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Case 2:07-cv-02513-GMS Document 2008 Filed 04/13/17 Page 1 of 20

1 T.E. Wheeler, II
Acting Assistant Attorney General
2 Steven H. Rosenbaum (NY Bar No. 1901958)
3 Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
4 Cynthia Coe (DC Bar No. 438792)
Maureen Johnston (WA Bar No. 50037)
5
U.S. Department of Justice, Civil Rights Division
6 Special Litigation Section
601 D St. NW, Suite 5200
7
Washington, D.C. 20004
8
Attorneys for the United States
9
IN THE UNITED STATES DISTRICT COURT FOR THE
10 DISTRICT OF ARIZONA
11
12 Manuel de Jesus Ortega Melendres, on No. 2:07-cv-02513-GMS
behalf of himself and all others similarly
13 situated; et al.
14
Plaintiffs, UNITED STATES’
15 STATEMENT ON STANDING
16 and OF FORMER SHERIFF
ARPAIO, FORMER CHIEF
17 United States of America DEPUTY SHERIDAN, AND
18 LIEUTENANT SOUSA
Plaintiff-Intervenor,
19
v.
20
21 Paul Penzone, in his official capacity as
Sheriff of Maricopa County, AZ; et al.
22
23 Defendants.
24
25
26
27
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Case 2:07-cv-02513-GMS Document 2008 Filed 04/13/17 Page 2 of 20

1 STATEMENT OF THE UNITED STATES
2
The United States files this responsive memorandum pursuant to this Court’s
3
invitation at its status conference of March 2, 2017, to assist the Court in determining
4
whether former Sheriff Arpaio, former Chief Deputy Sheridan, and Lieutenant Sousa
5
(collectively, the “Non-Party Contemnors”) have standing to pursue their November 10,
6
2016 Motion for Recusal of the Court and Its Monitor (Doc. 1878); and their Motion for
7
Leave to File Motion for Discovery of Ex Parte Communications Between the Court and
8
the Monitor (Doc 1884). The Non-Party Contemnors are not parties to the case and are
9
not personally responsible for enforcing the Court’s orders. That responsibility falls to
10
the MCSO as an institution. This Court should find that the Non-Party Contemnors do
11
not possess standing to obtain the relief they seek from the Court and dismiss the
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motions for Recusal and Discovery on that basis.
13
BACKGROUND
14
On May 13, 2016, after a 21-day evidentiary hearing, this Court issued Findings of
15
Fact concerning three different charges of contempt raised against former Sheriff Arpaio
16
and various other alleged non-party contemnors, including former Chief Deputy Sheridan
17
and Lieutenant Sousa. (Doc. 1677, as amended by Doc. 1746.) The Court found that the
18
contemnors engaged in “multiple acts of misconduct, dishonesty, and bad faith with
19
respect to the Plaintiff class and the protection of its rights.” (Id. at 3.) The Court found
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Arpaio in civil contempt for the three counts outlined in the Court’s February 12, 2015
21
Order to Show Cause (Doc. 880): Count One, failing to implement the Court’s
22
preliminary injunction; Count Two, violating discovery obligations; and Count Three,
23
acting in derogation of this Court’s May 14, 2014 order to quietly recover video-
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recordings of traffic stops that had never been disclosed to Plaintiffs. (Findings of Fact,
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Doc. 1677 at 3.) The Court found Sheridan in civil contempt on Counts One and Three.
26
(Id.) The Court found Sousa in civil contempt on Count One. (Id.) The Court also found
27
that certain MCSO internal affairs investigations conducted into misconduct related to the
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1 Plaintiff class were insufficient, invalid, or void because they were completed using
2 “unacceptable internal affairs practices” or were conducted in a “cursory and bad faith”
3 manner. (See, e.g., id. at ¶¶ 489, 572, 692.)
4 However, the Court found there was “no need to use the Court’s contempt power
5 to coerce Defendants to comply” because Plaintiffs did “not assert that Defendants
6 remain in violation of the Court’s preliminary injunction.” (Id. at ¶ 878.)
7 This Court ordered remedies to address the violations described in the Findings of
8 Fact in two ways. First, on August 19, 2016, the Court issued an order setting forth a
9 plan to compensate victims of the contempt found under Count 1—individuals MCSO
10 detained in violation of the Court’s preliminary injunction. (Doc. 1791.) Second, on
11 August 26, 2016, the Court entered the Second Supplemental Injunction to remedy the
12 failures of policy, training, and supervision that led to the violations identified in the
13 Findings of Fact. (Second Amended Second Supplemental Permanent Injunction/
14 Judgment Order, Doc. 1765, amending Doc. 1760.) The Court created the positions of
15 the Independent Investigator and the Independent Disciplinary Authority to address
16 certain deficient internal affairs investigations. (Id. at ¶¶ 294-337.) The Court vested the
17 Independent Investigator and the Independent Disciplinary Authority with the power to
18 decide whether the deficient investigations warranted re-investigation, and whether
19 discipline was appropriate. (Id. at ¶¶ 296, 304, 322, 325, 334.) The Court also vested
20 authority in the Monitor to oversee and/or conduct future investigations into misconduct
21 that involved members of the Plaintiff class. (Id. at ¶¶ 274-293.)
22 On August 19, 2016, the Court also referred Arpaio, Sheridan, Captain Bailey, and
23 Michele Iafrate to “another Judge of this Court . . . for a determination of whether [they]
24 should be held in criminal contempt.” (Order Re Criminal Contempt, Doc. 1792 at 1.)
25 The federal district court to which the matter was referred signed an Order to Show
26 Cause on October 25, 2016, as to whether Arpaio should be held in criminal contempt for
27 willful disobedience of this Court’s preliminary injunction. See United States v. Arpaio,
28 No. 2:16-CR-01012-1-SRB (D. Ariz. Oct. 25, 2016) (Doc. 36). On December 13, 2016,

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1 that Court dismissed Sheridan, Bailey, and Iafrate from the criminal contempt
2 proceedings and issued an order stating that the criminal case would proceed against
3 Defendant Arpaio only for those allegations of criminal contempt in the Order to Show
4 Cause. Id. (Doc. 60 at 4).
5 On November 10, 2016, the Non-Party Contemnors filed a motion to
6 prospectively recuse this Court and its Monitor. They also filed a separate motion for
7 leave to seek discovery into allegedly improper past communications between the Court
8 and the Monitor. They asserted that this information would inform them whether prior
9 court orders should be vacated. (Docs. 1878, 1884.)
10 In January 2017, Sheriff Penzone became the Sheriff of Maricopa County, and this
11 Court substituted him as the defendant on January 13, 2017. (Doc. 1923.) Sheriff
12 Penzone filed a notice on March 10, 2017 stating that he will not assert or pursue any
13 portions of the recusal and discovery motions filed by the Non-Party Contemnors. (Doc.
14 1977.) On March 23, 2017 the Non-Party Contemnors filed a brief asserting that they
15 have standing to pursue these motions. (Doc. 1987.)
16 ARGUMENT
17 Article III demands that an “actual controversy” persist throughout all stages of a
18 case. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013); see also Arizonans for
19 Official English v. Arizona, 520 U.S. 43, 64 (1997) (holding that standing “must be met
20 by persons seeking appellate review, just as it must be met by persons appearing in courts
21 in the first instance”). Evaluating the standing of litigants throughout the course of a case
22 serves the interest of ensuring that Article III standing not be “placed in the hands of
23 ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value
24 interests.’” Diamond v. Charles, 476 U.S. 54, 62 (1986) (internal citations omitted).
25 Arpaio, Sheridan, and Sousa are not parties to this case and not personally
26 responsible for enforcing this Court’s orders. The question now before the Court is
27 whether they have demonstrated a sufficient personal or tangible stake in A) the
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1 prospective recusal of the Court and the Monitor; and B) obtaining discovery in search of
2 evidence to invalidate past court orders.
3 Standing has three requirements. First, litigants must demonstrate that they
4 suffered a concrete and particularized injury. Lujan v. Defenders of Wildlife, 504 U.S.
5 555, 560 (1992). Second, the claimed injury must be one that “fairly can be traced to the
6 challenged action . . . and not injury that results from the independent action of some
7 third party not before the court.” Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26,
8 41-42 (1976). Third, litigants must demonstrate that their injuries are likely to be
9 redressed by a favorable judicial decision. Warth v. Selden, 422 U.S. 490, 505-06 (1975).
10 There must be a substantial likelihood that victory in the suit would provide the relief or
11 benefit sought. Simon, 426 U.S. at 45.
12 What is sufficient to establish standing also depends on what relief is sought.
13 Where litigants seek injunctive or prospective relief, they must also show that that they
14 are in “immediate[ ] danger of sustaining some direct injury” and demonstrate that such
15 injury is neither “conjectural” nor “hypothetical.” See Los Angeles v. Lyons, 461 U.S. 95,
16 102 (1983).
17 Here, the Non-Party Contemnors assert standing both for the prospective recusal
18 of this Court and the Monitor and for discovery into past allegedly improper
19 communications between the Court and the Monitor. (Doc. 1987 at 7, 10.) Because each
20 of the Non-Party Contemnors asserts overlapping but distinct arguments for their
21 standing for each motion, the following sections will examine each Non-Party
22 Contemnor’s arguments for each motion. Section A discusses their arguments for
23 standing to seek the prospective recusal of the Court and the Monitor. Section B
24 discusses their arguments for standing to seek discovery.
25
26
27
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1 A. Sheridan and Sousa Lack Standing to Seek Prospective Recusal of the
2 Court and the Monitor1
3 Sheridan and Sousa argue that they already are, or may become, the subjects of
4 MCSO internal affairs investigations overseen by the Court and the Monitor, and that
5 “the judicial officers who are investigating and threatening to punish them are
6 disqualified under the recusal statute.”2 (Doc. 1987 at 7.) But they cannot establish
7 standing to seek prospective recusal because they cannot show that they are in immediate
8 danger of future harm resulting from the Court’s ongoing supervision of this case.
9 1. Sheridan and Sousa lack standing to object to possible future internal
10 affairs investigations conducted by the Monitor
11 Sheridan and Sousa first claim that the Monitor might investigate them in the
12 future and that those investigations “could result in sanction by the Court and even in the
13 initiation of a criminal prosecution.” (Id. at 7.) But for Article III purposes, there is no
14 injury, and no immediate danger of future harm, where it is, at best, speculative that the
15 Monitor will ever investigate Sheridan and Sousa.
16 The Monitor’s authority to oversee future MCSO internal investigations is limited
17 to complaints or misconduct that relate to members of the Plaintiff class, designated as
18 “Class Remedial Matters.” (Second Amended Second Supplemental Injunction, Doc.
19 1765, ¶¶ 274-293.) The Court granted this authority to the Monitor in light of the
20 “finding that the MCSO, and in particular Sheriff Arpaio and Chief Deputy Sheridan,
21
22
1
Former Sheriff Arpaio does not assert standing to seek the prospective recusal of the
23 Court and the Monitor.
24 2
The Non-Party Contemnors argue that Bond v. United States, 564 U.S. 211 (2011)
25 and United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) support their argument in
favor of standing. But Bond and McIntosh involve criminal defendants raising
26 challenges to the jurisdiction of the tribunals that would try and sentence them, if
27 convicted. Their injury—potential imprisonment—was unquestioned. Those cases are
inapposite here because Arpaio, Sheridan, and Sousa are not parties to this case, and
28 this Court will not convict and sentence them for criminal charges.

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1 willfully and systematically manipulated, misapplied, and subverted MCSO’s employee
2 disciplinary policies and internal affairs processes to avoid imposing appropriate
3 discipline on MCSO deputies and command staff for their violations of MCSO policies
4 with respect to members of the Plaintiff class.” (Id. at ¶ 274.)
5 Sheridan, however, no longer works for MCSO and is no longer subject to the
6 agency’s disciplinary authority. (See, e.g., Doc. 1973 at Tr. 18:4-8.) Therefore, he
7 cannot establish injury at all. He is at no risk of becoming the target of a Monitor-led
8 investigation concerning his future conduct, and is thus not “immediately in danger of
9 sustaining some direct injury,” as he would need to be to establish standing for
10 prospective relief. See Lyons, 461 U.S. at 102.
11 While Sousa remains an MCSO employee and subject to agency discipline, the
12 chance that the Monitor might in the future investigate him is speculative, and largely
13 dependent upon his own actions. Sousa is currently on leave. (See Doc. 1973 at Tr.
14 61:11-13.) For the Monitor to investigate him in the future, Sousa would first have to
15 return to duty at MCSO, and then become involved in an incident of misconduct
16 involving a member of the Plaintiff class. MCSO would then have to commence an
17 internal investigation into the misconduct, and the Monitor would have to oversee the
18 investigation as a Class Remedial Matter. Finally, the Monitor would have to sustain the
19 complaint and impose discipline.
20 In these circumstances, the risk of future harm is extremely speculative and does
21 not support prospective relief. Indeed, this potential injury is the same potential injury
22 that could be claimed by any other MCSO employee. See Lyons, 461 U.S. at 102-03; see
23 also Lujan, 504 U.S. at 565 n.2 (“It has been stretched beyond the breaking point when,
24 as here, the plaintiff alleges only an injury at some indefinite future time, and the acts
25 necessary to make the injury happen are at least partly within the plaintiff’s own control.
26 In such circumstances we have insisted that the injury proceed with a high degree of
27 immediacy, so as to reduce the possibility of deciding a case in which no injury would
28 have occurred at all.”).

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1 2. Sheridan and Sousa lack standing to object to internal affairs
2 investigations conducted by the Independent Investigator and
3 adjudicated by the Independent Disciplinary Authority
4 Sheridan and Sousa next claim that they are entitled to the prospective recusal of
5 the Court and the Monitor because the Court and the Monitor are involved in overseeing
6 and directing the reinvestigations of certain past acts of misconduct identified in the
7 Court’s Findings of Fact. They claim that these reinvestigations could result in discipline
8 for Sousa and potential Court sanction of Sheridan, action by Arizona Peace Officer
9 Standards and Training (AZPOST), and reputational harm. (Doc. 1987 at 4, 5, 7.) For the
10 reasons that follow, Sheridan’s and Sousa’s claims fail to establish standing.
11 a. Sheridan cannot make out a claim of future harm because he
12 is no longer an MCSO employee
13 Sheridan fails to establish injuries that are “actual” or “imminent.” In fact, it is not
14 clear what injuries Sheridan seeks to establish at all. He cannot plausibly claim that any
15 reinvestigation could result in discipline against him, as he no longer works at MCSO.
16 His claim is that a reinvestigation “could potentially result in sanction by the Court,”
17 (Doc. 1987 at 7), is similarly speculative, as the Second Supplemental Injunction does not
18 provide for such actions by the Court. Such bald assertions that the Court could sanction
19 him are far from the actual or imminent injuries necessary to establish standing.
20 b. Any potential injury to Sousa is not fairly traceable to the
21 Court and the Monitor, nor redressable by their recusal
22 While Sousa, unlike Sheridan, remains an MCSO employee, he cannot show that
23 the Court and the Monitor exercise any authority over the potential reinvestigations into
24 his past misconduct. Any discipline imposed as a result of those reinvestigations would
25 not be “fairly traceable” to the involvement of the Court and the Monitor, nor would be
26 redressed by their recusal.
27
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1 i. Recusal of the Court would not redress the alleged future
2 harms because the Court lacks a substantial role in the
3 reinvestigations
4 Sousa cannot show that any potential injury to him is fairly traceable to the
5 Court’s role in the reinvestigations, and likely to be redressed by the Court’s recusal. The
6 chance that the Court would become involved in the reinvestigations is quite remote. The
7 Court created the positions of the Independent Investigator and the Independent
8 Disciplinary Authority to stand in the shoes of MCSO itself to conduct adequate
9 investigations where necessary to remedy the widespread misconduct described in the
10 Court’s Findings of Fact. The Court has not preordained the outcome of any
11 reinvestigations or even prescribed that any particular reinvestigations be undertaken at
12 all. Instead, the Court delegated this authority to the Independent Investigator and the
13 Independent Disciplinary Authority to determine, based on the evidence gathered, what
14 the appropriate outcomes would be. Their authority to decide any discipline is
15 “independent from the Court.” (See Doc. 1765 at 16.)
16 Indeed, the Second Supplemental Injunction significantly insulates the autonomy
17 of the Independent Investigator and the Independent Disciplinary Authority to make their
18 own investigative and adjudicatory decisions. For example, the Independent Investigator,
19 not the Court, has the “sole authority to determine whether reinvestigations or new
20 charges arising from the Findings of Fact should or should not be pursued.” (Id. at ¶
21 313.) If the Independent Investigator determines there is cause to reinvestigate a matter,
22 he conducts the investigation, and he alone determines what preliminary findings are
23 warranted, or whether to recommend new or different discipline to the Independent
24 Disciplinary Authority. (Id. at ¶ 296(a).) The Independent Disciplinary Authority, not
25 the Court, is “the final arbiter of the facts and will decide which acts of misconduct, if
26 any, the sustained facts establish.” (Id. at ¶ 322.) The decisions reached by the
27 Independent Disciplinary Authority are final. (Id. at ¶ 334.) Though the Independent
28 Investigator may communicate with the Monitor to coordinate his investigations, each

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1 must “make independent decisions within his own delegated responsibility.” (Id. at ¶
2 310.)
3 The Court itself only has the authority to impact future discipline imposed by the
4 Independent Disciplinary Authority in one “rare instance,” following a long sequence of
5 independent acts, including if the Independent Investigator initiates and completes a
6 reinvestigation, and if the Independent Disciplinary Authority imposes serious discipline
7 of suspension, demotion, or termination. (Id. at ¶¶ 162(b), 337(b).) The employee might
8 then be entitled to appeal this discipline to the Maricopa County Law Enforcement Merit
9 System Council, and “[t]he Council may exercise its normal supervisory authority over
10 discipline imposed with one caveat.” (Id. at ¶ 337(b).) “The Council may not explicitly
11 or implicitly exercise its discretion to reduce discipline on the basis that the matter was
12 not timely investigated or asserted by MCSO” because doing so “would constitute an
13 undue impediment to the remedy that the Plaintiff class would have received for the
14 constitutional violations inflicted by the MCSO if the MCSO had complied with its
15 original obligations to this Court.” (Id.) Thus, only if the Merit Council reduced or
16 vacated discipline on the basis described, could the Plaintiff class then seek the reversal
17 of such reduction with the Court. This possibility is too remote and speculative for Sousa
18 to establish standing to seek prospective recusal of the Court.
19 ii. Recusal of the Monitor would also not redress the alleged
20 future harms because the Monitor also lacks a substantial
21 role in the reinvestigations
22 The chance that the Monitor would become involved in the reinvestigations is also
23 remote and speculative and would only impact MCSO employees who receive “minor
24 discipline” from the Independent Disciplinary Authority. Employees found to have
25 committed “minor misconduct” receive discipline less severe than a suspension. (Id. at ¶
26 162(a).) They may file a grievance if they are not “satisfied with minor discipline [they]
27 received.” See “Employee Grievance Procedures,” GC-16 at 9, attached as Exhibit 1. In
28

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1 such cases, the Monitor “shall have the authority to decide the grievance.” Id. at 10;
2 (Doc. 1765 at ¶ 337(a).)
3 The Monitor would only assume this role after the Independent Investigator
4 concluded his investigation, and the Independent Disciplinary Authority adjudicated it
5 and imposed minor discipline. In that circumstance, the Monitor’s role in deciding the
6 grievance would not be to revisit the investigative findings—which are the exclusive
7 province of the Independent Disciplinary Authority—but to assess whether policy was
8 followed during the investigation. The grievance procedure can only be initiated by the
9 employee under investigation, and the point of deciding a grievance is not to increase
10 discipline, as the Non-Party Contemnors suggest. (Doc. 1987 at 5.) Rather, the
11 grievance process is intended to “provide employees with a positive and effective way to
12 address concerns related to Office policy and procedure . . . and to resolve disputes
13 pertaining to administrative investigations and minor discipline.” GC-16, at 1.
14 Moreover, the Monitor’s authority is limited to addressing disputes to minor discipline
15 imposed; any “serious discipline” of suspension or higher triggers the process outlined in
16 the Maricopa County Merit System Rules. Id. at 2. Given the Monitor’s lack of a
17 substantial role in the reinvestigations, his recusal would not redress any alleged harms
18 from those reinvestigations.
19 c. Potential loss of law enforcement certification is not fairly
20 traceable to the Court or the Monitor
21 Sheridan and Sousa also fail to demonstrate that any action taken by AZPOST—
22 including investigation, suspension, or revocation of their police officer certification—is
23 fairly traceable to a future adverse finding or discipline resulting from investigations
24 conducted by the Monitor or the Independent Investigator. They also fail to explain how
25 the prospective recusal of this Court and the Monitor would impact the actions of
26 AZPOST at all.
27 AZPOST is an independent entity that is not connected to this Court or the
28 Melendres proceedings. Its authority comes from state law, and the AZPOST Board has

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1 the discretion to deny, cancel, suspend, or revoke the certified status of a peace officer
2 when there is cause to do so. See Ariz. Admin. Code R13-4-109. The Board holds the
3 ultimate authority over whether officers lose their certification. See Ariz. Admin. Code
4 R-13-4-109(D) (stating that when determining whether to initiate an inquiry, “[t]he Board
5 may conduct additional inquiries or investigations to obtain sufficient information to
6 make a fair determination”). Should the Board act, the law enforcement officer under
7 review is entitled to prompt notification and other procedural rights under state law. See
8 Ariz. Admin. Code R-13-4-109(E).
9 Because the Board takes actions based on its own standards, pursuant to the
10 decisions of its members, any action to suspend or revoke Sheridan’s or Sousa’s
11 certification cannot be fairly traced to the actions of the Court or the Monitor.
12 d. Vague claims of reputational harm are insufficient to confer
13 standing for prospective relief
14 Finally, Sheridan and Sousa claim that any future finding of wrongdoing from an
15 internal affairs investigation conducted by the Independent Investigator “would cause
16 them grave reputational harm.” (Doc. 1987 at 7.) Sheridan and Sousa essentially argue
17 that potential discipline arising from future investigations may result in future
18 reputational harm. This argument fails for two reasons. First, where litigants request
19 prospective relief, as they do here, they must demonstrate that they are in immediate
20 danger of harm. See Lyons, 461 U.S. at 104. These claims of possible future reputational
21 injury are much too speculative to entitle Sheridan and Sousa to prospective relief,
22 particularly where any potential injury depends, in part, on their own actions. See Lujan,
23 504 U.S. at 565. Second, as explained above, the Court and the Monitor are not involved
24 in the reinvestigations into Sheridan’s and Sousa’s misconduct; any future reputational
25 injury would therefore not be fairly traceable to the Court and the Monitor.
26 Further, vague injury to reputation does not alone establish the concrete and
27 particularized injury necessary for standing. (This issue is addressed at greater length in
28 Section B.5., infra.) Sheridan and Sousa have failed to demonstrate that they are in

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1 immediate danger of reputational injury, and that this injury could be redressed by the
2 prospective recusal of the Court.
3 *****
4 Ultimately, if Sousa or any other MCSO employee receives discipline, it will be
5 the result of acts that are attributable to multiple independent entities, including the
6 Independent Investigator, the Independent Disciplinary Authority, the Merit Council, and
7 the AZPOST Board. With so many third parties involved, any potential injury—
8 discipline, loss of AZPOST certification, future reputational harm—is too far removed
9 from the influence of the Court or the Monitor to establish standing for prospective relief.
10 See, e.g., Lujan, 504 U.S. at 562 (holding that where causation and redressability hinge
11 on “the unfettered choices made by independent actors not before the courts” the burden
12 is on the plaintiff to show that “those choices have been or will be made in such manner
13 as to produce causation and permit redressability of injury”) (citations omitted).
14 Moreover, these potential injuries are not redressable by prospective recusal of the
15 Court and the Monitor. Any future removal of the Court and the Monitor from this case
16 would not impact the authority of the Independent Investigator and the Independent
17 Disciplinary Authority, who would continue to exercise their duties pursuant to the
18 Second Supplemental Injunction.
19 B. Arpaio, Sheridan, and Sousa Lack Standing to Seek Discovery into
20 Communications Between the Court and the Monitor
21 The Non-Party Contemnors also claim that they have standing to seek discovery
22 into the Court’s communications with the Monitor because “the court’s prior orders have
23 injured movants in tangible ways.” (Doc. 1987 at 10.) The Non-Party Contemnors do
24 not seek to vacate those orders at this time, however. They hope to establish a basis to
25 move in the future to vacate past orders. But the Non-Party Contemnors have not
26 asserted any injury for which discovery itself would provide redress. Further, even
27 assuming that future discovery did establish a basis to vacate past orders, that relief
28 would still not redress the alleged injuries that the Non-Party Contemnors claim.

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1 1. Sheridan and Sousa cannot establish that the discovery they seek
2 would redress any alleged injuries they claim could result from
3 reinvestigations of their misconduct
4 Sheridan and Sousa argue that the Second Supplemental Injunction injures them
5 because it requires reinvestigations that could result in discipline. These arguments fail
6 for many of the same reasons set forth above.
7 Again, Sheridan is no longer employed by MCSO and cannot plausibly assert that
8 any injury will come to him as a result of an MCSO internal affairs investigation. With
9 no injury, Sheridan lacks standing.
10 Sousa also cannot demonstrate that discovery in support of vacating the Second
11 Supplemental Injunction would redress his claimed injury of future discipline. Even if
12 Sousa obtained the relief he seeks—both prospective recusal of this Court and the
13 Monitor, and vacating past court orders—that relief would not compel MCSO to cease
14 any open investigation into his past conduct, or to cease the imposition of any discipline.
15 What Sousa really seeks—ending for good all administrative investigations with no
16 discipline imposed—would actually require an additional court order terminating any
17 investigation of him and rescinding any discipline imposed on him. Such an order would
18 represent an extension of federal court authority well beyond any remedy this Court
19 provided in the Second Supplemental Injunction. (See, e.g., Doc. 1765 at 7.)
20 2. Any action by AZPOST is not fairly traceable to the Findings of Fact
21 Sheridan and Sousa next claim that any action taken by AZPOST is an injury
22 traceable to the Court’s May 13, 2016 Findings of Fact, which “subjected” both Sheridan
23 and Sousa to investigation. (See Doc. 1987 at 12, Exhibit 1.) As explained above,
24 AZPOST is an independent body, created by state law, and bound by standards and
25 procedures that dictate when it is appropriate to take action involving the conduct of
26 certified peace officers in Arizona. Any injury that results from the actions of AZPOST
27 is not fairly traceable to the Court’s Findings of Fact and not redressable by vacating
28 those findings.

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1 3. Prosecution is not fairly traceable to the Court’s criminal referral nor
2 redressable by discovery or even vacatur
3 Arpaio and Sheridan next claim they were injured by the Court’s August 19, 2016
4 criminal contempt referral and thus have standing to seek discovery to support the
5 vacatur of that order. But their claimed injuries—actual prosecution for Arpaio and a
6 prospect of future prosecution for Sheridan—are not traceable to the Court’s referral.
7 For Arpaio, it was not a decision of this Court that instituted criminal charges;
8 rather, federal prosecutors decided to pursue charges, and another federal judge signed an
9 Order to Show Cause. Federal courts and prosecutors are bound to high ethical standards
10 and must follow certain procedures in determining whether to pursue a prosecution. See
11 Hovey v. Ayers, 458 F.3d 892, 921 (9th Cir. 2006) (“‘[S]o long as the prosecutor has
12 probable cause to believe that the accused committed an offense defined by statute, the
13 decision whether or not to prosecute, and what charge to file or bring before a grand jury,
14 generally rests in his discretion.’”) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364
15 (1978)); see also “Principles of Federal Prosecution,” U.S. Attorneys’ Manual, Title 9,
16 Section 9-27, available at https://www.justice.gov/usam/usam-9-27000-principles-
17 federal-prosecution. Arpaio’s claimed injury of criminal prosecution is therefore not
18 fairly traceable to an order of this Court, and vacating any of this Court’s orders will not
19 redress it. The true remedy that Arpaio seeks—the dismissal of charges against him—is
20 a decision that now rests with another federal judge and is outside the scope of this
21 litigation.
22 Sheridan cannot assert a plausible injury related to criminal charges because he
23 has not been charged with a crime; the federal district court dismissed Sheridan from the
24 case. See United States v. Arpaio, No. 2:16-CR-01012-1-SRB (Doc. 60) (Dec. 13. 2016).
25 Even if he is charged with a crime in the future, he would still lack standing for the same
26 reasons as Arpaio: any decisions regarding criminal prosecution would not be fairly
27 traceable to a decision of this Court, and vacatur of this Court’s orders would not redress
28 the alleged injury.

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1 4. No personal, tangible, or redressable injury resulted from the civil
2 contempt citation and criminal contempt referrals
3 Because Arpaio, Sheridan, and Sousa have no personal liabilities or obligations
4 under the civil contempt orders, they can show no concrete, redressable injury. While the
5 Court individually named the three in contempt, it did not fine or sanction them or direct
6 any coercive remedies against them personally to gain their individual compliance. The
7 Court’s remedies run against MCSO as an institution, not against the Contemnors.
8 In circumstances like these, courts have found that individual non-party
9 contemnors have no lingering stake in the case. In Union of Professional Airmen v.
10 Alaska Aeronautical Indus., Inc., a district court issued an order of civil contempt against
11 the named defendant corporation and its president, a non-party, for violation of a
12 preliminary injunction. 625 F.2d 881, 884 (9th Cir. 1980). The contempt order required
13 them to pay damages and attorney’s fees. Id. The corporation paid the fine; the
14 corporation and president appealed. Id. at 883. The Ninth Circuit dismissed the
15 president’s appeal, finding that the president no longer had any interest in the appeal from
16 the civil contempt order because the corporation’s payment of the fine relieved the
17 president of any liability under the contempt order. Id. at 884. The president’s claim was
18 therefore moot. Id. Like the president in Union of Professional Airmen, the Non-Party
19 Contemnors here have no unique, personal responsibility or stake in implementing any of
20 the remedies that this Court has ordered. They are relieved of liability and, with it,
21 standing. 3
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25 3
The doctrines of standing and mootness are closely related. The Supreme Court has
26 described mootness as “the doctrine of standing set in a time frame: The requisite
27 personal interest that must exist at the commencement of the litigation (standing) must
continue throughout its existence (mootness).” United States Parole Comm’n v.
28 Geraghty, 445 U.S. 388, 397 (1980).

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1 5. The Non-Party Contemnors’ claim of reputational injury from the
2 Court’s Findings of Fact and Order Re Criminal Contempt are also
3 insufficient to establish standing
4 The Non-Party Contemnors argue they have standing to seek discovery relevant to
5 vacatur of the Court’s prior orders because those orders have “grievously injur[ed] their
6 reputations.” (Doc. 1987 at 11.) But “where reputational injury is the lingering effect of
7 an otherwise moot aspect of a lawsuit, no meaningful relief is possible and the injury
8 cannot satisfy the requirements of Article III.” Robertson v. Colvin, 564 Fed. App’x.
9 931, 934 (10th Cir. 2014) (citing Foretich v. United States, 351 F.3d 1198, 1212) (D.C.
10 Cir. 2003)). Claims of injury to reputation alone do not satisfy the concrete and
11 particularized injury required to demonstrate standing. Such claims are “too vague and
12 unsubstantiated.” Robertson, 564 Fed. App’x. at 934 (citing McBryde v. Comm. to
13 Review, 264 F.3d 52, 57 (D.C. Cir. 2001)). Where courts have recognized reputational
14 harm for standing purposes, such harm is usually attached to some other injury of a
15 financial or legal nature that is absent here. See, e.g., Meese v. Keene, 481 U.S. 465,
16 473–75 (1987) (holding that plaintiff senator had standing to challenge the government’s
17 labeling as “political propaganda” certain films he wished to show, because this label
18 “would substantially harm his chances for reelection”). Notably, in Meese the appellant
19 “submitted detailed affidavits, including one describing the results of an opinion poll and
20 another containing the views of an experienced political analyst” to support his allegation
21 that the reputational harm alleged would impact his career. 481 U.S. at 473-74. The
22 Non-Party Contemnors do not assert that the alleged reputational harm caused by this
23 Court’s contempt orders carries with it these kinds of consequences.
24 The Non-Party Contemnors argue that the Ninth Circuit’s decision in United
25 States v. Talao, 222 F.3d 1133 (9th Cir. 2000), supports their claim of standing to seek
26 discovery. (See Doc. 1987 at 11-12.) But the holding in Talao identifies a unique harm
27 not present here: court findings that disparage attorneys’ professional abilities. In Talao
28 the Court found that an attorney had standing to appeal a district court order finding that

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1 she “knowingly and willfully violated a specific rule of ethical conduct” because, if the
2 court’s formal finding were permitted to stand, it would “stigmatize [appellant] among
3 her colleagues and potentially could have a serious detrimental effect on her career.” 222
4 F.3d at 1138. Cases from other circuits suggest that because courts are a critical feature
5 of the market in which attorneys compete, they face unique professional consequences
6 from reputational harm caused by courts’ disparaging findings about their conduct and
7 have standing to contest those findings. See, e.g., Walker v. City of Mesquite, Texas, 129
8 F.3d 831, 832-33 (5th Cir. 1997) (holding that “the importance of an attorney’s
9 professional reputation, and the imperative to defend it when necessary, obviates the need
10 for a finding of monetary liability or other punishment as a requisite for the appeal of a
11 court order finding professional misconduct”); In re Williams, 156 F.3d 86, 97 (1st Cir.
12 1998) (“[L]inguistic sanctions can . . . in the long run . . . strike the lawyer’s bank
13 account. . . .”); Butler v. Biocore Medical Technologies, Inc., 348 F.3d 1163, 1168-69
14 (10th Cir. 2003) (recognizing “the importance of an attorney’s professional reputation”
15 and holding that attorney who was sanctioned by district court had standing to appeal
16 order’s disparaging language in part because district court had mailed the order “to every
17 court in which [attorney] had been admitted to practice”).
18 Ultimately, the Non-Party Contemnors do not explain what, if any, the alleged
19 reputational harm of being held in contempt has had on any of their cognizable financial
20 or legal interests. Without such a nexus, they lack standing to seek discovery.
21 CONCLUSION
22 For the reasons stated herein, the Non-Party Contemnors lack standing, and
23 their recusal and discovery motions should be dismissed.
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1 Respectfully submitted this 13th day of April, 2017.
2
3
4 T.E. Wheeler, II
Acting Assistant Attorney General
5 Civil Rights Division
6
7 Steven H. Rosenbaum
8 Chief, Special Litigation Section

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/s/ Maureen Johnston
11 Paul Killebrew
Special Counsel
12
Cynthia Coe (DC Bar No. 438792)
13 Matthew J. Donnelly (IL Bar No. 6281308)
Maureen Johnston (WA Bar No. 50037)
14
Trial Attorneys
15 U.S. Department of Justice
Civil Rights Division
16
Special Litigation Section
17 601 D St. NW
Washington, D.C. 20004
18 Tel. (202) 353-1146
19 maureen.johnston@usdoj.gov
20 ATTORNEYS FOR THE UNITED STATES
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1 CERTIFICATE OF SERVICE
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3 I certify that on or about April 13, 2017, 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/ Maureen Johnston

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