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Case 2:07-cv-02513-GMS Document 1892 Filed 11/22/16 Page 1 of 9

1 1 Robert J. Moossy, Jr.
Deputy Assistant Attorney General
2 2 Steven H. Rosenbaum (NY Bar No. 1901958)
3 3 Timothy D. Mygatt (DC Bar No. 1021564)
Jennifer L. Mondino (NY Bar No. 4141636)
4 4 Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
5 5
Cynthia Coe (DC Bar No. 438792)
6 6 Maureen Johnston (WA Bar No. 50037)
U.S. Department of Justice, Civil Rights Division
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Special Litigation Section
8 8 601 D St. NW, Suite 5200
Washington, D.C. 20004
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Attorneys for the United States
1010
1111 IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
1212
1313 Manuel de Jesus Ortega Melendres, on No. 2:07-cv-02513-GMS
1414 behalf of himself and all others similarly
situated; et al. UNITED STATES’
1515 Plaintiffs, OPPOSITION TO
1616 EMERGENCY MOTION TO
and SUSPEND PROCEEDINGS
1717
PENDING RESOLUTION OF
1818 United States of America MOVANTS’ MOTION FOR
Plaintiff-Intervenor, RECUSAL OF THE COURT
1919
2020 v.

2121 Joseph M. Arpaio, in his official capacity as
2222 Sheriff of Maricopa County, AZ; et al.
Defendants.
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Case 2:07-cv-02513-GMS Document 1892 Filed 11/22/16 Page 2 of 9

INTRODUCTION
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2 This emergency motion is Movants’ latest attempt to escape the watchful eye of
3 the Court and avoid consequences for MCSO’s years of non-compliance. This time,
4 Movants seek an emergency stay on the theory that the Court granted a stay for their prior
5 recusal motion under 28 U.S.C. § 144, so the Court should grant a stay for the current
6 recusal motion under 28 U.S.C. § 455. Section 144 provides for a mandatory stay;
7 Section 455 does not. The Court’s handling of Movants’ prior recusal motion does not
8 create a precedent, and the Court need not grant a stay this time just because it was
9 required to grant a stay last time.
10 Nor have Movants carried their heavy burden of establishing the necessity of an
11 emergency stay. To do so, Movants must demonstrate that they are likely to succeed on
12 the merits of their recusal motion, but they have failed to do so – their motion is time-
13 barred, mischaracterizes the communications between the Court and Monitor, and reflects
14 a fundamental misunderstanding of the law. Moreover, Movants have not demonstrated
15 any irreparable injury if the Court and Monitor continue to ensure compliance through
16 active oversight because Movants have promised the Court that they will continue to
17 comply. Indeed, the fact that Movants delayed years in bringing their recusal motion
18 shows that they did not believe they were suffering any injury from the Court’s and
19 Monitor’s oversight, let alone irreparable injury.
20 The last two factors that determine whether a Court should grant a stay – injury to
21 other parties and the public interest – demonstrate why MCSO cannot be allowed a single
22 day away from the close supervision of the Court and Monitor. MCSO has been out of
23 compliance for years, a culture of racially-biased policing persists agency-wide, and
24 community members are suffering harm at the hands of MCSO deputies. This Court
25 should not stand down based on Movants’ frivolous, tardy recusal motion and trust that
26 MCSO will comply with the permanent injunction when it never has before. Movants
27 should stop their on-going campaign of resistance to the authority of the Court and put
28 their energies into fixing the problems that still plague MCSO from the top down.

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1 The motion for an emergency stay should be denied.
2 ARGUMENT
3 I. MOVANTS RECEIVED AN AUTOMATIC STAY FOR THEIR FIRST
RECUSAL MOTION BUT ARE NOT ENTITLED TO A STAY FOR THEIR
4 SECOND RECUSAL MOTION.
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Movants unsuccessfully sought recusal of this Court in 2015. See Motion for
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Recusal or Disqualification of District Court Judge G. Murray Snow (“First Recusal
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Motion”) (Dkt. 1117), May 22, 2015. The First Recusal Motion was based on both 28
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U.S.C. § 144 and 28 U.S.C. § 455.
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Movants argue that the Court should stay proceedings during the pendency of their
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current recusal motion (which is based only on Section 455) because the Court stayed
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proceedings in response to their First Recusal Motion. See Emergency Motion to
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Suspend Proceedings Pending Resolution of Movants’ Motion for Recusal of the Court
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and its Monitor (“Emergency Motion”) at 2, (Dkt. 1879), November 11, 2016 (“This
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Court has previously ruled that proceedings before the Court should be stayed while the
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Court evaluates the merits of the recusal motion.”).
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This case is in a different procedural posture than when Movants filed their First
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Recusal Motion. 28 U.S.C. § 144 contains procedures for recusal motions that do not
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apply to recusal motions brought under Section 455, including an express requirement
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that the judge faced with a Section 144 motion stay the proceedings:
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Whenever a party to any proceeding in a district court makes and files a
21 timely and sufficient affidavit that the judge before whom the matter is
22 pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but
23 another judge shall be assigned to hear such proceeding.
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28 U.S.C.A. § 144 (emphasis added). A party may move for recusal under Section 144
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only once per case. Id. (“A party may file only one such affidavit in any case.”)
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It appears that the reason the Court stayed further proceedings in response to the
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First Recusal Motion was because Section 144 required it. Movants are precluded from
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1 invoking Section 144 this time, so their current recusal motion must rest on Section 455
2 only. If Movants are to obtain an emergency stay, Movants will have to establish their
3 entitlement to it apart from the automatic stay of Section 144.
4 II. A STAY WOULD NEEDLESSLY DISRUPT OVERSIGHT OF MCSO’S
INADEQUATE REFORM EFFORTS.
5
6 Movants pledge that they will “continue their thorough and diligent efforts to
7 comply in full with this Court’s injunction,” but ask that the Court and Monitor “suspend
8 their activities during the pendency of the recusal motion.” Emergency Motion at 2.
9 The Monitor is instrumental in assessing and reporting on MCSO’s reforms and
10 helping the parties work together, and staying the Monitor’s work would be a significant
11 set-back. The Monitor is currently providing technical assistance to MCSO, directing
12 policy revision, and assisting with development of training curriculum. The Monitor has
13 developed a policy review protocol that the parties are following, which will streamline
14 the on-going review of internal affairs policies. The Monitor received a large number of
15 documents from MCSO in response to document requests at the October 2016 site visit,
16 and the Monitoring team is gearing up for the next site visit in mid-January 2017. As the
17 Court observed at the November 10, 2016, status conference, the Court and Monitor are
18 more deeply immersed in compliance activity than when Movants filed their First
19 Recusal Motion. Transcript of November 10, 2016 hearing (“Tr.”) at 16, Exhibit B to
20 Emergency Motion. Movants have provided no compelling reason to disrupt the
21 productive activities of the Monitor team and leave the parties without Court supervision.
22 A cessation of Court and Monitor supervision would derail the reform effort and
23 put MCSO even farther off course than it already is. MCSO’s efforts to comply with the
24 permanent injunction have been neither “thorough” nor “diligent;” instead, reform is
25 proceeding at a glacial pace. In the three years since the permanent injunction, MCSO
26 has never exceeded 44% Phase Two compliance. Ninth Report, Independent Monitor for
27 the Maricopa County Sheriff’s Office, (Dkt. 1858), October 28, 2016. The main reason
28 for this is Movants’ longstanding resistance to the permanent injunction. If MCSO is

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1 ever to achieve compliance, it will need the uninterrupted oversight and assistance of the
2 Court and Monitor team, not a stay pending resolution of a frivolous recusal motion. 1
3 III. MOVANTS HAVE NOT CARRIED THEIR BURDEN TO
DEMONSTRATE ENTITLEMENT TO AN EMERGENCY STAY.
4
5 To obtain an emergency stay, Movants must make a showing of “a clear case of
6 hardship or inequity in being required to go forward.” Landis v. N. Am. Co., 299 U.S.
7 248, 255 (1936). The four-factor equitable stay standard is: “(1) whether the stay
8 applicant has made a strong showing that he is likely to succeed on the merits; (2)
9 whether the applicant will be irreparably injured absent a stay; (3) whether issuance of
10 the stay will substantially injure the other parties interested in the proceeding; and (4)
11 where the public interest lies.” Golden Gate Rest. Ass'n v. City & Cty. of San Francisco,
12 512 F.3d 1112, 1115 (9th Cir. 2008).
13 Movants cannot demonstrate a likelihood of success on the merits on their current
14 recusal motion. See Sheriff Arpaio, Chief Deputy Sheridan, and Lieutenant Sousa’s
15 Motion for Recusal of the Court and Its Monitor (“Second Recusal Motion”) (Dkt. 1854),
16 October 26, 2016. The Second Recusal Motion is untimely because Movants have
17 known for years that the Court was communicating with its Monitor about MCSO’s
18 compliance -- the Court repeatedly advised the parties of this in open court. See, e.g.
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Movants cite cases from other circuits where parties sought mandamus to address the
21 district court’s conduct during the pre-judgment phase of litigation. See Emergency
Motion at 3. Those cases are not controlling in the Ninth Circuit, and neither case
22 involved a district court’s ability to monitor compliance with its own post-trial orders.
23 In re Kensington Int’l Ltd., 353 F.3d 211, 216 (3d Cir. 2003) (mandamus concerning
conflicts of interest involving the court’s expert consultants); In re Martinez-Catala,
24 129 F.3d 213, 217 (1st Cir. 1997) (district court allegedly told one party how it would
25 rule on summary judgment). Neither case compels this Court to stay oversight of
compliance with its orders, especially given the Court’s inherent authority to oversee
26 compliance with injunctive relief. See generally Craters & Freighters v. Daisychain
Enterprises, No. C 09-04531 CW, 2014 WL 2153924, at *1 (N.D. Cal. May 22, 2014)
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(“A district court has the inherent authority to enforce compliance with its orders
28 . . .)”.

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1 Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 872 (9th Cir. 1991) (recusal motion
2 untimely based on six weeks of delay). The strategic purpose of the Second Recusal
3 Motion is apparent given that Movants’ request for cessation of monitoring is consistent
4 with their pattern of delay and resistance to monitoring. See, e.g. United States v. Arant,
5 No. C07-0509RSL, 2007 WL 3348443, at *1 (W.D. Wash. Nov. 9, 2007) (“The losing
6 party often disagrees with the judge's ruling but cannot use the recusal process for a
7 strategic purpose or to ‘judge shop.’”). The Second Recusal Motion also fails on the
8 merits because it is appropriate for a court to supervise and communicate with its duly-
9 appointed compliance monitor. See, e.g. Cobell v. Norton, 237 F. Supp. 2d 71, 89 (D.C.
10 2003) (“It is not only appropriate but necessary for the Court, as principal, to consult with
11 its agents regarding the manner in which they are carrying out their assigned duties.”)
12 The recusal motion lacks merit and does not justify a stay of compliance oversight. 2
13 Nor can the Movants show irreparable injury from continued oversight of their
14 compliance with the lawful orders of this Court. Movants knew the Court was
15 communicating with the Monitor, yet Movants waited years to challenge those
16 communications. Had Movants genuinely believed they were at risk of irreparable harm,
17 they would have filed their recusal motion long ago. See Ruckelshaus v. Monsanto Co.,
18 463 U.S. 1315, 1318 (1983) (when a party delayed seven weeks in seeking a stay, the
19 “failure to act with greater dispatch tends to blunt [the party’s] claim of urgency and
20 counsels against the grant of a stay.”).
21 Far from causing irreparable injury, MCSO recently suggested that the Monitor’s
22 involvement has benefitted MCSO. During the November 10, 2016, status conference,
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24 Movants cite the Court’s statement during the November 10, 2016, status conference
25 as evidence of “improper ex parte communication,” calling it “anathema in our system
of justice.” Emergency Motion at 4. The Court’s statement – that the Monitor told the
26 Court he was working with the parties to devise a workable EIS schedule – was
administrative and therefore proper. The United States will elaborate on the
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deficiencies in Movants’ Second Recusal Motion in its opposition brief, which is due
28 on December 16, 2016.

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1 counsel for MCSO stated that “technical assistance meetings occurred this very week
2 [between] certain of the monitors and MCSO personnel,” and “[w]e’re moving forward
3 with this with the monitor’s assistance.” Tr. at 27-8. MCSO cannot claim on the one
4 hand that the Monitor’s involvement is helpful while also citing the Monitor’s
5 involvement as the source of irreparable harm.
6 The final two prongs of the four-factor test (injury to other parties and the public
7 interest) also weigh heavily against Movants. This Court issued a preliminary injunction
8 on December 23, 2011, finding that MCSO had engaged in discriminatory policing and
9 violated the rights of the plaintiff class. The parties are approaching the five-year
10 anniversary of that decision, and MCSO is still engaging in discriminatory policing and
11 violating the rights of the plaintiff class. In the words of this Court, compliance deadlines
12 in the permanent injunction have been “egregiously blown.” Tr. at 12. See Addington v.
13 U.S. Airline Pilots Ass'n, No. CV 08-1633-PHX-NVW, 2009 WL 899647, at *2 (D. Ariz.
14 Mar. 26, 2009) (denying a stay where it would “effectively foreclose the possibility of a
15 timely resolution of this case, a case where effective relief depends upon timing.”). In
16 light of their willful defiance of Court orders and pattern of bad faith, the request for an
17 emergency stay so that Movants can continue to violate the rights of the plaintiff class
18 away from the oversight of the Court and Monitor is quite bold.
19 The plaintiff class has waited for relief long enough. This Court should deny the
20 motion for an emergency stay.
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1 Respectfully submitted this 22nd day of November, 2016.
2
Robert J. Moossy, Jr.
3 Deputy Assistant Attorney General
4 Civil Rights Division

5 Steven H. Rosenbaum
Chief, Special Litigation Section
6
7 Timothy D. Mygatt
Deputy Chief
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9 /s/ Cynthia Coe
Jennifer L. Mondino (NY Bar No. 4141636)
10
Paul Killebrew (LA Bar No. 32176)
11 Matthew J. Donnelly (IL Bar No. 6281308)
Cynthia Coe (DC Bar No. 438792)
12
Maureen Johnston (WA Bar No. 50037)
13 Trial Attorneys
U.S. Department of Justice
14
Civil Rights Division
15 Special Litigation Section
601 D St. NW
16 Washington, D.C. 20004
17 Tel. (202) 353-1121
cynthia.coe@usdoj.gov
18
ATTORNEYS FOR THE UNITED STATES
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1
2 CERTIFICATE OF SERVICE
3 I certify that on or about November 22, 2016, I filed the foregoing through the
4 Court’s CM/ECF system which will serve a true and correct copy of the filing on
5 counsel of record.
6 /s/ Cynthia Coe

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