Case 2:12-cv-00981-ROS Document 348 Filed 11/14/14 Page 1 of 17

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Mark Kappelhoff
Deputy Assistant Attorney General
Jonathan M. Smith (DC Bar No. 396578)
Edward G. Caspar (MA Bar No. 650566)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
T. Jack Morse (GA Bar No. 449134)
Puneet Cheema (CA Bar No. 268677)
Brian Buehler (NY Bar No. 4893665)
U.S. Department of Justice, Civil Rights Division
Special Litigation Section
601 D St. NW, 5th Floor
Washington, D.C. 20004
Attorneys for the United States

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IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

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United States of America,

No. 2:12-cv-00981-ROS

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

UNITED STATES RESPONSE TO

DEFENDANT MARICOPA
COUNTYS MOTION FOR
SUMMARY JUDGMENT

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Defendants.

20

Defendant Maricopa Countys Motion for Summary Judgment must fail because

21 the arguments it advances are unsupported by applicable law, contrary to the factual
22 record, and have previously been considered and rejected by this Court in this same case.
23 I.

Legal Standard for Summary Judgment

24

Summary judgment may be granted only if the movant shows that there is no

25 genuine dispute as to any material fact and the movant is entitled to judgment as a matter
26 of law. Fed. R. Civ. P. 56(a). A genuine dispute as to material fact is absent only if,
27 upon viewing the evidence and inferences which may be drawn therefrom in the light
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Case 2:12-cv-00981-ROS Document 348 Filed 11/14/14 Page 2 of 17

1 most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of
2 law. Diaz v. Eagle Produce Ltd., 521 F.3d 1201, 1207 (9th Cir. 2008) (citation omitted).
3 I.

Defendant Received the Required Pre-suit Notification under Title VI.

Focusing only on the United States December 2011 Findings Letter, Defendant

5 argues that the United States did not provide the pre-suit notification required by Title
6 VI. 1 Doc. 334, at 5. The record firmly establishes, however, that the United States
7 provided the requisite notice over months of communications with County
8 representatives preceding the filing of the Complaint in May 2012. Additionally,
9 Defendant has pointed to no prejudice it has experienced from any claimed lack of notice.
10 Its motion on this ground therefore must fail.
11

A.

12

Title VI of the Civil Rights Act of 1964 (Title VI) provides that no action to

The United States provided the requisite notice.

13 effect compliance with its requirements shall be taken until the United States has
14 advised the appropriate person or persons of the failure to comply with the requirement
15 and has determined that compliance cannot be secured by voluntary means. 42 U.S.C.
16 2000d-1. Department of Justice regulations require such notice to be provided to [t]he
17 [funding] recipient or other person who has failed to comply with Title VI or the
18 implementing regulations. 28 C.F.R. 42.108(d)(3).
19

The United States provided Defendant with ample notice of the Title VI

20 violations. On December 15, 2011, it provided the Maricopa County Attorney, who
21 represents the County, and counsel for Defendant Arpaio and the Maricopa County
22 Sheriffs Office (MCSO), with the United States Findings Letter detailing the nature and
23 extent of the Title VI violations. See United States Statement of Additional Facts in
24 Resp. to Def. Maricopa Countys Mot. for Summ. J., 1 [hereinafter SAF]. On
25 December 15, 2011, counsel for the County responded to the letter, suggesting that the
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Defendants argument does not apply to Claims 1, 2, or 6, which are not brought under
28 Title VI.

Case 2:12-cv-00981-ROS Document 348 Filed 11/14/14 Page 3 of 17

1 United States had noticed the wrong party and should notice counsel for MCSO. SAF
2 2. On January 17, 2012, the United States informed counsel for Defendant Maricopa
3 County that it would continue to include it in all correspondence concerning the matter
4 because the United States investigation potentially affects Maricopa County as the
5 conduit of federal financial assistance to MCSO. SAF 3. From January through April
6 2012, through written correspondence and in-person meetings, counsel for the United
7 States, Defendant Arpaio, and Defendant Maricopa County conferred on the potential of
8 a mutually agreeable resolution of the issues raised in the United States Findings Letter.
9 SAF 4.
10

In addition, an attorney for the United States deposed in this matter testified to his

11 personal knowledge of having participated in numerous communications with the

12 County notifying the County that the Department of Justice had determined that the
13 County had failed, in the eyes of the Department of Justice, to discharge responsibilities it
14 had with respect to funding of the Sheriff's Office. SAF 5. During these
15 communications, which preceded this lawsuit, counsel for the United States met with
16 counsel for the County, discussed the Countys own obligation with respect to MCSO,
17 and informed him that what was needed was something that was transparent and
18 accountable, that showed that, in fact, MCSO was going to change and the County was
19 going to engage in the oversight and accountability that its required to do. SAF 6.
20 Counsel for the United States further sat down with at least two county commissioners,
21 county supervisors, to tell them and explain to them what our findings were and make
22 every attempt to settle this matter short of a lawsuit. SAF 7.
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Finally, on May 9, 2012, after determining that Defendants compliance could not

24 be secured by voluntary means, the United States sent the County formal correspondence,
25 advising that in accordance with the notice requirements set forth in DOJs Title VI
26 regulations, 42 C.F.R. 108(d)(3), it is the intention of the Department of Justice to file a
27 civil action against Maricopa County, the Maricopa County Sheriff s Office, and Sheriff
28 Joseph M. Arpaio in order to remedy the serious Constitutional and federal law

Case 2:12-cv-00981-ROS Document 348 Filed 11/14/14 Page 4 of 17

1 violations, including noncompliance with Title VI, as noted in our . . . Findings Letter.
2 SAF 8.
3

The sum of these communications between the United States and Defendant

4 certainly satisfies the Title VI pre-suit notification requirement. The County, MCSO, and
5 Defendant Arpaio each were advised of the Title VI violations. The County in particular
6 was advised of its potential liability as the conduit of federal financial assistance to
7 MCSO, SAF 3, which the County knew entailed its contractual assurances to require
8 MCSOs compliance with Title VI. SAF 9-10. And as the County had made those
9 assurances, it was advised that what was needed was something that was transparent and
10 accountable, that showed that, the County was going to engage in the oversight and
11 accountability that its required to do. SAF 6.
12

Additionally, Defendant does not contest that MCSO received the requisite pre-

13 suit notice, and decisions of Arizona courts have established that MCSO is a part of the
14 County. See Braillard v. Maricopa Cnty., 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010)
15 (Although A.R.S. 11201(A)(1) provides that counties have the power to sue and be
16 sued through their boards of supervisors, no Arizona statute confers such power on
17 MCSO as a separate legal entity. (emphasis added)); id. (rejecting the argument that
18 MCSO has admitted in court proceedings that it is a separate entity from the County.
19 (emphasis added) (citation omitted)); Ekweani v. Maricopa Cnty., No. CV-08-155120 PHX-FJM, 2009 WL 976520, at *2 (D. Ariz. April 9, 2009) ([T]he office[] of the county
21 sheriff . . . [is] simply [an] administrative subdivision[] of the county.).
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B. Defendant identifies no prejudice from any alleged lack of notice.

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Tellingly, Defendant does not claim that it was unaware of the Title VI violations,

24 or that it was surprised by the suit. The purpose of the pre-suit notice requirement is to
25 avoid unnecessary invocation of formal enforcement procedures when voluntary
26 compliance can be secured, Adams v. Richardson, 480 F.2d 1159, 1163 (D.C. Cir. 1973),
27 but Defendant does not claim its voluntary compliance could have been secured, if only it
28 somehow had been provided with more notice. It alleges only a procedural[] fault and

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1 points to no prejudice whatsoever from any alleged lack of notice. Doc. 334, at 8
2 (claiming relief is procedurally precluded (because no notice was given)). Such
3 alleged failures of process, however, do not warrant dismissal of a claim when no
4 prejudice has resulted. See, e.g., Chan v. Socy Expeditions, Inc., 39 F.3d 1398, 1404
5 (9th Cir. 1994); United Food & Commercial Workers Int'l Union v. Alpha Beta Co., 736
6 F.2d 1371, 1382 (9th Cir. 1984) (so long as a party received sufficient notice, technical
7 faults with a summons do not warrant dismissal absent a showing of prejudice). Nor
8 can such an alleged deficiency of notice under Title VI support a grant of summary
9 judgment, inasmuch as any prejudice has been cured by discoveryDefendant knows
10 full well the nature of its Title VI violations, and it has had every opportunity to reach
11 voluntary compliance before and during the litigation of this matter. Cf. Fed. R. Civ. P.
12 12(h)(1) (defenses based on insufficient process are waived unless made by motion under
13 Rule 12(b)); 5B Charles Alan Wright, et al., Fed. Practice and Procedure 1353 (3d ed.
14 2008) (Since the defense of improper service of process involves a matter in abatement
15 and does not go to the merits of the action, it is technically not proper to raise it by a
16 summary judgment motion.).
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Thus, because the United States has satisfied both the letter and purpose of the

18 Title VI pre-suit notice requirement, Defendants motion on this ground must be denied.
19 II.

The United States Has the Authority to Enforce Title VI.

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Defendant claims that the United States lacks authority to enforce Title VI

21 directly, and that only private plaintiffs may do so. Doc. 334, at 4-8. 2 To the contrary,
22 however, the United States authority to enforce Title VI directly is confirmed by long23 standing precedent and the Department of Justices own interpretation of Title VI as the
24 agency charged with administering the Act.
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Defendants argument does not apply to Claims 1, 2, or 6, which seek to enforce

14141, or to Claim 5, which seeks to enforce Defendants contractual assurances to
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comply with Title VI.
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Title VI provides that compliance may be effected by fund termination or any

2 other means authorized by law. 42 U.S.C. 2000d-1. Interpreting this provision, the
3 Court of Appeals for the District of Columbia Circuit explained:
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Although fund termination was envisioned as the primary means of

enforcement, . . . Title VI clearly tolerates other enforcement schemes.
Prominent among these other means of enforcement is referral of cases to the
Attorney General, who may bring an action against the recipient. The choice
of enforcement methods was intended to allow funding agencies flexibility in
responding to instances of discrimination.

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9 Natl Black Police Assn, Inc. v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983); accord
10 United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir. 2002) (interpreting FERPA:
11 We believe that the [statutory language take any other action authorized by law]
12 expressly permits the Secretary to bring suit to enforce the FERPA conditions in lieu of
13 its administrative remedies); United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039,
14 1050 (5th Cir.1984) ([A]n agency may resort to any other means authorized by law
15 including the federal courts. (citations omitted)); A.R. ex rel. Root v. Dudek, No. 1316 61576-CIV, 2014 WL 3263047, at *5 (S.D.Fla. May 30, 2014) (Various courts have
17 interpreted the phrase by any other means authorized by law to mean that, if an
18 offending entity violates the statute and compliance is not forthcoming, the funding
19 agency may refer the matter to DOJ to enforce the statutes nondiscrimination
20 requirements in court. (citations omitted)); United States v. City & Cnty. of Denver, 927
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21 F. Supp. 1396, 1400 (D.Colo. 1996) (same).

Additionally, in issuing regulations and guidance pursuant to Title VI, the

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23 Department of Justice has interpreted the phrase any other means authorized by law to
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Defendant suggests that the mode of reasoning in these cases was expressly
26 rejected by the Supreme Court in Alexander v. Sandoval, Doc. 334, at 7 n.1, but
Sandoval is inappositeit concerned private rights of action under Title VI, not civil
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actions by the United States. See 532 U.S. 275, 287 (2001).
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1 permit civil actions to gain compliance. See 28 C.F.R. 42.108(a)(1) (explicitly

2 authorizing [a]ppropriate proceedings . . . to enforce any rights of the United States
3 under any law of the United States (including other titles of the Act), or any assurance or
4 other contractual undertaking); Department of Justice, Guidelines for the enforcement of
5 Title VI, Civil Rights Act of 1964, 28 C.F.R. 50.3, pt. I.B.1 (listing various
6 [p]ossibilities of judicial enforcement, including a suit to enforce compliance with . . .
7 statutory provisions requiring nondiscrimination and a suit for other relief designed to
8 secure compliance.). 4
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Courts must presume that Congress, when it left ambiguity in a statute

10 administered by an agency, understood that the ambiguity would be resolved, first and
11 foremost, by the agency, and desired the agency (rather than the courts) to possess
12 whatever degree of discretion the ambiguity allows. City of Arlington, Tex. v. F.C.C.,
13 133 S. Ct. 1863, 1868 (2013) (quoting Smiley v. Citibank (South Dakota), N. A., 517
14 U.S. 735, 740741 (1996)). Title VI directs agencies providing Federal financial
15 assistance to issue regulations to effectuate its nondiscrimination mandate. 42 U.S.C.
16 2000d-1. The Department of Justice not only has issued the regulations cited above as an
17 agency that disperses financial assistance, but is responsible for the review and approval
18 of all other agencies Title VI regulations, and for the coordination of the
19 implementation and enforcement by Executive Agencies of the nondiscrimination
20 provisions of Title VI. Exec. Order No. 12250, 45 Fed. Reg. 72995, 1-101, 1-201
21 (Nov. 2, 1980). Therefore, to the extent that there exists any ambiguity in Title VIs
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Defendant argues that this Guidance requires the United States to bring suit only against
a subgrantee of Federal financial assistance even when both the subgrantee and the
grantee itself are liable. Doc. 334, at 7-8. The text of the Guidance simply does not bear
that interpretation, and such an interpretation would be inconsistent with the Guidances
emphasis that several alternative courses of action are open, 28 C.F.R. 50.3(a), and
with the intention of Title VI to allow funding agencies flexibility in responding to
instances of discrimination. Velde, 712 F.2d at 575.

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1 authorization for the United States to pursue any other means authorized by law to
2 effectuate compliance, the reasonable interpretation of the Department of Justice that
3 Title VI permits civil actions to effectuate compliance must control. See City of
4 Arlington, Tex., 133 S. Ct. at 1868 (Statutory ambiguities will be resolved, within the
5 bounds of reasonable interpretation, not by the courts but by the administering agency.);
6 Dudek, 2014 WL 3263047, at *5-6 (holding that the Department of Justice reasonably
7 interpreted the phrase by any other means authorized by law to permit civil actions).
8

Finally, the Court need not reach the question whether Title VI permits civil

9 actions by the United States, because Defendant committed to contractual assurances that
10 it would comply with the nondiscrimination provisions of Title VI, SAF 9-12, and the
11 United States seeks to enforce those contractual assurances, as well. See Doc. 1,
12 Complaint, 181-85. The Title VI regulations explicitly authorize appropriate
13 proceedings to enforce those contractual assurances, 28 C.F.R. 42.108(a)(1), and even
14 without those regulations, the United States has inherent authority to bring civil actions to
15 enforce them. United States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 609 (5th Cir.
16 1980) (holding that the United States has an inherent right to sue to enforce contractual
17 assurances of compliance with Title VI, as it does to enforce the conditions associated
18 with any grant of Federal assistance). Defendants argument therefore must fail.
19 III.

The County Has the Authority to Redress the United States Injuries.

20

Defendant claims that the United States lacks standing to bring the claims against

21 it because Defendant does not have sufficient authority over the Sheriff to be able to take
22 any action that could redress the United States injuries. Doc. 334, at 8-12. Defendants
23 argument is wholly without merit.
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A.

The Court already has rejected Defendants argument.

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First, the Court already has considered and rejected this same argument in this

26 case. See United States v. Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1082-84 (D.
27 Ariz. 2012). The determination that the argument fails is therefore law of the case, and
28 should not be reconsidered. United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012)

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1 (Under the law of the case doctrine, a court is ordinarily precluded from reexamining
2 an issue previously decided by the same court, or a higher court, in the same case.
3 (internal quotation marks omitted)). For the [law of the case] doctrine to apply, the
4 issue in question must have been decided explicitly or by necessary implication in [the]
5 previous disposition. Id. (citations omitted).
6

In denying Defendants motion to dismiss, the Court considered the same

7 argument Defendant raises now: The County argues it should be dismissed because it
8 has no authority over the MCSO and Sheriff and therefore has no liability for, or power
9 to stop, the alleged discrimination by the MCSO and Sheriff. United States v. Maricopa
10 Cnty., Ariz., 915 F. Supp. 2d 1073, 1082 (D. Ariz. 2012). Defendant then moved the
11 court to reconsider its Order, specifically as to its argument that the United States lacks
12 standing because the County lacks sufficient authority over the Sheriff. Doc. 59, at 4.
13 The Court denied Defendants motion to reconsider [f]or the reasons stated in the United
14 States response to the Countys motion to dismiss, and the Courts order denying the
15 Countys motion to dismiss. Doc. 73, at 1. By necessary implication, Defendants
16 standing argument has been decided because it is inconsistent with the result reached by
17 this Court in denying Defendants motion to dismiss. Jingles, 702 F.3d at 502 (An
18 argument is rejected by necessary implication when the holding stated or result reached is
19 inconsistent with the argument.) (quoting United States v. Jordan, 429 F.3d 1032, 1035
20 (11th Cir. 2005)). No grounds exist to revisit the question now: the decision is not
21 clearly erroneous, Defendant points to no intervening controlling authority, and no
22 different evidence has been adduced that contravenes the clear state law controlling the
23 decision. Id. at 502-03. Defendants argument fails on this ground alone.
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B.

Defendant clearly has sufficient authority to provide some redress.

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Second, Defendants argument is simply false. It has sufficient authority over the

26 Sheriff to at least partially redress the United States injuries, and that satisfies the
27 redressibilty requirement of Article III standing. Meese v. Keene, 481 U.S. 465, 476-77
28 (1987); see Massachusetts v. E.P.A., 549 U.S. 497, 526 (2007) (holding that defendants

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1 ability to provide relief even to some extent suffices for standing). As set out in the
2 Complaint, the United States seeks an injunction requiring Defendant to adopt and
3 implement policies, procedures, and mechanisms to remedy the pattern or practice of
4 unlawful conduct described herein, and by specifically addressing, inter alia, . . . policies
5 and training; non-discriminatory policing and jail operations; . . . misconduct complaint
6 intake, investigation, and adjudication; . . . oversight and transparency; and community
7 engagement. Doc. 1, 193. Defendant Maricopa County has the authority to take
8 action addressing all of those areas. It may, for example, establish oversight mechanisms
9 to evaluate whether MCSO policies and practices are lawful. SAF 13. In fact, the
10 County already engages in such oversight to ensure MCSOs compliance with other laws,
11 SAF 13-15, and there is no lawful prohibition against the County engaging in such
12 oversight as to MCSOs compliance with the Federal laws at issue here, see SAF 17.
13 Defendant may institute policies and training providing for such oversight; establish
14 mechanisms to receive complaints from the community to inform its oversight activities;
15 and engage with the community through Board meetings and other events to ascertain
16 whether any MCSO practices may be creating risks of unlawful conduct by MCSO
17 personnel. SAF 13-18. If Defendant identifies any areas of concern, it may require
18 Defendant Arpaio to report to it under oath on what he will do to prevent unlawful
19 conduct from occurring, SAF 19; it may confer with the Sheriff and persuade him to
20 adopt best practices to avoid such unlawful conduct, SAF 20; it may notify the United
21 States that its subrecipient of Federal financial assistance is at risk of engaging in conduct
22 that violates Federal law so that the United States may take appropriate action, SAF 21;
23 and it may then cooperate with the United States in any subsequent investigation and
24 require MCSOs cooperation as well, SAF 22-23. 5
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By identifying these potential means of redress, the United States does not propose to
limit the scope of appropriate remedial measures that ultimately should be ordered based
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on the trial record.
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All of these actions are consistent with Defendants statutory authority. Under

2 A.R.S. 11-251, Defendant, through the Board of Supervisors, may [s]upervise the
3 official conduct of all county officers and officers of all districts and other subdivisions of
4 the county charged with assessing, collecting, safekeeping, managing or disbursing the
5 public revenues, see that such officers faithfully perform their duties and direct
6 prosecutions for delinquencies, and, when necessary, require the officers to renew their
7 official bonds, make reports and present their books and accounts for inspection. A.R.S.
8 11-251(1). As the Arizona Court of Appeals has held, [i]nasmuch as the Sheriff is a
9 county officer under A.R.S. s 11-401 subsec. A, par. 1. the County exercises supervision
10 of the official conduct of the Sheriff. Fridena v. Maricopa Cnty., 504 P.2d 58, 61 (Ariz.
11 App. 1972). Defendant also may examine the Sheriffs accounts and performance,
12 A.R.S 11-251(10), and require him to report to the Board under oath on any matter
13 connected with the duties of his office, id. 11-253.
14

Additionally, Defendant determines the budget of the Sheriff, A.R.S. 11-

15 201(A)(6), and need provide only for actual and necessary expenses incurred by the
16 sheriff in pursuit of criminals, for transacting all civil or criminal business and for service
17 of all process and notices, id. 11-444(A); see Gregory v. Thompson, 159 Ariz. 512,
18 514-15 (Ariz. Ct. App. 1989) (applying identical language concerning constable, holding
19 that a County board need not provide expenses for activities it determines to be
20 unnecessary). Expenses incurred in unlawful activities cannot be considered necessary.
21 See Pinal Cnty. v. Nicholas, 179 P. 650, 651-52 (Ariz. 1919) (concerning a Countys duty
22 to pay necessary expenses of the County Attorney, the board of supervisors is charged
23 with the duty of supervising all expenditures incurred by him, and rejecting payment of
24 those which are illegal or unwarranted). Indeed, during the United States Title VI
25 investigation, with which MCSO initially refused to cooperate, former counsel for the
26 County, Thomas Irvine represented to the United States that the County would instruct
27 MCSO that it may not expend any public funds, including on outside counsel, to resist
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1 any DOJ Title VI inquiry, because resisting a Title VI inquiry is outside the scope of
2 the employment of any elected or appointed official. SAF 23. 6
3

The factual record developed during discovery confirms the Countys sufficient

4 oversight authority over the Sheriff. SAF 13-26. For example, former County
5 Manager David Smith testified that the County Board of Supervisors has a major
6 influence over the financing of the Sheriffs Office, and the final say on his budget,
7 which it could cut and require the Sheriff to stay within, SAF 24; that the County could
8 and did use its budgeting authority to persuade and bargain with the Sheriffs office to
9 affect matters otherwise within the Sheriffs control, SAF 20; that the Board has the
10 power to put the Sheriff on a line-item budget if it is aware that MCSO is in violation of
11 policy or law, SAF 17; and that the County Board can influence MCSO through its
12 power to issue budget variance reports, withhold approval over capital expenditures,
13 withhold improvements or changes for technology, and withhold salary increases or other
14 benefits, id. County Supervisor Andrew Kunasek confirmed that the Board can order
15 special audits, reject proposed budgets, use audits to evaluate MCSO, and subpoena
16 MCSO for information. SAF 25. County Supervisor Mary Rose Wilcox testified that,
17 upon receiving a citizen complaint, the Board could ask the County Manager to look into
18 the problem and provide the Board with a written response on what he found. SAF 18.
19
20
21

Irvine also represented to the United States that, [t]he Maricopa County Board of
22 Supervisors has supervisory powers concerning the sheriffs office. SAF 22.
23 Defendants reliance on Hounshell v. White, 202 P.3d 466 (Ariz. Ct. App. 2009), for its
assertion that it has no supervisory authority over the Sheriff, is misplaced. The Courts
24
decision in Hounshell was limited to the question of whether the County Board of
25 Supervisors could discipline classified employees of county officers. While the Court
26 held that the Sheriff had exclusive authority to hire and fire deputies, the Court
recognized the supervisors authority to supervise and discipline county officers in other
27
areas, including under 11-251(1). Id. at 470.
28

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Defendants ability to take all of these actions is further corroborated by

2 Defendants June 2011 Resolution of the Board of Supervisors of Maricopa County

3 Concerning the Oversight and Review of the Maricopa County Sheriffs Department.
4 SAF 13. That Resolution recognizes the powers and duties of the Maricopa County
5 Board of Supervisors (Board) relating to oversight and budget authority as provided in
6 the same statutes cited above, SAF 13, and directs the Countys Office of Management
7 and Budget to perform oversight functions and review of MCSO concerning a wide
8 variety of MCSO practices. SAF 13-15.
9

Finally, Defendant Maricopa County acknowledges its authority to approve or

10 deny MCSO applications for Federal financial assistance. SAF 26. Significantly,
11 Defendant has continued to seek Federal grant applications on behalf of MCSO long after
12 the United States notified the County in March 2009 that it was commencing an
13 investigation of MCSO for alleged patterns or practices of discriminatory police practices
14 and national origin discrimination. SAF 9. Each time it did so, the County committed
15 to contractual assurances that it would comply with Title VI and require MCSOs
16 compliance with Title VI as well. SAF 10. Indeed, the County signed its latest such
17 contractual assurance in June 2014, a year after this District Court held that Defendant
18 Arpaio and MCSO were engaged in widespread unlawful racial discrimination.
19 SAF 11. The Countys repeated commitments to abide by Title VI and require
20 MCSOs compliance as well, while fully aware of the potential racial discrimination by
21 MCSO, evince the Countys understanding that it does indeed have the authority to
22 exercise meaningful oversight over the Sheriff.
23

Both Arizona law and the factual record in this case establish beyond question that

24 Defendant Maricopa County has authority to exercise meaningful oversight over MCSO
25 sufficient to provide some redress for Defendants violations of Federal law. The United
26 States therefore has standing to seek relief from the County, and Defendants argument to
27 the contrary must fail. Additionally, to the extent Defendant disputes the factual record
28 confirming that it has sufficient oversight authority over the Sheriff, then a genuine

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1 dispute as to material fact remains, which precludes summary judgment. Fed. R. Civ. P.
2 56(a).
3 IV.

The County Can Be Liable Under 14141 and Title VI.

Defendant argues that it cannot be liable under the Violent Crime Control and Law

5 Enforcement Act of 1994, 42 U.S.C. 14141, or Title VI because those laws do not
6 allow the Sheriffs liability to be imputed to the County. Doc. 334, at 12-16. 7 Here,
7 too, Defendants argument must fail under the law of the case doctrine because this
8 Court already has considered and rejected it in this same case.
9

As this Court already has held: Under Arizona law, the Sheriff has final

10 policymaking authority with respect to County law enforcement and jails, and the County
11 can be held responsible for constitutional violations resulting from these policies. The
12 policymaker analysis also supports Plaintiff's Title VI claims against the County because
13 Title VI reaches the actions of relevant decisionmakers. United States v. Maricopa
14 Cnty., Ariz., 915 F. Supp. 2d 1073, 1084 (D. Ariz. 2012) (citing Pers. Adm'r of Mass. v.
15 Feeney, 442 U.S. 256, 279 (1979)). As the Court noted in reaching this decision, courts
16 routinely find the Sheriff is the final policymaking authority for the County in analogous
17 1983 matters id. at 1083, and both the Arizona Court of Appeals and this District
18 Court have held that Arizona Counties can be held liable for the Sheriffs discretionary
19 acts related to jail management and law enforcement policy. Id. (citing Flanders v.
20 Maricopa County, 54 P.3d 837 (Ariz. Ct. App. 2002) and Guillory v. Greenlee County,
21 No. 05-cv-352, 2006 WL 2816600 (D. Ariz. Sept. 28, 2006)).
The Defendants argument against policymaker liability therefore has been

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23 considered and explicitly rejected by this Court in this same case. That determination is
24 law of the case, and should not now be revisited. Jingles, 702 F.3d at 499. The Ninth
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Defendants argument does not apply to Claim 5, by which the United States seeks to
enforce the Countys contractual assurances to comply with Title VI and require MCSOs
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1 Circuit has recognized three circumstances that may warrant reconsideration of a prior
2 decision in the same case: (1) the decision is clearly erroneous and its enforcement
3 would work a manifest injustice, (2) intervening controlling authority makes
4 reconsideration appropriate, or (3) substantially different evidence was adduced at a
5 subsequent trial. Id. at 502-03 (citations omitted). None of them applies here. The
6 Courts decision is not clearly erroneous but well supported by the law. What Defendant
7 fails to understand is that policymaker liability is not a form of indirect liability by which
8 the County can be held liable for the misdeeds of another actor; rather, because the
9 Sheriff is a County officer with policymaking authority over law-enforcement practices,
10 the Sheriffs actions and policies in that area are the Countys own actions and policies.
11 See Blackburn v. Snow, 771 F.2d 556, 571 (1st Cir. 1985) (holding county liable for jail
12 practices of its sheriff and noting that there could hardly be a clearer case of county
13 liability). 8 Moreover, Defendant cites to no intervening authority or new evidence that
14 would make reconsideration appropriate.
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Defendant does not challenge the sufficiency of the evidence to establish Federal

16 law violations resulting from the policies of the Sheriff, only that, as a matter of law,
17 14141 and Title VI do not permit imputation of liability to the County. To the extent
18 that Defendant argues that, as a factual matter, Defendant could not engage in the
19 unlawful conduct because it lacked sufficient authority to do so, that argument is rebutted
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Defendant did not seek leave to file a motion that exceeds the 17-page limit prescribed
22 by local rule, but on page 18 of its motion, Defendant cites Grech v. Clayton Cnty., Ga.
23 in support of its argument that policymaker liability does not apply because Defendant
cannot control the Sheriffs policies and practices. Doc. 334, at 18. Grech is inapposite.
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There, Georgia state law afforded counties none of the authorities to oversee sheriffs that
25 Arizona law affords Defendant here, nor did any Georgia state court decision recognize
26 that counties can be liable for the discretionary acts of sheriffs, in contrast to the Arizona
state court decisions relevant here. See Grech v. Clayton Cnty., Ga., 335 F.3d 1326,
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1332-39 (11th Cir. 2003).
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1 by the law and evidence establishing the Countys clear authority to take action to guard
2 against violations of Federal law by the Sheriff (see Section III, above), and a genuine
3 dispute as to material facts concerning Defendants authority precludes summary
4 judgment on this argument. Fed. R. Civ. P. 56(a).
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For the foregoing reasons, and the reasons stated in the Courts Order denying

6 Defendants motion to dismiss and rejecting this argument, and in the United States
7 Response to Defendants motion to dismiss, Defendants argument concerning
8 imputation must fail.
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Conclusion
For the foregoing reasons, the United States respectfully submits that Defendants

11 Motion for Summary Judgment must be denied.

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Respectfully submitted,
MARK KAPPELHOFF
Deputy Assistant Attorney General
Jonathan Smith
Chief, Special Litigation Section

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/s/ Edward G. Caspar

Edward G. Caspar (MA Bar No. 650566)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
T. Jack Morse (GA Bar No. 449134)
Puneet Cheema (CA Bar No. 268677)
Brian Buehler (NY Bar No. 4893665)
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Tel. (202) 514-2000/Fax (202) 514-6273
edward.g.caspar@usdoj.gov

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ATTORNEYS FOR THE UNITED STATES

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CERTIFICATE OF SERVICE
I certify that on November 14, 2014, I used the Courts CM/ECF system to serve a

5 true and correct copy of the foregoing filing on counsel of record.

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/s/ Edward G. Caspar

EDWARD G. CASPAR

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