Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 1 of 19

William R. Jones, Jr., Bar #001481

John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7801
wjones@jshfirm.com
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com

Attorneys for Defendant Joseph M. Arpaio

2
3
4
5
6

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11
12

United States of America,

Plaintiff,

13
v.

14
15
16

NO. CV12-00981-PHX-ROS

Maricopa County, Arizona; Maricopa County

Sheriffs Office; and Joseph M. Arpaio, in his
official capacity as Sheriff of Maricopa
County, Arizona,

17

Defendants.

18
19
20
21
22
23
24
25
26
27
28
3916284.1

DEFENDANT ARPAIOS MOTION

FOR PARTIAL SUMMARY
JUDGMENT
(Oral Argument Requested)

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 2 of 19

INTRODUCTION

2
3
4
5
6
7
8
9
10
11
12
13

Pursuant to Rule 56(a), Defendant Joseph M. Arpaio moves for Partial

Summary Judgment on Plaintiffs Complaint. Summary Judgment is appropriate because:
(1) the District Courts injunction in Melendres v. Arpaio, No. CV-07-02513, removes the
case or controversy as to Counts One, Two, Three, and Five and deprives Plaintiff of
standing for those claims; (2) the record is devoid of any evidence that Limited English
Proficiency (LEP) Inmates lack meaningful access to information and services under
Counts Four and Five; (3) Plaintiff cannot prove that Defendant lacked probable cause for
his alleged retaliation against critics under Count Six; and (4) Plaintiffs prayer for
relief is an impermissible obey the law injunction. This Motion is supported by the
accompanying Statement of Facts.
I.

14
15
16
17
18
19
20

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON COUNTS

ONE, TWO, THREE,
AND FIVE REGARDING DISCRIMINATORY
TRAFFIC STOPS.1
Before this Court can decide whether Melendres v. Arpaio has preclusive

effect on the Claims asserted in this case, [See Statement of Facts in Support of Defendant
Arpaios Motion for Partial Summary Judgment (SOF) 1] it must first decide if it has
jurisdiction over Plaintiffs Claims. See Gospel Missions of Am. v. City of Los Angeles,
328 F.3d 548, 554 (9th Cir. 2003). Ironically, it is the Courts ruling in Melendres that
deprives this Court of an active case or controversy as well as Plaintiff of standing for its
claims involving discriminatory traffic stops in Counts One, Two, Three, and Five.2

21
22
23
24
25
26
27
28

Defendant is not moving for summary judgment on Plaintiffs claims involving

alleged discriminatory conduct during worksite operations pursuant to a valid warrant
targeting identity theft and fraud.
2
As a threshold issue, although this Court stated that E.E.O.C. v. Goodyear
Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) may be dispositive on this issue during
its most recent status conference, Goodyear is distinguishable from the facts of this case.
First, action preceding Goodyear did not involve similar claims of injunctive relief as in
this case. Therefore, the issues Defendant raises with this Courts subject matter
jurisdiction and standing were not at issue in Goodyear. Furthermore, Defendant is not
asserting that the res judicata effects of Melendres bar Plaintiffs claims under Counts
One, Two, Three and Five. Rather, Defendant is asserting that Melendres, independent of
its res judicata effects, deprives this Court of an active case or controversy as well as
Plaintiff of an actual injury for standing purposes. Paradoxically, it is Plaintiff who
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 3 of 19

A.

This Court lacks jurisdiction over Plaintiffs claims involving

discriminatory traffic stops because the Melendres order has eliminated
the case or controversy asserted by Plaintiffs claims.

The jurisdiction of federal courts depends on the existence of a case or

controversy under Article III of the Constitution. Public Utilities Com'n v. Federal

Energy Regulatory Comm'n, 100 F.3d 1451, 1458 (9th Cir.1996) (quotations omitted). A

case or controversy exists when one party demonstrates that it has suffered injury-in-fact

which fairly can be traced to acts or omissions of the second party and when there is a

substantial likelihood that the relief requested will redress the injury claimed. Johnson v.

Weinberger, 851 F.3d 233, 235 (9th Cir. 1988); see also Davis v. Federal Election

10

Commission, 554 U.S. 724, 732-33 (2008) (To qualify as a case fit for federal-court

11

adjudication, an actual controversy must be extant at all stages of review, not merely at

12

the time the complaint is filed.) (emphasis added).

13

Plaintiff cannot show a substantial likelihood that the injunction it requests

14

will redress the injury claimed, because the Melendres Order has already remedied the

15

wrongs Plaintiff claims.

16

discriminatory traffic stop issues that Plaintiff now asserts:3

Further, the Melendres Complaint alleged the same

17

Melendres Complaint [SOF 2]

Plaintiffs Complaint [SOF 3]

18

131. Defendants, acting under color of law

and in concert with one another, engaged,
and continued to engage, in profiling and
discriminatory treatment of Plaintiffs and
other Latino individuals based on their race,
color and/or ethnicity.

166. The Defendants . . . have engaged in

law enforcement practices, including traffic
stops . . . with the intent to discriminate
against Latino persons in Maricopa County
on the basis of their race, color, or national
origin.

132. Defendants have acted pretextually,

with racial motivation and without
reasonable suspicion or probable cause to
stop, detain, question, search and/or arrest
Plaintiffs or any of the other Latino
individuals referred to above.

169. The Defendants . . .

have
unreasonably searched, arrested, and
detained numerous persons in Maricopa
County, including searches and arrests
without probable cause or reasonable
suspicion.

19
20
21
22
23
24
25
26
27
28

asserts that the res judiciata effects of Melendres apply to this case by making an issue
preclusion argument. [SOF 1].
3
Plaintiff alleged at the October 6, 2014 status conference hearing that the
Melendres Complaint did not involve Claims of discriminatory conduct for general
traffic stops by Defendant. This is not true. [SOF 5].
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 4 of 19

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

135. By their conduct described above,

Defendants . . . have devised and
implemented a policy, custom and practice
of illegally stopping, detaining, questioning
or searching Latino individuals because of
their race, color and/or ethnicity.

Similarly, Plaintiff also seeks injunctive relief already afforded in Melendres

by requesting the Court to address the following areas: policies and training; nondiscriminatory policing . . .; stops, searches, and arrests; response to crimes of sexual
violence4; posse operations; . . . supervision; misconduct complaint intake, investigation,
and adjudication; . . . oversight and transparency; and community engagement. [SOF
4]. The Melendres Court fully decided this controversy. Following a 142 page findings
of fact and conclusions of law, it issued a 59 page supplemental permanent injunction on
these very issues, ordering an exceptional amount of oversight and reform over
Defendants training, policies, and procedures. [See SOF 7-8].
Given the similar claims and broad-ranging relief ordered in Melendres,
there is simply no substantial likelihood that this Court could grant Plaintiff any relief that
has not already been ordered in Melendres. Accordingly, since no remaining controversy
exists on these issues, this Court lacks subject matter jurisdiction to consider Plaintiffs
allegations in Counts One, Two, Three, and Five involving discriminatory traffic stops.
B.

19
20
21
22
23
24
25
26
27
28

174. The Defendants have engaged in law

enforcement practices with the intent to
discriminate against Latinos on the basis of
their race, color, or national origin.

The Melendres injunction order deprives Plaintiff of Article III

standing to raise the discriminatory traffic stop claims in Counts One,
Two, Three, and Five.
Because the Melendres Court already issued the injunction Plaintiff seeks

here, Plaintiff also lacks standing to assert its discriminatory traffic stop claims. Oregon
v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006)) (A plaintiff must demonstrate standing for each
claim he seeks to press and for each form of relief sought.); City of Los Angeles v.
Lyons, 461 U.S. 95, 109 (1983) (Notwithstanding the fact that plaintiff had standing to
4

Plaintiff has stipulated, and this court has recognized, that Plaintiff is not pursuing
crimes of sexual violence either in its Complaint or in this case. [SOF 6]
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 5 of 19

1
2
3
4
5
6
7
8

pursue damages, he lacked standing to pursue injunctive relief.). To satisfy Article III's
standing requirements a plaintiff must show: (1) it has suffered an injury in fact that is
concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992); Mayfield v. United States,
599 F.3d 964, 971 (9th Cir. 2010). The party invoking federal jurisdiction bears the
burden of establishing these elements. Lujan, 504 U.S. at 561.

1.

10

Plaintiff cannot demonstrate an immediate or future threat of

discriminatory traffic stops.

11

A plaintiff seeking injunctive relief premised upon alleged past wrongs must

12

demonstrate a real or immediate threat of an irreparable injury to satisfy the injury in

13

fact prong of the standing test. Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir.

14

2001) (emphasis added) (quoting Lyons, 461 U.S. at 105 (1983)); see also Hodgers-

15

Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999). In addition, Plaintiff must

16

show the existence of an official policy or its equivalent likely to cause future injury. See

17

Lyons, 461 U.S. at 10506 (stating that [i]n order to establish an actual controversy in

18

this case, Lyons would have had not only to allege that he would have another encounter

19

with the police but also to allege the existence of an official policy or its equivalent); see

20

also Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004) (holding that Plaintiff lacked

21

standing to seek injunctive relief because he failed to demonstrate a likelihood of future

22

harm even if he were subjected to an official policy).

Plaintiff cannot make this showing.

23

The Melendres injunction is

24

comprehensive in stamping out any possibility of discriminatory policies and future

25

behavior by Defendant. [See SOF 8]. The Melendres Order broadly outlines and has

26

established intensive oversight by an independent monitor and that the Court, community,

27

and parties involved in the litigation will all be apprised of Defendants progress. [See

28

id.] The Order ensures extensive training and supervision of Defendants employees and
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 6 of 19

1
2
3
4
5
6
7
8

heightened misconduct reporting systems. [See id.] It also requires increased community
outreach and communication with regard to Defendants policies and conduct. [See id.]
With these extensive safeguards in place, Plaintiff cannot meet its burden of showing a
real and immediate threat of repeated future harm by Defendant or the existence of an
official policy or its equivalent likely to cause future injury. Clark, 259 F.3d at 1007; see
also Lyons, 461 U.S. at 112 (Holding because the police conduct complained of was not
likely to occur to Plaintiff in the foreseeable future, the district court lacked standing to
enter injunctive relief.); Shain, 356 F.3d at 216 (holding same).5

2.

10
11
12
13
14
15
16
17

In addition to being unable to show the threat of future harm, Plaintiff

cannot meet its burden of showing the redressability element of Article III standing.
Plaintiff must be able to show a likelihood that the alleged injury will be redressed by a
favorable decision. See Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982). The
focus for redressability is always upon the ability of the court to redress the injury
suffered by the plaintiff; if the wrong parties are before the court, or if the requested relief
would worsen the plaintiff's position, or if the court is unable to grant the relief that
relates to the harm, the plaintiff lacks standing. Id. (emphasis added).

18
19
20
21
22
23

Plaintiff cannot meet the redressability element of standing.

Plaintiff cannot make this showing because Melendres has already granted
the injunctive relief Plaintiff seeks. [Compare SOF 8 with SOF 4]. In addition,
Defendant has not only implemented the changes required by Melendres, but has gone
above and beyond the Melendres Orders requirements. [See SOF 10-52]. Therefore,
because the Melendres injunction already provided the redress Plaintiff seeks here,
Plaintiff lacks standing because it cannot demonstrate that there is any remaining remedy

24
25
26
27
28

Plaintiffs failure to establish a likelihood of future injury similarly renders its

claims for declaratory relief unripe [SOF 9]. See Hodgers-Durgin v. de la Vina, 199
F.3d 1037, 1044 (9th Cir. 1999) (In suits seeking both declaratory and injunctive relief
against a defendant's continuing practices, the ripeness requirement serves the same
function in limiting declaratory relief as the imminent-harm requirement serves in limiting
injunctive relief.).
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 7 of 19

1
2
3
4
5
6
7

this Court can order to redress its claims. See e.g., Sharp v. United Airlines, Inc., 967 F.2d
404, 410 (10th Cir. 1992) (it is clear that . . . there is a risk of duplicative recoveries or
the necessity of apportioning damages if plaintiffs are allowed standing.); 87th Street
Owners Corp. v. Carnegie Hill87th Street Corp., 251 F.Supp.2d 1215 (S.D.N.Y.2002)
(Summary Judgment appropriate because plaintiff was unable to identify a single action
that the court could order the defendant to take that had not yet been undertaken by third
parties).

3.

9
10
11
12
13
14
15
16
17
18
19
20
21

Another reason to grant Defendant summary judgment is that the claims are
moot, given that Melendres has already resolved the discriminatory traffic stop issue.
Generally, an action is mooted when the issues presented are no longer live and therefore
the parties lack a legally cognizable interest for which the courts can grant a remedy.
Alaska Ctr. For Env't v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir. 1999). This occurs
when the requested relief has already been secured in another proceeding or when full
relief has been granted to another party on the same issue. See e.g., Kittel v. Thomas,
620 F.3d 949, 951 (9th Cir. 2010) (Petitioner sought habeas corpus petition mooted when
the regulation on which his petition rested held invalid in a different action); Hispanic
Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 1236, 1243 (11th Cir.
2012) (ruling in one case that provisions of state statute were pre-empted mooted claims
by private plaintiffs to restrain parts of the same provisions on a different ground).

22
23
24
25
26
27

Defendants compliance with the Melendres Order moots

Plaintiffs Counts One, Two, Three, and Five involving
discriminatory traffic stops.

Here, the Melendres Court has already made a determination that Defendant
unlawfully discriminated against Latinos during traffic stops and has put into place a
comprehensive scheme to ensure discrimination no longer occurs. [See SOF 7-8].
Additionally, the independent monitor and Judge Snow in Melendres are overseeing
Defendant Arpaio to ensure that Defendant is fully complying with the injunctive order.
[See SOF 8]. Further, the Sheriff and his command staff have personally seen to

28
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 8 of 19

1
2
3
4
5
6
7

Maricopa County Sheriffs Office (MCSO) continued cooperation with the Court
appointed monitor and his team of 13 people to ensure that the MCSO complies with the
Melendres Order in every respect. [See SOF 10-52]. Accordingly, the conduct alleged
by Plaintiff is simply no longer occurring. Thus, Plaintiffs discriminatory traffic claims
are moot.6
II.

THE RECORD LACKS EVIDENCE THAT DEFENDANTS TREATMENT

OF LEP INMATES VIOLATES TITLE VI.

Plaintiff alleges in Counts Four and Five that Defendant has excluded and

denied LEP Latino prisoners from participating in and benefiting from Defendants

10

programs and activities relating to the operation of Maricopa County Jails which has had

11

an adverse and disparate impact on Latino LEP prisoners. [Complaint 178, 184]. Title

12

VI provides that [n]o person in the United States shall, on the ground of race, color, or

13

national origin, be excluded from participation in, be denied the benefits of, or be

14

subjected to discrimination under any program or activity receiving Federal financial

15

assistance. 42 U.S.C. 2000d. To survive summary judgment, Plaintiff must show that

16

Defendant receives federal funding and that he engages in intentional racial

17

discrimination. Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th

18

Cir.1994), overruled in part on other grounds by Daviton v. Columbia/HCA Healthcare

19

Corp., 241 F.3d 1131 (9th Cir. 2001). The Defendant does not dispute that his office

20

receives federal funding, but Plaintiff cannot show that there has been intentional racial

21

discrimination as to LEP inmates in violation of Title VI.

22
23
24
25
26
27
28

Defendant also notes that given the Courts supervision and enforcement
mechanisms put in place by Melendres, traditional exceptions to the mootness doctrine do
not apply to save Plaintiffs claims under Counts One, Two, Three, and Five. See Native
Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (holding that for the
capable of repetition yet evading review exception to apply a Plaintiff must allege a
type of injury which is of such inherently limited duration that it is likely always to
become moot prior to review.); see also Ctr. For Biological Diversity v. Lohn, 511 F.3d
960, 965 (9th Cir. 2007) (holding that the voluntary cessation exception to mootness
does not apply when complying with a court order). Plaintiff has not alleged an injury
inherently limited in duration nor can it overcome the issues of mootness involved due to
Defendants compliance with the Court Order issued in Melendres. [See SOF 10-52].
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 9 of 19

A.

The standard for Title VI LEP inmate discrimination focuses on

whether reasonable steps were taken by a recipient to provide LEP
inmates with meaningful access to information and services.

To prove intentional discrimination under Title VI, Plaintiff must show that

a challenged action was motivated by an intent to discriminate. Elston v. Talladega

County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). This requires a showing that

the decision maker was not only aware of the complainants race, color, or national origin,

but that the recipient acted, at least in part, because of the complainants race, color, or

national origin. Id. In the absence of such evidence, claims of intentional discrimination

under Title VI are analyzed using the Title VII burden shifting analytic framework

10

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

11

(1973); Rashdan v. Geissberger, 12-16305, 2014 WL 4194090 (9th Cir. Aug. 26, 2014)

12

(We now join the other circuits in concluding that McDonnell Douglas also applies to

13

Title VI disparate treatment claims.).

14

Under this analysis, to demonstrate a Title VI claim, Plaintiff must establish

15

more than the mere occurrence of isolated, accidental, or sporadic discriminatory acts

16

by Defendant. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 336

17

(1977). Rather, Plaintiff must demonstrate that the failure to provide information and

18

services in a language other than English resulted in a significant number of LEP

19

beneficiaries being unable to fully realize the intended benefits of a federally assisted

20

program or activity. See Lau v. Nichols, 414 U.S. 563, 568 (1974) (holding that the lack

21

of access to LEP beneficiaries denied them meaningful opportunity to participate in the

22

educational program all earmarks of the discrimination banned by [the Title VI

23

implementing regulations].). The Department of Justice has interpreted Lau to require

24

Title VI funding recipients to take reasonable steps to provide meaningful access to the

25

recipients programs under the following four factor test:

26

What constitutes reasonable steps to ensure meaningful access

will be contingent on a number of factors. Among the factors
to be considered are the number or proportion of LEP persons
in the eligible service population, the frequency with which
LEP individuals come in contact with the program, the

27
28
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 10 of 19

1
2
3
4

importance of the service provided by the program, and the

resources available to the recipient.
See 65 F.R. 50123-01, 50124 (Aug. 16, 2000) (emphasis added); see also Auer v. Robbins,
519 U.S. 452, 461 (1997) (holding that an agencys interpretation of its own regulation is
controlling unless plainly erroneous or inconsistent with the regulation).

B.

6
7
8
9
10
11

The record is replete with evidence that Defendant took and continues
to take reasonable steps to provide LEP inmates with meaningful access
to information and services.
As a matter of law, Plaintiff cannot carry its burden to demonstrate that

Defendant has failed to reasonably provide LEP inmates with meaningful access to
information and services. The record, in fact, is quite to the contrary. To start with, the
following list summarizes how Defendants DI-6 Policy involving LEP inmates ensures
they receive meaningful access to information and services under Title VI:

12
13

(1) No inmate shall be denied access to any programs or

services based solely on their ability to understand English.

14

(2) LEP inmates shall be afforded the same rights and

protections mandated by federal, state, and local laws.

15
16

(3) Redundant
procedures.7

17

(4) Inmate informational postings, 8booklets, and forms shall

be provided in English and Spanish.

18

21
22
23
24
25
26
27
28

and

classification

intake

(5) The implementation of a LEP training course during Basic

Academy, as well as continuing training for detention staff.

19
20

identification

At all steps during inmate intake, MCSO has redundancies to ensure that LEP
inmates are properly identified and cared for. The first step during inmate intake at either
Central Intake or at LBJ is for inmates to go through a medical assessment to determine if
they are medically stable to be in the jail system. During the medical assessment, an
information officer meets and greets all incoming inmates and answers any questions
about the intake process. This officer also determines if an inmate should be designated
as LEP, and gives each inmate a bilingual information sheet which explains the intake
procedure. Additionally, the information officer is one step in the LEP identification
process as every officer that comes into contact with the inmate during the intake
procedure gathers information on whether the inmate is LEP (based on interactions with
the inmate and his or her ability to communicate with MCSO officers). Furthermore, LEP
identification training is provided to each officer. Finally, LEP designation can also come
from the IA Courts as inmates regularly request interpreters to fully understand the
questions posed by the court. [SOF 55-64]
8
Since 2007, before the Plaintiffs investigation began, MCSO has posted extensive
bilingual signs throughout its Jails, which total more than 1850 signs. [SOF 75]
3916284.1

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 11 of 19

(6) The maintenance of a Detention Language Roster.9

(7) Assigning a LEP Manager for each facility.10

(8) Ensuring resources are available to communicate with LEP

inmates, including but not limited to the Voiance 11
Language
Translation line and the Detention Language Roster.

4
5
6

(9) Requiring that every reasonable effort shall be made to

provide a LEP inmate with meaningful access to information,
programs, and services.

[SOF 68] Defendants DI-6 policy also explicitly notes that [i]t is the policy of

[Defendants] Office to provide for effective communication with inmates and the public

with limited English language proficiency, regarding detention-related Office business,

10

and to be in compliance with Title VI of the Civil Rights Act of 1964, as amended and all

11

other applicable laws. [SOF 73]

12

Defendants DI-6 policy is enforced within Defendants jails and that the current DI-6

13

policy is only the most recent incarnation of a long standing effort by Defendant to ensure

14

LEP inmates have meaningful access to information and services.12

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Furthermore, the record is uncontested that

The roster contains over 240 names of voluntary bilingual or multilingual officers
to provide on demand translation, 172 of whom speak Spanish. [SOF 91]
10
The duties of the LEP Manager include, but are not limited to (1) maintaining a
LEP Manager Manual which includes current resources available to all detention staff that
assist them in communicating with LEP inmates; (2) maintaining and updating all LEP or
inmate informational postings in the intake areas and housing units, (3) ensuring the jail
maintains text telephone (TTY) machines in good working order and all detention officers
are aware of how to properly operate them; (4) ensuring all detention personnel are kept
up to date on all LEP-related information; (5) conduct random monthly interviews of two
LEP inmates and one officer regarding their LEP related experiences and concerns; (6)
compiling weekly statistics regarding the number of LEP inmates housed at the facility
and the languages they speak, which is captured in a JMS report each Monday and made
available on the Sheriffs Office Intranet. [SOF 68, 78-79]
11
In addition to what is required pursuant to the DI-6 Policy, Defendant has
embarked on a multi-million dollar project, known as the Sierra Detention System, to
make bilingual jail announcements automatically with a mere selection and touch of
computer monitors in all jails. The Sierra Detention System is already running in 4th
Avenue Jail, and installation of the system is underway in the rest of the MCSO facilities,
which will be completed within the next year. Sierra has also informed MCSO that this
project is the largest of its kind ever attempted in the detention industry. [SOF 96-99]
12
The DI-6 Policy was originally enacted in 2013. However, even before the
establishment of a formal LEP policy, Defendant took reasonable steps to ensure that LEP
inmates had access to programs and services. [SOF 65-67] For example, Defendant
has employed the use of a telephonic translation service for over two decades. [SOF 81]
3916284.1

10

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 12 of 19

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

On the other hand, Plaintiffs experts have not opined that Defendants DI-6
Policy does not provide LEP inmates with meaningful access to any program or services
offered at Defendants jails. Neither could they point to a single, specific instance where
an inmate was not classified as LEP nor that misclassification resulted in harm to any
inmate. [SOF 100] It, therefore, comes as no surprise that there has not been a single
inmate grievance or complaint from a former inmates family or friends produced by
Plaintiff complaining of LEP issues in the Maricopa County jails. [SOF 101] In fact,
the most convincing piece of evidence in the record demonstrating Defendants
compliance with Title VI is that during Plaintiffs investigation of Defendants jails the
U.S. Department of Justice, Marshals Service, certified all of Defendants jails as
compliant (the highest assessment possible) with the requirements that [d]etainees are
not discriminated against based on gender, race, religion, national origin, or disability
and that detainees are provided opportunities to communicate to staff, both written and
verbal and when necessary communications aids are provided (translations, translators,
hearing impaired aids, etc.). [SOF 102-104]

16
17
18
19
20
21
22
23
24
25
26

Accordingly, even when viewing the facts in the light most favorable to the
Plaintiff, it has not and cannot meet its burden of showing a Title VI violation. Defendant
has gone well beyond taking reasonable steps to ensure LEP inmates recieve
meaningful access to the information and services provided by Defendants jails. Thus,
Defendant is entitled to summary judgment on Counts Four and Five of Plaintiffs
Complaint involving a Title VI violation. See Franklin v. D.C., 960 F. Supp. 394, 432
(D.D.C. 1997) rev'd in part, vacated in part on other grounds, 163 F.3d 625 (D.C. Cir.
1998) (holding no Title VI violation because LEP Hispanic inmates are not being barred
from participation in prison programs because of their race, color or national origin. While
the programs are open to all inmates, limited-English proficient inmates' participation is
limited only by their English fluency.).

27
28
3916284.1

11

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 13 of 19

III.

2
3
4
5
6
7
8
9
10
11

Plaintiff alleges that Defendant violated 42 U.S.C. 14141 by retaliating

against persons in Maricopa County, thereby chilling future protected speech under the
First Amendment. [Complaint 187-88]. The persons allegedly chilled are largely
unnamed attorneys, judges, and protestors who allegedly spoke out against MCSO and
Sheriff Arpaio. [Id. at 140-42, 148-50]. Despite Plaintiffs characterizations, summary
judgment in favor of Defendant is appropriate on Count Six because (1) as a matter of law
Plaintiff cannot demonstrate a pattern and practice of discrimination and (2) injunctive
relief is inappropriate because it is not reasonably foreseeable that Defendant will
investigate, arrest, file judicial and/or bar complaints, or initiate lawsuits against any
alleged critic without reasonable suspicion or probable cause in the future.

12

A.

13
14
15
16
17
18
19
20
21
22

THE RECORD DOES NOT SUPPORT PLAINTIFFS RETALIATION

CLAIMS UNDER COUNT SIX.

Plaintiff cannot demonstrate a pattern and practice of retaliation.

Section 14141 permits the Attorney General to bring a civil action to obtain

appropriate equitable and declaratory relief to eliminate a pattern or practice of

unconstitutional conduct by law enforcement officers. Plaintiff alleges that Defendant
has engaged in a pattern or practice of retaliation against his critics by (1) filing judicial
and/or bar complaints and (2) investigating, arresting, and instituting lawsuits against
alleged critics of Defendants immigration policies.

[See Complaint 140-50].

However, as a matter of law, Plaintiff cannot carry its burden of showing a pattern and
practice of discrimination because (1) an absolute privilege applies to any filing of
professional complaints in Arizona and (2) Plaintiff has failed to prove the absence of
reasonable suspicion or probable cause for Defendants alleged retaliatory actions.

23

1.

24

Defendant is protected by an absolute privilege for any alleged

retaliation by filing judicial and/or bar complaints.

25

Plaintiff first relies on Arizona Bar complaints and complaints to the

26

Arizona Commission on Judicial Conduct to demonstrate Defendant engaged in a pattern

27

and practice of retaliation. [Complaint at 140-41] However, Arizona courts have held

28

that public policy and legal precedent compel us to adopt the position that there is an
3916284.1

12

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 14 of 19

1
2
3
4
5
6
7

absolute privilege extended to anyone who files a complaint with the State Bar alleging
unethical conduct by an attorney. Drummond v. Stahl, 127 Ariz. 122, 126, 618 P.2d 616,
620 (App. 1980); see also Ledvina v. Cerasani, 213 Ariz. 569, 572, 8, 146 P.3d 70, 73
(App. 2006) (holding same for complaints given to law enforcement). Therefore, any
alleged retaliation by Defendant involving filing judicial and/or bar complaints is
absolutely privileged and cannot serve as a basis for a pattern and practice of retaliation
claim.

2.

Plaintiff must allege the absence of probable cause in order to

establish a pattern and practice of retaliation.

10

In Hartman v. Moore, 547 U.S. 250, 265-66 (2006), the Supreme Court held

11

that a plaintiff who sues criminal investigators on a retaliatory prosecution claim alleging

12

a First Amendment violation must plead and prove the absence of probable cause as an

13

element of plaintiffs claim. In Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th

14

Cir. 2006), the Ninth Circuit interpreted Hartman to only apply in the context of

15

retaliatory prosecution claims and held that a Plaintiff does not need to allege the absence

16

of probable cause to support a claim for retaliatory arrests. However, the Ninth Circuit

17

has shifted away from this conclusion and returned to the general principle announced in

18

Hartman that a Plaintiff must establish the absence of probable cause to prove

19

retaliation.13

20

In its most recent opinion on this issue, the Ninth Circuit affirmatively

21

stated that the existence of probable cause is dispositive of a retaliatory arrest claim. See

22

Acosta v. City of Costa Mesa, 718 F.3d 800, 825 (9th Cir. 2013). In Acosta, the Court

23

13

24
25
26
27
28

This shift began in May 2008, when the Ninth Circuit noted, in contrast to its
statement in Skoog, that Hartman applies equally to First Amendment retaliatory arrest
and retaliatory prosecution cases. See Back v. City of Upland, 527 F.3d 853, 864 (9th Cir.
2008). In December 2008, the Ninth Circuit, in Dietrich v. Ascuagas Gold Nugget, 548
F.3d 892 (9th Cir. 2008), clarified that the Hartman standard applies only to retaliatory
prosecution cases, but emphasized that the existence of probable cause has high
probative force even in ordinary retaliation cases not involving a criminal prosecution.
Id. at 901; see also Ford v. City of Yakima, 706 F.3d 1188, 1194 n.2 (9th Cir. 2013)
(noting that the presence of probable cause is not irrelevant to an individuals claim that
he was booked and jailed in retaliation for his speech.).
3916284.1

13

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 15 of 19

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

noted that in the context of a First Amendment retaliation arrest claim, resolution of the
alleged retaliation turns on whether probable cause existed to seize [the plaintiff]. Id.
(emphasis added). The Acosta Court relied on Reichle v. Howards, 132 S. Ct. 2088, 182
(2012), where it noted that the Supreme Court held that it had never recognized, nor was
there a clearly established First Amendment right to be free from a retaliatory arrest that is
otherwise supported by probable cause. Acosta, 718 F.3d at 825; see also Reichle, 132
S.Ct. at 2097 ([I]t was not clearly established that an arrest supported by probable cause
could give rise to a First Amendment violation.). Accordingly, relying on Reichle, the
Acosta Court held that even assuming that Acosta was arrested in retaliation for his
remarks, because probable cause existed for a violation of 2-61, the officers are still
entitled to qualified immunity, not only for the removal of Acosta from the chambers, but
also for his subsequent arrest. Id. Accordingly, pursuant to Acosta and Rechlie, a
plaintiff bringing a claim for retaliatory investigation or arrest must allege the absence of
probable cause. See also Am. News & Info. Services, Inc. v. Gore, 12-CV-2786 BEN
KSC, 2014 WL 4681936 (S.D. Cal. Sept. 18, 2014) (analyzing Skoog, Rechlie, and Acosta
and concluding that in light of Acostas statement about Rechlie, the Court should dismiss
plaintiffs retaliatory arrest claims due to the failure to prove probable cause did not exist).

18
19
20
21
22
23
24
25
26
27

The record in this case is devoid any of evidence that Defendants

investigations, arrests, and lawsuits lacked probable cause. Rather, as a smokescreen,
Plaintiff has attempted to bootstrap the Arizona Bars investigation of former Maricopa
County Attorney Andrew Thomas and alleged retaliations against unnamed critics to
assert it has sufficient evidence of a pattern and practice of retaliation under 14141.
However, Plaintiff cannot escape that it has failed to show that Defendants actions lacked
probable cause for any of the alleged instances of retaliation. Therefore, it comes as no
surprise that Plaintiff at least admitted that the existence of probable cause is not at issue
in many of the instances of retaliation challenged by the United States . . . . [SOF at
105] Thus, Plaintiffs baseless allegations of retaliation cannot remotely support a claim

28
3916284.1

14

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 16 of 19

1
2

that Defendant has engaged in a pattern or practice of conduct against his critics in
violation of 14141. Therefore, summary judgment is appropriate on Count Six.

B.

Injunctive relief on Count Six is improper because Plaintiff cannot

prove potential for immediate and future retaliation by Defendant.

As previously stated, a plaintiff seeking injunctive relief premised upon an

alleged past wrong must demonstrate a real and immediate threat of repeated future

harm to satisfy the injury in fact prong of the standing test. See Lyons, 461 U.S. at 105;

Clark, 259 F.3d at 1007. As Plaintiff only seeks injunctive relief in this case, and as such

cannot rely on any alleged past retaliation alone to establish standing, it must prove that

10

there is a real and immediate threat of repeated future retaliation by Defendant. Clark,

11

259 F.3d at 1007. However, notwithstanding the truth of Plaintiffs allegations, the

12

record is uncontested that Defendant has not authorized any investigations, arrests,

13

professional complaints or lawsuits against any alleged critic since 2010. [SOF 106-

14

110]. Moreover, the record is devoid of any facts or evidence that there was or will be

15

retaliatory efforts by Defendant sufficient to demonstrate future harm.

16

While there may be a presumption of future injury when a defendant has

17

voluntarily ceased its alleged activity in response to the threat of litigation, see United

18

States v. W.T. Grant Co., 345 U.S. 629, 632 (1953), this presumption is inappropriate

19

when a plaintiff cannot prove the underlying allegation or when the challenged activity

20

could not reasonably be expected to recur. Olagues v. Russoniello, 770 F.2d 791, 794

21

(9th Cir. 1985). Further, where the defendant is a government actor and not a private

22

litigant there is less concern about the recurrence of objectionable behavior. D.C.

23

Prof'l Taxicab Drivers Ass'n v. D.C., 880 F. Supp. 2d 67, 75 (D.D.C. 2012); see also,

24

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir.2009); Ragsdale v.

25

Turnock, 841 F.2d 1358, 1365 (7th Cir.1988); True the Vote, Inc. v. I.R.S., No. CV 13-

26

734, slip op. at 10. (D.D.C. Oct. 23, 2014) (Order siding with Department of Justices

27

argument that deference should be given when the Government ceases a complained of

28

activity in the face of litigation).

3916284.1

As previously discussed, because Plaintiff cannot

15

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 17 of 19

1
2
3
4
5

demonstrate that Defendant has engaged in a pattern and practice of retaliation, this court
cannot presume he will do so in the future. Furthermore, Defendant has not initiated any
new investigations, arrests, professional complaints or lawsuits against any alleged critic
for the past four years (and counting), a period longer than the alleged retaliation. Thus,
there is no evidence to reasonably expect Defendant will "retaliate in the future.14

6
7
8
9
10
11

Given Plaintiffs failure to prove a pattern and practice of retaliation and

Defendants uncontested compliance with the law for the past four years, summary
judgment is appropriate because there is no live controversy to warrant injunctive relief
under Count Six. See Lyons, 461 U.S. at 105.
IV.

PLAINTIFFS PRAYER FOR RELIEF SEEKS AN IMPROPER OBEY THE

LAW INJUNCTION.

12

Finally, summary judgment is appropriate on Counts I-VI because Plaintiff

13

requests improper relief in the form of an obey the law injunction. Blanket injunctions to

14

obey the law are disfavored. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518

15

F. Supp. 2d 1197 (C.D. Cal. 2007). Such injunctions are not specific in terms and fail to

16

describe in reasonable detail the act or acts sought to be restrained.

17

Fed.R.Civ.P. Injunctive relief must be narrowly tailored to fit specific legal violations.

18

Id. Injunctions ordering Defendants to make only lawful arrests and to not discriminate

19

on the basis of race are invalid obey the law injunctions. See e.g., Keyes v. School

20

Dist. No. 1, 895 F.2d 659, 668-69 & n. 5 (10th Cir. 1990) (stating that provisions of

21

14

22
23
24
25
26
27
28

Rule 65(d),

Furthermore, the voluntary cessation presumption only applies to prevent a case

from becoming moot. See Lovell v. Brennan, 728 F.2d 560, 563, 564 (1st Cir. 1984) (It
was not an abuse of discretion to dismiss an action claiming unconstitutional conditions in
a state prison, even though the district court suggested that conditions may have been
unconstitutional at the time suit was filed and was concerned that the improvements that
had been made were done in response to the litigation. The court was entitled to presume
that state authorities would continue to comply with the constitution, and the burden is on
the plaintiff to demonstrate the need for injunctive relief.); see also Ciampa v.
Massachusetts Rehabilitation Com'n, 718 F.2d 1, 2-3 (1st Cir. 1983) Familias Unidas v.
Briscoe, 544 F.2d 182, 188 (5th Cir. 1976); Halkin v. Helms, 690 F.2d 977, 1003-1009
(D.C. Cir. 1982). Even assuming Plaintiffs claim is not moot, in the context of
requesting injunctive relief, Plaintiff has failed to demonstrate the possibility of future
injury. Thus, Plaintiff still lacks standing for its retaliation claims because it cannot
demonstrate the likelihood of future harm.
3916284.1

16

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 18 of 19

1
2
3
4
5

injunction that prohibited defendants from discriminating on the basis of race, color or
ethnicity in the operation of the school system are obey the law injunctions); Payne v.
Travenol Labs., Inc., 565 F.2d 895, 897 (5th Cir.1978) (prohibiting discriminating on the
basis of color, race, or sex in employment practices or conditions of employment is an
general obey the law injunction).

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

An order requiring Defendants to refrain from engaging in any of the

predicate discriminatory acts forming the basis of the pattern or practice of unlawful
conduct described herein would be an unenforceable obey the law injunction.
[Complaint 192]. Such an order would not comply with Rule 65(d), in that it would lack
specificity as to the enjoined conduct. It would be little more than a direction to not
discriminate. Similarly inappropriate is Plaintiffs specific request that the court issue
an injunction in the following areas: policies and training; non-discriminatory policing
and jail operations; stops, searches, and arrests; response to crimes of sexual violence;
posse operations; jail operations; supervision; misconduct complaint intake, investigation,
and adjudication; retaliation; oversight and transparency; and community engagement.
[SOF 4].

determine what the terms of such an injunction might be. Certainly Defendant would not
be able to determine from such an injunction what specific conduct is enjoined.
Furthermore, as previously demonstrated, if the Melendres related relief and crimes of
sexual violence stipulation were stricken from Plaintiffs prayer for injunctive relief, then
all that remains is a request that the Court issue an injunction involving jail operations
and retaliation. This fails to rise to the level of specificity required by Rule 65(d).
Accordingly, Plaintiffs request for relief is an improper obey the law injunction.

24

CONCLUSION

25
26
27

This request is so overbroad that neither the Court nor Defendant can

For the foregoing reasons, Defendant Arpaio requests this Court to grant
summary judgment in his favor on Plaintiffs Counts I, II, III, IV, V, and VI of Plaintiffs
Complaint, with the exception of Plaintiffs claims involving worksite operations.

28
3916284.1

17

Case 2:12-cv-00981-ROS Document 345 Filed 10/30/14 Page 19 of 19

DATED this 30th day of October, 2014.

JONES, SKELTON & HOCHULI, P.L.C.

2
3

By s/ Joseph J. Popolizio
William R. Jones, Jr.
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Joseph M. Arpaio

4
5
6
7
8

CERTIFICATE OF SERVICE

9
10

I hereby certify that on this 30th day of October, 2014, I caused the

11

foregoing document to be filed electronically with the Clerk of Court through the

12

CM/ECF System for filing; and served on counsel of record via the Courts CM/ECF

13

system.

14

s/ Mance Carroll

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3916284.1

18