-mail -THE COURT:

15
read it?

Can you enlarge it a little bit so I can

When Mr. Casey sends his e-mail on

18

December 23rd, 2011, to MCSO -- I'm referring to paragraph 5

19

here, Judge.

20

is mine; it's not in the exhibit.

DS

And by the way, the highlighting and underlining

THE COURT:

You mean the red -- the yellow and the

23

MR. MASTERSON:

24

THE COURT:

25

MR. MASTERSON:

FR

13:54:08

red?

IEN

22

13:53:50

Thank you.

MR. MASTERSON:

17

21

13:53:21

And now I'm going to go back to 187 just briefly.

13

16

Harry

Well, the buck stops

10

14

13:53:03

Yes.

Okay.

But the bolding is Casey's.

The bolding is Casey.

And I think I

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4716

even note a couple, they appear to be italicized, maybe, I'm

not sure, but --

THE COURT:

Those are Casey's if they are.

MR. MASTERSON:

THE COURT:

Okay.

MR. MASTERSON:

Correct.

13:54:27

The yellow and the red lines are me:

"The Court is enjoining the MCSO 'from detaining any

7
8

person based solely on knowledge, without more, that the person

is in the country without unlawful authority.

To be clear, the

10

Court is not enjoining MCSO from enforcing valid state laws, or

11

detaining individuals when officer have reasonable suspicion

12

that individuals are violating a state criminal law.

13

it is enjoining MCSO from violating federal, --'"

14

I'm not sure that comma should be there.

Instead,

"-- violating federal, rights protected by the United

15
16

States Constitution in the process of enforcing valid state law

17

based on an incorrect understanding of the law."


Well, what does that mean?

18
19

come to mind.

20

Judge Snow?

21

mind is:

Now, a couple questions

What does that mean to you,

DS

But a more pertinent question that comes to my

13:55:33

What does this mean to a cop?

23

pretty clear that Sergeant Palmer did not understand the

24

Court's order, and I think that is without question.

25

the phrase "solely on knowledge, without more, that the person

FR

13:55:12

And you just pointed out a few minutes ago that it's

IEN

22

One question is:

13:54:47

And just
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4717

is in the country," assuming that's supposed to be "without"

lawful authority.

THE COURT:

What do I do about Casey's testimony that

within a week or two after the order was entered, he developed

the rubric that he used to discuss with Maricopa County "arrest

or release"?

MR. MASTERSON:

Well, I think you refer to

Lieutenant Sousa, who sat right up there and told you rather

adamantly that he never heard that phrase until he heard it in

10

this courtroom.

THE COURT:

11

13:56:39

Well, that may be true, but there are a

12

couple of things that bother me about that testimony.

13

Can I share with you what they are?


MR. MASTERSON:

14

THE COURT:

15

Absolutely.

The first is, it seems to me that if I

16

look at 2533, Casey didn't have any communications with Sousa

17

after, like, late December.

18

his testimony that he hadn't yet developed that rubric that he

19

then would have subsequently used in describing this to Sheriff

20

Arpaio, and Sheriff Arpaio does not deny that Casey used that

21

rubric in discussing it with him.

DS

And that may be consistent with

23

testimony really causes me to question a little bit the

24

accuracy of Lieutenant Sousa's testimony.

25

correctly, he said something to the effect that he asked -- he

FR

13:56:46

13:57:05

The other problem I have with Lieutenant Sousa's

IEN

22

13:56:21

Because if I recall
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4718

said it was his understanding then that as long as they called

ICE during the initial stop, it became ICE's arrest and not

their arrest, and they could hold them for as long as they

wanted.

Well, I don't believe that, and I don't believe it for

5
6

a couple of reasons.

which was revoked.

of Jakowinicz, Trowbridge, and Palmer, who all tell me that is

not the way that HSU did their stops; that they brought in

10

everybody and they questioned them in Enforcement Support.

11

Palmer even testified that it was Sousa that told them they

12

could do that.

One of the reasons is that's just 287(g),

The second reason is I've got the testimony

And

14

asking Casey if that was okay it made any difference when it

15

wasn't the way HSU was operating, even if it was true.

16

didn't testify that Casey gave him any advice.

17

Lieutenant Sousa testified that he would -- at the very same

18

moment, that he would have to defer to Trowbridge and Palmer

19

about how stops were made, and that had been their previous

20

testimony.

21

question to Casey would make any sense when it wasn't how HSU

22

was doing the stops in the first place.

And he

DS

IEN

Do you understand me?

24

MR. MASTERSON:

13:58:23

And I think

So it doesn't seem to me like Sousa asking that

23

FR

13:58:07

And so I don't see how Lieutenant Sousa thinks by

13

25

13:57:38

13:58:45

I do, and here's where I think the

explanation is, or at least it's a possible explanation, and I

13:59:00

think a valid inference that this Court could draw.


Exhibit 2512, that's Mr. Segura's letter.

THE COURT:

October letter?

MR. MASTERSON:

THE COURT:

5
6

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4719

later.

October 11, 2012.

Yeah, thanks.

MR. MASTERSON:

Of October --

October 11, 2012.

So we're talking 10 months

And in that letter Mr. Segura outlines

three alleged violations of this Court's preliminary

injunction.

THE COURT:

10
11

I think we can safely say they're

MR. MASTERSON:

13

"alleged" in there.

14

THE COURT:

Yeah, maybe I shouldn't have thrown

Okay.

MR. MASTERSON:

15

But what's more informative, Your

16

Honor, is 2514, and that's Tim Casey's response.

17

response to Mr. Segura -- and this starts --

18

21

IEN

22

blank.

Kathleen, for some reason the screen is

MS. McGEE:

I took it down, Your Honor.

THE COURT:

Oh, you took it down.

14:00:06

Okay.

You can put it up if it's admitted in evidence.

23

You're waiting for his signal?

24

MS. McGEE:

Yes.

25

THE COURT:

Okay.

FR

13:59:52

Tim Casey's

THE COURT:

DS

20

13:59:43

violations of the Court's preliminary injunction at this point.

12

19

13:59:22

14:00:31

MR. MASTERSON:

MS. McGEE:

Did I give some signal?

Hold on.

MR. MASTERSON:

3
4

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4720

I'm on 2514.

Which page?

That's a good question.

The first

page of the letter.

(Pause in proceedings.)

MR. MASTERSON:

14:00:49

The first paragraph of the letter

discusses the accusation, which we've now agreed on was true,

that my -- it accuses my clients of apparent violations of the

Court's December 23, 2011 injunction.

The accusation lacks

10

merit.

11

indicates that no violation of the Court's December 23, 2011

12

injunction.

13

outlines why.

And then on the next page, page 2, Mr. Casey

THE COURT:

15

Right.

But I assume it's his underlining,

14:01:36

or is it your underlining?
MR. MASTERSON:

17

THE COURT:

18

His underlining.

Okay.

MR. MASTERSON:

19

Thanks.

"HSU contacted ICE concerning these

two individuals reasonably believed to have illegally entered

21

the United States.

22

of the individuals but directed HSU to contact U.S. Border

IEN

DS

20

14:01:48

ICE advised that it would not take custody

23

Patrol regarding federal handling and custody of the two

24

individuals.

25

Agent Hernandez at Ajo, Arizona, who directed the MCSO to

FR

14:01:11

Again, Judge, this is my highlighting.

14

16

My investigation and review of the three events

HSU immediately contacted U.S. Border Patrol


14:02:11

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4721

deliver these suspects to U.S. Border Patrol at a specified

meeting pointed.

Court's December 23, 2011 injunction."

4
5

THE COURT:

MR. MASTERSON:

THE COURT:

10

Well, we agree that there is still a

violation of the injunction, correct?

Accordingly, there is no violation the

14:02:27

We do.

And that is Casey's position, is that --

MR. MASTERSON:

That's his position.

And I'm not

going to read paragraphs 2 and 3, but I am going to move to


page 3.

11

14:02:37

THE COURT:

What do I do about his testimony that he

12

didn't think that that was a prevailing position but he argued

13

it because it was the best he could in good faith?

14

MR. MASTERSON:

That may well have been his thought,

15

but it was a good faith belief that that was a valid legal

16

position that could be taken.

17

And I want to move down to page 3 of the document and

18

the paragraph beginning:

19

events/cases did the MCSO detain any individual based on

20

knowledge or reasonable suspicion that he was unlawfully

21

present in the United States" -- my underline -- "without more.

22

Rather, MCSO moved swiftly in each case to determine whether

IEN

DS

"In none of the foregoing three

23

state charges could be brought and, if not, to obtain and

24

comply with the direction of federal agents regarding

25

individuals."

FR

14:02:49

14:03:18

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4722

Judge, I think you can draw an inference, based upon

1
2

what we've heard from all the witnesses, that my clients were

not told "arrest or release."

THE COURT:

MR. MASTERSON:

THE COURT:

6
7

10

This is okay.

Why should I draw that inference?

MR. MASTERSON:

that was discussed.

THE COURT:

Because, I mean, this is information

Copies of these letters were passed on to

Well, isn't that contrary to the testimony

MR. MASTERSON:
THE COURT:

14

In which regard?

He said he hadn't seen the letter, this

15

letter, until he was preparing for I think it was his September

16

deposition of this year.


MR. MASTERSON:

17

Sheriff Arpaio himself.


THE COURT:

19

21

But what I'm saying is it's --

Well, I missed your point, I'm sorry,

MR. MASTERSON:

14:04:28

-- it's not too difficult to believe

that the communications between Mr. Casey and my clients were

IEN

22
23

something other than the clear arrest or release, because

24

Mr. Casey had a good-faith belief that they could do what he

25

references in his letter to Mr. Segura.

FR

14:04:15

No, I agree with that, with respect to

then.

DS

20

14:04:03

of Sheriff Arpaio?

13

18

14:03:49

Tell me

members of MCSO, members of command staff --

11
12

What they were told is:

why I should draw it.

8
9

I think I could draw that inference.

It's not too big of a

14:04:48

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4723

leap to suspect that he relayed or communicated that

information to my clients, as opposed to arrest or release.

And I think another indicator of that again comes from

3
4

Lieutenant Sousa's testimony.

perhaps there's a timing issue about when he had discussions

with Lieutenant Sousa, but had he communicated arrest or

release, we wouldn't even need training scenarios.


THE COURT:

8
9
10

And the Court may be right that

Is there any indication that Mr. Casey had

any knowledge at all of what HSU's operations actually were at


this time?

14:05:31

MR. MASTERSON:

11

THE COURT:

12

Well, I guess the --

It seems to me that Lieutenant Sousa

13

testified he read the injunction and he went to Casey, and I

14

think he testified he also went to Sheriff Arpaio, said:

15

don't think we need to change anything.

14:05:46

Now, it may be that Sheriff Arpaio knew differently; I

16
17

don't know, I'm going to have to decide that.

18

for a moment that that was certainly Lieutenant Sousa's good

19

faith belief.

20

a lawyer.

21

educating somebody who's not a lawyer what they can and can't

22

do.

But I'll accept

And I will also accept, as you've said, he's not

IEN

DS

That language isn't particularly helpful in

23

The only other problem I have with that, though, is --

24

as long as we've discussed the earlier chronology -- as soon as

25

I sent out my prehearing questions on the preliminary

FR

14:05:09

14:05:58

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4724

injunction, 2533 says the very next day Mr. Casey's consulting

with Lieutenant Sousa about those questions, or it seems to say

those questions.

Lieutenant Sousa about the questions, Lieutenant Sousa's very

aware of the difference between federal immigration law and

state criminal charges.

MR. MASTERSON:

10

I do.

But to put it -- to put it

quite succinctly, Judge, what we needed here is this order


needed to be explained.
THE COURT:

11

And it needed to --

14:06:47

I agree.

MR. MASTERSON:

12

-- be thoroughly explained.

And I

13

think -- and it's great to sit here, and, you know, we've had

14

20 -- what, 20 days to think about it?

15

had -- I've had 16, I think, 16 or 17; you've had 20 and a lot

16

longer than that to consider these issues.

Well, I've had.

You've

18

I am, and it's 20/20 hindsight, but I think it's clear that the

19

Court's order needed to be explained.

20

thoroughly explained to my clients from the top down, in one

21

way or another, and I think it needed to be explained in

22

writing.

FR

25

It needed to be

DS

IEN
24

14:06:58

So we're all doing the armchair quarterback, at least

17

23

14:06:30

Do you understand what I'm saying?

And so if he is consulting with

saying:

14:07:14

We didn't need a phone call to Sergeant Palmer

Hey, your scenarios are screwed up.


THE COURT:

I grant you that, and so again, that may

all militate in favor of Lieutenant Sousa; it may all militate

14:07:29

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4725

in favor of Sergeant Palmer.

favor of Chief MacIntyre, I'm not sure it militates in favor of

Chief Sands, I'm not sure it militates in favor of Chief Deputy

Sheridan, and I'm not sure it militates in favor of Sheriff

Arpaio, to the extent that they were all advising each other:

You can't do this.

Unless you're going to contest that testimony, and I want to

listen if you are.

And they were.

MR. MASTERSON:

I'm not sure it militates in

That's the testimony.

No, I'm not going to contest the --

10

I'm not going to contest the testimony.

11

point out is that I think that it's quite clear that there were

12

misunderstandings on what that court order meant from the folks

13

sitting at this table and from other people who aren't here

14

today.

15

they might have stated they knew at one time, many of them were

16

just flat wrong.

What I'm trying to

Well, Chief Sands wasn't wrong in what

19

MacIntyre wasn't wrong, if what he testified to was correct.

20

And I don't think -- I mean, again, point out to me if I'm

21

wrong, but I think Sheriff Arpaio said:

22

didn't tell me any of those things.

DS

he -- if what he testified to is true, he wasn't wrong.

IEN

14:08:19

My point is, Judge --

18

Chief

14:08:40

I can't say that they

In fact, he acknowledges

23

that Chief Sands told him some things, and he acknowledges that

24

Chief MacIntyre told him some things, so what do I do with

25

that?

FR

14:08:02

And regardless of what they thought they knew, or what

THE COURT:

17

14:07:51

14:08:58

MR. MASTERSON:

1
2

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4726

Well, I guess you apply your standard

here, clear and convincing.


THE COURT:

Okay.

MR. MASTERSON:

And I think the clear-and-convincing

standard doesn't let you get near intentional action here.

I think it's certainly reasonable that there were

miscommunications made to Sheriff Arpaio, Chief Sheridan, and

others as to what could lawfully be done under this court

order.

10

And I think several people had different understandings

of what could be done under this court order.

12

intentional wrongdoing, intentional efforts to thwart the

13

Court's order, intentional efforts to defy the Court's order,

14

because the evidence -- and again, it's Lieutenant Sousa and

15

Sergeant Palmer, from what we looked at here so far, they're

16

trying to comply.

17

tried to stop them from doing this.

18

been exactly the opposite.

14:09:48

And there's been no testimony that anybody

In fact, the testimony has

So Mr. Young raised an interesting point, and I think

19

he's correct.

21

affirmative advice.

22

he's correct:

IEN

DS

20

He said it's undisputed that there was no

14:10:13

I'm not sure he meant it the way I do, but

There was not appropriate advice given to MCSO

on how to comply with this Court's order.

24

THE COURT:

25

point worth my consideration.

FR

14:09:30

But what you don't have, I think, is evidence of

11

23

14:09:08

Well, again, that -- I think that's a


But what do I do about Casey's

14:10:41

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4727

testimony, that seems to be confirmed by at least some of the

documentary evidence, that Sheriff Arpaio told him:

have to change our method of operation at all because we're not

turning people over to ICE any more.

We don't

I mean, if he was told that by Sheriff Arpaio,

5
6

wouldn't he treat these training scenarios as he's testified?

I thought that was valuable, I thought it was a good idea, but

I didn't think it was an immediate necessity, because I'd been

told by everybody at MCSO that they weren't doing anything that

10

violated the injunction.


MR. MASTERSON:

11

14:11:22

Well, I suppose that that again -- I

12

mean, I guess it depends on the -- at the time these

13

communications occurred -THE COURT:

14

16

Um-hum.

MR. MASTERSON:

15

-- between Mr. Casey, and, for

THE COURT:

Well, one is dated January 4th, when he

18

tells him, Sheriff Arpaio -- you remember, he sends this

19

e-mail.

MR. MASTERSON:
THE COURT:

I don't --

Yes.

-- know the exhibit.

14:11:50

But he sends the

email, I think, to MacIntyre and Sands, and he says:

IEN

22

You remember the one I'm talking about?

DS

21

Sheriff

23

Arpaio wants us to appeal the injunction, even though it

24

doesn't have -- even though he acknowledges it doesn't have any

25

significant operation on -- or any effect on MCSO operations.

FR

14:11:36

example, Sheriff Arpaio.

17

20

14:11:02

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4728

Isn't that -- I mean, we don't have any testimony that

1
2

MacIntyre or Sands ever refuted that.

And isn't that testimony

that -- I mean, again, it's only inferential, like all of this

is, and I agree that I think I can draw the inferences you've

suggested.

14:12:15

But isn't that a contrary inference that suggests that

6
7

Casey did believe, and had been told by Sheriff Arpaio, that

there was no real effect on MCSO operations due to the

preliminary injunction?

10

MR. MASTERSON:

Which was just wrong.

Well, that's possible.

But what else

11

is possible is that Tim Casey had led the Sheriff's Office to

12

believe and Sheriff Arpaio to believe that you -- okay, you

13

can't detain someone without state criminal charges, but if ICE

14

asks or CBP says, Give them to us, you can do that, because

15

that's what he said in his letter.


THE COURT:

16

14:12:57

Okay.

MR. MASTERSON:

17

We all again -- and today we know you

can't do that.

19

Exhibit 2514, that's a good faith position.

20

faith position for a lawyer.

21

it's certainly a good faith position for a cop.

DS

18

But referencing Tim Casey's letter again,

THE COURT:

IEN

22

That's a good

So I request that you accept that

14:13:24

Okay, let me ask you one more question on

23

that.

24

verified, that anybody at Border Patrol or ICE actually

25

requested that such people be transferred, and he said no, he

FR

14:12:33

I did ask Mr. Casey if he'd ever seen, or ever had

14:13:47

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4729

just was taking his client's word for it.

Do we have anything in the record -- even though I

2
3

think you know it wouldn't have made any difference.

would have violated the injunction, but I think it would make

your point stronger -- do you have any evidence in the record

that they received such direction?


MR. MASTERSON:

7
8

It still

To my knowledge, there's no such

evidence in the record.


THE COURT:

Okay.

MR. MASTERSON:

10
11

his letter:

12

indicates no violation.

Thank you.

All we have is Mr. Casey telling us in

My investigation and review of the three events

THE COURT:

14

Let me ask about one more thing, because I

15

think it's only fair -- it's something that's occurred to me,

16

and I think it's only fair to have you address it.

that were entered -- they weren't letters, they were

19

memoranda -- entered in his appeal, I mean his name clearing

20

hearing, where he sets forth pressure that he received from

21

Sheriff Arpaio, Sheriff Arpaio's interest in HSU operations,

22

his awareness, his concern, the fact that he loved the

IEN

DS

18

FR

25

14:14:43

You know in those letters that Lieutenant Sousa did

17

24

14:14:14

I talked about Exhibit 103 --

13

23

14:14:04

14:15:02

publicity, you know the letters I'm talking about?


MR. MASTERSON:

I do -- vaguely.

them to you, but I do recall the letters.

I couldn't quote
14:15:22

THE COURT:

1
2

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4730

Is there any evidence that suggests that

Lieutenant Sousa has misstated the facts in those letters?


MR. MASTERSON:

THE COURT:

None.

Do you concede that the facts as stated by

Lieutenant Sousa as to HSU, its operation, Sheriff Arpaio and

Chief Sands' interest in HSU, are correctly stated in those

letters?

MR. MASTERSON:

8
9

I do not contest that Sheriff Arpaio

was interested in HSU activities; I do not contest that

10

Lieutenant Sousa knew that Sheriff Arpaio was interested in HSU

11

activities; I do contest that Sheriff Arpaio intentionally

12

violated this Court's order by telling HSU to ignore or defy -THE COURT:

13

THE COURT:

15

-- the Court's preliminary injunction.

I don't think that -- I don't think

16

there's any affirmative evidence to that effect, or at least

17

any positive testimony.

18

it's only an inference.

19

MR. MASTERSON:

with Mr. Casey.

21

look at paragraph 1 --

DS

20

IEN
23

I discussed Exhibit 103 just briefly

14:16:25

This is the brief -- the May 28

Briefing Board?

24

MR. MASTERSON:

25

THE COURT:

FR

14:16:09

It may be an inference, but again,

And the reason I did that is because when I

THE COURT:

14:15:53

No, I don't --

MR. MASTERSON:

14

22

14:15:34

Yes, sir.

Thank you.

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4731

MR. MASTERSON:

"By order of Sheriff Arpaio, effective

immediately, no MCSO personnel shall detain any person for

turnover to ICE unless probable cause to arrest or detain

exists under Arizona Criminal Law."

Mr. Casey and I just chatted briefly about perhaps

5
6

maybe it should have said any federal authority rather than

just ICE, but the bottom line here, Judge, is if the

communication was arrest or release, this is it right here, and

that didn't happen.

10

THE COURT:

All right.

And I don't think, by the way,

11

just so we're clear -- and I'm going to say this for

12

plaintiffs' benefit if they want to say something on rebuttal.

13

I don't think there is an allegation that after I entered my

14

findings of fact, which was just before this in the trial,

15

there's been any violation of that order.


MR. MASTERSON:

16

I agree, Judge, and I feel that is

accurate, too.

18

or release is the opinion held by counsel back on December 23,

19

2011, this is what should have been done.


THE COURT:

Well, it should have been done, but

MR. MASTERSON:

No, but counsel can write one out.

23

And counsel can send a letter, an e-mail that says:

24

arrest or release.

25

Judge Snow's December 23rd order.

FR

14:17:47

counsel can't issue Briefing Boards.

IEN

22

The point I'm trying to make here is if arrest

DS

21

14:17:11

14:17:26

17

20

14:16:53

Here's

Here's what you need to do to comply with


Do it.

That never happened.

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I've hit this pretty hard because I think it's an

1
2

important issue, and I know the Court thinks it's an important

issue.

THE COURT:

Let me ask you this:

As it relates to

this issue, can I consider the credibility of Chief Deputy

Sheridan and Sheriff Arpaio as it relates to other matters that

we've discussed?

misstated the facts under oath, can I use that in determining

whether or not they should be given -- their testimony should

10

If I, for example, determine that they have

be given credibility here?


MR. MASTERSON:

11

14:19:11

I think the Court can draw all

12

reasonable inferences as to credibility of any witness based

13

upon the witness's testimony on any issue.


THE COURT:

14

Okay.

MR. MASTERSON:

15

Thank you.

Here the evidence is that Sheriff

16

Arpaio and Chief Sheridan did not intentionally violate this

17

Court's preliminary injunction; in fact, no one at MCSO

18

intentionally violated this Court's preliminary injunction.


THE COURT:

19

21

deputy -- I'm going to look at the facts on Chief Deputy

22

Sheridan, but I will concede that whatever those facts

IEN

DS

there's -- I mean, I don't know that I agree that chief

23

demonstrate, they don't demonstrate that he had the level of

24

involvement that Chief Sands did.

FR

14:19:33

Do you know, I gotta say, I don't think

20

25

14:18:45

How can I reconcile what Chief Sands' knowledge was

14:19:49

14:20:06

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4733

with what he did?

he provided any guidance of any kind to Lieutenant Sousa other

than:

Don't violate the injunction.

Is there any other testimony than that?

MR. MASTERSON:

5
6

There doesn't seem to be any testimony that

I am not aware of any further

14:20:22

testimony on that particular issue.


THE COURT:

And he was aware of the training.

But if

he says that he doesn't disagree with the testimony of Casey,

and Casey talks about all of these discussions he had with

10

Chief Sands, and Chief Sands talks about what he told Sheriff

11

Arpaio, and what Sheriff Arpaio knew, how can you tell me that

12

Chief Sands -- and maybe Sheriff Arpaio, but I'm focusing on

13

Chief Sands right now -- how can you tell me there's no

14

evidence that Chief Sands didn't intend in an affirmative way

15

to ignore the order of this Court?


MR. MASTERSON:

16

this, is the question directed toward -- well, several

18

witnesses, but Chief Sands in particular, and you just

19

referenced it:

20

testimony?

21

witness.

22

half?

Do you agree or do you dispute Tim Casey's

IEN

DS

My opinion is that's an unfair question to any

14:21:23

I mean, Tim Casey testified for, what, a day and a

23

THE COURT:

24

MR. MASTERSON:

FR

14:21:04

Well, first, and I wanted to address

17

25

14:20:41

It's certainly not very specific.


And to require a witness to answer one

question of, Well, is everything that guy said up there on

14:21:37

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4734

those two days correct, accurate, to the best of -THE COURT:

You didn't object, though, did you?

MR. MASTERSON:

THE COURT:

Just because you object to most questions?

MR. MASTERSON:

THE COURT:

Just because I object a lot.

I may have waived an appeal right on

that particular question, but I don't think I waived and I

don't think the Court -- I think the Court can still consider

10

whether that's a fair question.


THE COURT:

11

14:22:09

I think I can, too, but he -- even if that

12

isn't -- even if I don't draw a whole lot from that, even if I

13

only draw a little bit from that, Chief Sands had no

14

recollection to dispute what Mr. Casey said, right?


MR. MASTERSON:

15

THE COURT:

16
17

THE COURT:

23
24

FR

25

14:22:23

I mean, he didn't -- he

Correct.

And so he didn't have any recollection to

DS

dispute Mr. Casey's testimony, right?


MR. MASTERSON:
THE COURT:

IEN

22

Which was when?

MR. MASTERSON:

19

21

He did.

said he didn't have any recollection.

18

20

14:21:49

If you didn't object, did you waive it?

MR. MASTERSON:

I probably did.

14:22:35

That's correct.

Okay.

MR. MASTERSON:

Let's talk about Chief MacIntyre just

briefly here.
THE COURT:

What do I do about -- well, I'll let that

14:22:46

go.

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4735

I'll let you go.

I'll let you speak some.

MR. MASTERSON:

Thank you.

I think the evidence is pretty clear that Chief

3
4

MacIntyre really didn't have anything to do with the

preliminary injunction.
THE COURT:

I mean, Tim Casey --

No, I think that's wrong.

14:23:07

I think the

testimony is extremely clear that Chief MacIntyre was involved

in this up to his eyeballs early on.

I don't know that there's any testimony that Chief MacIntyre

Where you may prevail is

10

had any position that would have allowed him to direct HSU

11

deputies or MCSO patrol deputies to do anything about this

12

order.

13

that one.

15

If you want a winning argument, you might want to make

MR. MASTERSON:

14

Well, let's go with that.

There's no

dispute that Chief MacIntyre got the order -THE COURT:

16

dispute -- well, there is contrary testimony, but I gotta tell

18

you, I think the great weight of the evidence is that Chief

19

MacIntyre was involved in this case from the beginning.

DS

He received all the correspondence; Casey consulted

with him all the time; he was at the preliminary injunction

22

hearing itself; Casey's billing records indicate how much he

IEN

21

23

was involved; he himself acknowledged that Sheriff Arpaio got

24

his advice.

FR

25

14:23:42

And there doesn't seem to be any real

17

20

14:23:23

That is not an argument that your predecessor counsel

14:24:00

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4736

made.

when we were talking about whether or not Chief MacIntyre's

inclusion on these letters constituted a waiver.

she made that.

instances in which he was involved, and it was her duty to do

it, but the great weight of the evidence is he was involved,

isn't it?

10

I don't think

She certainly didn't assert all of these

MR. MASTERSON:

8
9

I mean, it was her duty, your duty to make the argument

The weight of the evidence is he knew

of the order and actually communicated certain information


about the order to others.
THE COURT:

11

14:24:48

What do I do about Ms. Iafrate's

12

representation to me that it was his job to make sure that

13

Chief Deputy Sheridan knew about the order?


MR. MASTERSON:

14

Well, I think we have to go back to

15

the fact that Chief MacIntyre had no authority he could exert

16

over the law enforcement side of MCSO to do anything to comply

17

with the Court's order.


THE COURT:

18

20

Deputy Sheridan?

DS

pertains to Chief MacIntyre, but what does it do for Chief

MR. MASTERSON:

14:25:36

I don't think -- well, I mean, clearly

we have evidence of e-mails that were sent to Chief Deputy

IEN

22
23

Sheridan about the preliminary injunction.

24

Sheridan even acknowledges:

25

things I was dealing with at the time --

FR

14:25:09

I think that that may be right as it

19

21

14:24:36

And Chief Deputy

Look, I had a whole bunch of other


14:25:55

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4737

THE COURT:

What do I then do with Sheriff Arpaio's

deposition testimony that he delegated to Chief Deputy Sheridan

and to Chief Sands the responsibility to comply with the

preliminary injunction?

MR. MASTERSON:

Well, I think one thing you do is

recognize that Chief Sheridan stepped up and said:

accepting responsibility for that.

was my responsibility.

it; I had other things I was dealing with at the time.

14:26:09

Hey, I'm

I'm the chief deputy.

It

I didn't see it; I wasn't involved in

I had a

10

hundred million dollars that had been misallocated I was

11

dealing with; I had a hostile board of supervisors I was

12

dealing with; I had a whole bunch of other issues.

13

deputies who had been shot.

I had

Despite that, I don't think Chief Deputy Sheridan got

14
15

up there and told you that he used that as an excuse.

16

accepted -- he accepted the fact that as chief deputy, he was

17

responsible for seeing to it that your order was complied with

18

by folks on down the line.

You

Court in that area, because Chief Deputy Sheridan -- Chief

21

Deputy Sheridan accepts his responsibility in that area.

DS

20

All right.

IEN
23

14:27:14

I know you'll be sad that I'm moving away

from the preliminary injunction now, and I'm going to cover --

24

THE COURT:

25

save you some time.

FR

14:26:50

So I don't know that there is any dilemma faced by the

19

22

14:26:31

Let me ask just some things that might


Do you contest anything about all kinds of

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4738

discovery that should have been provided that wasn't, and some

of which has now been destroyed?

MR. MASTERSON:
THE COURT:

anyway.

THE COURT:

THE COURT:

11

It will.

I only had one page on that,

Well, now I'm going to Seattle.

I don't want to go to Seattle, but I'm

14:28:11

going there, anyway.


THE COURT:

12

Nice place.

MR. MASTERSON:

13

Judge, we had a number of discussions,

14

and as the Court's well aware, I objected an awful lot to most

15

of the evidence about Seattle and filed a motion in limine

16

about evidence concerning Seattle.

17

relevant.

18

involving the order to show cause.

14:28:24

I don't think it's

It's just not relevant to any of the issues

Now, the position, I guess, has been taken -- and to

19

an extent I understand it -- that, well, it may show a state of

21

mind of the sheriff.

22

the evidence is clear that specific orders were given to all

IEN

DS

20

But it's still a sideshow, I think.

23

three investigators:

24

it.

25

told you they received that instruction.

FR

14:28:04

Okay.

MR. MASTERSON:

10

It will save you some time.

Well, go ahead.

MR. MASTERSON:

No.

Okay.

MR. MASTERSON:

Do you context any of that?

Do not investigate Judge Snow.

14:28:48

And

Don't do

And they understood that, and every one of them got up and
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4739

THE COURT:

Except, for example, Sergeant Anglin said

that Sheriff Arpaio kept inquiring for as long as he was

involved in the investigation.


MR. MASTERSON:

4
5

given by Mr. Montgomery?


THE COURT:

Well, you know, was that information


Well, let's first --

I'll tell you what.

I mean, the truth is

I think there may be -- this may help your argument, but I'll

tell you what my impression is after listening to all that

stuff.

10

mind.

And I'll listen to your argument, I've not made up my

14:29:53

I think the sheriff, the evidence is pretty good that

11
12

he was involved in some investigation of a conspiracy with the

13

Department of Justice, and in which I played a role,

14

supposedly.

15

relevance in terms of its state of mind about the Court's

16

orders and things.

I'm not sure -- I think there may be some marginal

14:30:10

But truthfully, I'm far less concerned about that than

17
18

I am about what it means about Sheriff Arpaio's willingness to

19

tell the truth when he's on the stand.

20

County has spent, and the plaintiffs have spent, tens of

21

thousands of dollars, and lots of time -- if not hundreds of

22

thousands of dollars, maybe even more than that -- uncovering

IEN

DS

We spent, and the

23

stuff that if he just would have fully disclosed, and Chief

24

Deputy Sheridan would have fully disclosed on the stand the

25

first time, we wouldn't have had to spend all this time about

FR

14:29:36

14:30:28

14:30:51

it.

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4740

And now that there's questions about whether or not

2
3

they've done that, and I will hear you say that they haven't

misrepresented or haven't been more fully forthcoming, but now,

when I say to Sheriff Arpaio, Are you aware of anybody that's

investigated me or my activities? and he says no, and then he

gets back up on the stand and acknowledges that he was aware,

at least that Mr. Montgomery was doing it, and even with

respect to the wiretap, with respect to other things, and he

10

was aware that he was investigating, if I accept his story, my

11

financial records, he's just not -- he has not been fully

12

forthcoming with this Court.

14

forthcomingness, Chief Deputy Sheridan's forthcomingness,

15

whether or not they are truthful is what really gives me major

16

concern about what kind of orders I have to enter to make sure

17

that the plaintiffs' class rights are protected in this matter,

18

and their constitutional rights.

14:31:50

So it really isn't so much, I mean, I'll certainly

19

understand your desire to address it.

21

really -- the Seattle investigation, whether he was

22

investigating me or not, does not mean nearly as much to me as

IEN

DS

20

I'll listen.

But I

14:32:07

whether or not he was truthful about it on the stand.

24

And it seems to me that even if I accept his story,

25

even if I accept all of his story, although I do believe the

FR

14:31:30

And it's one of the areas, frankly, his

13

23

14:31:08

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4741

story changed over time -- and certainly Chief Deputy

Sheridan's story changed over time, it seems to me -- there's

substantial doubt about -- the substantial question is whether

these gentlemen are telling the truth or are they trying to

deceive this Court?

14:32:47

And that ties in to the 1459 IDs, it ties in to the

6
7

disclosure of the 50 hard drives, it ties in to all of those

things that really relate to -- and the 50 hard drives is a

little bit collateral, too -- but it relates to -- how it

10

relates is if they're telling the truth.

11

having us incur hundreds of thousands of dollars, waste a bunch

12

of time, hide violations of members of the plaintiffs' class,

13

as I calculate that into what I need to do to cure the

14

contempts to which they've already admitted.

14:33:05

And so if you really want to get to what interests me,

15
16

Or are they just

that's what interests me.


MR. MASTERSON:

17

Well, on that issue, Judge -- and I

apologize, because I don't know what -- I don't recall what the

19

specific questions were that were asked by the Court, but one

20

of them was --

IEN

22

DS

18

21

THE COURT:

14:33:37

Oh, you mean in that first hearing?

MR. MASTERSON:

23

THE COURT:

24

MR. MASTERSON:

25

THE COURT:

FR

14:33:23

Yes, sir.

I don't even think you were here.


One of them was --

Maybe you were here.

Were you here?

You

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4742

weren't representing --

MR. MASTERSON:

probably sitting back there somewhere.


THE COURT:

investigating me?

One of the questions was:

Are you

14:33:51

Or were you investigating me?

THE COURT:

7
8

Yeah, okay.

MR. MASTERSON:

5
6

Might have been here, but I was

No, it was:

Are you aware of anyone?

Are

you aware of anyone that was investigating me or my activities?


You remember we were playing those little semantical

9
10

games, and so I was pretty careful to make the question very

11

broad.

12

a statement that he filed under penalty of perjury three weeks

13

later saying that I was never the subject of an investigation

14

by the Maricopa County Sheriff's Office, or something to that

15

effect.

And then, even if I didn't have his testimony, I've got

Those things concern me.


MR. MASTERSON:

16

statement.

18

what was Mr. Montgomery doing?

21

THE COURT:

Now,

Are we back to President Clinton again?

MR. MASTERSON:

No, I don't want to -- I don't want to

MCSO was not investigating you.

I don't know -- based

23

upon everything I know and have read and heard, I don't know

24

that Mr. Montgomery was investigating you.

25

claimed to have data --

FR

14:34:34

go there.

IEN

22

You were not a subject of an investigation.

DS

20

14:34:21

Well, I think that's an accurate

17

19

14:34:05

Mr. Montgomery
14:34:53

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4743

THE COURT:

Well, let's just cut right to it.

The

sheriff said that he received -- his testimony was that he'd

received that schematic; he'd received the time lines; that he

was aware that Montgomery was doing those things.

certainly disputed testimony about whether or not he wanted to

further investigate that.

the issue.

There's testimony on both sides of

interested in the fact that I was wiretapped, and he testified

10

that he continued to be interested in that.

11

schematic says I was the one that authorized his wiretap.

12

course, it is not true, there isn't any evidence that it's

13

true, but I think that that is what he himself testified to.

14

So don't you have to deal with what he himself has

15

acknowledged?

THE COURT:

21

I do.

And I'm going to get the

They are important.

MR. MASTERSON:
THE COURT:

investigating me?

IEN

22

Of

They can be

important.

DS

20

14:35:28

Clinton accusation again, but the words are important here.

18
19

Well, that

14:35:48

MR. MASTERSON:

16
17

And --

So I said:

14:36:05

Are you aware of anyone that's

And you are suggesting to me that whatever

23

the sheriff was aware that Montgomery was doing, that doesn't

24

constitute an investigation?

FR

25

14:35:13

But even if I -- the sheriff said, I remained

8
9

There is

What would be the appropriate word I should have used?

14:36:21

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4744

MR. MASTERSON:

Was anybody providing you any

information about me that led you to believe that I was

involved in some conspiracy against you?

But I guess why I'm troubled, Judge, is when I use the

4
5

term "investigation," that's something someone personally is

actively doing, and the sheriff was not doing that.

MCSO was actively investigating you.


THE COURT:

No one at

We had a guy, and --

Well, certainly -- well, go ahead.

MR. MASTERSON:

We had a guy who was providing

10

information for the most part we think now was completely

11

false.

14:37:02

Now, there was some truthful information in there.

12
13

And to this day we don't know how Mr. Montgomery got that

14

information.

15

did have some banking information on citizens in Maricopa

16

County which was verified, he did have information, and the one

17

that truly puzzles me and concerned me a great deal quite some

18

time ago was an e-mail from our firm.

But he did have personal cell phone numbers, he

14:37:25

And all of that taken together, was the sheriff

19
curious?

Was this interesting information?

21

this information that I think should have been followed up on?

22

I do.

IEN

DS

20

Absolutely.

Was

14:37:49

I don't think the sheriff of this county can ignore a

23

claim that someone has hacked, stolen, however you want to

24

phrase it, personal information, including banking information,

25

tax return information, from 150,000-plus citizens of the

FR

14:36:39

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4745

county, and just ignore that.

THE COURT:

Should Sheriff Arpaio have gone to the

United States Attorney instead of the Arizona Attorney General

if he wanted immunity from prosecution for Mr. Montgomery?


MR. MASTERSON:

THE COURT:

I'm sorry, I missed the question.

Sheriff Arpaio went to the Arizona

Attorney General to assist in obtaining some sort of immunity.

Should he also have gone to the United States Attorney and then

turned this matter over to the Department of Justice?


MR. MASTERSON:

10

I think he could have.

Certainly,

11

that's not the only prosecution -- prosecuting agency which

12

could have jurisdiction over a crime such as this.

14

some point from Mr. Zullo, that there was an intention to turn

15

this over to the FBI or the federal -- a federal prosecuting or

16

investigatory agency at some point.

17

there was that information or that testimony did come from

18

Mr. Zullo.

23

That never did occur, but

What do I do about the fact that the

DS

sheriff's attorney is also Mr. Montgomery's attorney?


MR. MASTERSON:

Well, I'm not really sure how that

THE COURT:

Well, it certainly might bear on the issue

24

of whether or not the sheriff wanted to be truthful about

25

Mr. Montgomery's flaws, and the extent of those flaws, and

FR

14:39:20

bears on the issue here, however.

IEN

22

14:39:00

So -- and again --

THE COURT:

19

21

14:38:43

And I think you also heard some testimony, at least at

13

20

14:38:30

14:39:38

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4746

the -- I mean, there's other reasons he might have wanted not

to be truthful, too.

respect to him, and I agree that anybody can be -- he was the

victim of a pretty significant fraud.

come forward with that.

wanted to come forward is not just his own embarrassment, but

the fact that his own attorney was representing Mr. Montgomery

and talking to him throughout all of this with respect to at

least the matters in which he's representing Sheriff Arpaio.


MR. MASTERSON:

10
11

THE COURT:

fact.

And one of the reasons he may not have

Well, I think we're doing significant

Can I draw inferences from it?

I don't think you can draw inferences

THE COURT:

I'm not trying to do that.

17

trying to say Sheriff Arpaio's attorney was also

18

Mr. Montgomery's attorney.


MR. MASTERSON:

19

I think you can certainly draw an

21

forward with information that you were duped by someone.

DS

inference that perhaps it might be a bit embarrassing to come

14:40:41

IEN

But again, the real difficulty with Mr. Montgomery -THE COURT:

Does that bear any relation to whether or

24

not the MCSO looks bad, when they do self-investigation in

25

matters that might have significantly violated the rights of

FR

14:40:29

I'm just

20

23

14:40:17

It is a

of what information may have gone back and forth between --

16

22

14:39:57

It is admitted in evidence.
MR. MASTERSON:

14
15

And he didn't want to

speculation --

12
13

I mean, he apparently was -- with all due

14:41:06

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4747

the plaintiffs' class in this case?


MR. MASTERSON:

THE COURT:

I'm not following that question.

Okay.

If Sheriff Arpaio doesn't want to

come forward and acknowledge information that is embarrassing

to him because it makes him look bad, doesn't it make him look

bad if the MC -- if Internal Affairs investigations into the

MCSO reveal flaws in his operations, including his own

decisions; including the decisions of his chief deputy;

including the decisions of lots of other people that were

10

involved in the Internal Affairs investigations in this matter?


MR. MASTERSON:

11

THE COURT:

12

No, I'm talking about his willingness.

What I'm trying to tie together is his willingness to be

14

forthcoming, to be accountable, so that these matters can be

15

addressed and so that the rights of the members of the

16

plaintiffs' class can be protected.


MR. MASTERSON:

14:41:53

I don't, Judge, and here's why.

First off, I'm not telling you that the sheriff didn't

18

come forward because of some embarrassment; I'm telling you

20

that's certainly an inference I think the Court could draw.


THE COURT:

All right.

MR. MASTERSON:

IEN

22

DS

19

21

14:42:07

I apologize.

But is it embarrassing if somebody who

23

works for you does something wrong or makes a mistake?

24

think that shows --

25

THE COURT:

FR

14:41:39

Does it make him look bad?

13

17

14:41:21

No, I

You don't think the sheriff's pretty --

14:42:25

pretty affiliated with Maricopa County Sheriff's Office?


MR. MASTERSON:

2
3

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4748

I think he's very affiliated, but

everybody makes mistakes.


THE COURT:

And part of running a Sheriff's Office

like that has to be -- it's true.

true.

be a willingness to fully, completely, and independently

investigate and fully acknowledge those mistakes, right?


Absolutely.

And try to correct those

10

mistakes.

11

the level of severe discipline, either.

But that doesn't mean that every mistake rises to

THE COURT:

12

14:42:54

Oh, I agree.

MR. MASTERSON:

13

14:42:39

And part of running a sheriff's office that big has to

MR. MASTERSON:

What you've just said is

And I'm a little bit concerned, since

14

we're on that area, I'm a little bit concerned on the entire IA

15

discussion by Ms. Wang, in that is she now an expert that the

16

Court is going to rely upon -THE COURT:

17

I'll ask you the question I asked her.

18

don't know that I need any testimony to say that naming

19

Chief Olson makes that whole investigation invalid.

Arpaio appoints somebody who directly reports to Chief Deputy

22

Sheridan, who talks to me about if I only knew Chief Deputy

IEN

21

23

Sheridan's heart, and then he testified that he had personal

24

knowledge of some of the facts involved which he thinks

25

verifies Chief Sheridan's version of events which I think are

FR

Do I need expert testimony to tell me that if Sheriff

DS

20

14:43:11

14:43:28

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4749

discredited by the evidence, why do I need expert testimony to

tell me that is an inadequate investigative process?


MR. MASTERSON:

I don't think on that narrow issue you

do.

But if Ms. Wang is the expert, or even the Court -- and

again, I'm not trying to disparage the Court, but -THE COURT:

THE COURT:

I'm open.

I'm open to having expert --

expert testimony on some of these points.


MR. MASTERSON:

11

THE COURT:

12
13

-- if the Court's making -- I

don't think --

9
10

No.

MR. MASTERSON:

14:44:08

14:44:17

I mean, for example --

But I don't -- I don't know that I need

expert testimony on all of these points.


MR. MASTERSON:

14

No, and you may well not.

But if --

15

and I'm just going to throw out an example.

16

about, well, it's always a violation and it's a horrible IA

17

procedure to use leading questions -THE COURT:

18

If we're talking

Well, let me tell you that I have reviewed

already all the testimony and all of the exhibits put in on the

20

Tennyson investigation.

21

to say the Tennyson investigation was a joke.

22

that before.

IEN

DS

19

I don't think I need expert testimony

It was a joke.

14:44:43

I've called it

And all of his leading -- leading

23

questions?

24

that he identified, they're on the predisposition that Chief

25

Deputy Sheridan identified on the stand.

FR

14:44:25

They're leading questions on his predisposition

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4750

He said:

I didn't think this needed to be

investigated.

So when Tennyson goes in there and he asks leading questions

that says this doesn't need to be investigated, it doesn't take

an expert to say that's not an adequate investigation.


MR. MASTERSON:

6
7

But on the flip side, apparently your

THE COURT:

I don't believe that's true.

I think that

he talked about -- there's testimony that said at least some of

10

the monitors did not agree with Chief Deputy Sheridan's

11

determination that this should be a criminal investigation.


MR. MASTERSON:

12
13

THE COURT:

Okay.

MR. MASTERSON:
THE COURT:

17

But criminal investigation is

Right.

But and again, I think the Court can

make decisions in narrow areas.

DS

THE COURT:

But to take some broad --

Well, what do I do -- I'll ask you the

same question I asked Mr. Killebrew:

22

I don't need expert testimony to invalidate anything that

IEN

21

14:45:58

What do I do -- you said

23

Chief Olson did, or maybe Chief Deputy Tennyson or in narrow

24

areas of these investigations.

25

of the members of the plaintiffs' class when I do invalidate --

FR

14:45:46

Okay.

MR. MASTERSON:

18

20

That's what I was referring

different than an administrative investigation, right?

16

19

Agreed.

14:45:32

to, Judge.

14
15

14:45:15

monitors also said it didn't need to be investigated.

8
9

Tennyson said it didn't need to be investigated.

What do I do to cure the rights


14:46:15

if I do -- invalidate those investigations?


MR. MASTERSON:

2
3

THE COURT:

For what?

MR. MASTERSON:

Well, here's why, is because you --

THE COURT:

I'm just talking about the specific rights

of the folks involved.

MR. MASTERSON:

Oh, I understand.

And I understand

10

what you told me about Sergeant Tennyson's investigation.

11

there are also some more broad sweeping terms that we're

12

talking about with respect to leading questions with respect to

13

Ms. Wang's position on statements made to an interviewee about:

14

You did a hell of a job.


THE COURT:

15

Well, I'll read all that.

I haven't read

it yet.

17

leading questions are always inappropriate in an Internal

18

Affairs investigation.

21

names -- Deputy A told me this, this, this, this, this, this,

22

and this happened.

DS

specific incident where a deputy is told -- well, I forget the

IEN

14:46:58

No, and we had a reference to one

20

What do you gotta say about that?

23

inference that plaintiffs want you to draw was:

24

telling this deputy what to say because he --

FR

14:46:37

And I'm not going to make any determination that

MR. MASTERSON:

19

But

I sure admire what you're doing here.

16

25

14:46:24

again, you referred to Sergeant Tennyson's --

7
8

Well, I think you're going to need

expert testimony.

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4751

THE COURT:

14:47:06

The

Well, he's

Oh, I think sometimes he clearly did that.

14:47:24

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4752

MR. MASTERSON:

Maybe, but you know what's really

something that's very important to making that assumption is:

How does this deputy know what he's being told is true?

I can go to Deputy A and say, Hey, Deputy B told me

4
5

you did this, you did this, you did this, you did this, you did

this, and Deputy --

THE COURT:

9
10

You got any circumstances --

MR. MASTERSON:

8
that.
And --

You're right.

THE COURT:

13

Exactly.

I did exactly

Everything he told you is correct.

Anything --

MR. MASTERSON:

12

-- A says:

14:47:53

THE COURT:

11

-- none of that was true.

-- in the evidence that you think

14

demonstrates an appropriate use of leading questions in this

15

case?

16

any one of them that you would assert is the appropriate use of

17

leading questions?

THE COURT:

19

21

Oh.

That's not my question.

Can I tell you right now?

No.

14:48:10

But, I mean, how an interviewer

23

establishes rapport with a witness or a suspect in a criminal

24

situation, how someone uses leading questions in his interview

25

or with a suspect in a criminal situation, I mean, that's

FR

14:47:59

Okay.

MR. MASTERSON:

IEN

22

THE COURT:

Is there

I think any particular question --

No, no, no, no.

MR. MASTERSON:

DS

20

There's lots of evidence of leading questions.

MR. MASTERSON:

18

14:47:43

14:48:29

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4753

something that each interviewer -THE COURT:

Well, you can rest assured that whatever I

do, I'm never going to say:

inappropriate.

I'm not going to say that.

MR. MASTERSON:

Leading questions are always

Okay.

I guess to cut this short, and

I'm going to have to cut it quite short, Judge, I think you can

make certain narrow determinations without expert testimony,

but for any more sweeping decisions with respect to IA

procedures at MCSO, I think that expert testimony is going to

10

be required.

THE COURT:

11
12

that.

14:49:01

Well, that may well be.

I'm not disputing

Let me ask you a question that interests me more,

13
14

though.

15

has -- I know has been preparing evaluations of the adequacy of

16

the investigations.

17

that we'll need that, but if I determine that an evaluation

18

needs to be made as to the adequacy of the investigations, why

19

should we proceed any differently than what I've already

20

outlined we do with respect to monitor reports in this case?

21

Which is he files his report, you file a response, plaintiffs

22

file a response, and I make a determination.

The monitor, as the various IA investigations came in,

DS

IEN

14:49:12

I'm not sure, depending upon my findings,

23

MR. MASTERSON:

24

THE COURT:

25

MR. MASTERSON:

FR

14:48:42

14:49:39

That can be done.

Okay.

Thanks.

I don't want to crunch the other folks

14:49:57

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4754

up here, so we discussed -THE COURT:

2
3

Do you want me to tell you how much time

you've taken?

MR. MASTERSON:

THE COURT:

Just a second.

MR. MASTERSON:

That would be helpful.


Go ahead.

I'm listening.

We discussed briefly the discovery

obligations, and I'm not disputing that there were problems

with discovery obligations early on in this case.


THE COURT:

9
10

It seems to me like there were discovery

obligations later on, too, that there were problems with.

MR. MASTERSON:

12

THE COURT:

13

Okay.

So you have an hour and 20 left.

MR. MASTERSON:

14

Well, I want to give these guys at

least a half hour apiece, so...

14:50:51

I'm going to move --

16

THE COURT:

17

Is there anything -- I mean, I don't think

there's a whole lot of dispute that there were all kinds of

19

discovery of all sorts requested that wasn't provided.

20

that MCSO certainly made some effort that involved considerable

21

manpower resources.

22

it and whether or not I think it violates the order, I'm not

IEN

DS

18

I think

going to contest that there was considerable effort,

24

considerable man-hours spent to recover what they could.

FR

14:51:17

Whether or not I agree with how they did

23

25

14:50:37

You have taken one hour and 25 minutes, Mr. Masterson.

11

15

14:50:11

I don't think there's any dispute that videos have

14:51:34

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4755

been destroyed; audio recordings have been destroyed; driver's

licenses and identifications have been destroyed.


Am I wrong about any of that?

MR. MASTERSON:

4
5

of that.

14:51:54

THE COURT:

I don't think you're wrong about any

What do I do about the ability to draw

adverse inferences?

I mean, I think there's two things at play

here.

went to trial without even the evidence that you've recovered

First, we went to trial with this matter, and plaintiffs

10

and provided to them since.

I think I have, totally

11

independent of any sort of contempt, I think I have a broad

12

ability to make a remedy for that.

And then I think I've already determined in this case

13
14

that I have the ability to draw an adverse inference that

15

results from the destruction of evidence that results from,

16

among other things, Chief Deputy MacIntyre's failure to

17

transmit the preservation letter.

18

I think, as I recall it:

19

transmit -- with the letter, so I didn't do anything.

I didn't know what to do with the

half later, being told for the first time that there was a

22

preservation letter.

IEN

21

14:52:41

And he acknowledges in his testimony that

23

there was all kinds of stuff destroyed in the interim, as does

24

Sergeant Palmer, not with respect to the preservation letter,

25

but talking about that time frame.

FR

14:52:23

And his testimony here was,

Well, and then we have Lieutenant Sousa, a year and a

DS

20

14:52:06

14:52:54

Can't I draw adverse factual inferences from those

1
2

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4756

destructions?

MR. MASTERSON:

Well, here's my general answer to

that.

I think you're permitted to draw adverse inferences.

But at the same time, I think there has to be other and

corroborating evidence for the inferences you seek to draw.


THE COURT:

Well, let me tell you one I'm thinking

about so you can address it.

officers took items as trophies.

We've got testimony that MCSO


And that -- the evidence

10

seems to be, you know, maybe not necessarily all items of great

11

monetary value, although items of significant personal

12

convenience like identification cards and driver's licenses,

13

other things that would make it possible even, for example, for

14

a -- someone here illegally, when they go back to Mexico, if

15

you take their Mexico driver's license, what are they going to

16

do?

17

and there's been an acknowledgment that that's true.

That sort of thing.

20

trophies --

DS

number of complaints when we have that many apparent

14:54:19

MR. MASTERSON:

IEN

THE COURT:

Well, I --

-- and acknowledgment of destruction of

23

those things, and concern about processing of complaints?

24

We've got at least some evidence from the files involving

25

Lieutenant Sousa and others that complaints that were made were

FR

14:53:56

They took those things as trophies,

19

22

14:53:36

Can't I presume that there is a basis for a large

18

21

14:53:11

14:54:32

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4757

just never sent up the line.

And then with Chief Trombi, when

he was a captain, he didn't send complaints up the line because

he thought he should just deal with them in the division, so

nobody was aware of those, either.

Can I draw any inference about whether or not there

5
6

needs to be some real -- there exists and needs to be some real

reformation in complaint processing and internal investigation

from those kinds of things?

I mean, I'm not sure that I need that.

You may

10

acknowledge it.

11

agree, there needs to be a basis, other than just the

12

inference, to strengthen the inference.

13

sufficient basis to strengthen that inference?

But those are the areas where it seems to me I

MR. MASTERSON:

14

With the specific evidence just

discussed by the Court, I think that would be a corroborating

16

basis for the inference suggested by the Court.


THE COURT:

contest this, either.

19

talking about this general subject matter.

20

think it was Lieutenant Sousa in rebuttal testimony testified

21

that, you know, with the BlueTeam and with the IAPro, which I

22

acknowledge are things that the monitor has now implemented and

I just want to ask, as long as we're


Lieutenant -- I

DS

IEN

14:55:22

What about -- and I'm not even sure you

18

23

MCSO hasn't trained on these things yet but is trying to

24

implement them, that it's just too much for sergeants to do, I

25

think was his testimony.

FR

14:55:04

But wouldn't that be a

15

17

14:54:48

14:55:40

14:56:01

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4758

Do you contest that?

MR. MASTERSON:

THE COURT:

I do not.

Okay.

And so the -- for example, the 1 to

12 ratio that I implemented without, you know, at the very

start of this case, before we had any of these other issues and

before we needed to implement IAPro, is just not sufficient.


Do you acknowledge that?

MR. MASTERSON:

8
9

right?

THE COURT:

10

That's the one you made up, though,

Well, no, I didn't -- I didn't pull it out

11

of thin air.

12

involved in the case then, I gave quite a bit of time for the

13

parties to try to agree to things.

14

which they couldn't agree, they gave me a range of choices.

15

And so I was given a range of choice of appropriate supervision

16

range to enter when I entered the supplemental permanent

17

injunction.

What happened is, I'll tell you since you weren't

And when there was areas on

appreciate then, which was I didn't really have very much

20

knowledge on which to be making that allocation.

21

matter of fact, I gave the very broadest possible allocation of

22

the three choices given me by the parties to Maricopa County.

IEN

DS

19

24

FR

25

14:56:26

14:56:43

But I now appreciate something that I didn't

18

23

14:56:14

I think there was 1 to 8, 1 to 10, 1 to 12.

And as a

14:56:57

I gave 1 to 12.

I now believe, or at least based on the evidence I've

heard, have a basis for believing, both from what

14:57:13

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4759

Lieutenant Sousa said and I think what Captain Skinner said,

that some of the other remedies that we've implemented, and

maybe just standard operating procedure anyway, means that

sergeants are not having enough time to adequately supervise

their patrol members, and that's what I'm asking you.


MR. MASTERSON:

Now -- okay.

I think that's a valid

point, but as Sergeant Skinner -- excuse me, Captain Skinner

told you, it may depend on where exactly in MCSO you're talking

about.

And I think he discussed, for example -THE COURT:

10

Yeah, I'm talking outer limit, though.

11

Because as you'll recall, the testimony as to Lake District is

12

that they're about a 1 to 3 ratio right now.


MR. MASTERSON:

13

THE COURT:

14

Right.

I'm not -- I'm certainly not saying a 1 to

3 ratio is inappropriate; I'm just saying my 1 to 12 ratio's

16

inappropriate.

MR. MASTERSON:

19

to even comment, but it's possible, at least in my opinion,

20

that there could be areas or divisions where 1 in 12 would be

21

appropriate, but there could be other divisions where it is

22

entirely inappropriate and would result in understaffing, and

IEN

DS

that there's evidence on this, so maybe it's not proper for me

24

FR

25

14:58:05

Well, again, and then I don't know

18

23

14:57:51

And there --

15

17

14:57:33

14:58:18

Lake Patrol might be your example.


THE COURT:

Well, I do have the testimony of

Lieutenant Sousa at least, right?

14:58:34

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4760

MR. MASTERSON:

THE COURT:

And I do -- okay.

MR. MASTERSON:

You do.

I'm just going to hit one more area,

and I'm going to hit it quickly, because it's very concerning

to me, and I think it's very concerning to the Court, and

that's the 1459 IDs and the statement made by Captain Bailey.
THE COURT:

That concerns me.

MR. MASTERSON:

THE COURT:

14:58:48

It concerns me.

But --

And I'll tell you what else concerns me,

10

as long as we're talking about that, is the 50 hard drives that

11

I had to order the marshals to take custody of at the same time

12

that I had to order they take in custody the 1459 IDs.

13

matters both concern me.


MR. MASTERSON:

14
15

sorry.

I didn't hear that last part, I'm

Those matters both concern me.

MR. MASTERSON:

17

Those

14:59:23

THE COURT:

16

Okay.

Well, let's talk about the

1459.

The evidence is clear, I think, that MCSO became aware

19

of the 1459 IDs when Sergeant Knapp tried to return them.

20

I think it's a bit misleading when plaintiffs' counsel tells

21

you:

22

may not be true.

DS

18

He tried to place them in destruction.

IEN
23
24

FR

25

14:59:07

Now,

14:59:51

Well, that may or

The fact of the matter is he tried to return

them; they came from destruction.


And it's also clear that the reason they were taken

from Property, from destruction, was for training purposes.

15:00:11

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4761

That's uncontroverted.
THE COURT:

Now --

Well, it is also uncontroverted that he

never did any training.

MR. MASTERSON:

That's true.

And did he need 1459?

Probably not.

they were -- they were taken from Property correctly.

his supervisor.

His supervisor said:

THE COURT:

8
9

What's going on in his head?

I don't know.

Do it.

But

He asked

He did it --

Well, as long as we're talking about IDs

in general, do you remember when I -- you may have been in the

10

courtroom; I don't think you were representing defendants at

11

the time -- when I pointed out a whole bunch of Mexican

12

identifications to Chief Deputy Sheridan, and I said:

13

would anybody forge these Mexican identifications?

14

deal, even on the Exhibit 1420, a number -- a great deal of the

15

identifications are identified as Mexican identifications.

MR. MASTERSON:
THE COURT:

19

they were seized.

24

MR. MASTERSON:

know.

The Court's making an assumption that

Maybe they were found in a drop house.

THE COURT:

FR

I don't know, but --

15:01:23

23

25

15:01:07

And what good would they be for any

MR. MASTERSON:

IEN

22

And a great

training purpose?

DS

21

Why

believe that any of those were forged, so why were they seized?

18

20

15:00:45

Why in the world -- I don't think there's any basis to

16
17

15:00:23

Well -Maybe they were abandoned; I don't


15:01:30

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4762

THE COURT:

That's true.

Except for, if we want to

play that game, you still have to disclose those to the

monitor, because they are in the custody of the MCSO, and there

are a great deal -- number of them, and your client was quite

aware that it was an issue about which this Court was very

concerned.

MR. MASTERSON:

THE COURT:

8
9

Oh, I don't disagree with that.

And your client was also quite aware that

I required my monitor to be given complete access with complete

10

cooperation from the MCSO.

11

I expressed wishes about; they were in my orders.


MR. MASTERSON:

12

And those weren't just things that

But I do have to comment on what happened with respect to the

14

1459.

15

specifically instructed by counsel to answer how he did.

Sergeant -- or excuse me.

THE COURT:

16

Captain Bailey was

Well, there seems to be a dispute of fact

MR. MASTERSON:

Well, there may be a disputed fact on

the specific question that was asked, but I don't think there's

20

a disputed fact on whether Captain Bailey looked toward counsel

21

and was told no.

DS

19

IEN

THE COURT:

Oh, okay.

23

MR. MASTERSON:

24

THE COURT:

FR

25

15:02:25

about that.

18

22

15:01:58

I don't disagree with that, Judge.

13

17

15:01:45

testimony.

15:02:43

You're talking about that.

Yes.

Well, that was certainly Captain Bailey's


15:02:54

MR. MASTERSON:

1
2

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4763

And there's been nothing, no testimony

to controvert that.

I guess my point is we could debate -- maybe you

3
4

wouldn't debate -- but I could honestly debate whether that was

good advice.

these IDs subject to the Court's order?

cautious --

THE COURT:

8
9

Well, were

Certainly, the

When you say "the Court's order," you

MR. MASTERSON:
THE COURT:

11

THE COURT:

13

they seized?

Your February 12 order.

Again, I'm parsing words, but were

Were they seized from somebody?

THE COURT:

16

15:03:27

Yeah, okay.

MR. MASTERSON:

14

Yes.

-- opposed to my December order?

MR. MASTERSON:

12

that.

18

investigation because he did not want to go into investigating

19

whether or not they were seized.

20

you were just going to -- or that, I think, gives rise to the

21

inference that you were just going to conceal them, and you

22

were never going to determine whether or not these documents,

Chief Deputy Sheridan said he suspended the

And so that makes me think

DS

IEN

15:03:33

You know, here's part of my problem with

17

23

which are definitely responsive to my discovery order if we

24

want to parse words like you're doing now, but I think that's

25

your job and I'm not saying you're engaging in bad faith, we're

FR

15:03:11

talking about my February order as --

10

15

I think the testimony we heard was:

15:03:50

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4764

never going to determine that, unless their existence was

disclosed to the monitor.

And while we're there, I believe that the only

3
4

testimony was nobody ever bothered, with respect to the 500

Armendariz IDs, to determine whether or not they were seized,

and that troubles me.

the idea that -- I don't think it's contested -- that

Armendariz' violations of policy were all combined as to be

considered one violation of policy.

Especially when you combine that with

That concerns me, Mr. Masterson, and so I guess I

10
11

invite you to address all of that in conjunction with the 1459

12

IDs.

MR. MASTERSON:

13

Well, I understand the concern.

don't know what to tell you with respect to the 500, because I

15

don't know what you do.


THE COURT:

I don't know what you would do to --

suggested could be done is we'd run -- you could run the IDs

18

and determine if they showed up in the MCSO database.

19

they did show up, you could see in connection with what they

20

showed up.

21

as you suggest, found somewhere?

22

whether or not we have -- how many we have that involve members

FR

25

Was it an arrest?

DS

IEN
24

15:04:58

Well, I think one of the things that was

17

23

15:04:42

14

16

15:04:19

Was it a traffic stop?

And if

Was it,

15:05:16

And then we would know

of the plaintiff class.


But certainly I don't think it's disputed that the

1459, there are a considerable number that are -- at least have

15:05:37

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4765

Hispanic surnames, and I realize that's not a perfect

indicator; and I'm concerned that the items found in

Armendariz's home were found after he'd been an HSU officer,

and after there was testimony that Rafaelita Montoya dumped

things -- or arranged for him to take things from HSU offices

to his home.

that a very likely source for those identifications was HSU

operations, which include -- included street patrols.

interdiction patrols.

And that certainly suggests to me the inference

Street

So when Chief Deputy Sheridan testifies that he

10
11

suspended the investigation because he did not want to do this

12

very inquiry, it suggested that he suspended the investigation

13

so he would never have to turn those documents over, and that

14

concerns me.

MR. MASTERSON:

15
16

I don't think that's true.

I think

THE COURT:

15:06:31

Oh, I've just reread the testimony.

MR. MASTERSON:

18

Okay.

What he wanted to find out was

from counsel:

What's the story here with these IDs?

20

IDs -- would we have to turn these over in connection with the

21

Court's orders?

DS

19

Are these

15:06:45

What do we do here?

IEN

And the reason for his concern, I think he expressed,

23

is they're just coming off Armendariz.

24

61,000 man-hours.

25

given time --

FR

15:06:16

the testimony was he suspended --

17

22

15:05:58

They're coming off

They're coming off 50 detectives at any


15:07:05

THE COURT:

1
2

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Yeah, but interestingly enough, they never

investigated the identifications in Armendariz.


MR. MASTERSON:

Well, the point is, Judge, that's his

concern is:

Are we going to get the monitors all fired up over

nothing?

determine whether we go down that path.

Let me get some advice from counsel to

THE COURT:

Wasn't that interesting that he said he

himself was upset?

this might be significant and meaningful?

He himself was disturbed?

MR. MASTERSON:

10

THE COURT:

11

15:07:17

And he thought

Absolutely.

15:07:27

Doesn't that suggest that it's the sort

12

of -- the very sort of thing that has to be disclosed to the

13

monitor?

MR. MASTERSON:

14

Well, but it's also the very sort of

15

thing that should be discussed with counsel, and at that point

16

I think you're entitled to rely on counsel's advice.

17

I sure want my clients to rely on my advice.


Do I make mistakes?

18

THE COURT:

19

In fact,

Absolutely.

Well, let me ask you this, then:

If I

determine that if in fact I agree to the advice-of-counsel

21

defense, didn't counsel just advise Captain Bailey to lie to

22

the monitor?

IEN

DS

20

15:07:50

And doesn't the crime-fraud exception apply there

23

and cause me concern that it doesn't excuse Captain Bailey's

24

conduct, it does not excuse Chief Deputy Sheridan's conduct, it

25

does not excuse Ms. Iafrate's conduct, if it's true, does it?

FR

15:07:35

15:08:10

MR. MASTERSON:

1
2

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4767

words.

It depends upon what the question was.


THE COURT:

Well, here we're back to parsing

I don't think so, because -- even as

plaintiff suggests, even if my February order was not

applicable, my December order -- or my November 20th order, as

altered in December, is applicable, that requires the monitor

to be given complete access to all of those things.


MR. MASTERSON:

8
9

I still think it's reasonable for MCSO

to rely on advice of counsel in this particular situation.


THE COURT:

10

Okay.

I don't dispute, for what it's

15:08:54

11

worth, and I have had a lively discussion with you,

12

Mr. Masterson, I don't mean to suggest that I think that your

13

arguments are made in bad faith; I'm just testing you on them.

14

But I will tell you I'm very concerned, even if I buy

15

your February argument, about the December order.


MR. MASTERSON:

16

No, and I agree.

told you I share the Court's concern.

18

why a layperson, why a cop relies on what their lawyer tells

19

them to do.

THE COURT:

23

Even when the lawyer tells him to lie?

MR. MASTERSON:

Again, I disagree that he was told to

THE COURT:

I don't see any other way to see that.

24

mean, do you remember when he told me:

25

IA number doesn't exist, even if it's been suspended, when an

FR

15:09:27

lie.

IEN

22

But I also understand

I mean, that's what we get paid for.

DS

21

15:09:10

And I -- I think I

17

20

15:08:29

You can't say that an


15:09:40

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4768

IA number exists?

to be any dispute about that.


MR. MASTERSON:

3
4

And an IA number existed; there doesn't seem

Yeah, we had a little back and forth

about that, I remember.


THE COURT:

We did.

And so it may be that they didn't

ever even ask it in terms of an IA number.

they did, the IA number existed at that time, and

Captain Bailey gave an untruthful response to the question.

But even assuming

Now, it may be -- and I understand and hear what

9
10

you're saying -- that he has the defense that he was instructed

11

by his attorney to give that untruthful answer.

12

to me that that creates, if I believe it, it creates other

13

issues as well.

MR. MASTERSON:

14

my fellow counsel can have their opportunity.

16

much to say in conclusion.

17

enforcement --

THE COURT:

18

But it seems

I don't have

15:10:28

The Court's well aware that law

Let me ask one other question before you

wrap it up.

What possible basis, even accepting all of your

20

arguments with respect to the 1459 IDs, what possible basis did

21

Chief Deputy Sheridan have for going in front of the TV cameras

22

that night and saying:

DS

19

IEN

15:10:13

Judge, I'm going to wrap it up here so

15

15:10:50

None of this material was ever asked

23

from us?

24

hard drives, even if I accept all of your arguments about the

25

1459 IDs.

FR

15:09:51

That was clearly not true with respect to the 50

15:11:10

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4769

MR. MASTERSON:

All I can attribute that to is faulty

recollection at the time.

court all day on that day?


THE COURT:

I don't even remember:

Were we in

Oh, it -- no, but we were in court at the

end of the day because of the monitor's summary.

for about 45 minutes, and the monitor said:

concerns.

entered my order and you went over.

think it was about 3 o'clock, for about 45 minutes to an hour.

I got these

So it was about a -- I

Sometimes after court I say some

11

things that aren't very well considered, either, so that's

12

about all I have to tell you about that particular comment.

14

difficult profession and a dangerous profession.

15

suggesting to you that any of these guys are out on the streets

16

every day in bulletproof vests.

17

Sousa sometimes is.

18

THE COURT:

Now, I'm not

Well, and let me just say that I have a

20

came in and testified from the Maricopa County Sheriff's

21

Office.

DS

great amount of admiration for a number of the witnesses who

MR. MASTERSON:

IEN

15:12:04

Well, actually, Lieutenant

19

15:12:19

But what I'm trying to point out,

23

Judge, is that these gentlemen over here do supervise and lead

24

men and women who are out there every day enforcing the law and

25

doing that dangerous job for all of us.

FR

15:11:41

The Court recognizes that law enforcement's a

13

22

15:11:24

We've got the 1459, we've got the 50 hard drives, I

MR. MASTERSON:

10

It was just

And as a part of that

15:12:39

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4770

leadership, they have to lead by example.

And they have to

accept responsibility when they need to accept responsibility.


And here they have done that, Judge.

Both Chief

Sheridan and Sheriff Arpaio have told you that they accept the

responsibility for certain and specific violations of this

Court's orders, including the preliminary injunction.

think to lead by example they do accept that responsibility

with you and are not trying to get out of that responsibility.

And I

But more importantly, and why I even brought it up,

9
10

because I know it sounds a little hokey to start talking about

11

people in bulletproof vests out on the -- out on the streets.

12

But more importantly, to lead by example they have to follow

13

the law.

THE COURT:

14

And a part of following the law is

16

following court orders.

17

problems with that here.

18

with MCSO realizes that they owe it to those out on the streets

19

enforcing the law to follow the law themselves.

20

why, Judge, I can tell you that nobody in this room affiliated

21

with MCSO intentionally violated this Court's orders.

22

done.

THE COURT:

24

You know what?

15:13:47

As we all know, there were some

But everybody in this room affiliated

DS

IEN
23

FR

15:13:33

They do.

MR. MASTERSON:

15

25

15:13:07

And that's

15:14:14

And I'm

Thank you, Mr. Masterson.


I think we need to probably take a

break for the afternoon to give everybody a break, and we'll be

15:14:39

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4771

back at 3:30.

(Recess taken.)

THE COURT:

Please be seated.

Mr. Murdy.

4
5
6
7

MR. MURDY:

Good afternoon, Your Honor.

THE COURT:

Good afternoon.

MR. MURDY:

This morning when Mr. Young started,

15:37:05

during the course of the questioning you asked him:

What

should be done about Mr. Casey's credibility or his testimony?

10

And Mr. Young specifically indicated to you that the Court

11

should accept and believe Mr. Casey's testimony.

12

regard, I'd like to highlight some aspects of his testimony.

And in that

On direct examination, at page 1619, Mr. Casey

13
14

testified that Chief Sands was very cooperative at all times.


At 1633 he testified:

15

"... I think I shared this with

16

you during my deposition.

17

him" -- meaning Sousa -- "on it" -- meaning the 12-23-11

18

e-mail -- "as lieutenant of HSU.

19

during a telephone conference that I copy him so he gets it,

20

because HSU at the time was the proverbial tip of the spear.

21

They were the ones that were most likely to be in a position to

22

either comply or violate this, so we wanted to make sure that

24

FR

25

15:37:42

I normally would not have copied

I believe Brian suggested

DS

IEN
23

15:37:18

15:38:06

he got it right away."


That establishes that on the day your order came out,

Mr. Casey spoke with Chief Sands, Chief Sands directed him to

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4772

send it to Lieutenant Sousa, so the person involved at HSU that

had responsibility would have your order immediately.


Mr. Casey testified at page 1640:

"... he" -- again

meaning Sands -- "recognized the urgency on it, and it was

important that his people under Enforcement Support comply."


At 1642 Mr. Casey testified Chief Sands expressed

6
7

relief about the order because he did not want to turn people

over to the federal government.

On cross-examination, at page 1813 Mr. Casey was asked

9
10

the question:

11

Chief Sands, ever express any reluctance to comply with the

12

Court's preliminary injunction order?

"At any point in time did Mr. Sands,

"Answer:

13

Do you know, Mr. Murdy, that, I think -- I

15

think you're fairly characterizing what Mr. Casey's testimony

16

was: that Chief Sands was very cooperative with him and seemed

17

to agree with him on everything he told him.


But here's what I want to know:

18

20

Chief Sands had an understanding of this order that he got from

21

Mr. Casey, how is it that nobody ever gave Lieutenant Sousa a

22

correct understanding of the order?

IEN

DS

that Lieutenant Sousa had a misunderstanding of this order and

And maybe -- I don't know.

15:39:31

If the evidence is

19

15:39:48

That's just my question,

24

and maybe you don't agree with the premises, and that's fine,

25

just tell me.

FR

15:39:14

None."

THE COURT:

14

23

15:38:48

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4773

MR. MURDY:

I'll address it, Your Honor.

As the evidence shows, the exhibits, the e-mail

2
3

transmittals in December, January, February, and March,

starting with December 2011, Lieutenant Sousa directed

Sergeant Palmer to prepare scenarios, training scenarios, and

if I recall correctly --

7
8
9
10

THE COURT:

Actually, Sousa directed that, right?

MR. MURDY:

Yes, Lieutenant Sousa directed Palmer to

prepare the training scenarios, and he said:

Prepare some the

right way; prepare some the wrong way.

15:40:41

Sergeant Palmer prepared four scenarios, we know that;

11
12

and his direction was to prepare some the right way and the

13

wrong way.

14

scenario number 3 was wrong and there was an issue about that

15

that he eventually discussed with Sergeant Palmer.

And we know that Mr. Casey's testimony is that

15:40:57

So essentially what's taking place is

16

Lieutenant Sousa, Sergeant Palmer, and Casey are the ones that

18

are developing the training scenarios, trying to figure out

19

exactly what this order provides for, what they can and cannot

20

do.

15:41:18

THE COURT:

It would have been captain -- well, it

would have been Chief Sands' view that they couldn't hold -- I

IEN

22

DS

17

21

23

think this was his testimony, too.

24

not sure you were here then.

25

the testimony.

FR

15:40:25

Maybe I'm wrong.

And I'm

I promise you I'll try to review

But I think Chief Sands said it was his view,

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4774

even before the preliminary injunction entered, that the MCSO

could not detain people and turn them over to ICE.

have anything -- and, I mean, I think that seems to be

consistent with the memorandum filed by Mr. Casey even prior to

the preliminary injunction motion that he filed after multiple

conferences with Chief Sands.

MR. MURDY:

It doesn't

I looked at the memorandum yesterday, Your

Honor, and I don't know that it necessarily goes as far as you

indicated.

THE COURT:

10
11

Well, did you look at the oral argument

MR. MURDY:

I did not look at the oral argument

transcript, Your Honor.

14
15

THE COURT:

Okay.

MR. MURDY:

The memorandum indicates:

MCSO's

management is further instruct its deputies, particularly the

17

Human Smuggling Unit, on the law established by Arizona, and I

18

thought there was also a reference -- MCSO lacks and does not

19

have the authority to enforce civil violations of federal

20

immigration law.
THE COURT:

23
24

FR

25

15:42:23

15:42:43

Right.

And if you determine that you

can't hold somebody on state charges, then you have to release

IEN

22

DS

16

21

15:42:16

transcript, too?

12
13

15:41:58

them, don't you?


MR. MURDY:

That's correct.

But the fact of the

matter is when the training scenarios are being developed in

15:42:53

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4775

January, February, and March, Chief Sands is out of the loop at

that point in time.

that he doesn't know what's going on, but he's not on the

e-mails that are going back and forth.


THE COURT:

I don't want to say out of the loop in

Well, I guess I get that, but if it was

and if in fact training had already been provided to HSU about

the Arizona case, then isn't this just sort of supplemental

training to the same effect?

said that state authorities didn't have the ability to enforce

10

Because the Arizona case clearly

federal civil immigration law, did it not?


MR. MURDY:

11

15:43:28

That's my understanding, Your Honor.

And

12

it's, you know, further my understanding that

13

January-February-March time frame, Mr. Casey, Sergeant Palmer,

14

and Lieutenant Sousa are working on training scenarios.


THE COURT:

15
16

I know, but I'm asking about the training

MR. MURDY:

I don't know what training had taken

place.

I don't believe it's in the record with regard to this

19

evidentiary hearing on the contempt proceedings.

20

going on what Mr. Casey said in the supplemental briefing

21

memorandum filed in December of 2011.

DS

18

IEN

THE COURT:

Right.

I'm just

but he does indicate that such training had occurred, does he

24

not?

FR

MR. MURDY:

15:43:58

And that's what I'm going on, too,

23

25

15:43:43

about Arizona that had already taken place, apparently.

17

22

15:43:09

It does indicate that the training has

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4776

occurred.

2
3

THE COURT:

Okay.

MR. MURDY:

So clearly there's some misunderstanding

or misinterpretation of the Court's order in that

January-February-March time frame, and Chief Sands is not on

the e-mails after the first e-mail where Casey sends out the

order.

Now, you have -- also have testimony Maricopa County

8
9

Sheriff's Office is a law enforcement organization with a

10

command structure, and Chief Sands properly delegated, you

11

know, the in -- the requirement or the task of developing the

12

training scenarios to Lieutenant Sousa and Sergeant Palmer.

13

The testimony is that sergeant -- or, excuse me, lieutenant -THE COURT:

14

testimony that Sheriff Arpaio and Chief Sands were always on

16

them at HSU to increase the number of arrests of illegal

17

aliens?

18

training scenarios, and on the other he's saying, Let's

19

increase our operations and arrest illegal aliens.


What gives there?
MR. MURDY:

15:45:19

Well, I think you can have a proper arrest

if it's a violation of state criminal law.

IEN

22

That doesn't give

23

them the green light to violate the Court order.

24

you know, and everybody has testified -- Lieutenant Sousa,

25

Sergeant Palmer -- that Chief Sands never directed them to

FR

15:44:55

I mean, Chief Sands is on the one hand saying, Prepare

DS

21

15:44:40

What do I do about Lieutenant Sousa's

15

20

15:44:21

I don't --

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4777

violate the order; never directed them not to comply with the

order; that testimony is consistent.

You know, skipping forward to the trial in the summer

3
4

of 2012, you know, on July 24th there's testimony by the

sheriff with regard to the LEAR policy is still in effect.

That brings up an issue to Mr. Casey's attention with regard

to:

and Chief Sands communicate with the deputies that were

involved in that, explain to them:

10

What's going on?

Is there a violation of the order?

You can't do that.

15:46:00

He

And

then Mr. Segura's letter in October of 2012 raises the issue -THE COURT:

11

Let me ask:

Does Chief Sands ever testify

12

that he remembers talking about the deputies and talking to the

13

deputies involved in that?


MR. MURDY:

14

I don't recall that, Your Honor.

15

believe it was Mr. Casey that indicated that he and Chief Sands

16

spoke to the deputies.

17
18

20
21

23

FR

MR. MURDY:

I do not believe they were named by name,

THE COURT:

And what about Sheriff Arpaio?

Did they

15:46:51

speak to Sheriff Arpaio?


MR. MURDY:

Well, they did in October for sure, after

they received Mr. Segura's letter.

24
25

And did he indicate which deputies?

15:46:38

but it was the deputies that apparently had testified at trial.

IEN

22

THE COURT:

DS

19

15:46:21

they did?

THE COURT:

Does Chief Sands offer any testimony that


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4778

MR. MURDY:

It's my understanding that Chief Sands did

not have a recollection of that meeting, which, you know, is

not -- I think it's common human experience, you know, involved

with spouses, significant others, and family members, depending

upon what side of the equation you're on, that you can have

conversations that you flat-out don't recall.


THE COURT:

7
8

That's a pretty significant conversation,

though, isn't it?

MR. MURDY:

It would -- it's a significant

10

conversation, but I think, you know, common human experience is

11

you can have conversations that have significance that you

12

don't recall, and then when somebody parrots it back to you,

13

you're, like, Okay, that did in fact take place.

14
15
16

18

Did he say that?

MR. MURDY:

And we've had an item of evidence in this

to --

THE COURT:

213?

MR. MURDY:

213.

THE COURT:

This is the one that says:

DS

20

THE COURT:

Chief Sands

22

we've never done anything wrong?

IEN

tells me to send this out again and I'm doing it even though

23

MR. MURDY:

That's correct, Your Honor, that is --

24

THE COURT:

Wouldn't that be a little advertisement to

FR

15:47:44

It's an e-mail from Lieutenant Sousa

21

25

15:47:29

matter, I think it's Exhibit 213 --

17

19

15:47:19

Chief Sands that:

My gosh, Sousa thinks we haven't done

15:47:56

15:48:08

anything wrong.

Well, actually, Chief Sands was not copied

on that e-mail.

THE COURT:

4
5

We've been doing things wrong for months here.

MR. MURDY:

2
3

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4779

that.

Thank you for correcting me on

15:48:22

MR. MURDY:

Okay.

I think this e-mail is consistent with the

time frame with the Segura letter; Mr. Casey's letter back to

Mr. Segura; Mr. Casey's testimony that they met with the

sheriff.

Mr. Casey indicated that it was a heated discussion,

10

and that at a portion of the meeting Chief Sands stepped out of

11

the meeting.

Mr. Casey also indicated -- and I'll give you the

12
13

transcript cite.

14

Sands indicated to Casey that if the meeting, quote, doesn't go

15

right, close quote, he would resign.

16

also resign.

17
18

20
21

Casey indicated that he'd

THE COURT:

He didn't resign, did he?

MR. MURDY:

Well, he resigned about eight months

THE COURT:

That was after in fact the final

MR. MURDY:

That's correct, Your Honor.

know, in the pleading I filed this morning I cited a case.

24

think it's Institute of Cetacean Research --

FR

15:49:21

And, you

23

25

15:49:07

injunction had been entered, right?

IEN

22

later.

Mr. Casey, on direct examination at 1694:

DS

19

15:48:37

THE COURT:

Any reason why I should let you file that

15:49:38

pleading?

2
3
4

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4780

MR. MURDY:

Pardon me?

THE COURT:

Any reason why I should let you file that

pleading and not strike it.


MR. MURDY:

Yes, there is.

I will be happy to address

it.

I'd like to address it formally in writing.

know, we've had 1599-plus documents filed in this case.

filed this pleading this morning as sort of the bench

memorandum for the Court to support the oral argument.

10

contains nothing but cites to law.

11

cites to --

12
13
14
15
16

I think, you
I

It

It contains nothing but

THE COURT:

All right.

MR. MURDY:

-- the transcript.

THE COURT:

I'll allow you to file it.

Mr. Young,

I'll allow you to file a response within

18
19

MR. YOUNG:

Thank you, Your Honor.

THE COURT:

All right.

MR. MURDY:

In the Institute of Cetacean Research, the

Ninth Circuit specifically indicated -- I'll give you the

21

cite -- 774 F.3d at 958.

DS

20

IEN

THE COURT:

24

response to the motion as well.


MR. MURDY:

15:50:23

I was just indicating, of course,

Mr. Masterson, Mr. Popolizio, or Mr. Walker, you can file a

FR

15:50:15

The court concludes --

23

25

15:50:04

two weeks, all right?

17

22

15:49:45

At 774 F.3d at 958, the Court concluded

15:50:43

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4781

that under the circumstances, quote, "it would not be equitable

to hold" -- and they identified the person by name, but it was

Sea Shepherd's Administrative Director -- "in contempt," close

quote, as she, quote, "could only comply with the injunction by

resigning from her paid employment."

6
7

15:51:04

THE COURT:

Well, that's not the case here, right?

MR. MURDY:

It certainly could be.

If you're trying

to hold Chief Sands in contempt for failure to provide the

order to line troops, or failure to go against the sheriff's

10

policy, he's left in no position other than to resign his

11

employment.

THE COURT:

12

What testimony do I have -- I mean, I

13

might find it.

14

was the sheriff's policy to ignore the preliminary injunction?

What testimony do I have that suggests that it

MR. MURDY:

15

You know, I don't want to get into the

Clinton situation again, but I think we have testimony and

17

evidence that the policy of Maricopa County Sheriff's Office

18

was to detain people that were in the United States unlawfully

19

and transport them to ICE.

20

equates to a violation of this Court's order, but certainly

21

that's the --

DS

16

THE COURT:

IEN

22

15:51:41

I don't know that that necessarily

15:52:04

Well, it certainly does violate this

23

Court's order, doesn't it?

24

transporting to ICE that you don't have any basis to bring

25

state charges on, that violates the other order, doesn't it?

FR

15:51:24

If you have people that you're

15:52:26

1
2

Honor.

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4782

MR. MURDY:

That violates the Court's order, Your

THE COURT:

So are you telling me that the reason that

I shouldn't hold Chief Sands in contempt is because that was

the policy of Maricopa County Sheriff's Office and he knew it?


MR. MURDY:

There's certainly evidence to indicate

that there was a misunderstanding as to the scope of your

order, and that that was being conducted.


THE COURT:

9
10

does it?

11
12

And once he had --

Yeah, but that doesn't amount to a policy,

A misunderstanding doesn't equate to a policy.

MR. MURDY:

Well, if it's a misun- --

THE COURT:

If all you're saying is that there's a

13

misunderstanding, then there's no -- that doesn't amount to a

14

policy.

MR. MURDY:

15

Fair enough, Your Honor.

But if there was

a misunderstanding, I think that misunderstanding has its

17

genesis back in the winter of 2012 when Mr. Casey's working

18

with Lieutenant Sousa and Sergeant Palmer to develop the

19

training scenarios.

20

THE COURT:

DS

16

Well, it doesn't -- is there any evidence

22

the policy?

IEN

from which I can conclude that Chief Sands didn't understand

24

FR

25

15:52:55

15:53:07

Whatever --

21

23

15:52:37

15:53:20

Or didn't -- I'm sorry, didn't understand the

injunction.
I mean, it was his own testimony that he went to

Sheriff Arpaio and said:

We can't be doing this, consistent

15:53:33

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4783

with the injunction.

it.

MR. MURDY:

He knew.

He knew you couldn't be doing

Well, when it came out during the course

of the trial that they were still conducting the Lear policy,

it became evident, as I understand the testimony, to Mr. Casey

and Chief --

7
8
9

THE COURT:

Well, yeah, yeah --

MR. MURDY:

-- Sands that it's a violation.

THE COURT:

-- yeah, but -- but Chief Sands went to

10

Sheriff Arpaio right after the injunction entered, and he said:

11

You can't be doing this, and we need to tell everybody.

12

his testimony, and I think Sheriff Arpaio agreed, was that

13

Sheriff Arpaio said:

14

we're just going to tell HSU.

15

MR. MURDY:

No, we're not going to tell everybody;

Well, again, as I understand the

testimony, and I've got it in this memorandum I filed, is that

17

Mr. Casey testified that Chief Sands was very supportive of the

18

training, was very supportive of getting it out to the line

19

troops --

DS

THE COURT:

Then why didn't he say:

Oh, by the way,

you can't detain people if you don't have state charges and you

22

can't transfer them to ICE?

IEN

21

23
24

FR

25

MR. MURDY:

15:53:53

And

16

20

15:53:45

15:54:11

15:54:24

Would have been very simple.

I think that's the -- the training

scenarios were developed in that regard.


THE COURT:

Training scenarios were never issued.

15:54:40

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4784

This went for months.

there's evidence that nobody told Sousa that his understanding

of the policy was wrong, even though at some point you gotta

realize that it's wrong if you've been told what Casey says he

told Sands, and what Sands said he told Sheriff Arpaio, right?

6
7
8
9
10

MR. MURDY:

Correct.

THE COURT:

So what do I do with all that?

MR. MURDY:

I think you, you know, substantial

comply --

15:55:16

THE COURT:

Where do I find a good faith basis from

what Chief Sands did?

I'll tell you what's more interesting to me.

13
14

Chief Sands retired.

15

and also to remunerate those who have suffered because of the

16

violation.

17

Chief Sands now; he's retired.

Civil contempt is to compel compliance,

I don't really think I can compel compliance with

civil contempt to the extent that there may be some sort of

20

need to provide recompense to those who suffered because of the

21

order, so I'm not sure that civil contempt is out of the

22

question, but do you want to enter -- do you want to address

IEN

DS

19

24

FR

25

15:55:30

I do think there still may be a basis to find him in

18

23

15:54:59

compliance, or a good faith basis, or a good faith attempt to

11
12

Nobody ever apparently told even --

15:55:49

that issue?
MR. MURDY:

Absolutely, Your Honor.

I agree with you

that given the fact that Chief Sands is retired from the

15:56:04

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4785

Maricopa County Sheriff's Office, there's no civil course of

sanction that can be implied and we're looking potentially only

at a compensatory --

4
5
6
7

Right.

MR. MURDY:

-- damage award.

THE COURT:

But that still would justify a civil

MR. MURDY:

A civil contempt order in what regard?

THE COURT:

Because of the need to compensate the

victims here.

MR. MURDY:

11

15:56:30

It's my understanding that's -- in the

12

context of this hearing, that's your limitation is to provide a

13

civil contempt order awarding remedial damages to those persons

14

harmed by that order.

15
16
17

THE COURT:

I share that understanding.

MR. MURDY:

Okay.

THE COURT:

So I still could enter a civil contempt

order against Chief Sands if I find that he meets the standard

19

for civil contempt, even though there's really no coercive --

20

nothing I can do to coerce -- there's no reason to coerce his

21

compliance, given his retirement.

DS

18

MR. MURDY:

IEN

22
23

15:56:43

15:56:54

That's my understanding, based upon the

United States Supreme Court decision in Bagwell, Your Honor.

24

THE COURT:

All right.

25

MR. MURDY:

You know, getting to that issue, which

FR

15:56:18

contempt order, right?

10

THE COURT:

Thank you.
15:57:05

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4786

ties back into our motion for summary judgment, in the summer

of 2012, on July 24th when the sheriff testified, the

plaintiffs became aware that this LEAR policy was still in

effect.

Mr. Casey complaining of the violations.

recitation of the evidence today concerning the sheriff's

statements in the summer of 2012 with regard to he's going to

enforce the federal immigration law.

In October of 2012, Mr. Segura writes the letter to


And we heard the

So at that point in time, the plaintiffs knew or

9
10

should have known that that order was being violated.

11

they didn't file their request for order to show cause until

12

two years I think five months and 15 days, approximately, after

13

they learned of that.

And then

15

unreasonable delay -- and I'd to address the issue with regard

16

to statute of limitations on criminal contempt.

17

Mr. Young cited 18 U.S. 3282 in support of a five-year statute

18

of limitations.

19

briefly look at it on my phone.

20

provides for a one-year statute of limitations on --

23

I think

DS

18 U.S.C. 3285 I believe

15:58:27

What do I do about the fact that, as

Mr. Masterson pointed out, Mr. Casey denied that there had been
any violation?

24

MR. MURDY:

25

sanctions argument that if --

FR

15:58:03

Over the lunch hour I had an opportunity to

THE COURT:

IEN

22

15:57:44

So you've got a situation where there's an

14

21

15:57:25

I think that goes to the mitigation of


15:58:44

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4787

THE COURT:

1
2

It doesn't go to the mitigation of

sanctions argument; it goes to an accrual argument, doesn't it?


MR. MURDY:

Well, it certainly could, Your Honor.

But

the fact of the matter is Mr. Segura put in writing he thought

that there were violations.

plaintiffs and the plaintiffs class knew or should have known

of the potential violations, and they should have taken action.

They'd been involved in this litigation for years.


THE COURT:

And at that point in time, the

Let me ask you this as it pertain -- this

10

is one of the areas of my interest.

11

laches motion, you can't just talk about generalized loss of

12

evidence; you have to point to specific evidence that you have

13

lost as a result of the delay in order to get summary judgment

14

on laches.

16

Seems to me that to win a

I don't think you can point to any specific evidence,

15

MR. MURDY:

19

perhaps "replete" may be too strong of a word, but there's

20

certainly evidence of false -- not false, but faded memories,

21

lack of memory with regard to certain --

DS

believe the trial -- or the evidence during testimony is --

IEN

THE COURT:

does not get you summary judgment on a laches motion; you have

24

to point to specific evidence.


MR. MURDY:

15:59:46

That's precisely the kind of stuff that

23

FR

15:59:28

I cannot at this point in time, but I

18

25

15:59:11

can you, that would have benefited Chief Sands in the case?

17

22

15:58:57

Okay.

Well, the specific prejudice in

15:59:58

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4788

this regard is the fact that when the plaintiffs stood or sat

on their claim for over two years, if they would have brought

the issue to the forefront in the fall of 2012, something could

have been done, and additional plaintiffs or plaintiff class

members, potential class members, would not have been damaged.


So I believe that the cutoff date would be July 24th

6
7

of 2012, when they learned of the continuation of the

LEAR policy from Sheriff Arpaio's testimony.

pleading I indicated there's only approximately 53 people

10

And I think in my

between December 23rd, 2011, and July 24, 2012, that were --

11
12
13

THE COURT:

On street operations?

MR. MURDY:

Yes, I think it's in --

THE COURT:

Per Lieutenant Sousa's testimony that he

14

heard over the phone District 2 calling, and then we don't have

15

any work enforcement operations, correct?


MR. MURDY:

16

That's correct, there's no work

18

It's not in the record.

19

207 and 208, which address 2011 and 2012 time frame.

20

if you go into the 2013 time frame, there's additional people

21

that were detained and transported to ICE.

DS

enforcement operation evidence.

IEN

THE COURT:

23
24

FR

25

16:00:38

16:00:57

17

22

16:00:19

Plaintiffs didn't present it.

The only thing I know of is Exhibits

Instead,

16:01:13

What do I do about the argument that you

have to have clean hands in order to invoke laches?


MR. MURDY:

The clean hands is shown by the

conscientious efforts to get the training out; directing that

16:01:30

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4789

Tim Casey send the e-mail to Lieutenant Sousa; directing that

these training scenarios be developed; addressing the issue in

the fall of October 2012.

violated this order of his -- any of his own accord, so I think

he has clean hands.

There's no evidence that Chief Sands

16:01:53

You look at Tim Casey's testimony as outlined in the

6
7

memorandum, he's clear that Chief Sands is cooperative; wants

the training developed; he's relieved by your order; he doesn't

want to detain people; he doesn't want this to continue.

10

whatever reason, it continued.

11

Casey's testimony -THE COURT:

12
13

For

But I think if you take Tim

And Chief Sands was in charge of the HSU

until it became a division, right, and was --

14
15

MR. MURDY:

Well --

THE COURT:

-- folded into SID, and then was folded

16

into SID.

17

the -- when he was in charge of these things that my

18

preliminary injunction order was being violated.

I don't believe there's any evidence of

that, and I get back to the fact that MCSO's a law enforcement

21

organization with a command structure.

22

understand it, Chief Sands was in the chain of command with

IEN

DS

20

regard to HSU, but that doesn't necessarily equate to you know

24

everything that's going on in HSU.


THE COURT:

16:02:42

Certainly, as I

23

FR

16:02:22

And he was not aware during the whole 17 months that

MR. MURDY:

19

25

16:02:13

Well, the testimony also was that

16:02:58

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4790

Mr. Casey fully explained to him the arrest or release

instruction, correct?
MR. MURDY:

3
4

phraseology was used by Mr. Casey.


THE COURT:

5
6

And so he understood the preliminary

MR. MURDY:

I don't know that there's evidence in the

record that that was conveyed to Chief Sands in -THE COURT:

Well, there certainly is, because

10

Chief Sands went to Sheriff Arpaio and said:

11

them go.

12
13

MR. MURDY:

Well, that's in October of 2012.

THE COURT:

It isn't.

Mr. Murdy.

15

entered.

No, it isn't.

No, it isn't,

16:03:42

All right.

Well, if that's the case, Your

Honor, I will defer to your recollection, but I -THE COURT:

18

Well, you don't have to defer to my

recollection.

20

and I'll authorize you to file a brief saying:

21

But I will tell you that's most definitely my recollection that

22

it was Chief Sands' testimony that after the preliminary

IEN

DS

19

If you think I'm wrong, check out the record,

You're wrong.

23

injunction entered he went to Sheriff Arpaio and he said:

24

can't do this, and you can't do it in drop house raids.

25

Sheriff Arpaio said, Well, I think I can hold material

FR

16:03:29

That's right after the preliminary injunction order

MR. MURDY:

16

You gotta let

Remember that testimony?

14

17

16:03:18

injunction order.

7
8

It's my understanding that that

16:03:51

You
And
16:04:07

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4791

witnesses, but he said he otherwise agreed.

He testified to another meeting immediately after the

2
3

injunction where he said Sheriff Arpaio and Chief Deputy

Sheridan were there, and they discussed the nature and needs of

the injunction.

if I'm wrong, but my recollection is that's right after the

entry of the preliminary injunction.


MR. MURDY:

8
9

So, I mean, you can go back and look, tell me

I do recall the testimony concerning the

drop house, Your Honor, that there was testimony that that

10

could not be done.

11

you get back to a command structure situation, you've got

12

Chief Sands, Deputy Chief Sheridan, and the sheriff discussing

13

this issue, they're in consultation with their attorney, and

14

the direction from Chief Sands to ser -- or Lieutenant Sousa

15

and Sergeant Palmer is to prepare training scenarios, clear

16

them with the attorney, and get it out.

But the fact of the matter is, you know,

16:04:35

16:04:57

And Tim Casey's testimony is unequivocal that

17

Chief Sands was supportive of the training, was supportive of

19

the order, was relieved by the order, and did not want to turn

20

people over to the federal government.

21

have is a good faith attempt to comply with the order, and

22

that's supported by the evidence through and through.

IEN

DS

18

So I think what you

16:05:16

And I

23

think it's culminating in that testimony with regard to the

24

October 2012 meeting between Tim Casey, Chief Sands, and the

25

sheriff, where essentially Chief Sands testifies:

FR

16:04:21

If this

16:05:35

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4792

meeting doesn't go right I'm going to resign.

And we know coming out of that meeting that there was

2
3

representations made to Casey that they weren't doing it and

they weren't going do it, and if they had done it, it was a

mistake.

16:05:52

THE COURT:

And then for the next eight months they

continued to do it.

And they did it in an organization that

Chief Sands supervised, was in the direct line of supervision.

So how, if they weren't going to do it, if Sheriff

9
10

Arpaio said they weren't going to do it and Mr. Casey told that

11

to Chief Sands, who communicated to Jakowinicz:

12

any more?

13

October meeting, communicated to Jakowinicz:

14

more.

Don't do this

We've got no testimony that anybody, even after that


Don't do this any

Can you point to any testimony?

15
16
17

MR. MURDY:

I cannot, Your Honor.

THE COURT:

Wouldn't it have been Chief Sands'

obligation to tell Jakowinicz:


MR. MURDY:

18

16:06:33

Don't do this any more?

In the chain of command, the answer is

yes.

But you also have to take into consideration that there

20

was chain of command above Chief Sands, and there's no

21

testimony, as I understand it, that that direction or that

22

order was given to Lieutenant Jakowinicz.

IEN

DS

19

23

16:06:49

But I will say that there is testimony that when

24

Jakowinicz took over in I think it's March of 2012, Chief Sands

25

told him:

FR

16:06:11

Read the order.

Study the order.

16:07:08

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4793

1
2
3

THE COURT:

Yeah.

MR. MURDY:

So Jakowinicz knew about the order and had

been told by Chief Sands:


THE COURT:

Read it and study it.

Isn't it interesting, then, that in

October Chief Sands goes back to Lieutenant Sousa and he tells

Lieutenant Sousa -- who is no longer, and has not been for

months, in charge of the HSU -- he asked Lieutenant Sousa to

summarize and promulgate the order.

Lieutenant Sousa's understanding, for better or for worse, good

10

12

And as we've seen,

or bad faith, was wrong.


MR. MURDY:

11

16:07:44

Well, I think it's consistent that

Chief Sands would go back to Lieutenant Sousa.


THE COURT:

13

Why?

He's not in the command structure.

14

If he told Jakowinicz to study the order in April, why can't he

15

rely on him to understand it?

16

MR. MURDY:

16:07:57

Well, he should be able to, but I think

going back to Lieutenant Sousa goes back to Lieutenant Sousa

18

was originally tasked with the issue back in January, and as

19

far as Chief Sands was aware, you know, that's where it had

20

remained and had -- Lieutenant Sousa was back, you know -THE COURT:

Study this order.

23

Sousa had been -- was it SWAT? -- I think SWAT for the next six

24

or seven months, right?

FR

25

MR. MURDY:

16:08:18

It had remained with Lieutenant Sousa,

even though Chief Sands said to Jakowinicz:

IEN

22

DS

17

21

16:07:19

That's correct, Your Honor.

But I -- you

16:08:39

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4794

know, I think you -- the testimony from Chief Sands and from

Lieutenant Sousa is Lieutenant Sousa's a self-starter; he's a

goal-oriented individual; that he likes to complete tasks that

are assigned to him, especially when they're given to him by a

superior; he doesn't go back to the superior unless absolutely

necessary; and if there had been a problem, he would have gone

back to the superior.

So I think Chief Sands was entirely reasonable in

8
9
10

going back to Lieutenant Sousa and asking him to get this issue
resolved and get it taken care of.
THE COURT:

11
12

14
15

Even though Lieutenant Sousa had a wrong

MR. MURDY:

That is an issue, Your Honor.

THE COURT:

Okay.

MR. MURDY:

I won't go into detail with regard to

16

Sergeant Palmer's testimony, but he did indicate that after he

17

received the order he read it, he consulted with

18

Lieutenant Sousa with regard to it, and that he held a briefing

19

in HSU with all the deputies.

20

that January-February time frame to get your order out to the

21

HSU personnel, the HSU deputies, and continue with the

22

situation where they're understanding it, reading it, and

FR

25

16:09:34

So I think you have efforts in

DS

IEN
24

16:09:08

understanding.

13

23

16:08:54

16:09:53

attempting to comply.
THE COURT:

Bottom line, tell me everything that

Chief Sands did to communicate the meaning of the order, as he

16:10:11

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Argument - Murdy, 11/20/15 Evidentiary Hearing
4795

received it from Casey, to Sousa, to Palmer, to Trowbridge.


MR. MURDY:

I don't have any e-mail evidence that I

can point to that says Chief Sands conveyed an e-mail to those

individuals in that regard.


THE COURT:

And the only testimony that I have that I

can remember -- and I'm inviting you, please, don't let me

misstate the evidence -- the only testimony I have that I can

remember is Lieutenant Sousa's testimony that when he was sent

the order -- and maybe it was Chief Sands, too, and Casey --

10

that he was sent the order at Sands' direction by Casey; and

11

that Chief Sands just said:

12

injunction.

Read the order.

Don't violate the

That was it.

MR. MURDY:

14

I think the testimony, the reasonable

15

inference is that Lieutenant Sousa and Sergeant Palmer were to

16

work with Mr. Casey to develop the training scenarios.

17

that's clear from Sergeant Palmer's e-mail.

18
19

Okay.

That's helpful.

MR. MURDY:

Sergeant Palmer's e-mail.

know, I would emphasize this.


This is Exhibit 2540.

And

That's helpful.

And I -- you

Let me find it real quickly.

16:11:28

Sergeant Palmer's e-mail of

23

Lieutenant Sousa:

24

E-Learning segment based on Judge Snow's order.

25

this in accordance with my --"

FR

16:11:08

January 19th, 2012, so within 30 days of your order, to

IEN

22

THE COURT:

DS

21

16:10:51

Do I have any other testimony?

13

20

16:10:32

"Below is my rough construction of an


I constructed
16:12:13

THE COURT:

1
2

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Argument - Walker, 11/20/15 Evidentiary Hearing
4796

You know, let me just suggest, Mr. Murdy,

I know that exhibit.

3
4

MR. MURDY:

Right.

THE COURT:

You've spent now 36 of the 56 minutes,

leaving Mr. Walker 20.

that's okay with your allocation.

promise I'll shut up and let you finish whatever you have to

say.

MR. MURDY:

And that's all right with me as long as


But you might want to -- I

I would just like to emphasize this one

10

final point with regard to Sergeant Palmer's e-mail:

11

constructed this in accordance with the many conversations you

12

and I have had, as well as taking into account the information

13

conveyed to us both from Tim Casey concerning Judge Snow's

14

order."

16

introductory paragraph:

17

with patrol deputies as the focus."

THE COURT:

19

"Also note I created these scenarios

Mr. Walker.
MR. WALKER:

16:13:04

Thank you, Your Honor.

Before I start,

during the lunch break I communicated with plaintiffs' counsel,

IEN

22
23

and on our motion seeking judicial notice of the expenses,

24

copies of the monitor's invoices as we have them were supposed

25

to have been attached.

FR

16:12:50

Thank you, Mr. Murdy.

DS

21

16:12:35

Thank you, Your Honor.

18

20

"I

And the last paragraph, or the last sentence of that

15

16:12:21

They were inadvertently omitted.

16:13:36

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Argument - Walker, 11/20/15 Evidentiary Hearing
4797

Plaintiffs and plaintiff intervenor have stipulated

1
2

that we can submit these to the Court, but they have declined

to stipulate to the fact that they are evidence that the

invoices were actually paid, and have asked that we see if we

can find some documentation that confirms that the payment was

made.

THE COURT:

If you do that and you want to submit a

supplemental stipulation that all parties are agreed to, I'm

open to that.

MR. WALKER:

10
11

Thank you, Your Honor.

And I can hand up

THE COURT:

If you'll just file the invoices with the

evidence that indicates they're paid, I'd appreciate that.


MR. WALKER:

14

Thank you.

Your Honor, Maricopa County, whose limited powers are

15

exercised by the Board of Supervisors pursuant to A.R.S.

17

11-201, does not wish to excuse or condone any conduct that

18

amounted to failures to comply with this Court's orders.

19

record is devoid of any evidence that anyone on the Board of

20

Supervisors --

THE COURT:

The

16:15:06

I'd like to be clear, and I don't -- I

23

to make, but on the other hand, I do not want to be prejudicial

24

to the actual defendants that are here.

FR

25

16:14:31

don't want to prevent you from making whatever record you want

IEN

22

DS

16

21

16:14:18

a copy of the invoices or file them through ECF, whichever --

12
13

16:14:02

You are here, Maricopa County is here because it is

16:15:19

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Argument - Walker, 11/20/15 Evidentiary Hearing
4798

the jural entity that has to be sued.

I am aware of nothing

that suggests the Board of Supervisors or any other County

administrative officer was involved in any of the contempt --

allegedly contemptuous actions here.

So to the extent that you want to go through that

5
6

retinue, I'll let you, but it doesn't have any relevance to why

we're here, nor does it have any relevance to why you're here.

Because I do recognize that you're here because you are the

jural entity that has to be sued for MCSO's actions and Sheriff

10

Arpaio's actions, and that is why you are here.


MR. WALKER:

11
12

16:15:52

Thank you for that, Your Honor, and I

think that will shorten things a bit.

The one area that caused me concern -- and I think

13

Your Honor noted this at the time -- was Detective Vogel's

15

testimony that I thought at least left an implication that

16

perhaps employees of the Office of Enterprise Technology had

17

not been fully cooperative in the efforts to obtain information

18

from the e-mail from the disaster recovery tapes.

19

to draw the Court's attention to the fact that I filed earlier

20

this week a stipulation -THE COURT:


MR. WALKER:

IEN

22

DS

14

21

23

16:16:12

I just want

16:16:34

I've read your stipulation.


-- agreed to by all parties.

Now, the next point I'd like to address is as Your

24

Honor has observed, there is no evidence in this record of any

25

involvement in violations of the Court's orders by the

FR

16:15:36

16:16:51

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Argument - Walker, 11/20/15 Evidentiary Hearing
4799

employees of -- or members of the Board of Supervisors or

employees working under their direct supervision.

I'd just like to address, if there's any question in

3
4

the Court's mind, that there is also, according to United

States Supreme Court precedent, no basis on which liability for

any contemptuous conduct could be imputed to the County.


THE COURT:

I'm not sure that that squares with what

the Ninth Circuit has ordered, that Maricopa County has to be

the jural entity that is sued.

10

Circuit.

And I'm following the Ninth

16:17:47

MR. WALKER:

11

Okay.

Well, I'd just like to draw to the

12

Court's attention the Supreme Court decision in McMillian

13

versus Monroe County, Alabama.


THE COURT:

14
15

you not?

THE COURT:

17

MR. WALKER:

18

20

And you've already cited that to me, have

Yes, I have, Your Honor.

And I've already read it.


Okay.

Well, I would then also like to

bring to the Court's attention -THE COURT:

DS

19

That's 520 --

16:18:02

MR. WALKER:

16

Let me ask how that plays out here,

though.

22

do think that we have an issue that pertains to, if we can do

IEN

21

16:18:09

Is what you're telling me is -- I mean, truthfully, I

23

it, making victims of the contempt whole.

24

that the County is not liable for that, I want to hear it right

25

now.

FR

16:17:18

If you're telling me

16:18:29

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Argument - Walker, 11/20/15 Evidentiary Hearing
4800

MR. WALKER:

I am telling you that, Your Honor, but as

I indicated when we spoke about this last week, the County

views itself as being obligated, pursuant to Arizona statutes,

to provide funding for such purposes, and we continue in our

discussions with plaintiffs' counsel about a victims

compensation fund.

going to be able to present to the Court reasonably soon a

proposal on that, and so there's -- the distinction is between

liability versus financial responsibility pursuant to Arizona

10

statute.

And again, I'm still optimistic that we're

16:19:17

THE COURT:

11

16:18:57

Well, I want to know, really, what the

12

practical difference is.

I'm more interested in practical

13

differences than fine legal distinctions, although I'm also

14

interested in fine legal distinctions, too.

Tell me, is there any practical difference?

15

MR. WALKER:

16

16:19:28

The practical difference, I think, Your

Honor, with respect to victim compensation, is none.

18

distinction between liability and financial responsibility

19

becomes important, however, depending on whether the Court

20

determines that some additional injunctive relief is

21

appropriate.

The

Well, that is a likelihood.

23

MR. WALKER:

24

And if the County is not liable, then it could not be

FR

25

16:19:46

And --

THE COURT:

IEN

22

DS

17

And I understand that, Your Honor.

the subject of any such further injunctive relief.

16:20:06

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Argument - Walker, 11/20/15 Evidentiary Hearing
4801

THE COURT:

Tell me how the County is not liable if

it's the jural entity that has to be sued when Maricopa County

Sheriff's Office is sued.


MR. WALKER:

Well, first of all, Your Honor, I

think -- and we've covered this ground a little bit

previously -- you and I have a little different perspective on

what the meaning of the Ninth Circuit's decision is.

the Ninth Circuit -THE COURT:

MR. WALKER:

10

I think

I like mine.

I'm not surprised by that, Your Honor.

THE COURT:

12

It said that you're the jural entity that

has to be sued, didn't it?


MR. WALKER:

14

No, I don't think it actually says that.

15

I mean, there -- it follows in the wake of a decision that MCSO

16

is a non-jural entity, but I don't think that the court

17

actually specifically said -- and there is no dispute, by the

18

way, that the County is a jural entity -- but I don't think the

19

court actually said the County had to be sued.


THE COURT:

DS

20

So does that mean that Maricopa County

Sheriff's Office can just go around doing whatever it wants and

22

creates liability that nobody can get sued for?

IEN

21

23

MR. WALKER:

No, Your Honor.

16:20:55

16:21:13

As a matter of fact, I

24

think the sheriff and the constitutional office, not MCSO, the

25

bureaucratic entity, but the constitutional office of the

FR

16:20:35

The Ninth Circuit's decision ordered the County --

11

13

16:20:22

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Argument - Walker, 11/20/15 Evidentiary Hearing
4802

sheriff, is a jural entity and is subject to suit and has the

right to sue and --

THE COURT:

And the Ninth Circuit did say that's not

right, didn't they?

MR. WALKER:

THE COURT:

I'm sorry?

16:21:43

They said I could sue the sheriff in his

official capacity, which would be the same thing as suing

Maricopa County.

MR. WALKER:

THE COURT:

10

MR. WALKER:

11

Actually, the court said --

Not I could sue, but a party could sue.


Right.

Actually, I think the court said

12

it's the same thing as suing the entity.

13

I may have a different perspective is I would contend that the

14

entity is the constitutional office of the sheriff, not the

15

County in this situation.


THE COURT:

16
17

Where I think you and

MR. WALKER:
THE COURT:

19

Well, the County funds the constitutional

That is true.

And so if there's liability in the

constitutional office of the sheriff, the County has to fund

21

it.

DS

20

MR. WALKER:

IEN
23
24

FR

25

16:22:07

office of the sheriff, doesn't it?

18

22

16:21:52

16:22:15

As long as it's not willful misconduct, I

think that's true.


THE COURT:

What about the idea floated by the United

States here that maybe what has to happen is the County has to

16:22:26

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Argument - Walker, 11/20/15 Evidentiary Hearing
4803

be liable to set up an independent overseer board over the

Sheriff's Office, that that might be an appropriate remedy

here.

a solution?

Are you saying you're not a party to have me order such

MR. WALKER:

I would put it this way, Your Honor:

don't believe, under Arizona law, the County has the authority

to create such an entity.


THE COURT:

8
9

discussion, too.

Yeah, but, I mean, we've had this

To the extent it's necessary to protect the

10

constitutional rights of members of the plaintiff class, I have

11

the authority to order the County to do it, don't I?


MR. WALKER:

12
13

that --

THE COURT:

14
15

care.

17

Court --

THE COURT:

18

MR. WALKER:

19

21

THE COURT:

You can respectfully disagree; I don't

And I do respectfully disagree that this

Is that based on the McMillian case?

On McMillian and another case that I

All right.

of what we're getting at here.

IEN

22

Actually, Your Honor, I'm not sure

think I've probably cited to the Court before.

DS

20

16:23:24

But so that's really the gist


You're preserving an argument

23

that while you are liable for funding the Sheriff's Office, or

24

while you have to fund the Sheriff's Office, you don't have to

25

do anything independently to cure constitutional violations in

FR

16:22:59

16:23:13

MR. WALKER:

16

16:22:42

16:23:40

which the Sheriff's Office engages, is that -MR. WALKER:

2
3

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Argument - Walker, 11/20/15 Evidentiary Hearing
4804

Honor.

THE COURT:

MR. WALKER:

THE COURT:

I would put it a little differently, Your

Well --

By Arizona statute --

16:23:53

Well, Arizona statute does not -- I mean,

I don't want to say it doesn't concern me, but I'm not sure

that Arizona statutes trumps the constitutional rights of the

members of the plaintiffs' class.


MR. WALKER:

10

And I wouldn't contend that they do, Your

11

Honor, but my point is under Arizona law, the various

12

institutions of county government are assigned, carefully

13

delineated and circumscribed powers.

14

problem not just in terms of the collision of federal law and

15

state law, but under other aspects of the Constitution like the

16

Tenth Amendment, if this Court were to issue an order requiring

17

the County to do something beyond its lawful powers.


THE COURT:

18

And I think there is a

20

Arizona's as it pertains to rather unique allocations of

21

political responsibility at the county level, does it?

DS

But certainly Alabama does not have a system that is akin to

IEN

MR. WALKER:

16:24:50

There are differences, certainly, between

23

governmental structure in Alabama and in Arizona.

24

think four of the factors taken into consideration by the Court

25

in determining that the sheriff in that case was not acting on

FR

16:24:25

Well, we may take this up again later.

19

22

16:24:05

However, I

16:25:14

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Argument - Walker, 11/20/15 Evidentiary Hearing
4805

behalf of the County exists here as well.

authority of sheriffs are granted by state law under both

Arizona and Alabama statutes and constitutional provisions.


THE COURT:

And those are the

Well, I mean, I think to the extent that

you're going to start to argue that there's -- the sheriff did

something here that the County disapproves of, I don't think

I'm going to allow you to argue that at this point.

some future date, but I'm not going to -- I'm not going to

allow that kind of argument now, for reasons that I think you

10

I may at

understand even if you respectfully disagree.


MR. WALKER:

11

16:25:49

I do, I think, understand the thinking of

12

the Court, Your Honor.

13

remedial issues, and I did hear the Court earlier say that the

14

parties are going to have an opportunity to address those

15

matters in detail later on.


THE COURT:

16

MR. WALKER:

17

If I could just say a few words about

16:26:13

Um-hum.

But the point I would ask the Court to

bear in mind as it makes its findings of fact and conclusions

19

of law is that this case has already resulted in extraordinary

20

expense that has had to be borne by the taxpayers, and I know

21

from the Court's prior comments it's well aware of that.

22

are talking about, in the context of this contempt proceeding,

IEN

DS

18

23

the actions or failures to act on the parts of specific

24

individuals.

FR

25

THE COURT:

16:25:35

16:26:27

We

I appreciate that, and I don't mean to say

16:26:46

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Argument - Walker, 11/20/15 Evidentiary Hearing
4806

that it's irrelevant to me.

money that the County spends.

question of allocation for the County Board of Supervisors?

They can determine how much to fund Sheriff Arpaio, and how

much to fund the MCSO, and how to allocate County resources?


MR. WALKER:

It's not irrelevant, the amount of


But really, isn't that a

Actually, Your Honor, the Board of

Supervisors' discretion with respect to the sheriff's budget,

not just in this county but statewide, is fairly

circumscribed --

THE COURT:

10

12

By what?

MR. WALKER:

11

16:27:01

16:27:19

It's A.R.S. -- I want to say 11-440A.

It

might be --

THE COURT:

13

440A?

MR. WALKER:

14

THE COURT:

15

It might be 441A.

Okay.

MR. WALKER:

16

-- 444A.

But in any event, I think it is an issue

17

that the Court can and should take into account, because public

18

interest, of course, is a factor to be taken into account in

19

the fashioning of any equitable relief.

And again, I'm putting to one side the victims'

DS

20

compensation fund.

22

plate on that, and there's no dispute about the willingness of

IEN

21

16:27:53

The County is prepared to step up to the

23

the County to participate in the formulation of a reasonable

24

fund designed to compensate victims of any unconstitutional

25

violations of the Court's orders.

FR

16:27:31

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4807

But in terms of fashioning other relief, we would just

1
2

ask that the Court bear in mind the burden on the taxpayers,

and whether it's fair and equitable for that -- the burden to

fall to them for the conduct of specific individuals in this

instance.

16:28:36

THE COURT:

Well, we can discuss that if it becomes

relevant at a future date, but I appreciate your highlighting

your concern in that respect.

MR. WALKER:
THE COURT:

10

Oh, actually, yeah, you have four more minutes, and

then you have four minutes, Ms. Wang.


MR. MASTERSON:

15

MR. WALKER:

16

THE COURT:

THE COURT:
MR. WALKER:

IEN

22

MR. WALKER:

DS

21

23
24

FR

25

Thank you.

16:29:12

Your Honor, might I just ask a question?

monitor's bills, may we have two weeks for the other filing --

19
20

I do, Judge.

On the submission of the additional information on the

17
18

16:28:46

four more minutes.

13
14

All right.

Mr. Masterson, you have -- if you want to use them --

11
12

Thank you, Your Honor.

Yes.

-- to get that in?


You may.

16:29:54

You may.

Thank you, Your Honor.

MR. MASTERSON:

Your Honor, two things, and I'll start

with the May 14, 2014 order.


There has been evidence that the Court and the monitor

16:30:10

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4808

was dissatisfied, in fact, that -- the allegation being that

the MCSO, that specifically Chief Sheridan disregarded this

Court's order with respect to gathering of the audio/video

recordings, and disregarded the Court's instruction to work

with the monitor on that particular issue.

16:30:38

The only thing I want to point out, which I did not

6
7

point out in my first appearance up here, is the specific

language utilized by the Court during the hearing.

you reference in the order to show cause dated 2-12-15,

10

And Judge,

document 880, at page 23.

And why it interests me and I thought I should call it

11
12

to the attention of the Court, is that in one section you note

13

that you concluded -- and I'm quoting -- "I'm going to direct

14

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

15

that's your best thinking about how you can, without resulting

16

in any destruction of evidence, gather all the recordings, and

17

then based on what you find, and/or maybe beginning before you

18

can assess what you find, depending upon your thoughts, you

19

result in an appropriate and thorough investigation."

Now, on the same page in footnote 9, you again quote:

DS

20

"I will have my monitor work with you to develop a pro-if you

22

want" --

IEN

21

23
24

FR

25

16:30:59

16:31:23

16:31:43

I'm assuming you cut off "program" or "protocol" or

something like that; it says "pro."


-- "if you want his assistance," end quote.

16:32:07

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Argument - Masterson, 11/20/15 Evidentiary Hearing
4809

Then you say, quote:

"[D]o your best, and I mean your

level best, come up with a plan, review it with the monitor if

you will, if you need to, to recover all of that data."

My position is that what the Court was instructing

4
5

MCSO to do could be subject to interpretation there.

think, certainly, one interpretation is that the Court's

saying:

get the monitor's approval, and you develop a low-key, quiet

way to get this evidence and get it to the monitor and before

10

Look.

the Court.

Or --

16:32:50

Let me just ask you:

Are you withdrawing

12

your -- or are you attempting to withdraw your admission as it

13

pertains to Count 3?

MR. MASTERSON:

14

THE COURT:

15

THE COURT:

17
18

THE COURT:

on that issue.

Yes, sir.

Okay.

MR. MASTERSON:

IEN

22

I'm just --

So that's really if I'm going to consider

MR. MASTERSON:

DS

21

No, sir.

16:33:00

any criminal charge on that?

19
20

No, sir.

Okay.

MR. MASTERSON:

16

16:33:08

And that's all I wanted to bring out

The only other thing, it concerned me, I got to

23

thinking after I sat down, with respect to the 1459 IDs and the

24

Court's reference to Chief Sheridan, Chief Sheridan was not

25

involved in providing information to the monitors.

FR

16:32:30

You work with the monitor, make darn sure you

THE COURT:

11

Now, I

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Argument - Young, 11/20/15 Evidentiary Hearing
4810

THE COURT:

My concern is both his subsequent

testimony he gave to the monitors and his direction in the

first place to suspend, and the conversation that he testified

to -- and I'll review that carefully -- the conversation he

testified to that he testified he had with Bailey before the

monitor's visit.

sure I accept, but even if I accept -- and I appreciate the

good faith of your argument as to the February order -- I have

concerns about the December order and what Chief Sheridan did.

11

I have concerns -- even if I accept, I'm not

MR. MASTERSON:

10

Okay.

I only wanted to clarify with

THE COURT:

In other words, what you're telling me is

13

in that meeting, Chief Sheridan himself never said:

14

have these.

MR. MASTERSON:

15

THE COURT:

16

THE COURT:

23

That's my understanding.

Thank you very much, Judge.

Thank you.

DS

Oh, I'm sorry.


MR. YOUNG:

That's

Ms. Wang.

Mr. Young.

Your Honor, I promised Ms. Wang I will

say.

First with --

24

THE COURT:

Can you say those in two minutes?

25

MR. YOUNG:

I will try.

FR

16:34:27

share our four minutes with her, so I have six things I want to

IEN

22

Okay.

16:34:19

all I have.

19

21

We don't

Exactly.

Right.

MR. MASTERSON:

17

20

16:34:06

respect to the communications made to the monitor.

12

18

16:33:48

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Argument - Young, 11/20/15 Evidentiary Hearing
4811

With respect to Lieutenant Sousa, he did not take all

1
2

reasonable steps.

did not communicate, even with the people who work under him,

anything about the injunction.

MCSO didn't take that basic step of communicating it to

everyone; he didn't take that basic step with communicating it

to the people who worked under him.

10

He could have done that; the

16:34:56

Second, with respect to Chief Sheridan, there's a long

8
9

On pages 2602 and 2603 he testified that he

list of exhibits that make it clear that he was aware of the


injunction: 187, 2511, 2512, 2513, 2514.

16:35:14

Exhibit 2878 are the minutes of a Board of Supervisors

11
12

meeting where the injunction was discussed and which Chief

13

Sheridan attended.

We also have Chief MacIntyre saying that he did tell

14
15

Chief Sheridan about the injunction at the same meeting where

16

he told Sheriff Arpaio, and that's at page 1880, line 2, to

17

1881, line 8.

Third, with respect to the Casey letter in Exhibit

18

2514, Mr. Masterson said this shows good faith.

It actually

20

shows exactly the opposite, and it shows the unclean hands.

21

you look at page 1802 of the transcript, you'll see that

22

Mr. Casey says that he told Sheriff Arpaio if push came to

IEN

DS

19

If

23

shove and it goes before the Court, it's likely a violation.

24

Now, I did decide, after being talked to by Sheriff Arpaio, to

25

send this letter.

FR

16:35:32

He said that he thought it would be a good

16:35:54

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faith argument because it wasn't definitive.


But he says, at line 20 and 21:

Whether it would ever

prevail was what I told my client what I thought the odds of

were.

letter, the argument in this letter likely does not set forth a

winning argument.

intention; it shows unclean hands.

Mr. Casey

testified that Mr. Sands told them that the backup plan was

10

politically motivated.

11

not one six nine nine as I said before.

That's at page 1690, one six nine zero,

13

10, 2014 copy of the time line implicating the Court in this

14

bogus conspiracy.

15

telling the investigator, Mr. Zullo:

16

months after the January 2014 meeting.

17

investigators Zullo, Mackiewicz, and Anglin not to be doing any

18

investigation, so I think I disagree with Mr. Masterson's

19

semantic argument.

That's at 2963A.

That was Mr. Montgomery


Here it is.

That's nine

DS

Sixth, finally, on the statute of limitations issue

that Mr. Murdy mentioned, Mr. Murdy is incorrect on that.

22

one-year statute of limitations in 18 U.S.C. 3285 applies to

IEN

16:37:18

That's a long time for

21

18 U.S.C. 402, which is criminal contempt where the

24

contemptuous act also violates a criminal statute of the United

25

States or the state.

That's not the case here.

16:37:39

The

23

FR

16:36:55

Fifth, I have an exhibit number now on the September

12

20

16:36:34

So I think that shows bad faith; it shows

Fourth, I miscited a page earlier.

8
9

That is, he told Sheriff Arpaio at the time that this

In this case,

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the applicable contempt statute under the criminal laws is

18 U.S.C. 401, and to that statute there's a five-year

statutory limitation period set forth in 18 U.S.C. 3282.

And I'll yield the rest of my time to Ms. Wang.

5
6

THE COURT:

Ms. Wang.

MR. YOUNG:

Our time.

MS. WANG:

16:38:26

Thank you, Your Honor.

First in response

to Mr. Masterson on what the Court's order was on May 14, 2014,

the transcript of the hearing indicates not only what

10

Mr. Masterson cited from the order to show cause, but also that

11

at page 72, the Court ordered that no information will be

12

withheld from the monitor, and at pages 73, 94, and 96, that

13

any dispute with the monitor about the plan for gathering the

14

videos should be brought to the Court, and the sheriff agreed

15

to that at all of those same pages of the transcript.

16:39:00

Second, Your Honor, as to the Knapp IDs, the 1459 IDs,

16
17

Mr. Masterson argued that it was not clear that those IDs had

18

been seized within the meaning of the Court's February 2015

19

order.

20

want to point out that Chief Sheridan acknowledged that based

21

on his knowledge of how the property room works, items in the

22

property -- in the destruction bin would have been confiscated

IEN

DS

As I've already said, that is beside the point, but I

23

by a deputy.

24

that by July 17th, 2015, he knew that about 500 of the 1459 IDs

25

belonged to members of the plaintiff class.

FR

16:38:39

That's at page 1349.

16:39:22

And he also acknowledged

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On the advice of counsel issue, Your Honor, our

1
2

position is that first, it was not reasonable for counsel to

direct Bailey as she did; second, it also was not reasonable

for defendants to rely on that direction, for two reasons, Your

Honor.

16:40:02

First, under the Bush case in the Ninth Circuit,

6
7

626 F.3d 527, a party trying to rely on advice of counsel must

have given a full accounting of all relevant facts to counsel.

That did not happen here.

In fact, quite the opposite

10

happened, as Chief Sheridan directed the investigation to stop.

11

Second, Your Honor, under the Cheek decision, which is

12

a Seventh Circuit case, 3 F.3d 1057, a party seeking

13

endorsement from counsel of a planned course of conduct can't

14

rely on advice of counsel.

15

on this record demonstrate that under those two cases and

16

others that we could brief if the Court wishes, there is no

17

valid advice-of-counsel defense to what happened with the Knapp

18

IDs.

And I think the facts in this case

16:40:42

Finally, Your Honor, very briefly, Mr. Killebrew

19

mentioned the predetermination hearing process and the

21

grievance process, and Your Honor asked him whether that was an

22

issue of policy or simply a matter of individual outcomes here.

IEN

DS

20

23

We saw at least three outcomes where sustained findings were

24

overturned in those stages of grievance or predetermination

25

hearing, but in addition, it was a matter of policy.

FR

16:40:19

16:40:57

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There is no -- there is a regular practice that

1
2

written explanations are not given for decisions in the

grievance or predetermination hearing.

and 1237.

That's Sheridan at 1207

PSB is not involved in either of those stages of the

5
6

process and is not permitted to make any submissions, Bailey

3167 and 68.

There is no policy to prevent the principal in an

8
9

investigation from abusing the PDH process by deliberating

10

holding -- withholding evidence until the PDH so that the PSB

11

investigator cannot rebut that evidence, Bailey 3181 to 82.

13

designee to rescind or substitute discipline.

14

GC-17 policy at page 5.

That is in the

Bailey testified to that at 3234.

And finally, Your Honor, Chief Olson testified, quote,

15
16

"Our system has a lot of leeway in it," end quote, on how to

17

categorize violations in the discipline matrix, and I covered

18

that in discussing what happened in the Ruben -- sorry, in the

19

Sergeant Lawhorn case.

DS

And finally, aside from the predetermination hearing

and grievance process, the record shows that the PSB commander

22

can direct findings of not sustained.

IEN

21

and there was testimony as to that by Captain Bailey at 3842

24

and 43.

FR

THE COURT:

Thank you.

16:42:10

16:42:27

That was Exhibit 2068,

23

25

16:41:46

There is unbridled discretion in the sheriff or his

12

20

16:41:30

All right.

I have given you

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Melendres v. Arpaio, 11/20/15 Evidentiary Hearing
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all deadlines of two weeks from today to submit written

submissions.

nobody's going to be through fairly or easy, but nobody wants

to direct its efficient proceeding more than I do.

Nobody wants to be through with this -- or

But I have a lot of evidence, a lot of testimony.

5
6

What I've asked you to respond to will be helpful.

my findings out as soon as possible, and then I'll schedule

another hearing in which parties can discuss remedies if any

are appropriate.

11

to proceed?

THE COURT:

13

Yes, Your Honor.

You want to find a microphone, please,

Mr. Eisenberg?

MR. EISENBERG:

15

Yes, sir.

16:43:44

Your Honor, will that two-week period also be the

16
17

time frame in which specially appearing counsel can file their

18

memoranda with respect to criminal referral?


THE COURT:

19

You may do that if you wish.

As I've

indicated, and I'm not sure you were here, Mr. Eisenberg,

21

Mr. McDonald and Mr. Stein wish to be heard after the remedies

22

are discussed.

IEN

DS

20

16:44:05

You can wait till that time if you wish.

23

Mr. Birnbaum did not wish to wait that long and so he filed his

24

memorandum.

25

argument.

FR

16:43:32

Yes.

MR. EISENBERG:

12

14

I will get

Does anybody have any questions about how we are going

10

16:43:19

I assume he did that in lieu of request for oral


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If you wish to do that, you can file it at any time,

1
2

but as I indicated to him, and as I've indicated to

Mr. McDonald and Mr. Stein, you get one shot.


MR. EISENBERG:

Oh, I'll take one shot, Your Honor,

but I'll wait for the Court to make its findings of fact.

I assume that, from what you just said, that will come before

the two-week period in which we have -- or in which -THE COURT:

Oh, no.

MR. EISENBERG:

THE COURT:

10

Oh, be afterwards.

You have two weeks from today.

this is really the parties.

12

list of questions on Wednesday afternoon.


MR. EISENBERG:
THE COURT:

14

And I'm --

I saw them, Your Honor.

I don't know whether you were with us

yesterday, but most parties were, when we discussed the fact

16

Mr. Masterson said a good faith attempt to respond to those

17

inquiries would really set us off.

18

two weeks to file in writing whatever he wants in response to

19

those written questions.

Not just him, all parties.

DS

So the parties have two weeks to respond to my

questions before I -- because I'm not going to get the findings

22

of fact done within two weeks, clearly.

IEN

16:44:59

And I agreed, so I gave him

21

16:45:17

But the nature of

23

those questions, really, was to help me to organize, marshal,

24

and understand some of the exhibits in the case.

25

some benefit in that regard as well as some of the testimony

FR

16:44:46

I filed, as you may be aware, a

15

20

16:44:33

No, no, no, no, no.

11

13

And

I've received
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today from the arguments of counsel, but that was -- that was

what that was for.

Does that clarify matters for you at all?

MR. EISENBERG:

I guess the bottom line, then, for

myself, is that at some point in time, the Court will issue its

findings of fact with respect to civil contempt.


THE COURT:

That's correct.

MR. EISENBERG:

And then, after that, I would be

allowed to make whatever submission I would want concerning -THE COURT:

10

You may after that if you wish.

11

also do it before that if you wish.

12

but you only get one submission.

13

MR. EISENBERG:

You may

Well, I'm going to wait for the

Court's findings of fact because I think it will help channel

15

my thinking into what I would say with respect to a criminal

16

referral pertaining to Lieutenant Sousa.


THE COURT:

17

THE COURT:

19

MR. WALKER:

23

16:46:30

Not a question, Your Honor, but the

A.R.S. Section --

24

THE COURT:

25

MR. WALKER:

FR

Any other questions by anybody?

statutory cite that I didn't have off the top of my head is

IEN

22

Thank you.

Mr. Walker.

DS

21

16:46:21

All right.

MR. EISENBERG:

18

16:46:09

Mr. Birnbaum's done it,

14

20

16:45:51

Give me just a second, will you?


Sure.

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THE COURT:

MR. WALKER:

THE COURT:

8
9
10
11
12
13
14
15
16
17
18

IEN

DS

19

22
23
24

FR

25

All right.

Thank you.

Have a nice

(Proceedings recessed at 4:47 p.m.)

21

It's A.R.S. Section 11-444A.

Thanksgiving.

20

Go ahead.

I'll see you when I see you.

4
5

All right.

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C E R T I F I C A T E

2
3
4
5
6

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

7
8

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

10
11

a full, true, and accurate transcript of all of that portion of

12

the proceedings contained herein, had in the above-entitled

13

cause on the date specified therein, and that said transcript

14

was prepared under my direction and control.

15
16

DATED at Phoenix, Arizona, this 23rd day of November,

17
18

2015.

20
21

IEN

22

DS

19

23
24

FR

25

s/Gary Moll