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Case 2:07-cv-02513-GMS Document 1686 Filed 05/27/16 Page 1 of 6

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

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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

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Plaintiffs,

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No. 07-cv-02513-PHX-GMS

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

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MEMORANDUM RE REMEDIAL
PHASE PER THE COURT’S MAY 13,
2016 ORDER (DOC. 1677)
(Hon. G. Murray Snow)

Defendants.

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Retired Chief Brian Sands hereby submits his brief on the limited matters the Court

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has invited the parties to address in its May 13, 2016 Findings of Fact and Order Setting a

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Hearing for May 31, 2016 (Doc. 1677) and May 19, 2016 Order (Doc. 1682).

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I.

CHIEF SANDS REQUESTS TIME TO DISCUSS POTENTIAL REMEDIES
WITH THE OTHER PARTIES

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Chief Sands’s counsel has been informed that Maricopa County has been
negotiating the method for remedying aggrieved Plaintiffs for violations of the Court’s
preliminary injunction. Chief Sands has not been included in those negotiations. The need
to be included was not previously apparent, since Maricopa County had not challenged its
duty to defend and indemnify him. Last Friday, however, the County notified Chief Sands
that it may disavow financial responsibility for the compensatory relief awarded in these
proceedings.

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The letter from the County notes that, “[i]n several of the court’s findings, Judge

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Snow concluded that the acts he had found to have been contemptuous had been willful

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and/or intentional.”1 It goes on to state that “[i]t is at least arguable that, under controlling

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Arizona law, willful and/or intentional contemptuous conduct is not within the ‘scope of

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employment or authority’ of County officials and employees.” The letter also presents

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some of the caselaw on whether Arizona counties can be held financially responsible for

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the tortious acts of sheriffs and their deputies. Finally, it advises that, “to the extent Judge

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Snow imposes measures in Melendres designed to remedy willful and/or intention

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violations of the court’s orders, the issues described above may require the County to take

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the position that it cannot be found liable for the financial consequences of such remedies.”

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Last Friday, Chief Sands counsel requested a telephone conference with the

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County’s counsel about its discussions concerning remedies, but received no response.2

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Upon learning of the existence of a document reflecting the negotiations regarding

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compensation, Chief Sands counsel requested a copy and asked to be included in future

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negotiations.3 Plaintiffs’ counsel responded, requesting the County’s permission to share

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the document.4 Chief Sands counsel has not received a response or the document

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reflecting the negotiations about remedies. Chief Sands is thus unable to comment on the

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remedial proposals discussed amongst the other parties to these proceedings. So he

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respectfully requests that the Court permit him sufficient time to discuss remedies with the

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other parties.

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Letter from Richard Walker to Michele Iafrate, David Eisenberg, Andrew Melvin
McDonald, Jr., John Masterson, Joseph Popolizio, M. Craig Murdy, and Barry Mitchell,
dated May 20, 2016 (Exhibit 1).
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Email from Dane Dodd to Richard Walker, dated May 20, 2016 (Exhibit 2).

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Email from Dane Dodd to Richard Walker, Michele Iafrate, and Stanley Young, dated May 23,
2016 (Exhibit 3).
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Email from Stanley Young to Richard Walker, Michele Iafrate, and Dane Dodd, dated May 23,
2016 (Exhibit 4).

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II.

CLASS CERTIFICATION
One matter that it seems important to address is the issue of class certification. No

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class has yet been certified as to the preliminary injunction violations. In its preliminary

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injunction Order, the Court certified the following Plaintiff class: “All Latino persons who,

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since January, 2007, have been or will be in the future, stopped, detained, questioned or

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searched by MCSO agents while driving or sitting in a vehicle on a public roadway or

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parking area in Maricopa County, Arizona.” (Doc. 494.)

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The Plaintiff class, however, was only certified under Federal Rule of Civil

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Procedure 23(b)(2). (See Doc. 494 at 34-35.) Rule 23(b)(2) only concerns injunctive or

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declaratory relief:

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(b) Types of Class Actions. A class action may be maintained if Rule 23(a)
is satisfied and if:
....
(2) the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting
the class as a whole; . . . .

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Fed. R. Civ. P. 23(b)(2) (emphasis added). Yet Plaintiffs seek monetary damages. A class

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would thus need to be certified under a different subpart of Rule 23.

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Certifying a class under a different subpart of Rule 23 not only requires proof of

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different elements, but it also alters the procedures that must be completed as a result. For

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example, certification under Rule 23(b)(3) requires that common issues of law and fact

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predominate, and that a class action is superior to other available methods for fairly and

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efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3); Walters v. Reno, 145

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F.3d 1032, 1047 (9th Cir. 1988). Additionally, Rule 23 has different notice requirements

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for classes certified under 23(b)(2) as it does for those certified under 23(b)(3):

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(2) Notice.

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(A) For (b)(1) or (b)(2) Classes. For any class certified under Rule
23(b)(1) or (b)(2), the court may direct appropriate notice to the
class.

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(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3),
the court must direct to class members the best notice that is
practicable under the circumstances, including individual notice to
all members who can be identified through reasonable effort. The
notice must clearly and concisely state in plain, easily understood
language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an
attorney if the member so desires;
(v) that the court will exclude from the class any member who
requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under
Rule 23(c)(3).

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Fed. R. Civ. P. 23(c)(2). Chief Sands thus proposes that a schedule for briefing class
certification be set.
III.

REMEDIAL PLAN
Chief Sands proposes setting a schedule for the parties to develop a plan for

compensating members of the Plaintiff class. Some of the issues that will need to be
addressed will be:
1. The content and method of distribution of class notices;
2. Who will be appointed to administer claims and what will be the plan and
procedure for administering such claims;
3. Deadlines to issue notices, for class members to opt out, for class members to
submit claim forms, and for the completion of other important tasks;
4. Whether the class needs to be separated into subclasses for purposes of
compensation;
5. Who will serve as representative(s) for the class or subclasses;
6. The amount of damages the members of the class or subclasses should receive;
and
7. Other issues the parties can set forth more fully in a settlement plan.

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To the extent the parties cannot reach agreement on these matters, a magistrate judge could

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be assigned to resolve disputes. If an agreement is reached, then the next step would be to

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hold a fairness hearing on the proposed settlement.

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The Court has indicated that other remedial steps must be taken to address

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deficiencies in MCSO’s policies and procedures and the manner in which its current

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officials’ implement and apply them, particularly in regards to its internal investigations.

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It might make sense to address these remedial aspects separately from the compensatory

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damages aspect. While a magistrate judge might be the most appropriate to resolve

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disputes concerning Plaintiff compensation, remedial measures concerning MCSO’s

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policies and procedures are probably best addressed by the Court. The Court’s extensive

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familiarity with the internal operations of the MCSO and the fact that it is already

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overseeing MCSO’s compliance with its rulings in the underlying Melendres case suggest

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that the Court should have greater oversight of the remedies concerning MCSO’s policies,

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procedures, and the way in which they are implemented and applied by its current officials.

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This aspect of the case also raises the question of whether failures within the MCSO have

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hindered the Court’s ability to grant appropriate relief. For example, the Court noted in its

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findings how MCSO’s deficient disciplinary course and IA investigatory processes

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demonstrate “Defendants’ ongoing, unfair, and inequitable treatment of members of the

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Plaintiff class.” (Doc. 1677 at 156, ¶ 887). However, these aspects of the remedial phase

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do not seem to involve Chief Sands, since he retired from the MCSO nearly three years

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ago. Chief Sands thus believes his input and involvement in this aspect of the remedial

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phase of the case would not be necessary.

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CONCLUSION
Chief Sands first requests he be allotted sufficient time to confer with the other

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parties about remedies, because he has not been privy to the other parties’ negotiations

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about remedies. Second, he proposes the matter of class certification be addressed and the

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Court issue a schedule for briefing the matter. Third, Chief Sands proposes addressing the

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Plaintiffs’ compensation and injunctive relief separately. The parties can develop a plan

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for compensation, and a magistrate judge can be assigned to resolve disputes. Relief of an

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injunctive nature – concerning MCSO’s policies, procedures, and disciplinary processes –

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can be addressed separately, as the Court will likely be needed to rule on the disputed

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issues that arise as to these remedies.

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RESPECTFULLY SUBMITTED this 27th day of May, 2016.

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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By: /s/Dane A. Dodd
M. Craig Murdy
Dane A. Dodd
Attorneys for Retired Chief Brian Sands

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CERTIFICATE OF SERVICE

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I hereby certify that on May 27, 2016, I electronically transmitted the foregoing
MEMORANDUM RE REMEDIAL PHASE PER THE COURT’S MAY 13, 2016
ORDER (DOC. 1677) to the Clerk’s office using the Court’s CM/ECF System, and
thereby served all counsel of record in this matter.

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/s/Kathleen Biondolillo

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